United States: Supreme Court Limits Use of The Alien Tort Statute in Civil Actions

In Sosa v. Alvarez-Machain, Nos. 03-339 and 03-485, 2004 WL 1439873 (June 29, 2004), the U.S. Supreme Court decided that the Alien Tort Statute (ATS), while a jurisdictional statute, enables federal courts to hear a limited category of claims defined by the law of nations and recognized at common law. This category may presently include claims for torture, summary execution, and terrorism (considered as a descendant of piracy), but the parameters of ATS liability remain unclear.

A central issue before the Court was the applicability of the ATS to a tort claim for the alleged arbitrary arrest and detention of a Mexican citizen in Mexico by purported agents of the United States government. In reversing a decision by the Ninth Circuit holding that this arbitrary arrest and detention was a violation of the ATS, the Court held that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, was not a violation of customary international law and therefore was not actionable under the ATS.

The Court was unanimous in only two parts of its opinion concerning the ATS. First, all the Justices agreed that the ATS was originally intended to be a jurisdictional statute, which authorized the federal courts to hear suits for violations of the law of nations as recognized by federal common law in 1789. The Court noted that, in 1789, this category of claims was limited to actions involving admiralty, piracy and attacks on ambassadors. Second, the Justices all agreed that Alvarez-Machain’s claim for arbitrary detention and arrest did not fall within the scope of the ATS because it is not a violation of a universal and specific principle of the law of nations recognized by U.S. common law.

Only six Justices (the Majority) joined Part IV of the opinion, which promulgated a standard for evaluating ATS claims. Under that standard, a cause of action brought pursuant to the ATS must "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the 18th Century causes of action the Court has recognized" in the past. Justice Scalia’s concurring opinion, joined by Chief Justice Rehnquist and Justice Thomas, argued vigorously that this test undercut the Court’s ultimate holding – that the ATS is a jurisdictional statute limited to claims involving piracy, admiralty or ambassadors – by giving federal courts discretion to create new causes of action as the law of nations evolves.

In evaluating the reach of the ATS, the Court reviewed the history of the statute (now codified as 28 U.S.C. §1350), as part of Article 9 of the Judiciary Act of 1789, which defined the jurisdiction of the federal courts. Next, the Court reviewed the causes of action that were universally recognized as violations of the law of nations when the ATS was enacted. At that time, the Court noted, the law of nations was limited to actions involving piracy, admiralty or attacks on ambassadors.

The Court expressly rejected the Executive Branch’s view that the ATS was strictly jurisdictional and could only be used in conjunction with a separate statute creating a cause of action. The Court reasoned that the implication of this view was that the First Congress created a jurisdictional statute without creating the means to ever use it.

The Majority reasoned that two centuries of U.S. domestic law have recognized the law of nations and the discretion of the federal courts to identify that body of law. As a result, the Majority opined that federal courts will continue to be responsible for identifying causes of action that fall under the ATS as violations of the law of nations. The Majority cautioned, however, that federal courts should employ a "restrained conception" in considering new causes of action utilizing the ATS.

In deciding Alvarez-Machain’s specific claim, the Majority held that the facts of his claim failed to satisfy the new standard for ATS claims. In particular, the Majority rejected Alvarez-Machain’s contention that general provisions of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights provided enough evidence that arbitrary arrest and detention was universally recognized as a violation of the law of nations. The Majority stressed that the Declaration did not purport to set forth binding international law and that the Covenant had been ratified by the United States with a reservation that it was not self-executing. The Majority further reasoned that the practical effect of Alvarez-Machain’s proposed rule would be that a claim could be brought in federal court for any arrest, occurring anywhere in the world, that was unauthorized by the law of the jurisdiction where the arrest took place. The Court felt that such a result was not intended by the First Congress when the ATS was enacted.

To illustrate the applicable standard issued in Sosa, the Majority reviewed several Court of Appeals decisions interpreting the scope and breadth of the ATS. The Majority essentially returned to the standard set forth in the seminal case addressing the ATS: Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). In Filartiga, the parents of a 17-year-old tortured to death as a result of his father’s political activities, brought an action against the Paraguayan police officer believed to be responsible for their son’s death. Filartiga held that the ATS applied to private claims for torture because, like piracy and slavery, torture was a violation of customary international law – i.e., a principle of international law recognized as binding by all nations.

Although Alvarez-Machain’s claims were brought against the federal government, the Sosa decision will impact both on-going and future ATS litigation brought against private companies. It is clear from the decision that only extreme violations of the most universally accepted norms of international law are appropriate for litigation pursuant to the ATS. In this regard, Sosa signals a retreat from the more expansive approach of some lower federal courts, notably the Ninth Circuit.

Recently, there have been several civil action claims against private corporations in the U.S., which have invoked the use of the ATS to support damage claims for corporations allegedly profiteering from the South African Apartheid regime; for their alleged involvement in state torture or extrajudicial killing; and for profiting from the U.S. slave trade. These claims may be difficult to maintain in light of the reasoning in Sosa.

In fact, in Sosa, the Majority noted that both the South African Government and the United States Government have expressed opposition to the ATS litigation brought by victims of Apartheid against multinational companies that operated in South Africa during the Apartheid era. Both Governments have argued that the pending ATS litigation is interfering with South Africa’s own process for addressing Apartheid claims. While the Court failed to resolve this issue, by identifying the issue it probably signaled the end of ATS litigation grounded in Apartheid.

It also seems clear from the opinion that claims based on working conditions, environmental degradation, and labor unionization will not be covered under the ATS, due to Sosa’s limited definition of violations of the law of nations.

On the other hand, the Majority uses the passage of the Torture Victim Protection Act in 1991 to support its view that torture and extrajudicial killing, when carried out under state authority, are prohibited by international law. Whereas state involvement is necessary to make torture or murder a violation of customary international law, the lower courts have held that other violations, such as genocide and slavery, can be committed by private persons or corporations. That concept was not addressed in Sosa. Finally, Sosa may support claims against terrorists or their sponsors, on the theory that terrorism is the 21st-century descendant of piracy, as prohibited by the 18th-century law of nations.

After Filartiga and prior to Sosa, plaintiffs used the ATS as a basis to assert claims against multinational corporations for allegedly participating in or aiding and abetting purported human rights abuses. The abuses included war crimes, murder, torture, disappearance, genocide, crimes against humanity, and cruel, inhuman and degrading treatment.

The future of these claims is unclear after Sosa, because the Majority declined to address whether international law extends the scope of liability under the ATS to private actors, such as an individual or a corporation. It is also unclear whether a private actor’s liability may vary depending on the degree of complicity with redressable state acts. Nevertheless, the Majority’s insistence on a cautious application of the ATS, and a narrow conception of customary international law, should slow the growth of this type of litigation.

In addition, while leaving the door slightly open to judicially created causes of action under the ATS, the Majority provides little guidance on what causes of action will be acceptable. The Majority states only that "[w]hatever the ultimate criteria for accepting a cause of action subject to jurisdiction under § 1350," the claims must be at least as well defined as the historically recognized paradigms, and have attained a similar degree of acceptance among civilized nations.

In a separate concurrence to Part IV of the opinion, Justice Breyer advocates that certain crimes that are routinely accepted by the international community as universal crimes and subject to universal jurisdiction, such as genocide, crimes against humanity and war crimes, should be included within the limited category of violations actionable under the ATS.

Thus, it is left to the lower courts to begin to decide whether private individuals and corporations can be held liable under the ATS, and, if so, what acts constitute an actionable violation of the law of nations.

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