Alien Tort Statute

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The Alien Tort Statute ("ATS"; also known as the Alien Tort Claims Act) is a common name for 28 U.S.C. § 1350. The ATS grants federal district courts original jurisdiction over any civil action where an alien sues for a tort “committed in violation of the law of nations or of a treaty of the United States." Broadly speaking, it serves as a statutory instrument for gaining universal jurisdiction over violations of international law.

In Kiobel v. Royal Dutch Petroleum Co., the United States Supreme Court held that the ATS only grants jurisdiction for violations of international law occurring within the United States. Moreover, in Sosa v. Alvarez-Machain, the Supreme Court held that ATS claims can proceed against both natural persons and legal persons, but claims against state governments are precluded by sovereign immunity.

In Sosa, the Supreme Court also held that international legal norms that qualify as a cause of action under the ATS must be “specific, universal, and obligatory.” Courts have split on determining exactly how specific a norm must be to be actionable under the ATS. For example, in Doe v. Qi, the District Court for the Northern District of California defined “specificity” broadly, stating that so long as the conduct in question is “universally condemned as cruel, inhuman, or degrading” it is actionable under the ATS. Although the court could not specifically define what constitutes cruel, inhuman, or degrading conduct, it held that the ATS still grants jurisdiction if the specific conduct giving rise to the lawsuit falls within these categories. Conversely, in Flores v. Southern Peru Copper Corp., the Second Circuit Court of Appeals held that an alleged violation of the “right to life” and the “right to health” is not actionable under the ATS because it could not specifically define what would constitute a violation of these rights.

Courts have also split on whether corporations may be held liable under the ATS. For example, when the Second Circuit reviewed Kiobel prior to the Supreme Court granting certiorari, it held that the ATS cannot grant jurisdiction for lawsuits against corporations, as international law “has never extended the scope of liability to a corporation.” In contrast, in Doe v. Exxon Mobile Corp., the D.C. Circuit Court of Appeals explicitly stated that it disagreed with the Second Circuit. It then held that “neither the text, history, nor purpose of the ATS supports corporate immunity for torts…”

The Supreme Court recently restricted the ATS’s ability to grant jurisdiction against corporations in two cases. First, in Jesner v. Arab Bank, PLC, the Court held that the ATS may not grant jurisdiction over foreign corporations. Second, in Nestlé USA, Inc. v. Doe, the Court held that the ATS cannot be used to sue corporations for overseas conduct simply because a defendant-corporation operates within the United States. Rather, there must be some link between the cause of action and the corporation’s domestic conduct. However, the Court failed to specify what types of connections are needed to meet this requirement.

[Last updated in June of 2022 by the Wex Definitions Team]