O riginally enacted by the First Congress as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) has been described as a provision that is "u nlike any other in American law" and "unknown to any other legal system in the world." In its current form, the complete text of 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." Although it is only a single sentence long, the ATS has been the subject of intense interest in recent decades, as it evolved from a rarely used jurisdictional statute to a prominent vehicle for foreign nationals to seek redress in U.S. courts for human rights offenses and acts of terrorism . The ATS was included among those class of jurisdictional provisions designed to provide a forum for federal courts to hear claims for violations of international law when the absence of such a forum could impact U.S. foreign relations. The United States was "embarrassed" by these incidents and by "its inability to provide judicial relief to the foreign officials injured in the United States[.]" The End of the Long Dormancy: 1980-2004

		The Rebirth of the ATS: Filártiga v. Peña-Irala

After nearly two centuries of dormancy, the ATS sprang into judicial and academic prominence in 1980 after the U.S. Court of Appeals for the Second Circuit (Second Circuit) issued a landmark decision in Filártiga v. Peña-Irala . But the Court also held that ATS jurisdiction is not limited to those claims. Beginning in 2013, that trend slowed after the Supreme Court recognized restrictions on the territorial reach of the ATS in Kiobel v. Royal Dutch Petroleum . Interpreting Kiobel

Although lower courts' interpretations of Kiobel are still evolving, many commentators see the Supreme Court's decision as having significantly limited the ATS as a vehicle to redress human rights abuses in U.S. courts. Jesner v. Arab Bank, PLC: Barring Foreign Corporate Liability

In the Supreme Court's most recent ATS case, Jesner v. Arab Bank, PLC , the Court granted certiorari to resolve another lingering circuit split in ATS litigation: May corporations be deemed liable under the ATS? Background on Jesner

Jesner involved claims by approximately 6,000 foreign nationals (or their families or estate representatives) who were injured, killed, or captured by terrorist groups in Israel, the West Bank, and Gaza between 1995 and 2005. The plaintiffs alleged that Arab Bank—one of the largest financial institutions in the Middle East —aided and abetted four terrorist organizations allegedly responsible for the attacks. Among other things, the plaintiffs alleged that Arab Bank maintained accounts for the organizations knowing that they would be used for terrorist actions, and played an active role in identifying the families of victims of suicide bombing so that they could be compensated in so-called "martyrdom payments." Against this backdrop of judicial caution, the Jesner Court concluded that it would be "inappropriate for courts to extend ATS liability to foreign corporations." The Court's decision arose, in part, from separation-of-powers and foreign affairs concerns. Because the "political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign policy concerns[,]" the Jesner Court concluded that the judicial caution described in Sosa warranted the creation of a bright-line rule that "foreign corporations may not be defendants in suits brought under the ATS." Instead, the High Court placed significant limitations on the scope of viable ATS claims through decisions in Sosa , Kiobel , and, most recently, Jesner .
Passed by the First Congress as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) has been described as a provision "unlike any other in American law" and "unknown to any other legal system in the world." In its current form, the complete text of the statute provides the following: "The 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." While just one sentence, the ATS has been the subject of intense interest in recent decades, as it evolved from a little-known jurisdictional provision to a prominent vehicle for foreign nationals to seek redress in U.S. courts for injuries caused by human rights offenses and acts of terrorism.
The ATS has its historical roots in founding-era efforts to give the federal government supremacy over the nation's power of foreign affairs and to avoid international conflict arising from disputes about the treatment of aliens in the United States. Although it has been part of U.S. law since 1789, the ATS was rarely used for nearly two centuries. In 1980, that long dormancy came to an end when the U.S. Court of Appeals for the Second Circuit rendered a landmark decision, Filártiga v. Peña-Irala, which held that the ATS permits claims for violations of modern international human rights law.
Filártiga caused an explosion of ATS litigation in the decades that followed, but the Supreme Court has placed limits on ATS jurisdiction in its recent jurisprudence. In a 2004 case, Sosa v. Alvarez-Machain, the Court held that the ATS allows federal courts to hear only a "narrow set" of claims for violations of international law. And in 2013, the Supreme Court held in Kiobel v Royal Dutch Petroleum Co. that the statute does not provide jurisdiction for claims between foreign plaintiffs and defendants involving matters arising entirely outside the territorial jurisdiction of the United States. Lower courts' interpretations of these decisions are still evolving and, in some cases, conflicting, but many observers agree that Sosa and Kiobel have significantly narrowed the scope of the ATS.
In its most recent ATS case, Jesner v. Arab Bank, PLC, the Supreme Court further limited the scope of viable claims by holding that foreign corporations may not be defendants in suits brought under the ATS. Jesner involved claims by approximately 6,000 foreign nationals (or their families or estate representatives) who were injured, killed, or captured by terrorist groups in Israel, the West Bank, and Gaza. The plaintiffs alleged that Arab Bank—the largest bank in Jordan—aided and abetted the terrorist organizations allegedly responsible for the attacks by maintaining bank accounts that Arab Bank knew would be used to fund terrorism and by identifying the relatives of suicide bombers so that they could be compensated with so-called "martyrdom payments."
A divided Supreme Court held in Jesner that the claims must be dismissed because ATS jurisdiction does not extend to claims against foreign corporations, including Arab Bank. Separation-of-powers and foreign policy concerns led the Court to conclude that it would be "inappropriate" to permit ATS liability against foreign corporations. The High Court's narrowing of the available avenues to raise an ATS claim in Sosa, Kiobel, and Jesner has led commentators to debate whether the statute remains a viable mechanism to provide redress for human rights abuses in U.S. courts.