Deriving Lessons for the Alien Tort Claims Act from the Foreign Sovereign Immunities Act

Abstract

Since human rights advocates resurrected the Alien Tort Claims Act (ATCA) in 1980, the Act has generated endless controversy. Famously described by Judge Friendly as a "legal Lohengrin," the resurrection of the ATCA spawned a heated historical debate among scholars, which has evolved into a high-stakes political and legal struggle between multinational corporations and human rights activists. In 2004, the Supreme Court addressed some of the legal questions surrounding the ATCA by finding that the statute was not merely jurisdictional but also provided a narrow cause of action for violations of certain customary international laws. But many important questions regarding the scope of the ATCA were left unanswered, and lower courts have struggled to fill in the gaps.