In the past two weeks, I’ve written briefly about litigating against agribusiness corporations, and discussed the origins of the Alien Tort Statute (ATS). As I noted, the ATS is not a perfect vehicle for accountability, but it is one still of the most important tools that we have at our disposal for addressing grave human rights abuses.
To date, ATS litigation against agribusinesses has been limited and unsuccessful. That doesn’t mean, however, that the ATS would never prove useful in attempting to hold agribusinesses accountable. This assumes, of course, that the Supreme Court’s expected ruling next year on the ATS allows such cases to continue.
Linking bananas and torture?
Examples of attempted or ongoing ATS litigation against agribusiness corporations include:
- Bigio v. Coca-Cola Co., 675 F.3d 163 (2012): Egyptian plaintiffs claimed their property was seized in the 1950s, because they were Jewish, and then leased to Coca-Cola in the 1990s. An Appeals Court first rejected the case in 2001; the court rejected it again in 2012 by affirming the lower court’s opinion. Among other things, the Court held that plaintiffs had not included sufficient factual material in their complaint, and that the Coca-Cola’s contributions to the economic health of the company with which it was doing business did not constitute aiding and abetting.
- Doe v. Nestle, S.A., 748 F. Supp. 2d 1057 (2010): Malian plaintiffs sued Nestle and other chocolate manufacturers and importers, arguing that the companies aided and abetted violations of international law that included slavery, forced labor, child labor, torture, and cruel, inhuman, or degrading treatment. The plaintiffs said that they had been forced to work on cocoa fields in Cote d’Ivoire, and argued that the defendants’ exclusive supplier/buyer relationships with local farms or cooperatives enabled them to control labor conditions on farms. The district court dismissed the case, stating among other things, that “international law does not recognize corporate liability for violations of international law” and thus that the ATS does not cover corporate violations. This was a surprising conclusion, given the court’s own acknowledgement that, “[w]ith a single exception, this argument [that corporations are not liable under international law] has been uniformly rejected or ignored by other courts.”
- In re Chiquita Brands Int’l, Inc., 792 F. Supp. 2d 1301 (2011): Colombia plaintiffs, who are family members of trade unionists, banana-plantation workers, and others who were tortured and killed by a paramilitary unit, sued Chiquita (both the international parent company and its North American company), alleging a number of claims under the ATS and other laws. Chiquita moved to dismiss. The district court held that terrorism-based claims could not be brought under the ATS, but that plaintiffs could go ahead with their accusations that Chiquita aided-and-abetted torture, extrajudicial killings, war crimes, and crimes against humanity.
- Sinaltrainal v. Coca-Cola, 578 F.3d 1252 (2009): Colombian plaintiffs, all members of the Sinaltrainal union and working in the soft drink bottling industry, alleged that Coca-Cola (both the parent company and its Colombian subsidiary), as well as other corporate entities in the soft drink bottling industry, violated human rights by collaborating with paramilitary forces and police to murder and torture unionists. An Appeals Court reviewing an appeal of four consolidated cases upheld the dismissal of the cases, stating that the plaintiffs had not sufficiently alleged a violation of the law of nations. Specifically, the plaintiffs had not shown that the paramilitaries were sufficiently connected to the Colombian government and that the defendants or their agents had conspired with the state actors.
- Villeda Aldana v. Del Monte Fresh Produce N.A., Inc., 578 F.3d 1283 (2009): Guatemalan plaintiffs sued Del Monte and its Guatemalan subsidiary, alleging that they had been tortured by a private armed security force hired by the subsidiary because of their labor union activities. The Appeals Court upheld the lower court’s dismal on forum non conveniens grounds, finding that the case should be tried in Guatemala.
When would the ATS apply to agribusiness corporations?
Although agribusinesses can clearly have negative impacts on human rights, most of their problematic activities would not rise to the standard required for ATS cases. To bring an ATS case, the agribusiness in question would have to have been intimately involved in the abuse in question. Simply benefiting from the human rights abuses of a government or company within its supply chain would not suffice.
Moreover, the abuse would have to be sufficiently egregious to meet the Supreme Court’s high standard of violations of the law of nations that are comparable to recognized 18th century paradigms. General violations of the right to food would not be adequate. Think more along the lines of crimes against humanity, extrajudicial executions, etc. Of course, it is not impossible to think of situations in which the ATS might remain a litigation option against an agribusiness. Yet as evidenced in the cases above, even raising such grave allegations as forced child labor or the torture of trade unionists will not always be sufficient.
Caveat: We’re assuming that the ATS will remain relatively unscathed
This entire analysis of the ATS, however, is only relevant if the Supreme Court allows ATS lawsuits to continue under its currently accepted parameters. Last month, the Court received amici curiae briefs in Kiobel v. Royal Dutch Petroleum. In this round of briefs, the Court had asked for clarification on whether the ATS applies “to conduct that took place within the territory of a foreign state.” Human rights advocates and international law experts submitted multiple briefs arguing that, yes, the ATS does apply to conduct occurring within foreign territory. The US Department of Justice also submitted an amicus brief, however, arguing that the ATS should not apply in Kiobel, though it could apply in other situations.
The Court’s decision, expected to come out next spring, will be only its second ruling on the ATS. It’s unclear how the Court will rule. What is clear, however, is that the Court’s decision has the potential to deeply affect the ability of persons to litigate in the United States over international human rights abuses. Let’s hope that the law’s scope remains intact.