Friday, June 13, 2014
Abstract: The Alien Tort Statute ("ATS") has triggered passionate debate despite the relatively modest practical import of ATS cases. The outsized controversy reflects its pivotal role in the centuries-old struggle over the interpretation and implementation of international law. Over the past three decades, the ATS has been the vehicle through which states, state officials, scholars, litigators, human rights advocates, and corporate representatives have sought to define the substance of international law; to determine if and how it can be enforced, and by whom; and, crucially, to establish whether international law serves as a meaningful restraint on the actions of states, state officials, and private actors, including corporations.
Since the ATS was first applied to modern human rights abuses in 1980 in Filártiga v. Peña-Irala, most ATS cases have been dismissed at the outset of the litigation. Only a handful of lawsuits led to enforceable judgments for plaintiffs, while another handful settled. A few dozen cases produced judgments that vindicated the plaintiffs’ claims, but could not be enforced. Despite this limited litigation success, lawyers, government officials, scholars, human rights activists, and corporate officials around the world have written about the statute, sought to replicate or repeal it, and argued about its impact. Over 4,000 law review articles have cited the statute since 1980.
Business leaders assert that the ATS could derail the international economy, while human rights advocates praise the statute as a model for human rights accountability. The resources invested in ATS litigation reflect high stakes, far more than those at issue in each individual case. ATS cases embody a struggle over who has the power to define legal rights and to impose consequences for violations of those rights.
As a matter of U.S. domestic law, the debate over the meaning of the ATS implicates first principles of federalism and separation of powers. On a global level, ATS cases trigger deep disagreements over the role of non-state actors, including non-governmental organizations and corporations, both as participants in the development and implementation of international law and as subjects bound by its rules. Each of these debates is interesting in it own right, but also of significant practical import in the struggle over the role of international law within the United States and globally.
This article provides a history of the ATS within this broader political and legal framework. After a brief discussion of the enactment of the ATS in Part I, Part II discusses the human rights movement that provided the backdrop for Filártiga and for the largely positive reception of the decision at the time. As discussed in Part III, however, beginning in the late 1990s, disputes over the power to interpret and enforce international law triggered contentious doctrinal debates about the ATS, each pitting supporters of international law as a restraint on government actors against those who argue that only states and their officials have the power to interpret and enforce that law. Part IV addresses equally shrill battles over corporate-defendant ATS litigation and over the immunity of both U.S. and foreign government officials. Finally, Part V considers the current prospects for ATS litigation.