The Alien Tort Statute: United States and Jus Cogens

The Alien Tort Statute: United States and Jus Cogens

The Supreme Court opened its Term Monday with debate on the limits of the Alien Tort Statute in the case of Kiobel v. Royal Dutch Petroleum.

The Alien Tort Statute (ATS) also called the Alien Tort Claims Act (ATCA) was part of the Judiciary Act of 1789 and states: “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.” 28 U.S.C. § 1350.

In 1980, in Filartiga v. Pena-Irala the Second Circuit Court of Appeals opened the door for US courts to hear human rights cases brought by foreign citizens for conduct committed outside the US.  630 F.2d 876 (2d Cir. 1980).

In dicta, the court wrote:

In the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights and particularly the right to be free of torture. . . . Indeed, for purposes of civil liability, the torturer has become — like the pirate and slave trader before him — hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.

Id. at 890.

In 2004, in Sosa v. Alvarez-Machain the Supreme Court took up the ATS for the first time.  It concluded that the statute did not create a cause of action, but “furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” 542 U.S. 692, 720 (2004). The Court left the door “ajar subject to vigilant doorkeeping.” Id. at 725.

In Kiobel the Court has an opportunity to close the door (in the US) on victims of human rights abuses.

Researching the ATS is easy (if you don’t mind reading about man’s inhumanity to man).

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About: Lisa Junghahn

business & corporate law: corporations, securities regulations, capital markets, financial institutions, bankruptcy courts, tax laws, M&A transactions, antitrust laws and small companies
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