Academic journal article Vanderbilt Journal of Transnational Law

Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches

Academic journal article Vanderbilt Journal of Transnational Law

Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other Approaches

Article excerpt

The 2008 Jonathan I. Charney Lecture in International Law

Presented at Vanderbilt University Law School on April 11, 2008

Thank you very much for that kind introduction. And thank you all for having me here at Vanderbilt. I'm delighted to have the opportunity to visit this great university and law school. And I'm particularly grateful to Dean Rubin, and to Professor Newton for arranging my visit. I'd also like to thank Mrs. Sharon Charney for endowing this lecture in honor of her late husband Professor Jonathan I. Charney. As you know, Professor Charney taught at Vanderbilt for many years. He was well known to the Legal Adviser's office as one of the world's foremost experts on maritime law and as author of a leading treatise on the subject. He also served on the original U.S. delegation to the UN Conference on the Law of the Sea.

U.S. foreign policy--under every Administration--involves promoting respect for human rights around the world. Most of you probably know that the State Department spends a great deal of time and effort abroad, persuading foreign governments to change their human rights behavior and administering programs to advance the cause of human rights. What many of you may not be aware of, though, is that we are now quite frequently occupied domestically with suits by foreign plaintiffs in U.S. courts--often arising from conduct that occurred in other countries and has no significant connection to the U.S., that may not be consistent with our governmental policies for promoting human rights.

That is where I will focus my remarks today--in particular, on the Alien Tort Statute, (1) or ATS, a nearly 220-year-old statute that has been interpreted to allow foreign plaintiffs to bring suit in U.S. courts for violations of international law. The ATS was the subject of a seminal Supreme Court decision in 2004, Sosa v. Alvarez-Machain, (2) which outlined the limited reach of the ATS. Still, ATS litigation continues to present complications for U.S. foreign policy and our efforts to promote human rights.

Let me make several observations regarding the ATS at the outset. The first is that ATS litigation continues largely unabated, despite the Supreme Court's attempt in Sosa to rein it in. Second, the ATS has given rise to friction, sometimes considerable, in our relations with foreign governments, who understandably object to their officials or their domestic corporations being subjected to U.S. jurisdiction for activities taking place in foreign countries and having nothing to do with the United States. Third, the development of the scope of the ATS has largely been left to litigants and the courts, without formal involvement from Congress and largely contrary to the views of the Executive. This has been a problem, not least because many recent ATS suits have tended to implicate important aspects of U.S. foreign policy. In the end, there are good reasons for limits on the scope of the ATS, through courts exercising restraint or, if necessary, through legislation. We need to ensure the ATS does not complicate international efforts by the political branches to promote human rights abroad, a cause to which the United States is deeply committed.

But first, some background on the statute. Many of you are likely familiar with the Alien Tort Statute, sometimes referred to as the Alien Tort Claims Act. And you may already know that this is one instance where reading the text of the statute doesn't get you very far. In its entirety, the statute reads: "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (3) The ATS was included by the First Congress in the Judiciary Act of 1789, but in its first 190 years, the statute provided jurisdiction in only two cases, (4) and why it was enacted is something of a mystery. This led Judge Friendly famously to call the ATS a "legal Lohengrin," because "no one seems to know whence it came. …

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