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A very interesting (if long) discussion of early understandings of scope of the #ATS. The Alien Tort Statute and the Law of Nations: New Historical Evidence of Founding-Era Understandings https://www.justsecurity.org/73376/the-alien-tort-statute-and-the-law-of-nations-new-historical-evidence-of-founding-era-understandings/ via @just_security
The concerns of Thomas Jefferson about the necessity of providing a remedy for extraterritorial violations of the law of nations by US citizens echo the concerns of early Hanafis about extraterritorial violations of the peace by subjects of the Islamic State.
According to early Hanafis, if the national of the Islamic State committed an act of aggression against a foreign national or his property in foreign territory, the foreigner could sue for relief in a Muslim court provided that peaceful relations existed between the two states.
If, on the other hand, the national of the Islamic state committed the act of aggression on the territory of a state not in peaceful relations with the Islamic state, the Muslim court lacked jurisdiction over the foreigner's claim.
In this latter case, the court could only advise the defendant to give satisfaction to the foreign plaintiff as a matter of piety, not law.
The critical difference in the two cases according to the early Hanafis is that in the first case the Islamic state as a corporate entity violated its commitment -- dhimma -- by not abiding by its guarantee to prevent its nationals from committing aggression.
Providing a remedy to the aggrieved foreigner is therefore necessary to heal the breach of the Muslim community's dhimma, a concept similar to that of Jefferson's notion of honor.
When a national of the Muslim state commits an act of aggression on the territory of a foreign power that is not at peace with the Islamic state, that act, while it violates the personal dhimma (honor) of that national, it is NOT a breach of the Islamic state's dhimma.
Accordingly, the honor/dhimma of the Islamic state is not injured in that case, and so the Muslim court lacks jurisdiction to give satisfaction to the foreign victim of the aggression. #IslamicInternationalLaw #ATS #extraterritoriality
