The Transformation of Human Rights Litigation: The Alien Tort Statute, the Anti-Terrorism Act, and JASTA

Abstract

A quarter century ago, the prospects for federal civil litigation of international human rights violations under the Alien Tort Statute (ATS) seemed bright. With the statute’s modern revival a decade earlier in Filártiga, foreign nationals — often with no recourse in their own countries — had a forum for judicial vindication of a broad range of wrongs by state officials, multinational corporations, and even, in limited circumstances, foreign states themselves. The Supreme Court’s Kiobel decision in 2013, however, may signal the end of the Filártiga revolution, with Congress’s seeming acquiescence: Congress, after all, could amend the ATS if it disagreed with the Court. Congress’s inaction should not be attributed to inertia, for Congress has not been idle. Over the same period, it has continually expanded civil liability for foreign terrorist acts against American nationals, even to the point of effectively intervening in ongoing cases. The recent Justice Against Sponsors of Terrorism Act (JASTA) is the latest example.

The near demise of the ATS and the growth of anti-terrorism legislation are of a piece. They represent a turn away from a cosmopolitan vision of building a global legal order, in which all states protect human rights regardless of nationality. The emphasis in the more nationalist vision today on protecting Americans from terrorism has some merit, but in practice it lends itself to the use of civil litigation as a weapon against foreign states, often at the expense of the victims the legislation purports to serve. Moreover, the sharp division between Americans and foreigners, with protection only of the former, risks casting foreigners as dangerous others.

The division is also unrealistic, given the pervasive effect U.S. actions have throughout the world. Recognition of this effect would also help counter the understanding of many ATS cases, including Filártiga itself, as foreign many times over — “foreign cubed” in the jargon applied to ATS cases involving a foreign plaintiff and foreign defendant litigating over actions that took place in a foreign country. Rather than simply representing the intrusion of foreign concerns into federal courts, ATS cases may serve U.S. democratic interests by helping to cast light on the harmful effects on human rights that U.S. policy may have.

Keywords: JASTA, Alien Tort Statute, International Human Rights Law, Filártiga, Kiobel

JEL Classification: K10, K33