Human rights advocates, including we at ERI, have long used the Alien Tort Statute to hold corporations liable for their complicity in violations of universally recognized human rights standards. The statute, enacted in 1789 as part of the First Judiciary Act, grants federal district courts jurisdiction over claims by an alien for torts committed in violation of the law of nations. Corporations have tried any number of creative interpretations of the law to avoid liability for their actions.
One of the more creative (or perhaps ridiculous) examples is Chevron’s argument in Bowoto v. Chevron Corp., that it could not be held liable for the shooting of protestors at a Chevron oil platform offshore Nigeria because, it claimed, when Congress passed the ATS, the word alien only included foreign citizens living in the United States, not non-resident foreigners.
The Court properly rejected Chevron’s argument. Undeterred, one of Chevron’s attorneys published an article in the Berkeley Journal of International Law making the same claim.
So human rights attorney Lorraine Leete (a former ERI law student intern!) and I have published a response: “An Alien by Any Other Name: Debunking a New Attempt to Re-Write the Original Language of the Alien Tort Statute.” We note that the Supreme Court has already expressly held that non-resident aliens may bring suit under the ATS; in Rasul v. Bush , 542 U.S. 466 (2004), the Court upheld the availability of an ATS cause of action to non-resident aliens confined in military detention at Guantanamo Bay.
We also show that the accepted legal definition of the term alien at the time of the laws passage included non-residents, and that those who drafted and applied the ATS understood the term to include non-residents in the specific context of the ATS. Moreover, we demonstrate that the original purposes of the ATS suggest that the Framers would not have sought to exclude non-resident aliens.
Finally, we show that the word alien as used elsewhere in the First Judiciary Act has always been understood to include non-residents. The Supreme Court’s holding in Rasul that the ATS extends to non-resident alien plaintiffs is true to both the text and history of the statute. Although Chevron’s attempt to limit the ATS lacks merit, we expect that other corporations will make the same argument in other cases. But given our research, were confident those efforts will fail.