The Alien Tort Statute (ATS) provides that 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." (1) Seldom have so few words sparked so much controversy. ATS suits over the past decade and a half have invited repeated objections from the executive branch, from numerous foreign sovereigns, and from a small but vocal group of (mostly dissenting) court of appeals judges. In Kiobel v. Royal Dutch Petroleum Co., (2) the Supreme Court is now poised to decide whether to allow the modern wave of ATS litigation that has engendered this controversy to proceed unabated, or whether to severely limit its scope.
How should the Court approach its analysis? I will attempt to provide a slightly more detailed answer below, but here is the short version: it is by now a well-settled proposition that the first (and often the last) place to look in interpreting the scope of a federal statute is its language. Not so with the ATS. The Supreme Court held in Sosa v. Alvarez-Machain (3) that the ATS itself is only a jurisdictional statute that does not itself establish a cause of action. (4) An unusual jurisdiction provision, to be sure, since it authorizes courts to imply under federal common law private causes of action for a limited set of universally-accepted, concretely-defined norms of customary international law, presumably including modern human rights norms.
Nevertheless, Sosa makes clear that the causes of action available to aliens under the ATS are not defined by the terms of that statute--indeed, with the important exception of the Torture Victim Protection Act (TVPA), (5) which is discussed below, Congress has never considered what the scope of a private action to enforce international human fights norms should be. Rather, the scope of ATS actions is fully in the hands of the courts exercising common law authority. Thus, the proper frame for the question now before the Court in Kiobel, I argue, is not whether the ATS itself provides for corporate liability, or extends beyond the nation's borders. Rather, the Court can narrow the question significantly by focusing on whether federal courts should, without any Congressional guidance, imply a private cause action for the type of ATS suits that have caused the international tension noted above: actions against a private defendant when the underlying conduct that caused the plaintiffs' injury is that of a foreign sovereign on its own soil concerning its own citizens. For the reasons explained below, I believe the answer is "no."
Originally, Kiobel formally presented only the question of whether corporations may be sued under the ATS for alleged human rights violations. But as the Supreme Court came to understand during or after the oral argument in Kiobel, to ask solely whether corporations can be held liable in ATS litigation is to ask the wrong question (or at least to limit the question too narrowly). While the question of corporate ATS liability can certainly be considered as a distinct doctrinal, the history of modern ATS litigation demonstrates that the corporate liability question is in fact inextricably linked to the additional broader question that the Supreme Court asked the Kiobel parties to brief: whether and under what circumstances can courts recognize under federal common law a private action based on conduct occurring abroad. While modern ATS human rights litigation has almost uniformly concerned alleged human rights violations occurring abroad, it did not begin to cause serious foreign policy friction until corporations started being named as defendants. The availability of a cause of action against corporations under the ATS has invited precisely the sort of sensitive, extraterritorial litigation that is destined to cause the type of international friction that has characterized modern ATS litigation. A short survey of the history of modern ATS litigation helps to demonstrate the point. …