[Editor’s Note: This month, faculty members have been posting on upcoming judicial decisions of particular interest. This is the third post in the series.]

The Alien Tort Statute (“ATS”) creates federal 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.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”

Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.