In offering a form of civil redress to the victims of international human rights violations, litigation under the Alien Tort Statute ("ATS") has come to reflect in microcosm the ways that international law and practice have changed in the last half century. Specifically, the successful ATS cases since the Second Circuit's seminal decision in Fildrtiga v. Peia-Irala illustrate the blurring of certain structural distinctions that had long given international law its characteristic shape, especially the distinctions between public and private international law, between treaties and custom, between state and nonstate actors, between international and domestic law, and between lex lata and lex ferenda. But in the aftermath of the epochal attacks of September 11, 2001, the modest progress made by international human rights litigators in Fildrtiga and its progeny has been threatened by the same forces that undermine the recognition of domestic civil rights, particularly through the executive branch's broad claims to law-free zones of power.
The broadest critiques of the ATS have been that the private litigation of human rights violations complicates the war on terrorism, that it amounts to "plaintiffs' diplomacy" by interfering with executive branch prerogatives in foreign affairs, and that it threatens to impose a uniquely American form of liability on multinational corporations for their alleged complicity in human rights violations by the governments with which they do business. The narrower critique has centered on the more technical assertion that the ATS is purely jurisdictional and provides no private right of action; in other words, Congress must adopt additional legislation implementing an international human rights norm before it can be litigated under Section 1350. The ATS has also provided fresh context for decades-old battles over the constitutional status of international law, the scope of the self-executing treaty doctrine, and the problem of proving the content of customary international law.
Ralph G. Steinhardt,
Laying One Bankrupt Critique to Rest: "Sosa v. Alvarez-Machain" and the Future of International Human Rights Litigation in U.S. Courts,
57 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol57/iss6/6