AUGUST 2004
The U.S. Supreme Court Interprets
the Alien Tort Statute
A PRELIMINARY ANALYSIS OF THE RECENT SOSA DECISION
The Alien Tort Statute (“ATS”) is one of the oldest
statutes in the United States—and one of the least
understood. A recent decision by the U.S. Supreme
Court provides, for the first time, a reliable analysis of it.
Adopted by the very first Congress in 1789, the ATS
lay virtually dormant in the U.S. courts for almost
two centuries. Its “modern era” began in 1980 with a
decision of the United States Court of Appeals for the
Second Circuit in Filartiga v. Pena-Irala, 630 F.2d
876 (2d Cir. 1980). The Filartiga Court interpreted
the ATS to provide a non-American (“alien”) with
the right to bring suit in the federal courts against a
former Peruvian official, seeking damages under the
“law of nations” for torture. Filartiga said that the
ATS not only provided for federal jurisdiction for
such a suit, but empowered the federal courts to
construe, interpret, and enforce a non-statutory,
common law “law of nations.” That principle was
new and path-breaking. It opened the way in the
subsequent twenty-four years for the filing of a
variety of lawsuits against American and nonAmerican individuals and companies by plaintiffs
seeking damages under this statute. However, only
in its last term did the Supreme Court, for the first
time, consider the ATS. In its decision in Sosa v.
Alvarez-Machain, 124 S. Ct. 2739 (2004), the
Supreme Court provides a coherent analysis of the
ATS. Interestingly, the decision confounds the
predictions by proponents of both sides of the ATS
issues by neither closing the doors to future litigation
nor opening floodgates for new theories.
Here is the background and where ATS matters stand
and may go.
The Alien Tort Statute
The ATS, now codified at 28 U.S.C. § 1350 (2004),
provides in its entirety as follows:
The [federal] 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.
NYDOCS02/698153.1
The statute sat virtually unused until the Second
Circuit brought it back to life in Filartiga. The
Filartiga Court ruled that an alien seeking
compensation for torture had stated a claim under the
“law of nations,” and, therefore, could proceed under
the ATS. Filartiga, 630 F.2d at 880. Critical to the
Court’s reasoning was its holding that the ATS not
only creates “original jurisdiction” in the most
technical sense of permitting the federal courts to
hear the case at all (that is, subject matter
jurisdiction), but also empowers the federal courts to
determine what torts could be recognized under a
common law “law of nations.” The Filartiga Court
thereby understood that the ATS permitted an
entirely non-statutory private right of action in
federal courts. Id. at 887.
The ATS After Filartiga and until Sosa
Following the path-breaking decision in Filartiga, some
judges questioned its key holding that the ATS should
be interpreted to recognize any non-statutory private
right of action under the “law of nations” at all. In his
concurring opinion in Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 801 (D.C. Cir. 1984), Judge
Robert Bork first articulated the proposition that the
ATS only creates subject matter jurisdiction for the
federal courts, but does not itself create or provide for
private rights of action under the “law of nations,” at
least insofar as the “law of nations” is considered to be a
“common law” not derived from specific statutory
authority. Under this analysis, the federal courts would
be required to wait for Congress to enact legislation, or
to ratify a self-executing treaty, providing for a private
right of action for a specific violation. Judge Raymond
Randolph, concurring in a later decision of the United
States Court of Appeals for the District of Columbia,
went as far as to maintain that allowing federal courts to
define private rights of action under a common law of
nations would render the ATS unconstitutional.
According to Judge Randolph, the authority “to define
and punish … offences against the law of nations” is
exclusively granted to Congress. Al Odah v. United
States, 321 F.3d 1134, 1147 (D.C. Cir. 2003).
2
In general, however, the courts rejected this analysis
and confronted the task of determining which claims
did and did not arise under the “law of nations” and
could be brought in federal court under this statute.
The courts have generally limited the statute’s reach
to “a handful of heinous actions—each of which
violates definable, universal and obligatory norms.”
Tel-Oren, 726 F.2d at 781; see also In re Estate of
Marcos, Human Rights Litig., 25 F.3d 1467, 1475
(9th Cir. 1994) (requiring violations of “specific,
universal and obligatory” norms). Recently, the
United States Court of Appeals for the Second
Circuit cautioned that “in determining what offenses
violate customary international law, courts must
proceed with extraordinary care and restraint.”
Flores v. S. Peru Copper Corp., 343 F.3d 140, 154
(2d Cir. 2003).
Courts have also drawn a distinction between
international norms that are actionable under the ATS
only against individuals acting under state authority
(or under “color of law”) and those that are
actionable against both private and state actors. See
Kadic v. Karadzic, 70 F.3d 232, 239-40 (2d Cir.
1996); Tel-Oren, 726 F.2d at 791-96.
The only categories of conduct held actionable
against both state actors and private individuals have
been genocide, war crimes, crimes against humanity,
slavery, and piracy. Kadic, 70 F.3d at 240.1 In
contrast, courts have held that torture and summary
execution are actionable only when asserted against
an individual acting as a state official or under “color
of law.” Id. at 243. In addition, the District Court of
Massachusetts in Xuncax v. Gramajo, 886 F. Supp.
162, 184 (D. Mass. 1995) allowed an action under the
ATS against state actors for prolonged arbitrary
detention and “disappearances.” The United States
Court of Appeals for the Second Circuit, in Bigio v.
Coca-Cola Co., 239 F.3d 440, 448-49 (2d Cir. 2001),
also suggested that racial and religious discrimination
might state a claim under the ATS if asserted against
a state actor (but that such claims could not be
brought against private individuals).
Courts have made clear that claims are not actionable
under the ATS if they are based on norms (1) that are
insufficiently definite (such as violations of the right
to life and the right to health), (2) that have not
achieved universal consensus in international law
1
A panel of three judges of the Ninth Circuit, in Doe v. Unocal
Corp., held that forced labor was akin to slavery and thus also
actionable against both private and state actors, but this decision
has been vacated pending an en banc hearing before the entire
court. No. 00-56603, 2002 WL 31063976, at *9-11
(Sept. 18, 2002), reh’g en banc granted and opinion vacated,
No. 00-56609, 2003 WL 359787 (9th Cir. Feb. 14, 2003).
(such as cultural genocide, terrorism, intra-national
pollution and other environmental torts, and free
access to ports of a foreign nation), or (3) that are
matters of domestic but not international law (such as
murder, theft, fraud, conversion, corporate waste, and
child custody issues). See Flores, 343 F.3d at
160-62; Beanal v. Freeport-McMoran, Inc., 197 F.3d
161, 168 (5th Cir. 1999); Tel-Oren, 726 F.2d at
795-96; Filartiga, 630 F.2d at 888.
An emerging issue has been whether a private
individual can be held liable for aiding and abetting a
state that has committed violations of international
law actionable under the ATS. The United States
Court of Appeals for the Ninth Circuit, in Unocal,
2002 WL 31063976, at *10, answered this question
affirmatively, holding that the standard under the
ATS for aiding and abetting is “knowing practical
assistance or encouragement that has a substantial
effect on the perpetration of the crime.” The Unocal
Court derived both the existence of, and the standard
for, aiding and abetting under the ATS from
international law as developed in decisions of
international criminal tribunals. Id. at *11. This
decision was highly controversial and has been
vacated pending an en banc hearing. However, in
Presbyterian Church of Sudan v. Talisman Energy,
Inc., 244 F. Supp. 2d 289, 320-21 (S.D.N.Y. 2003),
Judge Alan Schwartz of the Southern District of New
York reached a similar conclusion, holding that
aiding and abetting the commission of offenses such
as genocide, war crimes, and slavery is actionable
under the ATS. As an important limitation, Judge
Schwartz pointed out that in order for aiding and
abetting to be actionable under the ATS, international
criminal law must explicitly permit prosecution of
private individuals who aid and abet the commission
of the specific international law offenses alleged by
the plaintiffs. Id. at 320.
The Sosa Decision
The plaintiff in Sosa was a Mexican national who had
been indicted for torture and murder in a criminal
case in a U.S. court in California and later acquitted.
After his acquittal, he commenced a civil suit under
the ATS and other statutes claiming that his
abduction and imprisonment in Mexico (prior to his
being brought to the United States for ultimately
unsuccessful prosecution) violated a common law
prohibition against arbitrary arrest and detention
under the “law of nations.” Sosa claimed that the
ATS permitted him to seek compensation from his
Mexican abductors, including the defendants.
The trial court entered a modest judgment in his favor
under the ATS against the Mexican defendants,
ruling that the plaintiff had stated and proved an
actionable ATS claim. The United States Court of
3
Appeals for the Ninth Circuit affirmed the trial
court’s ATS ruling and the Supreme Court then
granted review.
The Supreme Court issued its opinion on June 29,
2004. The principal opinion was written by Justice
David Souter. Though the court was unanimous with
respect to the result, some of Justice Souter’s
reasoning on the viability of the ATS claim was
rejected by other members of the Court.
In Part III of his opinion—which was unanimous—
Justice Souter usefully summarized the sparse history
of the ATS, including the competing views as to
whether or not it permitted the recognition and
enforcement of a non-statutory, common law private
right of action (as opposed to simply providing a
basis for jurisdiction). Based largely upon its view of
the legal norms prevalent in the late 18th century and
the “innovative use of the word ‘tort’,” Sosa, 124 S.
Ct. at 2758, the Court concluded that even though the
1789 Congress that passed the ATS into law spoke in
terms that in today’s parlance might refer only to
jurisdiction, its intention was to provide a forum to
resolve certain very specific claims that were
considered, at the time, to be not only offenses
against the “law of nations,” but offenses for which
the common law recognized private remedies. Id. at
2758-59. The Court then identified three such rights
of action that were recognized in the late 18th
Century: suits relating to piracy, safe conduct, and
rights of ambassadors. Id. at 2759.
Justice Souter then turned, in Part IV of his opinion,
to the much more problematic task of analyzing what
to make of this archaic statute in modern times when
suits relating to piracy, safe conduct and ambassadors
are of minor practical significance and when the “law
of nations” has evolved to encompass a much broader
set of norms. Justice Souter summarized in some
detail the arguments for and against recognizing “a
new cause of action”—that is, a claim arising under
the current “law of nations” but that was not
specifically recognized in 1789. Id. at 2761-65. In a
section of his opinion joined by five other Justices,
Justice Souter concluded that the “door” to
recognition of new claims was neither “open” nor
“closed,” but rather “is still ajar subject to vigilant
doorkeeping, and thus open to a narrow class of
international norms today.” Id. at 2764. He specified
that any “new claim” must meet two principal criteria
for recognition: (1) the claim must “rest on a norm of
international character accepted by the civilized
world,” and (2) it must be “defined with a specificity
comparable to the features of the 18th century
paradigms we have recognized.” Id. at 2765-66.
Justice Souter thus concluded:
Whatever the ultimate criteria for accepting a cause
of action subject to jurisdiction under § 1350, we
are persuaded that federal courts should not
recognize private claims under federal common
law for violations of any international law norm
with less definite content and acceptance among
civilized nations than the historical paradigms
familiar when § 1350 was enacted.
Id. at 2765. Importantly, Justice Souter noted that
“this limit upon judicial recognition is generally
consistent with the reasoning of many of the courts and
judges who faced the issue before it reached this
Court.” Id. at 2765-66. On the basis of this analysis,
the Court ruled—in a result in which all the Justices
joined—that plaintiff Alvarez-Machain had failed this
threshold test: “a single illegal detention of less than a
day, followed by the transfer of custody to lawful
authorities and a prompt arraignment, violates no norm
of customary international law so well defined to
support the creation of a federal remedy.” Id. at 2769.
Though rendering a unanimous result, the reasoning
of Part IV caused substantial disagreement among the
Justices. Justice Antonin Scalia, joined by Chief
Justice William H. Rehnquist and Justice Clarence
Thomas, filed a lengthy opinion concurring with the
result, but objecting to Justice Souter’s “door ajar”
analysis. Id. at 2769-76. Characterizing Justice
Souter’s opinion as the “latest victory for [the Court’s]
Never Say Never Jurisprudence,” Justice Scalia
argued that recognizing “new claims” under the “law
of nations” was “none of [the Court’s] business.” Id.
at 2776. Under his analysis, Justice Scalia would
interpret the ATS to be more than a mere jurisdictional
provision, limited to recognizing private claims based
only upon the specific private remedies available in the
18th Century or those affirmatively enacted by
Congress. Id. at 2769-70.
Although Justice Souter’s majority reasoning in Part IV
led to a dispositive result dismissing plaintiff’s claim
because he had not stated a viable claim under the “law
of nations,” his opinion nonetheless went on to discuss
several areas where further arguments or developments
may have a major role in individual cases.
First, in the context of emphasizing “judicial caution
when considering the kinds of individual claims” that
may arise under the ATS, Justice Souter openly
invited legislative intervention or guidance, noting
that “a decision to create a private right of action is
one better left to legislative judgment in the great
majority of cases.” Id. at 2762-63. He added that
“we would welcome any congressional guidance in
exercising jurisdiction with such obvious potential to
affect foreign relations….” Id. at 2765.
Second, responding to concerns voiced in the brief as
amicus curiae filed by the European Commission, the
Court noted that future arguments as to “whether a
norm is sufficiently definite to support a cause of
4
action should (and, indeed, inevitably must) involve
an element of judgment of a practical consequences
of making that cause available to litigants in the
federal court.” Id. at 2766 (footnotes omitted). The
Court emphasized in footnote 21 that “this requirement
of clear definition is not meant to be the only
principle limiting the availability of relief in the federal
courts for violations of customary international
law….” Id. at 2766 n.21. It then noted as an example,
but with apparent approval, the European
Commission’s argument that a claimant “must have
exhausted any remedies available in the domestic
legal system, and perhaps in other forums such as
international claims tribunals.” Id. at 2766.
This same footnote, in a rather unusual reference to a
case then awaiting decision in one of the lower
federal courts, mentioned a further element likely to
be important in future cases: “a policy of casespecific deference to the political branches.” Id. at
2766. The Court went on to discuss in some detail
the pending motions to dismiss in In re South African
Apartheid Litigation, a collection of private suits
seeking remedies from officials and companies
alleged to have participated in, or benefited from,
South Africa’s former racist policies.
In the
Apartheid cases, the federal courts had granted a
motion to transfer all of the relevant cases to the
Southern District of New York (see, e.g., In re S. Afr.
Apartheid Litig., 238 F. Supp. 2d 1379 (J.P.M.L.
2002)), and motions to dismiss the complaint was at
the time of the opinion (and remains at the time of
this note) still pending before Judge John Sprizzo.2
In the Apartheid cases, the foreign minister of South
Africa has formally asked that the suits be dismissed
because they were inconsistent with South African
post-apartheid policy and specifically with the
workings of South Africa’s Truth and Reconciliation
Commission, and his position was supported by a
Letter of Interest submitted on behalf of the United
States by the Legal Advisor to the State Department.
Although Justice Souter did not specifically opine on
the merits of the motions in the Apartheid cases, he
noted that “in such cases, there is a strong argument
that federal courts should give serious weight to the
Executive Branch’s view of the cases impact on
foreign policy.” Sosa, 124 S. Ct. at 2766.
Implications for the Future
By concluding that “the door is still ajar subject to
vigilant doorkeeping,” the Supreme Court guaranteed
that there will be more ATS cases in the future. While
the Court’s opinion is lucid, coherent and pragmatic, it
is preliminary in that it serves to identify, rather than
2
Shearman & Sterling LLP represents several of the defendants in
the Apartheid cases.
resolve, several sets of questions that the lower federal
courts will necessarily address in pending and future
litigations under the statute. Some of these areas, and
our initial view of how they will develop, are the
following:
First, by leaving the “door ajar” subject to the
requirement that any “new claims” meet the tests of
specificity and universal recognition, id. at 2765-66, the
Court clearly envisions very strict scrutiny and a heavy
burden on any plaintiff seeking to assert new claims
under the ATS. Based upon comments in the Court’s
opinion, it seems likely that permissible claims under
the ATS will continue to be limited to actions for
genocide, war crimes, crimes against humanity, torture
and summary execution. The requirement that a norm
be as definite as the original 18th Century paradigms for
the ATS makes the expansion of this list very doubtful.
The opinion also invites District Courts and Courts of
Appeal faced with ATS litigation to revisit norms such
as arbitrary detention and racial and religious
discrimination (which may or may not be actionable
under current jurisprudence) to assess whether they are
defined with similar specificity to piracy, violation of
safe conducts, and offenses against ambassadors. The
lower courts will also have to address whether claims of
aiding and abetting an international offense are
actionable under the ATS. In our view, it is unlikely
that a suit based on a theory of aiding and abetting will
stand up to the Sosa requirements of “universal
acceptance” and “specificity” unless the plaintiff can
point to extensive consideration by international
criminal tribunals of this basis of liability for the specific
international offense(s) alleged.
It should be emphasized of course, that even if a right
of action reaches the status of being considered part
of the “law of nations” and is determined to be
privately enforceable as required by the Sosa opinion,
a trial court will still be faced with arguments based
on traditional pleading requirements—that is,
whether a specific complaint adequately alleges
actionable facts.
Second, by emphasizing the obligation of the lower
federal courts to consider “the practical consequences
of making [a claim under the ATS] available to
litigants in the federal courts,” the Court clearly
invites motion practice on a wide range of defensive
legal theories that will vary from case to case. Sosa,
124 S. Ct. at 2766. Some, such as is the requirement
of “exhaustion of remedies,” are mentioned (with
apparent approval) by the Court, id. at 2766; others,
such as the doctrine of forum non conveniens, the
“political question” doctrine, and international
5
comity,3 are not mentioned, but would clearly appear
to be contemplated by the Court.
Third, and finally, the Court explicitly invites
consideration of expressions of interest by the Executive
Branch and by foreign governments, and urges that
specific deference be given to such interventions.
Deference to the political branches in areas touching on
international relations is not new, of course, and is a
frequent theme in American jurisprudence. (For
example, a few weeks before the decision in Sosa, the
Court relied on a “Statement of Interest” filed by Austria
in determining the retroactivity of the Foreign Sovereign
Immunities Act. Republic of Austria v. Altmann, 124 S.
Ct. 2240 (2004).) By emphasizing its relevance in
determining purely private rights of action—many of
which are likely to involve the interests of large
multinational corporations often appearing as
defendants—this invitation will clearly lead to extensive
lobbying efforts both in the United States and in other
countries affected.
Summary
• The Court adopted the reasoning of the majority
of the Courts of Appeals that the ATS permits a
3
Though not specifically mentioned by Justice Souter, Justice
Stephen Breyer’s concurring opinion, responding to arguments
made in the European Commission amicus brief, stresses the
importance of international comity as a factor, in limiting ATS
claims that seek to assert universal jurisdiction (where both the
plaintiff and the defendant are aliens with no connection to the
United States, and the impugned conduct giving rise to the suit
occurred outside the United States). He urged that the courts
tread with caution when there is a risk that applying U.S. law
extraterritorially might insult another nation’s sovereignty.
Sosa, 124 S. Ct. at 2782-83.
non-statutory, “common law” private right of
action based upon “the law of nations.” The
Court thus expressly refused to “close the door” to
future litigation under the ATS.
• The Court recognizes that the federal courts must
interpret “the law of nations” based upon modern
norms, and are not limited to norms existing when
the ATS was adopted in the 18th Century.
• The Court stated that it will be “vigilant” to
restrict claims arising under this statute, and that
such claims must meet a high standard of
specificity and unanimity among civilized nations
in order to be recognized.
• The Court urged the lower courts to consider
“practical” issues such as exhaustion of remedies
and other defensive doctrines.
• The Court invited foreign governments as well as the
Executive Branch of the United States Government
to state their interests in the impact of any private
litigation under the ATS on foreign relations.
While the Court left the “door ajar” to further ATS
litigation, in light of the measured analysis by Justice
Souter, and the specific, approving references to a
variety of principles often raised in motions to
dismiss and other defensive motions, the Sosa
decision provides very substantial defenses for most
litigations in this area. We predict that there will now
be a new round of decisions at the District Court and
then Court of Appeals levels—beginning, perhaps,
with the pending Apartheid cases—which are likely
to make it increasingly clear that the “door ajar” will
in fact be very difficult to pass through.
This memorandum is intended only as a general discussion of these issues. It should not be regarded as legal advice.
We would be pleased to provide additional details or advice about specific situations if desired.
For more information on the ATS and related statutes, please contact:
Frederick T. Davis
+1-212-848-4675
[email protected]
Richard H. Kreindler
Germany
+49-69-9711-1420
[email protected]
Emmanuel Gaillard
France
+33-1-53-89-7000
[email protected]
John Savage
Asia
+65-6230-3008
[email protected]
Christopher Colbridge
U.K.
+44-20-7655-5985
[email protected]
www.shearman.com
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