Odah et al. v United States et al., United States Court of Appeals for the District of Columbia Circuit, 11 March 2003

The immediate effect of the U.S. Court of Appeals' decision last month in Odah v United States - to dismiss for lack of jurisdiction actions brought by detainees (including British nationals) at the Guantanamo Bay Naval Base - might seem of little relevance to commercial lawyers and their clients. However, the case, and in particular the concurring opinion of Judge Randolph, is of broader interest for its contribution to the ongoing debate over the scope and effect of the U.S. Alien Tort Act.

The Alien Tort Act, 28 U.S.C. ß1350 ("ATA") states that the United States federal courts shall have subject matter jurisdiction over "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". This provision was enacted by the First Congress in 1789 but lay largely dormant for most of the next two hundred years. Judge Friendly once described it as "a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came".

The ATA was famously "revived" in 1980 by the Second Circuit Court of Appeals in Filartiga v Pena-Irala. The Court allowed citizens of Paraguay to sue another Paraguayan for torts committed in Paraguay "in violation of the law of nations" (in that case the customary international law prohibition of torture). Professor Koh of Yale University has described the decision as the " Brown v Board of Education" of "transnational public law litigation".

Since Filartiga the ATA has increasingly been used in the Second Circuit against multi-national corporations, whose presence in New York establishes personal jurisdiction, for alleged violations of international law committed outside the United States. These include an action by the estate and son of Ken Saro-Wiwa against Royal Dutch Petroleum Company and Shell Transport and Trading Co. Plc alleging that the companies' Nigerian affiliate was complicit in the torture and murder of Mr Saro-Wiwa by the Nigerian authorities; an action by victims of apartheid against a large number of banks and other companies that allegedly profited from human rights violations by the South African regime during the apartheid era; and a recently-filed suit by victims of terrorism against international banks, Islamic foundations, and financiers, for their alleged support for terrorists. The Ninth Circuit Court of Appeals (which covers California) has also followed Filartiga, for example in a case...