A New Paradigm for the Alien Tort Statute Under Extraterritoriality and the Universality Principle

Abstract

The landscape of international jurisprudence is changing. How the international community applies law to individuals, companies, and countries outside the physical boundaries of the forum state is still being developed. In some respects, the United States leads the way in seeking to establish the rule of law cross-culturally and internationally. The past two decades have seen an explosion of litigation in the United States concerning activities and nationals of other countries. Much of this litigation involves the Alien Tort Statute ("ATS"). The ATS came into prominent modern use when the Second Circuit decided Filartiga v. Pena-Irala in 1980. The application of the ATS has proved problematic; it does not seem to mandate a clear limit to its application nor a firm foundation for its use. For example, while the Second Circuit paved the way for the use of the Act, the D.C. Circuit rejected its application in a manner that left some doubt for the ATS' future application. The Supreme Court has not espoused on the Act's reach nor resolved the issues illuminated by the D.C. Circuit. A clear mandate for the use of the Act in prosecuting offenders of certain crimes such as genocide or torture arises prominently from the circuits, but a vast array of complications ensue even from these. Perhaps most daunting of these complications are the implications of extraterritorial application of the ATS and how it acts within the universality principle of prescriptive jurisdiction.

This Article seeks to address that issue. The ATS has become increasingly utilized in human rights litigation. Ramifications stem from its use that may exceed the individual benefits to litigants in particular cases. Part II of this Article reviews the history of the ATS and the seminal case of Filartiga and its progeny. Part III focuses on the doctrine of extraterritoriality and universal jurisdiction as it applies to the ATS. Finally, Part IV addresses concerns raised in these prior parts and suggests some limits to the ATS' application.