The Curious History of the Alien Tort Statute

Notre Dame Law Review Volume 89 | Issue 4 3-2014 The Curious History of the Alien Tort Statute Beth Stephens Rutgers School of Law, Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the International Law Commons Recommended Citation 89 Notre Dame L. Rev. 1467 (2014). This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . Article 1 \\jciprod01\productn\N\NDL\89-4\NDL401.txt unknown Seq: 1 8-MAY-14 8:44 ARTICLES THE CURIOUS HISTORY OF THE ALIEN TORT STATUTE Beth Stephens* INTRODUCTION The Alien Tort Statute (ATS)1 has provoked extensive, passionate debate, despite the relatively modest practical import of ATS cases. The outsized controversy surrounding the statute reflects its role in a longstanding struggle for control over the interpretation and enforcement of international law, and over whether that law will serve as a meaningful restraint on the actions of states, state officials, and corporations. As a result, the history of the ATS offers a unique window into the modern history of international law. Since the 1980 Filartiga decision first applied the eighteenth century statute to modern human rights claims,2 only a handful of lawsuits have produced enforceable judgments for plaintiffs, while another handful settled, and a few dozen cases led to judgments that vindicated the plaintiffs’ claims, but could not be enforced. Despite this limited litigation success, government officials, scholars, litigators, human rights activists, business leaders,  2014 Beth Stephens. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Professor, Rutgers Law School. I have participated on the side of plaintiffs in many of the cases described in this Article, and currently represent the plaintiffs in an Alien Tort Statute claim pending in the Southern District of Florida, Mamani v. Sánchez-Berzaı́n. Thanks to William Aceves, Doug Cassel, William Casto, Judith Chomsky, William Dodge, Jean Galbraith, David Noll, and colleagues at a Rutgers Law School faculty colloquium for helpful comments on an earlier draft of this Article. And many thanks to Daniel Palmisano and Michael Perez for excellent research assistance. 1 The Alien Tort Statute, 28 U.S.C. § 1350 (2006), states in full: “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.” Congress enacted the ATS in 1789, as part of the Judiciary Act that established the new federal court system. Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 76–77 (codified as amended at 28 U.S.C. § 1350 (2006)). 2 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). 1467 \\jciprod01\productn\N\NDL\89-4\NDL401.txt 1468 unknown Seq: 2 notre dame law review 8-MAY-14 8:44 [vol. 89:4 and law students have written about the statute,3 sought to replicate or repeal it, and argued about its impact. The Supreme Court decided ATS claims three times in the past ten years, in cases that attracted scores of amicus briefs. The executive branch has filed briefs or statements of interest in ATS cases at all levels of the federal court system. Business leaders assert that the ATS could derail the international economy, while human rights advocates praise the statute as a significant mechanism to attain human rights accountability. The uproar surrounding the ATS reflects its position at the intersection of highly contentious modern disputes about international law. By authorizing private parties to bring claims for violations of human rights norms, ATS litigation institutionalizes a role for individuals and other non-state actors in the definition and implementation of international law, a role that, traditionally, states and state-run international organizations have monopolized. By raising such issues in the federal courts, modern ATS cases trigger highly contested questions about the roles of the three branches of the federal government in regulating the incorporation of international law into U.S. law. Despite its implications for these broader questions, however, the ATS remained relatively noncontroversial as long as the practical implications of the cases seemed minimal. However, when ATS claims began to target transnational corporations and government officials from the United States and its allies, both sectors reacted as if the very future of global capitalism and diplomatic relations were at risk. Debates about the ATS mirror debates about international law. Both trigger concerted opposition when they threaten to serve as a viable constraint on government and corporate conduct. This Article offers a history of the ATS that analyzes the cases, the doctrinal debates, and the responses of human rights groups, business interests, and government actors in the context of the larger battle over international law and human rights. The story begins in Part I with one of the few noncontroversial aspects of the statute: the well-known history of the ATS as a reflection of the Framers’ decision to grant the national government control over foreign affairs, including enforcement of at least some norms of international law. The statute was largely ignored for almost 200 years, until, with the human rights movement of the late twentieth century as a backdrop, federal court decisions recognized the ATS as a means to enforce human rights norms. Part II describes the rapid expansion of human rights activism in the 1970s, the Filartiga decision, and the relatively uncontroversial ATS cases that followed. Although there were dissenting voices, early ATS cases and commentators generally welcomed ATS litigation as a key part of a movement to offer 3 Over 4000 law review articles have cited the statute since 1980. The Westlaw “Journals and Law Reviews” database provides a rough estimate (although it is less accurate for the 1980s, because it does not include early volumes of some international law journals): 153 hits for “alien tort” as of 1990, 807 as of 2000, 3376 as of 2010, and 4244 as of January 5, 2014. \\jciprod01\productn\N\NDL\89-4\NDL401.txt 2014] unknown Seq: 3 the curious history of the ats 8-MAY-14 8:44 1469 redress, accountability, and justice to victims and survivors of human rights abuses. The honeymoon came to an end in the late 1990s, when a concerted critique of the doctrine underlying the cases coincided with a string of lawsuits against more powerful defendants: multinational corporations, officials from foreign states with political clout in the United States, and U. (...truncated)