On April 24, 2018, Justice Kennedy, writing the plurality opinion in Jesner et al. v. Arab Bank, Plc., 584 U.S. __ (2018), placed what might be the final nail in the coffin of the Alien Tort Statute (ATS).  In Jesner, the Court affirmed the U.S. Court of Appeals for the Second Circuit’s dismissal, which held that aliens cannot sue foreign corporations pursuant to the ATS.  While Jesner certainly is not the highest-profile decision of the October Term, it has a significant impact on the enforcement of international human rights.

The ATS is a little-known U.S. statute enacted as part of the Judiciary Act of 1789.  The ATS provides that “[t]he 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.  As was concluded by the Supreme Court in 2004, Congress passed the ATS to provide jurisdiction for violations of the law of nations (i.e. international law) that existed in the late 18th century and listed by Blackstone in his Commentaries on the Laws of England, namely offenses against ambassadors, violations of safe-conducts, and piracy.  However, international law evolves and new rights and duties become codified in international treaties.  Arguably, as time went on, the ATS granted U.S. courts jurisdiction to an ever-growing list of “violations of the law of nations or a treaty of the United States.”

As international law grew, the ATS sat dormant until 1980 when the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), and international lawyers began to laud the ATS as a legal mechanism to enforce international human rights through tort claims in U.S. courts.  Filartiga involved a teenager from Paraguay who was kidnapped and tortured to death by Pena-Irala, a high-ranking police officer, in retaliation for the family’s political activities.  The family later moved to the United States and applied for political asylum.  Pena-Irala would later move to the United States and be arrested for visa violations.  While in custody, the Filartiga family brought a civil action for wrongful death, arguing that Pena-Irala’s actions violated the U.N. Charter, the Universal Declaration of Human Rights, and other customary international laws.  The Second Circuit upheld a $10 million damages award and the holding was interpreted as granting U.S. courts jurisdiction to decide tort cases for alleged violations of international law that occurred overseas between foreign parties.

In 1995, the Second Circuit issued a ruling against Bosnian Serb politician Radovan Karadzic for his role in the human rights violations in the former Yugoslavia, which for the first time extended the ATS beyond government officials.  The Karadzic decision in turn opened the door for ATS actions against corporations, led by the 1996 case against the oil company UNOCAL for complicity in human rights abuses by the Myanmar government.  Seen as a bell curve, the ATS’ reach as a tool for the enforcement of human rights peaked in the late 1990s and early 2000s and well over 100 ATS actions have been filed against corporations since the Karadzic decision.

Then, in 2004, a Supreme Court more skeptical of the role of customary international law in U.S. courts decided Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and began to chip away at the breadth and power of the ATS.  Jesner is the Supreme Court’s most significant ATS decision since Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), which held that the ATS does not presumptively apply extraterritorially, and consistent with a Court that is reluctant to extend judicially created private rights of action.

The Jesner petitioners were either injured or the family members of those killed by terrorist acts abroad.  Petitioners alleged that the terrorist acts were in part caused or facilitated by Arab Bank, PLC by allowing the Bank to transfer funds to terrorist organizations in the Middle East, including Hamas.  The attacks at issue occurred between 1995 and 2005 and allegedly involved transactions in U.S. dollars that had moved through the Bank’s New York office.  Petitioners had lost at the district and circuit courts and filed certiorari on the grounds that the Court’s decision in Kiobel left open the question of whether the ATS allows for corporate liability. Justice Kennedy posed the question before the Court as “whether the Judiciary has the authority, in an ATS action, to [] determine[]” if a corporation has liability if its “human agents use the corporation to commit crimes in violation of international laws that protect human rights.”

In answering the question in the negative, Justice Kennedy cited, among other justifications, judicial efficiency and the negative impact to U.S.-Jordanian relations caused by the lawsuit.  The essence of Kennedy’s opinion, however, is that such suits should not be allowed without explicit congressional authorization.  Continuing to apply the reasoning set forth in Sosa, Justice Kennedy was unwilling to state that the allegations against Arab Bank were violations of international norms with “definite content and acceptance among civilized nations” or that the Court “has authority and discretion in an ATS suit to impose liability on a corporation without a specific direction from Congress to do so.”

 Jesner produced a fractured series of concurring and dissenting opinions, treatment of which is beyond the scope of this brief article.  However, the decision may represent the final bottoming out of the ATS bell curve.