Yesterday, the Supreme Court issued a troubling decision in Cisco Systems, Inc. v. Doe concerning the
Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA). Those two statutes have
long been central to civil litigation over torture, extrajudicial killing, and other grave violations of
international law. The Court held that those statutes do not themselves create civil aiding and
abetting causes of action.
In 1996, EarthRights brought the first ATS case against an American company, Doe v. Unocal,
alleging that Unocal knowingly aided and abetted the Burmese military’s campaign of forced labor,
torture, rape, and killings in connection with the Yadana gas pipeline in Myanmar. Since that
landmark case, the corporate bar has repeatedly knocked on the door of the Supreme Court, seeking
to narrow the reach of the ATS and the TVPA when applied to corporations (e.g., Mohamad (2012),
Kiobel (2013), Jesner (2018), Nestle (2021)). Yesterday, it claimed victory. But that celebration overstates
both the scope of the Court’s decision and the broader state of human rights litigation.
In the immediate aftermath of the decision, some commentators described Cisco as “a win for
multinational companies” and the end of “litigation tourism” and federal human-rights litigation
against corporations. That description is inaccurate. It forgets that the plaintiffs in these cases are
not tourists but survivors of heinous abuses who are seeking one of the few possible paths to a
remedy. The decision does not create a categorical bar on corporate liability, nor does it hold that
human-rights claims may not be heard in U.S. courts. And it does not foreclose plaintiffs from
pursuing other causes of action when U.S. companies participate in or profit from serious abuses,
including claims under foreign law, state tort law, and federal statutes that expressly provide for
secondary liability or other civil remedies—as illustrated by the recent Chiquita and BNP Paribas
verdicts.
Since the Supreme Court first signaled in Kiobel in 2013 that it would restrict certain uses of the ATS,
human rights lawyers have continued to use other legal tools to seek remedies for victims harmed by
American companies that profit from, facilitate, or ignore serious abuses without meaningful
scrutiny. Cisco narrows one set of tools, but it does not close the courthouse doors entirely. At
EarthRights, we will continue to press every viable path to justice.
