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BACKGROUND AND FACTS

Alvarez, a Mexican physician, was wanted by the U.S. Drug Enforcement Agency for the torture and murder of one of its agents in Mexico in 1985. When Mexico would not extradite Alvarez, the agency employed Sosa to kidnap Alvarez from his home and fly him by private plane to Texas, where he was arrested by federal officers. Alvarez was tried and acquitted in a U.S. court. After the acquittal, Alvarez brought this civil suit in U.S. District Court against Sosa for damages under the U.S. Alien Tort Statute (ATS). The ATS reads: “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 or a treaty of the United States.” 28 U.S.C. §1350. Alvarez sued on the theory that the abduction and arrest were a tort committed in violation of customary international law. Alvarez won a judgment against Sosa in District Court, and it was upheld by the U.S. Court of Appeals. Sosa appealed to the U.S. Supreme Court.

JUSTICE SOUTER

Alvarez says that the ATS was intended … as authority for the creation of a new cause of action for torts in violation of international law. We think that reading is implausible. As enacted in 1789, the ATS … bespoke a grant of jurisdiction, not power to mold substantive law. * * *
“When the United States declared their independence, they were bound to receive the law of nations, in its modern state of purity and refinement.” Ware v. Hylton, 3 Dall. 199 (1796). [William Blackstone, in 4 Commentaries on the Laws of England 68 (1769)] … mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort. * * *
The second inference to be drawn from the history is that Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations … As Blackstone had put it, “offences against this law [of nations] are principally incident to whole states or nations,” and not individuals seeking relief in court. 4 Commentaries 68. * * *
[A]lthough the ATS is a jurisdictional statute creating no new causes of action, the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.
We think it is correct, then, to assume that the First Congress understood that the district courts would recognize private causes of action for certain torts in violation of the law of nations, though we have found no basis to suspect Congress had any examples in mind beyond those torts corresponding to Blackstone’s three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy.
Accordingly, we think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the eighteenth-century paradigms we have recognized. This requirement is fatal to Alvarez’s claim. * * * Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution. * * *
[Alvarez] attempts to show that prohibition of arbitrary arrest has attained the status of binding customary international law. * * * It is this position that Alvarez takes now: that his arrest was arbitrary and as such forbidden by international law not because it infringed the prerogatives of Mexico, but because no applicable law authorized it. * * * Alvarez cites little authority that a rule so broad has the status of a binding customary norm today. He certainly cites nothing to justify the federal courts in taking his broad rule as the predicate for a federal lawsuit, for its implications would be breathtaking. His rule would support a cause of action in federal court for any arrest, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment. * * *
Whatever may be said for the broad principle Alvarez advances, in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require. It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.
Decision. Judgment reversed for Sosa. Alvarez’s arrest did not violate any norm of customary international law that would permit an action for damages under the Alien Tort Statute. Recovery under the ATS should be limited to well-defined violations of norms of international law that are accepted by the civilized world, “principally incident to whole states or nations, and not individuals seeking relief in court.” The abduction and arrest in this case did not meet that standard.
Comment. In Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), the Supreme Court held that, perhaps with the exception of piracy on the high seas, the First Congress in 1789 did not intend that the ATS would apply extraterritorially (outside the United States). In Kiobel, Nigerian nationals residing in the United States sued Dutch, British, and Nigerian oil companies under the ATS for allegedly aiding and abetting the Nigerian government in the torture and execution of Nigerian environmentalists who were protesting oil exploration in Nigeria. The Court referred to its warning in Sosa that lawsuits under the ATS should not be permitted where they would cause “unwarranted judicial interference in the conduct of foreign policy.” The Court stated, “These concerns … are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.” 133 S.Ct. at 1664, 1665. The Court stated that although the ATS could be applied to violations of safe conduct and assaults on ambassadors within the United States, it could not be applied outside the United States. With regard to whether piracy on the high seas could be a violation of international customary law, the Court noted, “Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves.” Id. at 1667.

Case Questions

1. What were the three specific offenses mentioned by Blackstone that were recognized as violations of customary international law at the time the ATS was enacted?

2. Is the Court willing to expand the ATS beyond these original three offenses? According to Justice Souter, what types of torts would give rise to jurisdiction under the ATS?

3. Do you feel that this decision grants too much or too little power to the federal courts to hear tort claims occurring outside the country?

4. What foreign policy implications are involved in a U.S. court hearing a case under the ATS?

5. In what way did the Supreme Court’s subsequent decision in Kiobel further limit the application of customary international law?