The New Development Of The Alien Tort Statute’s Extraterritorial Applicability

The Alien Tort Statute (hereinafter referred to as "ATS") was enacted in 1789, being codified as 28 U. S. C. §1350 (2000), which now provides that "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." The ATS is nearly dormant after being enacted until the 1980s. It also gives rise the controversy on the background and legislative purpose of the ATS in academic community. At present, it is generally viewed that the direct cause of the passage of the ATS is a response to diplomatic crisis, such as Marbois event, and to avoid the federal government being in a disadvantaged position due to "denial of justice".The history of the application of the ATS reflects the change of extraterritoriality in all fields of U. S. laws. Given its archaic inscrutability and almost homeopatic brevity, it is no surprise that over the past thirty years, federal courts found no apparent obstacle in expanding the ATS by applying it in lawsuits with no significant connection to the U.S. Despite criticisms raised of the extraterritorial application of the ATS in the past, its extraterritorial applicability appeared a well-settled principle, established in case law and accepted among scholars. However, the Kiobel Court broke with this trend and, relying heavily on Morrison v. Australia National Bank, determined that the ATS did not apply extraterritorially. This case has significant influence on the development of the ATS’s extraterritorial applicability and the universal civil jurisdiction.This thesis is divided into five chapters to discuss the development of the ATS’s extraterritorial applicability. Chapter I introduces the history of the ATS, the connotations of the ATS and judicial jurisdiction in the ATS suits. Chapter II discusses the historical extraterritorial application of the ATS. Chapter III analyses the Kiobel case and its impact on the ATS suits. Chapter IV presents the relation between the ATS and the universal civil jurisdiction. Chapter V discusses the similar practice of the ATS suits in other countries. It is suggested that China should improve the traditional theory of private international law in response to the new trend; meanwhile, the Chinese government and multinational companies should learn from the ATS practice to better mitigate legal risks.