Foreigners, US Law and the Courts – The Alien Tort Claims Act

The Alien Tort Claims Act – Foreigners, US Law and the Courts

The so-called Alien Tort Claims Act (also called the Alien Tort Act, Alien Tort Statute, or Alien Tort Provision) was enacted in 1789 as part of the Judiciary Act. It provides:
“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

History of the Act and Recent Issues and Cases

For a comprehensive history of this Act and recent issues and cases relating to it see USA*Engage.

Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain

Via SCOTUSBlog we are directed to Charles Lane of the Washington Post and his article on the consolidated cases of Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain, for which the US Supreme Court has just granted certiorari review.

Lane writes, from one particular point of view:
“The Supreme Court announced yesterday that it will consider whether U.S. law permits the federal government to track down alleged criminals or terrorists and arrest them abroad, with or without the other country’s consent.”

In her New York Times article of December 2, 2003, “Reviewing Foreigners’ Use of Federal Courts”, Linda Greenhouse writes regarding this same matter from the opposite political perspective:
“Urged by the Bush administration to curb the growing recourse to United States courts as forums for international human rights cases, the Supreme Court agreed on Monday to review the use of a once-obscure 18th-century law as the jurisdictional basis for such lawsuits [i.e. suits in US courts by foreigners].”

What is at Stake in These Cases

For numerous reasons, the decision of the US Supreme Court in these Alvarez-Machain cases is very important.

As Lane writes about the upcoming Supreme Court decision on these consolidated cases:
“The court’s eventual opinion might determine not only how much power the federal courts have to limit the tactics federal law enforcement may use to pursue wanted terrorists … but also how much power they have to hold U.S. and other corporations accountable for their foreign conduct.”

Update, December 8, 2005

This case was unanimously decided by the Supreme Court on June 29, 2004, in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

Jonathan H. Adler at the National Review online writes as follows on July 1, 2004 in “Sosa Justice: The Supreme Court cuts off international-law suits – this time”.

“On June 29, the last day of its 2003-04 term, the Supreme Court unanimously rejected Alvarez-Machain’s claim. In Sosa v. Alvarez-Machain, the Court held that the ATS provided an insufficient basis for the suit, even if abducting the doctor from Mexico violated customary norms of international law. The primary opinion, written by Justice David Souter, made clear that only a very limited set of well-established, clearly defined violations of international law can be the basis for ATS suits [Alien Tort Statute (ATS), otherwise known as the Alien Tort Claims Act (ATCA)]. At the time the Congress enacted the ATS, this would have included only three crimes: violating safe conduct, infringing the rights of ambassadors, and piracy. As Souter noted, “It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs that was probably on the minds of the men who drafted the ATS with its reference to tort.”

With this language the Souter opinion rejected the claim — put forward by many legal academics and activists — that the ATS authorizes federal courts to hear cases alleging nearly any torturous violation of international law. The mere recitation of principles in various international agreements, United Nations General Assembly resolutions, or conference consensus statements is insufficient basis to establish a claim under the ATS. Only norms of international law “accepted by the civilized world and defined with a specificity comparable” to the three aforementioned offenses recognized in the 18th century will do the trick. Even prohibitions contained in treaties signed and ratified by the United States may be unenforceable without further action by Congress to provide a cause of action in U.S. courts. In Alvarez-Machain’s case, neither the Universal Declaration of Human Rights nor the International Covenant on Civil and Political Rights, which the United States both signed and ratified, was sufficient to create a cause of action for unlawful detention under international law. This is significant because environmental and human-rights activists have launched dozens of suits in recent years against foreign nationals, governments, and multinational corporations alleging violations of international law based on all manner of international legal instruments. In this respect, the decision is quite good.”

See also:

Cornell Law – LII
Duke Law

Sosa v. Alvarez-Machain, 542 U.S. 692, 2004.) 18 Geo. Int’l Envtl. L. Rev. 109-147 (2005)