The Alien Tort Statute: Holding Human Rights Abusers Accountable
The Alien Tort Statute (ATS) is a United States law that allows non-U.S. citizens to file lawsuits in U.S. federal courts for certain violations of international law. For more than three decades, the ATS has been an important tool allowing victims and survivors of some of the most horrific abuses – including torture, crimes against humanity, and genocide – to sue those responsible in the United States.
EarthRights has filed several cases with ATS claims, including Doe v. Unocal, Bowoto v. Chevron, Wiwa v. Shell, and Doe v. Chiquita. We’ve also filed a number of amicus curiae (“friend of the court”) briefs in other ATS cases, providing legal expertise on the contours of the ATS and international law.
In 2013, the Supreme Court placed limitations on ATS lawsuits, ruling that they must “touch and concern” the United States. The extent of this limitation is still unclear, and the ATS remains an important legal tool to protect human rights.
The ATS is nearly as old as the United States. The statute was enacted by the First Congress in 1789 and signed into law by George Washington. It is a single sentence:
“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.”–George Washington
The First Congress wanted to ensure that lawsuits involving international law and international issues would be heard in federal courts, before experienced judges, not in state courts which might produce conflicting and confusing results. This was vital to prove to the rest of the world that the young United States was a law-abiding country, fulfilling our obligations under international law.
Human Rights Violations under the ATS
Though largely ignored for two hundred years, in the 1980s, the statute took on new significance as a tool for victims of human rights abuses to seek justice. In the seminal case of Filártiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit determined that the ATS may be used to bring claims for significant human rights abuses such as torture. These abuses are committed in violation of the “law of nations.”
The U.S. Supreme Court later affirmed that holding in 2004 in Sosa v. Alvarez-Machain. The Court made clear that the ATS permits suits for violations of international law as it has developed over the past two centuries – developments that include the birth of international human rights law – so long as the international law norm is “specific, universal and obligatory.” Although the Court ruled that the arbitrary detention claims in the Sosa case could not proceed under the ATS, the decision was viewed as a significant victory for the human rights movement because the Court made clear that other human rights cases could go forward. Read our 2004 report, In Our Court: ATCA, Sosa and the Triumph of Human Rights.
Since Filartiga and Sosa, federal courts have allowed ATS lawsuits for other human rights abuses, including genocide, crimes against humanity, summary execution, torture, slavery, war crimes, and state-sponsored sexual violence.
Corporate Accountability under the ATS
While early human rights ATS cases were primarily filed against individuals, beginning in the 1990s, a number of cases were filed against multinational corporations for their complicity in human rights abuses. Companies were accustomed to getting away with murder – literally – so long as they did it outside the U.S., in countries with weak legal systems that were unable or unwilling to provide meaningful justice to victims of abuse against massive corporate enterprises, and where the government itself may have been involved in the abuses. That assumption changed when EarthRights filed a landmark ATS lawsuit against a U.S. oil company.
In 1996, EarthRights filed Doe v. Unocal on behalf of Myanmar (Burmese) villagers who were enslaved, tortured, and raped by Myanmar military forces providing security for Unocal’s pipeline. It was the first ATS case filed against a corporation to be allowed to proceed and established that corporations and their executives could be held legally responsible under the ATS for violations of international human rights law. The case was subsequently settled out of court in 2005. Since the Unocal case, courts have repeatedly recognized that ATS cases can proceed against corporations if they commit the most serious abuses or if they “aid and abet” abuses by government officials.
But the successful use of the ATS as a tool for corporate accountability also made the statute a target. The corporate lobby has devoted enormous energy and resources to undermining the ATS. In particular, the George W. Bush Administration aggressively challenged the use of the ATS by human rights lawyers and victims of abuse, arguing the statute could not be used in human rights cases and could not be used to address abuses that occurred outside the United States. Although the Supreme Court declined to adopt those arguments in Sosa, the campaign to take down the ATS only intensified. Corporations and their lawyers continued to advance radical arguments against corporate liability, arguing that corporations were not bound by international law at all, and that abuses that occurred in foreign countries could not be heard in U.S. courts.
Limiting the Extraterritorial Reach of the ATS: Kiobel v. Shell
The Supreme Court did not take up an ATS case again until 2011 when it agreed to hear Kiobel v. Royal Dutch Petroleum (Shell). That case was a companion to EarthRights’ case, Wiwa v. Royal Dutch Petroleum, which arose out of some of the same events and settled in 2009. Although the case originally came to the Supreme Court on a different issue, the Court decide the case based on the idea that ATS cases need to have some connection to the United States – they must “touch and concern” U.S. territory with “sufficient force.” EarthRights argued strongly that injuries outside the United States should be subject to ATS lawsuits, but the Supreme Court did not entirely agree. Read our Second Supreme Court Brief in Kiobel.
The Supreme Court held that in the Kiobel case, Shell, a foreign company, could not be liable in U.S. courts under the ATS for acts committed overseas because the case had no U.S. connection other than Shell’s “mere corporate presence” in the United States. But the Supreme Court did not explain what sort of connection would be sufficient. Read our 2014 report Out of Bounds: Accountability for Corporate Human Rights Abuse After Kiobel.
The ATS today: Human rights litigation post–Kiobel
Although the Kiobel decision was deeply disappointing, its impact remains unclear today. Federal courts have given different meanings to the “touch and concern” requirement, and the Supreme Court has not given any further explanation.
Some courts have dismissed ATS cases under the Kiobel decision, even where they involve a U.S. defendant, U.S. conduct, and significant U.S. national security interests, and despite the fact that this would seem to be a type of claim the Court envisioned would continue. Other courts have reached different conclusions in cases involving foreign conduct.
Corporations have also mounted another attack on the ATS, arguing that only individuals, not corporations, can be sued for violating international law. Every court facing this argument has rejected it – except one, the Second Circuit Court of Appeals. (In fact, this was the original basis for the Supreme Court hearing the Kiobel case.) The Supreme Court is now preparing to address this issue in a case known as Jesner v. Arab Bank. Jesner involves allegations that the defendant supported international terrorism. EarthRights has filed an amicus brief arguing that, of course, corporations can be sued, and we hope the Supreme Court will agree with the common-sense position that corporations are not entitled to commit terrorism, torture, or any other violation of international law. The most powerful economic actors in the world should not be given free rein to finance and profit from the worse abuses.
But the ATS has never been the only legal tool in the United States for corporate accountability for serious abuses. Human rights abuses can proceed in U.S. courts without the ATS – they just may proceed in state court and under state or foreign law claims. Torture victims can bring claims against their torturer under the ATS because torture violates the law of nations, but they can also file suit against the perpetrator for the same conduct using ordinary tort law, framed as “assault and battery.” In fact, all of EarthRights’ ATS cases have included equivalent state law claims: while the ATS issues were on appeal in federal court in Unocal, we were preparing to go to trial in California state court on the tort claims, and our case against Chiquita for funding paramilitary groups in Colombia is set to go to trial next year on our Colombian law claims, even though the Eleventh Circuit dismissed the ATS claims after Kiobel.
These cases have never been easy, and while the Supreme Court certainly hasn’t made things easier, many will continue. And we’ll continue to pursue new tools and strategies to hold corporations accountable and provide remedies for human rights violations.
Transnational Tort Litigation Manual