The Alien Tort Statute (“ATS”), U.S. federal law since the first Congress passed it as part of the Judiciary Act of 1789, has recently gained new life as a vehicle through which non-U.S. citizens can use U.S. courts to sue for torts occurring outside U.S. sovereign territory. Despite its brevity, this statute has been the subject of fierce debate, as courts and commentators have contested the access foreigners should have to U.S. courts for filing such claims. In particular, there has been significant discussion concerning the disposition of those claims alleging human rights violations.
The debate has focused on whether the ATS created a cause of action for foreigners or merely granted the federal courts subject matter jurisdiction over cases involving certain torts committed abroad. Last Term, the Supreme Court held in Sosa v. Alvarez-Machain that even though the ATS does not create any new causes of action, non-resident aliens may file a tort suit in federal court for violations of customary international law. This holding endorses a slightly more restricted version of Filartiga v. Pena-Irala—the 1980 “breakthrough” ATS case that first allowed a federal suit for violation of international human rights—and shifts the focus of the debate from whether the courts should make rulings based on norms of customary international law to how they should discern these norms.
Part II of this Recent Development outlines the case history of Sosa v. Alvarez-Machain and the lines of argument in each decision. Part III juxtaposes the case with Filartiga. By analyzing the three main themes of Filartiga—the existence of federal common law, problems with separation of powers, and the question of whether customary international law is federal common law—this piece will illustrate that Sosa is a narrower extension of Filartiga and thus only “cautiously” opens the doors of U.S. courtrooms to victims of foreign abuses.