The Alien Tort Statute: Legislative History and Executive Branch Views

Publication Date: October 2003

Publisher: Library of Congress. Congressional Research Service

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Research Area: Law and ethics

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Abstract:

The Alien Tort Statute (ATS), also known as the Alien Tort Claims Act (ACTA), provides that "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 Second Circuit's 1980 decision in Filartiga v. PenaIrala, a case involving torture and wrongful death that occurred in Paraguay, opened the door for the use of the ATS for aliens to assert jurisdiction in federal court for human rights violations and other violations of international law. Since 1980, the ATS has been asserted in numerous cases, with varying success, involving issues ranging from environmental torts and expropriation to torture and genocide. 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. Of particular concern to many is the apparent rise in litigation against U.S. companies operating abroad that are accused of complicity in human rights abuses committed by the governments of their host countries.

The Bush Administration is seeking to overrule Filartiga and its progeny, and has set forth its interpretation of the ATS in an amicus brief to the 9th Circuit in Doe v. Unocal, in which plaintiffs, citizens of Burma, filed suit against Unocal, a U.S. corporation, for its alleged complicity with the Burmese military to use forced labor in connection with the company's oil pipeline project, as well as other human rights abuses allegedly committed by the military.

The ATS originated as part of the Judiciary Act of 1789. This report traces the legislative history of the Alien Tort Statute and summarizes some of the theories that have been put forth to explain the congressional intent behind its enactment. These include the theory that its purpose was to give federal courts jurisdiction over matters concerning foreigners and foreign affairs, that the statute was meant to preclude the denial of justice to aliens (possibly a cause for war), or to address a few offenses against the law of nations that could be committed by individuals (as opposed to States), such as piracy or the violation of diplomatic privileges. Also noted are the theories that the ATS is an assertion of universal jurisdiction, or that it was meant to cover only a limited type of offenses related to the law of prize. The report provides a historical overview of court decisions interpreting the ATS, followed by an overview of the positions taken by the U.S. government in published opinions of the Attorney General and in court briefs related to ATS claims.