[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]
The Alien Tort Statute (ATS), 28 U.S. C. §1350, says that an alien may sue in federal district court “for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court recently asked for briefing on the question “whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Implicit in the question is a seeming concession: an alien tort occurring within foreign sovereign territory is still cognizable under the ATS if the alien plaintiff alleges violation of a U.S. treaty, such as the United Nations Convention Against Torture (CAT). For instance, if an alien alleges torture against another alien in a foreign country, then presumably the claim would be actionable under the ATS, despite the fact that both plaintiff and tortfeasor are aliens and the tort occurred in the territory of a foreign sovereign. In this limited sense (where a ratified treaty may be pled), even the Supreme Court seems to acknowledge a “universal jurisdiction” angle to the ATS.
In an
article I published in 2006 in the Columbia Law Review, I stated the view that the Alien Tort Statute had nothing to do with universal jurisdiction; it was, I argued, a pragmatic measure enacted by the First Congress in September 1789 to let aliens sue in the federal district courts for money damages in the event of harm to their persons or property when the United States had expressly or implicitly promised the aliens that no such harm would come to them. The ATS both provides a right of action and original jurisdiction in federal district court to aliens injured under circumstances implicating U.S. sovereign responsibility; it is therefore a federal law for purposes of Article III arising-under jurisdiction. Translated to a modern context, the ATS would plausibly be available to "extraterritorial" tort actions by alien detainees at Guantanamo Bay, and non-combatant aliens harmed in Afghanistan, Pakistan, or Yemen in the current war on terror. Such actions would be subject to immunities under the Federal Tort Claims Act, an after-enacted statute, with respect to most U.S. official defendants. And so the answer to the Supreme Court’s question about the extraterritorial application of the ATS is “whenever there is a tort occurring in the territory of a foreign sovereign the commission of which was the result of U.S. sovereign action or inaction when the United States had a duty under international law to prevent the injury to the alien plaintiff.”
