The Scholar: St. Mary's Law Review on Race and Social Justice


Sung Je Lee


The United States Supreme Court did not clearly define what facts invoke the Alien Tort Statute (ATS). The Court also failed to provide guidance as to what claims touch and concern the territory of the United States. Enacted by the Continental Congress in the late 18th century, ATS states that federal district courts shall have original jurisdiction of any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. Because ATS has remained dormant for nearly 200 years, various federal courts have experienced immense difficulty interpreting its true intent. Furthermore, Congress provided no limitations about the scope of the statute’s subject matter, its extraterritorial extension, or its provision of a cause of action or right to a proper remedy. Thus, the question of whether a claim under the ATS may reach conduct occurring in the territory of a foreign sovereign remains unclear. While early cases focused on state actors who committed violent crimes against humanity in violation of the law of nations, more recent litigation involving the ATS is concerned with American corporations conducting business in foreign states in a manner not suitable on our home soil. For example, since industrialized nations have strict safety guidelines, many corporations are moving operations to developing countries where they are faced with less liability and regulation. Many believe the recent Supreme Court decision in Kiobel v. Royal Dutch Shell further complicates what facts would qualify to invoke the ATS. Others feel the Court’s ruling adequately answers the statute’s ambiguity. Nonetheless, it will remain to be seen if a case arises where the parties and facts sufficiently touch and concern the interests of the United States to invoke the application of the Alien Tort Statute.

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St. Mary's University School of Law



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