Alien Tort Statute
The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ATCA), originally appeared as a brief sentence in Section 9 of the first Judiciary Act of 1789, which created the U.S. judicial court system. (Tort refers to that body of the law that allows an injured person to obtain compensation from the person who caused the injury.)
The ATS states:
"[t]he 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."
The thirty-three words in the ATS originally had been intended to protect American ambassadors and combat piracy, while indicating that jurisdiction for these alien torts would reside with the federal district courts. The act was largely dormant until 1982, when the 2nd Circuit in Filartiga v. Pena-Irala established the modern conception of the act, expanding its application to "a far-reaching cause of action on behalf of aliens for violations of international law anywhere in the world."
Following this ruling, over the course of the next ten years a number of cases were filed by human rights activists alleging "violations of customary international law." Collection of monetary damages in these cases was rare. However, in the 1990's, a number of aggressive contingency fee plaintiff attorneys, including Motley Rice, began suing deep-pocketed corporations, including Unocal, Chevron, Texaco, Union Carbide, Exxon Mobil, Gap Inc., Coca-Cola, and Del Monte, alleging human rights violations and liability under the ATS.
"While human rights advocates and plaintiffs' lawyers may see great promise in the ATS as a way to vindicate human rights worldwide, others warn that it could easily spiral out of control, resulting in a deluge of foreign cases in federal courts, to the possible detriment of U.S. foreign policy interests," states a 2003 legal analysis by the Congressional Research Service.
In 2004, the Supreme Court agreed to review the ATS in a landmark case, Sosa v. Alvarez-Machain. The case stemmed from the kidnapping in Mexico by operatives working for the U.S. Drug Enforcement Agency of a Mexican national suspected in the torture death of DEA Agent Enrique Camarena-Salazar.
In a ruling that clearly restricted the applicability of the ATS, the Supreme Court decided the following:
(1) The ATS is a jurisdictional statute creating no new causes of action beyond the "modest number of international law violations thought to carry personal liability at the time." In essence, the ATS doesn't apply beyond customary, well-defined and accepted international laws of nations.
(2) Federal judges should exercise "great caution in adapting the law of nations to private rights," and have "no congressional mandate to seek out and define new and debatable violations of the law of nations." ATS did not give federal judges carte blanch to create innovative legal authorities based on any treaty or international convention established over the ensuing two centuries.
(3) "The potential implications for the foreign relations of the United States of recognizing private causes of action for violating international law should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." In other words, foreign policy is the province of the Legislative and Executive Branches of the United States, not judges and contingency fee plaintiffs' attorneys.
Nevertheless, subsequent Circuit Court decisions have been more permissive. In August 2006, a three-judge Ninth Circuit panel issued a decision in Sarei v. Rio Tinto that concluded that lower courts retain paramount authority to decide whether cases are judicable, even when the Executive Branch filed a foreign policy "statement of interest" (SOI).
It is worth noting that in the Sarei ruling the Ninth Circuit ignored the Supreme Court's instruction that lower courts apply the ATS restrictively in cases that affect the conduct of foreign policy, and that lower courts "give serious weight" to statements of interest by the U.S. Government.
Confronted with the defiant decision by the three-judge Ninth Circuit panel in Sarei, the Justice Department, joined by the State Department filed an amicus brief supporting panel rehearing by the Ninth Circuit. The issue has yet to be resolved.
At present, the status of ATS claims is uncertain. It is clear that the Supreme Court wants to restrict the scope of the ATS, and that the Government is determined to deter the Ninth Circuit from ignoring the restrictive legal guidelines imposed on lower courts by the Supreme Court in Sosa.
Because of these seeming inconsistencies, the door has remained ajar for the plaintiffs' bar to continue targeting ATS lawsuits as a source of global class action liability and to continue experimenting with novel causes of action.
In an effort to resolve the issues and restrict the ability of plaintiffs' attorneys to meddle in foreign affairs, Senator Dianne Feinstein introduced the "Alien Tort Statute Reform Act" in 2005. Her proposed measure would have amended the ATCA by:
- Providing limitations on actionable alien tort claims to allegations of torture, extrajudicial killing, genocide, piracy or slave trading;
- Providing prohibitions on claims where a foreign state was responsible for committing the tort in question within its sovereign territory;
- The establishment of specific intent as the standard of liability;
- The requirement that the claimant exhaust adequate and available remedies in the place where the alleged tort occurred;
- Allowing the U.S. President (or a designee) to stop an alien tort action if he certifies in writing that the case will have a negative impact on U.S. foreign policy interests;
- Prohibiting contingency fee arrangements;
- The establishment of a 10-year statute of limitations for all alien tort claims.
But Feinstein withdrew the measure within a week saying it needed more study.
