The Alien Tort Statute, also known as the Alien Tort Claims Act (ATCA), originally appeared in Section 9 of the first Judiciary Act of 1789, which created the U.S. judicial court system. It provides that the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations (international law) or a treaty of the United States. The act was largely dormant until 1982, when the 2d Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876, and provided what the Bush administration calls "the modern conception" of the act, "a far-reaching cause of action on behalf of aliens for violations of international law anywhere in the world."
The Constitutional problem is determining the type of case ATCA poses under Art III Sec 2. The Section 9 Judiciary Act creates the right of an alien to sue; however, the next step is determining how a tort claim "committed in violation of the law of nations or a treaty of the United States" fulfils the constitutional requirements of Art III Section 2. Chief Justice Marshall said in The Nereide, 13 U.S. 388, 423 (1815), that "the Court is bound by the law of nations which is a part of the law of the land. Subsequent courts have reiterated that customary international law is part of U.S. law and that rules regarding foreign relations and international law must be treated exclusively as an aspect of federal law.
[...] The lower courts should be able to apply the Universal Principle and the “shock the conscience” test to try ATCA claims. To deter frivolous claims and safeguard against due process abuses, the courts should set some limits on ATCA to prevent these abuses. US courts should consider adopting the three safeguards utilized by the International Court of Justice (ICJ). The three safeguards are the principle of legality, necessity, and due process of law. The principle of legality means that universal jurisdiction should be exercised only over serious international crimes clearly recognized by treaty or customary international law. [...]
[...] The Universal Principle allows jurisdiction to be conferred in any forum that obtains physical custody of the perpetrator of certain offenses considered particular heinous and harmful to humanity. The Universal Principle recognizes that certain offenses are so heinous and so widely condemned that state if it captures the offender may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed.” The U.S. might have a good model for trying ATCA claims if it follows the Universal Principle. [...]
[...] US district courts would be best served by treating ATCA claims under the Universal Principle umbrella. The Universal Principle is used for those types of crimes that “shock the conscience”. This type of “shock the conscious test would be a good test for the US courts to use. The promulgation of the ATCA statute was really just a codification of these types of international jurisdiction. It seems that the Universal Principle in particular is what the Founders were thinking about when drafting this statute. [...]
[...] With the utilization of these safeguards and the application of the Universal Principle, the US courts should have some sound basis to review and determine future ATCA claims. The need for ATCA claims and a place for universal jurisdiction of international crimes are well founded. The two main alternatives to universal jurisdiction are prosecutions of criminals by their national courts and prosecutions before international criminal courts. Neither to date has proved sufficient to bring the world's worst criminals to justice. [...]
[...] At the time of the enactment of the ATCA, the common law included only three actions that were sufficiently definite and actionable: offenses against ambassadors, violations of safe conduct, and actions arising out of piracy. Justice Souter realizes that expanding the jurisdiction of district courts to hear whatever cases they felt violated norms of international law would be problematic. He instructs the courts in “restrained conception of the discretion a federal court should exercise.” Any new cause of action must, “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms previously noted in the opinion,” states Justice Souter. [...]
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