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A Federal Long Arm for Torts? The Alien Tort Statute Clarification Act

February 27, 2023 by lowens   

By James Brady

In May of 2022, Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) introduced legislation “which will expressly state that the Alien Tort Statute (ATS) applies extraterritorially“. What does this mean? How did we get here? What problem is this solving?

According to the senators, “This clarification will ensure that foreign national victims can hold perpetrators within the jurisdiction of the United States accountable for human rights violations that occur abroad”.

Recent world events have demonstrated that the world’s evolution toward civility is still wrought with war crimes, crimes against humanity, and even in some cases, genocide. As the Nazis fled Europe to South America after WWII, these senators wish to ensure that the U.S. does not become a “Safe haven” for those who commit these crimes. The senators are looking to hold these individuals accountable both criminally and civilly. On the criminal front, a proposed bill looks to expand the war crimes statute to allow the Department of Justice to prosecute foreign war criminals in the U.S. On the civil front, the bill looks to expand the 1789 Alien Tort Statute to apply extraterritorially, allowing non-U.S. Citizens to file civil suits in U.S. Federal Courts for violations of international law.

James Brady, CDC Fellow Fall 2022

It was hoped that the “current” Alien Tort Statute of 1789 would allow this type of litigation. The Alien Tort Statute (“ATS”) gives federal courts jurisdiction over “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.” 28 U.S.C. § 1350.4

However, recent cases have gutted this possibility.  For example, in Nestle USA, Inc. v. Doe, 141 S. Ct. 1931 (2021), t

omestic nexus” for their claims and that domestic corporations participating in the global supply chain, will have a strong argument for not being held liable for activities of foreign third parties who violate international law.

he Supreme Court held 8-1 that plaintiffs suing domestic corporations for aiding and abetting international law violations overseas had failed to allege a sufficient “domestic nexus” for the conduct to support liability under the Alien Tort Statute. Here, the Nestle Court limited the “extraterritorial” reach of the Alien Tort Statute, holding that plaintiffs bringing suit under the ATS must establish a “d

The proposed legislation will further clarify that the Alien Tort Statute applies to extraterritorial applications of law, seemingly as originally intended.




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