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The Alien Tort Statute (28 U.S.C. § 1350; ATS, also called the Alien Tort Claims Act (ATCA)) is a section of the United States Code that reads: "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." This statute is notable for allowing United States courts to hear human rights cases brought by foreign citizens for conduct committed outside the United States.



The ATS was part of the Judiciary Act of 1789.[1] There is little surviving legislative history regarding the Act, and its original meaning and purpose are uncertain.[2][3] However, scholars have surmised that the Act was intended to assure foreign governments that the United States would act to prevent and provide remedies for breaches of customary international law, especially breaches concerning diplomats and merchants.[4]

The ATS may have been enacted in response to a number of international incidents caused by the unavailability of remedies for foreign citizens in the United States.[5] For example, the peace treaty ending the War of American Independence provided for the satisfaction of debts to British creditors. The refusal of some states to enforce the payment of such debts prompted Great Britain to threaten to retaliate. In 1784, French diplomat Francis Barbe Marbois was assaulted, but no remedy was available to him. The incident was notorious internationally and prompted Congress to draft a resolution asking the states to allow suits in tort for the violation of the law of nations. However, few states enacted such a provision, and Congress subsequently included the ATS in the Judiciary Act of 1789.

From 1789 until 1980, only two courts had based jurisdiction on the ATS.[6] In 1980, however, the United States Court of Appeals for the Second Circuit decided Filartiga v. Pena-Irala, which "paved the way for a new conceptualization of the ATS."[7] Filartiga held that violations of contemporary international norms, including violations of modern international human rights, are actionable under the ATS. Since Filartiga, jurisdiction under the ATS has been upheld in dozens of cases.[8] The only United States Supreme Court case directly addressing the ATS is the 2004 case Sosa v. Alvarez-Machain. The Sosa Court upheld the applicability of the ATS to actions committed abroad that violate contemporary customary international law, but held that the recognition of new causes of action should be subject to "vigilant doorkeeping." The statute has been the subject of a vigorous debate in 2009 in legal, business, and human rights arenas arising out of cases in Nigeria and South Africa. Some have called for the US Congress to eliminate the statute[9] while others have argued for a multilateral solution through the OECD or UN.[10]

In 2009, there have been several important U.S. courts cases under the ATS, upholding dismissal of cases filed against corporations under the ATS.[11]

On August 11, 2009, the Court of Appeals for the Eleventh Circuit issued a decision in Sinaltrainal v. Coca-Cola Company [1]. In this case, plaintiffs alleged that Coca-Cola bottlers in Colombia collaborated with Colombian paramilitary forces in "the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists." However, the district court dismissed the complaint and the Eleventh Circuit upheld that ruling. In doing so, the Eleventh Circuit relied upon the Supreme Court's recent Ashcroft v. Iqbal decision [2] in addressing the adequacy of the complaint, which has must have "facial plausibility" to survive dismissal, and noted that Rule 8 of the Federal Rules of Civil Procedure demands "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." The Eleventh Circuit then applied the Iqbal standard to plaintiffs' allegations against Coca-Cola and held that they were insufficient to survive dismissal.

On October 2, 2009, the Court of Appeals for the Second Circuit issued another important ruling. In Presbyterian Church of Sudan v. Talisman Energy, Inc., the Second Circuit imposed a higher pleading standard, requiring that "the mens rea standard for aiding and abetting liability in Alien Tort Statute actions is purpose rather than knowledge alone." [3] In this case, which involves allegations against a Canadian oil company concerning its purported assistance to the government in Sudan in the forced movement of civilians residing near oil facilities, the court concluded that "plaintiffs have not established Talisman's purposeful complicity in human rights abuses." In reaching that conclusion, the Second Circuit stated that "the standard for imposing accessorial liability under the Alien Tort Statute must be drawn from international law; and that under international law a claimant must show that the defendant provided substantial assistance with the purpose of facilitating the alleged offenses."

Modern Caselaw and Legal Issues


Filartiga v. Pena-Irala and Sosa v. Alvarez-Machain

In Filartiga, two Paraguayan citizens resident in the United States, represented by the Center for Constitutional Rights, brought suit against a Paraguyan former police chief who was also living in the United States.[12] The plaintiffs alleged that the defendant had tortured and murdered a member of their family and asserted jurisdiction under the ATS. The district court dismissed for lack of subject-matter jurisdiction, holding that the "law of nations" does not regulate a state's treatment of its own citizens. The United States Court of Appeals for the Second Circuit reversed, holding that the contemporary law of nations had expanded to prohibit state-sanctioned torture. The court found that multilateral treaties and domestic prohibitions on torture evidenced a consistent state practice of proscribing official torture. The court similarly found that United Nations declarations such as the Universal Declaration on Human Rights manifested an expectation of adherence to the prohibition of official torture. The court therefore held that the right to be free from torture had become a principle of customary international law. However, one of the judges on the panel hearing the case later wrote that Filartiga "should not be misread or exaggerated to support sweeping assertions that all (or even most) international human rights norms found in the Universal Declaration or in international human rights treaties have ripened into customary international law enforceable in the domestic courts."[13]

In Sosa, the Supreme Court held that the ATS does grant a cause of action, but only for any action "which violates definable, universal and obligatory norms" of international law.[14] The plaintiff in Sosa, Alvarez, brought a claim under the ATS for arbitrary arrest and detention. Alvarez had been indicted in the United States for torturing and murdering a Drug Enforcement Agency officer. When the United States was unable to secure Alvarez's extradition, it paid Sosa, a Mexican national, to kidnap Alvarez and bring him into the United States. Alvarez claimed that his "arrest" by Sosa was arbitrary because the warrant for his arrest only authorized his arrest within the United States. The United States Court of Appeals for the Ninth Circuit, applying the "specific, universal, and obligatory" test, held that Alvarez's abduction constituted arbitrary arrest in violation of international law. The Supreme Court reversed, however, finding that the ATS only provides a cause of action for violations of those international norms "defined with a specificity comparable to the features of . . . 18th-century paradigms . . . ." The Court went on to hold, "[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 as to support the creation of a federal remedy." Finally, the Court held that future courts should also consider certain principles limiting the recognition of a cause of action under the ATS, including "case-specific deference" to the political branches on questions of foreign policy.

"Violation of the law of nations"

The Supreme Court held in Sosa v. Alvarez-Machain that the ATS provides a cause of action for violations of international norms that are as "specific, universal, and obligatory" as were the norms prohibiting violations of safe conducts, infringements of the rights of ambassadors, and piracy in the 18th century.[15] Courts have found torture; cruel, inhuman, or degrading treatment; genocide; war crimes; crimes against humanity; summary execution; prolonged arbitrary detention; and forced disappearance to be actionable under the ATS.[16]

Since Sosa, courts have struggled to define the level of specificity required for a norm to be actionable under the ATS.[17] For example, subsequent to Sosa, the United States Court of Appeals for the Eleventh Circuit overturned prior lower court decisions that had found cruel, inhuman, or degrading treatment actionable, noting that Sosa repudiated the International Covenant on Civil and Political Rights as a source of law under the ATS.[18] Similarly, courts have held that economic, social, and cultural rights are too indeterminate to satisfy Sosa's specificity requirement. For example, in Flores v. Southern Peru Copper Corp., the Second Circuit stated that the rights to life and to health are too indeterminate to constitute a cause of action under the ATS.[19]

The United States District Court for the Northern District of California, however, has held that the limits of a norm need not be defined with particularity to be actionable; rather, the norm need only be so defined that the particular acts upon which a claim is based certainly fall within the bounds of the norm.[20] In Doe v. Qi, the court stated, "The fact that there may be doubt at the margins -- a fact that inheres in any definition -- does not negate the essence and application of that definition in clear cases." The court also described how to determine whether specific actions fall within the proscriptions of an international norm, holding that the actions alleged should be compared with actions that international adjudicatory bodies have found to be proscribed by the norm in question. It therefore examined decisions by institutions such as the Human Rights Committee, the European Court of Human Rights, and the African Commission on Human and Peoples' Rights to determine that pushing, hitting, and choking a plaintiff during one day of incarceration did not constitute cruel, unusual, or degrading treatment, whereas forcing a hand into a plaintiff's vagina did constitute cruel, inhuman, or degrading treatment.

Human rights lawsuits against corporations

Bowoto v. Chevron Corp.

One high-profile ATS case involved claims by Nigerian villagers regarding events that occurred on a Chevron offshore drilling platform in 1998, when Nigerian soldiers suppressed a protest against Chevron's environmental and business practices. The protesters, with the help of nonprofit organizations including the Center for Constitutional Rights, the Public Interest Lawyers Group, and Earthrights International, brought claims for wrongful death, torture, assault, battery, and negligence against Chevron, alleging that the company had paid the soldiers that landed on the platform and were therefore liable for the actions that they took. In December 2008, a jury found that Chevron was not liable.[21]

Doe v. Unocal

In September 1997, 13 Burmese villagers filed suit against Unocal and their parent company, the Union Oil Company of California under the ATCA[22] for alleged human rights violations, including forced labour, in the construction of the Yadana gas pipeline project in Myanmar, formerly Burma.[23] EarthRights International, the Center for Constitutional Rights, Paul Hoffman, Hadsell & Stormer, and Judith Brown Chomsky served as co-counsel to the plaintiffs. In December 2004, Unocal agreed to settle after a motion for summary judgment failed in the United States District Court for the Central District of California.[24]

Wang Xiaoning versus Yahoo!

In April 2007, Chinese dissident Wang Xiaoning sued Yahoo!, claiming jurisdiction under the ATS.

The suit says that in 2001, Wang was using a Yahoo e-mail account to post anonymous writings to an Internet mailing list. The suit alleges that Yahoo, under pressure from the Chinese government, blocked that account. Wang set up a new account via Yahoo and began sending material again; the suit alleges that Yahoo gave the government information that allowed it to identify and arrest Wang in September 2002. The suit says prosecutors in the Chinese courts cited Yahoo's cooperation.[25]

The mother of Shi Tao (Guao Quingsheng) joined the lawsuit on behalf of her son.[26] Shi Tao was convicted of providing state secrets to foreign agencies when he passed the details of a memo (in which representatives of PRC warned journalists of instabilities that might arise from marking the Tiananmen Square anniversary) to a New York-based pro-democracy forum. [27]

Yahoo! settled the case in November 2007 for an undisclosed amount of money, although they did agree to cover the plaintiff's legal costs as a part of the agreement. In a statement released after the settlement was made public, Yahoo! said that it would "provide 'financial, humanitarian and legal support to these families' and create a separate 'humanitarian relief fund' for other dissidents and their families." [28]


  1. ^ Ch. 20, § 9, 1 Stat. 73 (1789).
  2. ^ Carolyn A. D'Amore, Note, Sosa v. Alvarez-Machain and the Alien Tort Statute: How Wide Has the Door to Human Rights Litigation Been Left Open?, 39 Akron L. Rev. 593, 596 (2006); William R. Casto, The Federal Courts' Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 468-69 (1985-1986).
  3. ^
  4. ^ Gary Clyde Hufbauer & Nicholas K. Mitrokostas, Awakening Monster: The Alien Tort Statute of 1789 3 (2003), ISBN 978-0881323665.
  5. ^ John Haberstroh, The Alien Tort Claims Act & Doe v. Unocal: A Paquete Habana Approach to the Rescue, 32 Denv. J. Int'l L. & Pol'y 231, 239-41 (2004).
  6. ^ Gary Clyde Hufbauer & Nicholas K. Mitrokostas, International Implications of the Alien Tort Statute, 16 St. Thomas L. Rev. 607, 609 (2004).
  7. ^ Id.
  8. ^ Beth Stephens, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 Brooklyn J. Int'l L. 773, 813 (2008).
  9. ^ "Rights Case Gone Wrong". The Washington Post. 2009-04-19.  
  10. ^ "Trying an Old Law". The New York Times. 2009-06-01.  
  11. ^ Lee G. Dunst, “Human Rights Overseas, “ The New York Law Journal (Oct. 26, 2009) (
  12. ^ 630 F.2d 876 (2d Cir. 1980); Richard B. Lillich, Invoking International Human Rights Law in Domestic Courts, 54 U. Cin. L. Rev. 367 (1985).
  13. ^ Lillich, supra note 8, at 401-02.
  14. ^ 542 U.S. 692 (2004); Pamela J. Stephens, Spinning Sosa: Federal Common Law, the Alien Tort Statute, and Judicial Restraint, 25 B.U. Int'l L.J. 1, 32-33 (Spring, 2007).
  15. ^ D'Amore, supra note 2.
  16. ^ Pamela J. Stephens, supra note 10, at 5.
  17. ^ Henry J. Steiner et al., International Human Rights in Context 1195-98 (3d ed. 2008), ISBN 978-0199279425.
  18. ^ Aldana v. Del Monte Fresh Produce, 416 F.3d 1242, 1247 (11th Cir. 2005).
  19. ^ 414 F.3d 233 (2d Cir. 2003).
  20. ^ Doe v. Qi, 349 F.Supp.2d 1258 (N.D.Cal. 2004).
  21. ^
  22. ^ Doe I v. Unocal Corp. 395 F.3d 932 C.A.9 (Cal.),2002
  23. ^ Kenderton Lynch (2000-09-29). "Plaintiff's Complaint for Damages" (PDF). Retrieved 2007-12-28.  
  24. ^ Mark D. Kielsgard, Unocal and the Demise of Corporate Neutrality, 36 Cal. W. Int'l L.J. 185, 189 (2009).
  25. ^ "Advocates Sue Yahoo In Chinese Torture Case". The Washington Post. 2007-04-20.  
  26. ^ "Yahoo sued by China Reporter". Al Jazeera. 2007-06-11.  
  27. ^ "Shi Tao". HRIC. 2007-06-11.  
  28. ^ "Yahoo settles Chinese Dissident Lawsuit". PC World. 2007-11-14.,139619-c,yahoo/article.html.  

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