Last week, I mentioned the Alien Tort Statute (ATS). The ATS is currently one of the most important American laws for pursuing accountability for grave human rights abuses. It is also, unfortunately, in danger of being significantly narrowed by the US Supreme Court. But what is it? Below, I’ll explain the essentials of the ATS, including how it developed from a law that likely was meant to protect against things like piracy to one that has pressured corporations such as Unocal and Shell into large settlements based on allegations of grave human rights abuses. Next week, I’ll discuss how it might apply to agribusiness corporations.
What is the ATS?
28 USC Section 1350, otherwise known as the Alien Tort Statute or the Alien Tort Claims Act, is short. In full, it states: “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.”
Essentially, the law has been interpreted to allow non-US citizens to sue in US federal courts for certain violations of “the law of nations” that occurred outside of the United States. Defendants have included non-US citizens and corporations. (Note that, for a case to go forward, personal jurisdiction must also exist, meaning that the defendant must have some tie to the United States. In the case of a corporation, that could include something as simple as offices in New York City.) Why would the United States have a law like this? Let’s look at where the law came from and how it has been used.
A short history of ATS litigation in the United States
The ATS has a long, uneasy, and fiercely debated history. The first American Congress enacted the law in 1789. Exactly why our founding politicians promulgated this law is somewhat of an enigma, though lawyers and academics generally agree that it was created to address issues such as piracy.
For the first 200 years of its existence, the ATS was rarely used and basically forgotten. In the 1970s, however, the Center for Constitutional Rights rediscovered the ATS, and used it to sue a Paraguayan police officer living in Brooklyn who had tortured a Paraguayan citizen in Paraguay. In 1980, the Second Circuit (an appeals level court), hearing an appeal based on this suit, essentially revived the ATS in Filartiga v. Pena-Irala, determining that the ATS incorporates modern, evolving international law norms. A flurry of litigation ensued, accusing individuals of human rights abuses that took place abroad.
In the 1990s, lawyers began filing ATS cases against corporations, arguing that corporations could be liable for human rights abuses when they act in complicity with government actors or when they commit violations that do not require government action (for example, slavery). One of the first corporate cases, brought in the ‘90s against Unocal for its use of slave labor in Burma, was settled in 2005 (for an undisclosed but rumored-to-be-large sum).
One year earlier, in 2004, the Supreme Court took a first look at the ATS, though not in a case against a corporation. In Sosa v. Alvarez-Machain, the Supreme Court determined that cases brought under the ATS could continue in US federal courts, but narrowed the allowable claims to very serious violations of the law of nations. (In the Court’s words, claims that “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.”)
Litigation against corporations under the ATS has continued since then, but federal courts have increasingly narrowed the scope of ATS litigation, particularly the claims that can be brought against corporations. In addition, other Supreme Court rulings not related to the ATS have made it increasingly difficult to bring such claims. For example, in Ashcroft v. Iqbal, the Court increased the amount of factual support that plaintiffs must include in their complaints (i.e., the initial lawsuit documents).
ATS cases are not easy … but still important
Aside from the narrowing judicial scope, ATS litigation also faces other pressures. The cases can last decades. They are incredibly expensive, and defendants have attempted to impose their own legal costs on victims claiming human rights violations. No case has ever won a final judgment against a corporation. A few cases against corporations have settled, but the money is often negligible from the corporations’ perspective. For example, in 2009, Shell agreed to pay out $15.5 million (while refuting responsibility) to plaintiffs in Nigeria who claimed that Shell was complicit in the extrajudicial execution of activists. The following year, Shell earned over $20 billion in profits.
Although the ATS is not a perfect vehicle for accountability, it is still one of the best litigation tools available when it comes to gross human rights abuses. ATS litigation enables survivors of human rights abuses – or families of victims – to have their day(s) in court. It shines a light on nefarious activities. And it arguably pressures corporations to avoid at least the most gruesome of abuses.
Next week, I’ll look at ATS litigation against agribusiness corporations, exploring some past attempts as well as what might be possible in the future.