Alien Tort Statute (ATS) (28 U.S.C. § 1350)
Citation
28 U.S.C. § 1350 (originally enacted as § 9 of the Judiciary Act of 1789)
Statutory Text
“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.”
Historical Background and Dormancy
The ATS was enacted as part of the First Congress’s Judiciary Act of 1789. Its precise purpose remains debated. The statute lay largely dormant for nearly two centuries, with very limited invocation.
Filartiga v. Pena-Irala (2d Cir. 1980): The statute was revived when the Second Circuit held that torture of a Paraguayan citizen by a Paraguayan official violated the law of nations, and the ATS provided jurisdiction for an alien to sue in U.S. federal court. The court treated international human rights norms as part of the evolving law of nations. This decision opened the door to a wave of ATS litigation in the 1980s and 1990s.
Key Supreme Court Decisions
Sosa v. Alvarez-Machain (2004)
The Supreme Court clarified the nature and scope of the ATS:
- The ATS is purely jurisdictional — it does not itself create causes of action.
- Federal courts may recognize causes of action for violations of international law norms that are specific, universal, and obligatory, and comparable in definiteness to the 1789 paradigm cases (violations of safe conduct, infringement of rights of ambassadors, piracy).
- Courts should exercise great caution in extending ATS causes of action to new norms; any new private right of action must have a sufficiently definite content and acceptance among civilized nations.
- Left open the question of corporate liability under the ATS.
Kiobel v. Royal Dutch Petroleum Co. (2013)
The Supreme Court applied the presumption against extraterritorial application to the ATS:
- ATS claims must “touch and concern” the territory of the United States with sufficient force to displace the presumption against extraterritoriality.
- Claims by foreign plaintiffs against foreign defendants for violations committed entirely abroad — even against corporations with some U.S. presence — cannot proceed under the ATS.
- The mere corporate presence or listing on a U.S. stock exchange is insufficient to overcome the presumption.
Nestlé USA v. Doe (2021)
Further narrowed the domestic conduct exception:
- Even if some domestic conduct is present, the specific conduct giving rise to the claim (i.e., the relevant conduct underlying the tort) must occur in the United States — general corporate decision-making in the U.S. is insufficient.
- Domestic conduct must constitute the specific actionable conduct, not merely background corporate activity.
- Did not resolve the question of corporate liability under the ATS (that issue was addressed through extraterritoriality analysis instead).
Remaining Scope of ATS
After Kiobel and Nestlé, viable ATS claims are limited:
- Cases where the tortious conduct itself occurred in the United States.
- Claims against individual foreign defendants physically present in the U.S. (though corporate liability remains uncertain in some circuits).
- Cases where U.S. citizens or entities were the direct victims of violations with U.S. nexus.
- Actions against U.S. nationals for violations abroad may implicate other statutes (e.g., the Torture Victim Protection Act, which has its own private right of action for torture and extrajudicial killing against individuals acting under foreign official authority).
What Qualifies as a Law of Nations Violation
Recognized categories under Sosa:
- Torture
- Genocide
- Crimes against humanity
- Extrajudicial killing
- Piracy
- Slavery/forced labor (in some circuits)
- Prolonged arbitrary detention (contested)
Not recognized:
- Ordinary common law torts (negligence, product liability)
- Commercial disputes or breach of contract
- Environmental violations not rising to the level of customary international law norms
Procedural Considerations
- Plaintiff must be an alien; no comparable domestic cause of action for U.S. citizens under the ATS (though TVPA covers some of the same ground).
- Subject to forum non conveniens analysis — courts frequently dismiss ATS cases on forum non conveniens grounds in favor of more appropriate foreign forums (Piper Aircraft Co. v. Reyno framework applies).
- Subject to personal jurisdiction requirements.
- Statute of limitations: no express limitations period; courts typically apply the closest analogous federal or state statute, often borrowing 10-year period.
- ATCA (Alien Tort Claims Act) is an alternative name for the same statute.