From Aiding Pirates to Aiding Human Rights Abusers: Translating the Eighteenth-Century Paradigm of the Law of Nations for the Alien Tort Statute

Abstract

The Alien Tort Statute [ATS], alternately hailed as a "potent weapon for human rights" and a threat to developing nations and American corporate interests alike, was secured a second act by the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain. The Sosa decision confirmed the ATS as actionable, but restricted its application to offenses "comparable to the features of the eighteenth-century paradigms, offenses against ambassadors, violations of safe conduct and piracy, that Congress had in mind when it enacted the ATS." Whether aiding and abetting liability is available under the ATS remains a live issue. This Note analyzes Sosa's historical paradigm, examining whether aiding and abetting liability was available for the archetypical violation of the law of nations: piracy. It concludes that aiding and abetting liability for piracy was available and common in English and American law from the sixteenth century to the eighteenth century. The Note outlines the theories of aiding and abetting piracy and applies those theories to contemporary human rights problems.