Answering the Supreme Court's Call for Guidance on the Alien Tort Statute – Just Security

In June 2021, the U.S. Supreme Court held in Nestlé v. Doe that the plaintiffs, who were allegedly trafficked as children from Mali to Ivory Coast to engage in slave labor on cocoa plantations, could not sue U.S. companies that supported those plantations under the Alien Tort Statute (ATS). The Court held that, because most of the relevant conduct occurred abroad, applying the ATS would be impermissibly extraterritorial. The Nestlé decision threatens the ability of other plaintiffs to bring ATS claims too, from victims of war crimes in Ukraine to victims of religious persecution in China.

Now Senators Dick Durbin and Sherrod Brown have introduced the Alien Tort Statute Clarification Act (ATSCA) to reverse Nestlé, in effect, by clarifying Congress's intent that the ATS does, indeed, apply extraterritorially. The proposed ATSCA provides that “the district courts of the United States have extraterritorial jurisdiction over any tort [covered by the ATS if] . . . an alleged defendant is a national of the United States or an alien lawfully admitted for permanent residence . . . or an alleged defendant is present in the United States, irrespective of the nationality of the alleged defendant.”

If adopted, this legislation would help ensure that the United States is not a safe haven for individuals who violate human rights abroad and then come here. It would also allow victims to sue corporations that aid and abet human rights violations abroad to the extent those corporations are subject to personal jurisdiction in the United States. The ATSCA would be an important step toward accountability for some of the worst human rights abusers and those who assist them, perpetrators who otherwise might avoid accountability altogether.

Background

The ATS, which was enacted by the First Congress in 1789, provides, “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.” In less technical terms, it allows any person who is not a citizen of the United States to sue defendants who are subject to jurisdiction in the United States for money damages in U.S. federal court for violating their rights under international law.

This law was used only occasionally until 1980, when the Second Circuit held in Filártiga v. Peña‑Irala that the ATS could be the basis for a civil suit against a Paraguayan police inspector for torturing to death the son of a political dissident. After this decision, two new strands of cases emerged—one directed at U.S. and foreign government officials and the other at corporations that aided and abetted international law violations. The first new strand ran into significant immunity bars, which (as discussed below) limited the suits that could move forward. The second strand met with modest success and resulted in a few large settlements against corporations.

A turning point came in 2013, when the Supreme Court applied the presumption against extraterritoriality to the ATS in Kiobel v. Royal Dutch Petroleum Co. Subsequent decisions continued to narrow the claims that could be brought under the ATS. In Jesner v. Arab Bank, the Court held that foreign corporations could not be sued under the ATS. Most recently, in Nestlé, the Supreme Court held that U.S. corporations could not be sued for aiding and abetting child slavery in Ivory Coast because their conduct within the United States amounted only to general corporate decision-making while all other activity related to the allegations occurred abroad.

Although the Supreme Court has chipped away at the ATS for years, it had always left the Filártiga decision intact—until its decision in Nestlé. There it cast doubt for the first time on the Filártiga model permitting claims against human rights violators who later come to the United States.

The Supreme Court has long said that it “would welcome any congressional guidance” about what claims should be actionable under the ATS. In Nestlé, Justice Clarence Thomas emphasized that “[w]hether and to what extent defendants should be liable under the ATS . . . lies within the province of the Legislative Branch,” and Justice Neil Gorsuch said that responsibility for determining the proper scope of the ATS cause of action belongs “[w]ith the people's elected representatives.” The ATSCA responds to such calls for congressional direction.

Cases the Act Would Make Possible

The ATSCA would resolve any questions that exist about cases like the one brought by the Filártigas. This is important because by one count there are close to 1,700 alleged human rights violators and war criminals here in the United States. Many of them are living comfortable lives in the United States after causing untold misery in their home countries. The ATSCA would make clear that an important purpose of the ATS is to deprive those who have committed offenses abroad from escaping justice by simply relocating to the United States.

Russia's invasion of Ukraine highlights the urgency of ensuring accountability mechanisms are in place for those who violate human rights and commit war crimes abroad. On May 18, 2022, a bipartisan group of Senators introduced the Justice for Victims of War Crimes Act, which would amend the United States' existing war crimes statute to permit criminal prosecutions even when both the perpetrators and the victims are not U.S. nationals. As Senator Chuck Grassley said, “The United States must not be a safe haven for war criminals looking to escape justice in their home country.” The proposed amendment of the war crimes statute would authorize criminal liability, which is important. But another critical form of accountability is enabling victims to recover damages from perpetrators. The ATSCA would strengthen civil remedies under the ATS by clarifying Congress's intent to allow Ukrainian victims of war crimes and other victims of human rights violations abroad to seek compensation from perpetrators who later come to the United States.

The ATSCA would also allow victims to sue corporations that aid and abet war crimes and human rights violations abroad. While many companies have curtailed their operations in Russia, others have not. The ATS does not make companies liable simply for doing business in countries that violate human rights, and the ATSCA would not change this. But the ATSCA would permit victims to sue companies that aid or abet such abuses by, for example, selling computer chips to Russia knowing or intending that those chips will be used in weapons that target civilians. Such companies are most likely to be foreign, because U.S. sanctions prohibit U.S. companies from selling such goods to Russia, which may raise issues of personal jurisdiction as we discuss below.

It would also make it possible to hold responsible companies that have helped China target political dissidents and religious organizations. In Wang v. Yahoo!, two Chinese pro-democracy activists alleged that Yahoo!, a U.S. corporation, gave information from their emails to Chinese officials, leading to their detention and torture. Yahoo settled the case for more than $23 million. In Ning v. Oath Holdings, another Chinese pro-democracy activist made similar allegations against Yahoo!. In Doe v. Cisco Systems, plaintiffs alleged that Cisco, another U.S. corporation, designed and helped maintain China's Golden Shield security system, in collaboration with the Chinese Communist Party and public security officials, knowing that the system would be used to violate the human rights of Falun Gong practitioners. Both Ning and Doe are currently on appeal to the Ninth Circuit. While they may ultimately be dismissed, the ATSCA would ensure that they will not be dismissed simply because they apply to extraterritorial conduct.

Most important, by closing these gaps, the ATSCA ensures that companies that respect human rights do not have to compete unfairly with companies that knowingly enable human rights violations. To return to the Nestlé case that prompted the ATSCA legislation, Nestlé and Cargill, the defendant in the sister case, were allegedly able to purchase raw cocoa at lower prices because they bought from plantations that used child slave labor. That makes it difficult for cocoa companies that do not purchase cocoa made with child slave labor to compete in the free market—because their costs are higher. Ensuring that the ATS extends to extraterritorial conduct simply puts these companies on a level playing field, by making it possible for those harmed by their illegal conduct to hold them responsible.

Existing Law Is Not Sufficient

Although Congress has previously provided civil liability against those who violate human rights, often with bipartisan support, the Supreme Court's narrowing of the ATS cause of action has left substantial gaps.

In 1992, Congress passed the Torture Victim Protection Act (TVPA), which provides an express cause of action for torture and extrajudicial killing under color of foreign law. But the TVPA does not apply to other human rights violations like genocide or war crimes. In addition, the Supreme Court held in 2012 that the TVPA applies only to natural persons and therefore does not allow corporations to be sued. The House and Senate Reports accompanying the TVPA make clear Congress's intention that the ATS “should not be replaced” and “should remain intact” to address cases beyond the scope of the TVPA, an intention that the Supreme Court's recent decisions have undercut. By amending the ATS to apply extraterritorially, the ATSCA would restore the ATS to its former scope, allowing it to reach claims that the TPVA does not.

In 2003, Congress passed the Trafficking Victims Protection Reauthorization Act (TVPRA), which added a civil cause of action for victims of slavery, forced labor, and human trafficking against anyone, including corporations, who knowingly benefits from such violations. In 2008, Congress further amended the TVPRA to apply extraterritorially. But the TVPRA applies only to offenses such as slavery, forced labor, and human trafficking, and not to other human rights violations like torture, extrajudicial killing, genocide, and war crimes. The ATSCA would amend the ATS to provide a civil remedy for other human rights violations abroad in the same way that the TVPRA provides a civil remedy for the violations that it covers. In fact, the ATSCA takes its language on extraterritoriality directly from the TVPRA, so that the two statutes would apply extraterritorially to the same extent.

Foreign Relations Implications

When the Supreme Court recognized an implied cause of action for human rights violations in Sosa v. Alvarez-Machain (2004), the Court noted that “the potential implications for the foreign relations of the United States of recognizing such causes should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Sosa addressed that concern by limiting the ATS cause of action to human rights norms that are generally accepted and specifically defined—like torture, extrajudicial killing, genocide, and war crimes. The ATSCA would leave the Sosa standard in place, limiting ATS cases to the most serious violations of human rights, which are widely condemned by the world community.

Other doctrines will also mitigate the foreign relations implications of amending the ATS to apply extraterritorially. First, under the Foreign Sovereign Immunities Act (FSIA), foreign states and their agencies and instrumentalities are immune from suit in U.S. courts unless an exception to immunity applies. The FSIA has no general exception for human rights claims, although other exceptions (like the terrorism exceptions) sometimes allow such claims to be brought. The ATSCA would not create any new exceptions to foreign states' immunities.

Second, foreign officials will also sometimes be entitled to immunity. Accredited foreign diplomats are almost completely immune from civil suits under the Vienna Convention on Diplomatic Relations. Foreign heads of state, heads of government, and foreign ministers are entitled to absolute immunity from suit under federal common law during their tenure in office. Lower-level officials and all former officials are entitled to conduct-based immunity for acts taken in their official capacities. U.S. courts, often with the benefit of input from the executive branch, have used the rules of conduct-based immunity to distinguish claims that should not go forward from claims that should.

Third, foreign corporations will often be protected from suit in U.S. courts from claims arising abroad by the rules of personal jurisdiction. U.S. courts lack general jurisdiction over most foreign corporations. And, for specific jurisdiction to exist, the claims must “arise out of or relate to the defendant's contacts” with the United States. The ATSCA's findings indicate a purpose to extend the scope of the ATS as far as the rules of personal jurisdiction will allow. But in the case of foreign corporations, the rules of personal jurisdiction may not allow much.

At the same time, there could be significant foreign relations benefits from the ATSCA. Indeed, one reason the First Congress passed the ATS in 1789 was to avoid foreign relations problems by giving non-citizens a remedy for international law violations for which other countries might hold the United States responsible. It was precisely this history that led Gorsuch to distinguish claims against U.S. companies from claims against foreign companies in his Jesner concurrence: “It is one thing for courts to assume the task of creating new causes of action to ensure our citizens abide by the law of nations and avoid reprisals against this country. It is altogether another thing for courts to punish foreign parties for conduct that could not be attributed to the United States and thereby risk reprisals against this country.” Other countries, like Canada and the United Kingdom, are increasingly holding their own companies to account for human rights violations and other illicit conduct abroad. Far from causing problems for U.S. foreign relations, amending the ATS to apply to U.S. companies when they act abroad to help foreign governments suppress dissent or religious freedom is only likely to strengthen U.S. standing abroad.

Indeed, it is worth considering the foreign relations implications of not amending the ATS to apply extraterritorially. The United States has long been a leader in international human rights. When the Filátiga case was pending before the Second Circuit, the U.S. government filed an amicus brief urging that the ATS should be used to hear human rights claims. When “there is a consensus in the international community that the right is protected and that there is a widely shared understanding of the scope of this protection,” the brief noted, “there is little danger that judicial enforcement will impair our foreign policy efforts. To the contrary, a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation's commitment to the protection of human rights.”

Conclusion

The ATSCA is a modest but important piece of legislation. Answering the Supreme Court's repeated calls for congressional guidance, it makes clear that Congress intends the ATS to provide a remedy for human rights violations abroad when individual perpetrators come to the United States and when corporations that aid and abet such violations are subject to personal jurisdiction here. The ATSCA would work in tandem with the TVPA and TVPRA, other laws that have received bipartisan support, to cover cases that those statutes do not reach. Any negative foreign relations implications are addressed by the limits Sosa has placed on the ATS cause of action, as well as the existing rules of immunity and personal jurisdiction. And the positive foreign relations implications should not be ignored. By denying safe haven to individual perpetrators and by discouraging corporations subject to U.S. jurisdiction from aiding and abetting human rights violations abroad, Congress can bolster the United States' status as a defender of human rights. This legislation deserves bipartisan support.

IMAGE: People collect cocoa beans at a cocoa exporter's in Abidjan, on July 3, 2019. (Photo by Sia KAMBOU / Getty Images)