Alien Tort Statute Litigation Research Articles

Alien Tort Statute Litigation and Transitional Justice: Bringing the Marcos Case back to the Philippines

Alien Tort Statute Litigation and Transitional Justice: Bringing the Marcos Case back to the Philippines

Shifting the Lens on Alien Tort Statute Litigation: Narrating US Hegemony in Filártiga and Marcos

This article revisits the two seminal Alien Tort Statute (ATS) cases Filártiga v. Peña-Irala and In re: Marcos Human Rights Litigation. Setting aside the dominant framework of accountability, the article explores the historical narratives produced in those cases. It exposes how Filártiga and Marcos recast as entirely foreign violence in which the US executive was deeply involved, due to a combination of legal and political constraints in the exercise of a controversial form of jurisdiction. Moreover, these constraints have persisted in subsequent ATS litigation, creating a trade-off between individual accountability and narratives about US hegemony. By offering an alternative account of ATS litigation and exposing hitherto ignored costs of familiar legal developments, this article challenges the assumption that broad assertions of jurisdiction are necessarily beneficial in human rights struggles, and urges international lawyers to pay more attention to the interplay among doctrine, political circumstances and historical narrative when considering and comparing human rights mechanisms.

Litigation Dilemmas: Lessons from the Marcos Human Rights Class Action

How do activist plaintiffs experience the process of human rights litigation under the Alien Tort Statute (ATS)? Answering this question is key to understanding the impact on transnational legal mobilization ofKiobel v. Royal Dutch Petroleum Co., in which the US Supreme Court sharply limited the scope of the ATS. Yet sociolegal scholars know remarkably little about the experiences of ATS litigants, before or after Kiobel. This article describes how activist litigants in a landmark ATS class action against former Philippine President Ferdinand Marcos faced a series of strategic dilemmas, and how disagreements over how to resolve those dilemmas played into divisions between activists and organizations on the Philippine left. The article develops an analytical framework focused on litigation dilemmas to explain how and why activists who pursue ATS litigation as an opportunity for legal mobilization may also encounter strategic dilemmas that contribute to dissension within a social movement.

Kiobel and the Weakening of Precedent: A Long Walk for a Short Drink

Kiobel v. Royal Dutch Petroleum Co. marks the second time in nine years that the Supreme Court has ruled unanimously that the Alien Tort Statute (ATS) does not provide jurisdiction in a high-profile human rights case, a sequence that might suggest an end to the gilded age of human rights litigation that began with Filártiga v. Peña-Irala. On closer analysis, however, Kiobel, like Sosa v. Alvarez-Machain before it, adopts a rhetoric of caution without foreclosing litigation that fits the Filártiga model. To the contrary, Sosa and Kiobel invite considerably more ATS litigation than they resolve or bar and therefore confirm Justice Antonin Scalia’s memorable encapsulation of the Court’s “Never Say Never Jurisprudence.” All four of the opinions in Kiobel confirm that multiple significant issues remain for future resolution, but it is unrealistic to expect answers on the basis of the Court’s decision because what is law in Kiobel isnt clear and what is clear in Kiobel isn’t law.

What a Pity! Sovereign Immunity, State Responsibility, and the Diminution of Accountability Under International Human Rights Law

Over the course of the past half century, some significant progress has been made in creating accountability mechanisms that have helped to serve human rights. Five are analyzed here: (1) the evolution of the European Court of Human Rights (ECHR), (2) Alien Tort Statute litigation, (3) universal jurisdiction, (4) the “terrorism” exception under US sovereign immunity law, and finally (5) the establishment of regional and international criminal tribunals. However, two related international law principles—sovereign immunity and state responsibility—stand squarely in the way of achieving greater human rights protection. This article analyzes an ECHR case (Al-Adsani v. United Kingdom) that could have changed much of this almost immediately. However, in an extraordinarily close (9–8) vote, the court upheld the principle of sovereign immunity—even when this serves to protect a state that engages in torture, which is a jus cogens norm. One of the dissenting judges in this case exclaimed: “What a pity!” But the missed opportunity to protect human rights is more than just a pity. Rather, it is contrary to why international human rights law exists in the first place. The article closes by calling for the use of much different standards for assigning state responsibility.

Sosa v. Alvarez-Machain and Human Rights Claims against Corporations under the Alien Tort Statute

Contrary to the claims of some observers, the Supreme Court's decision in Sosa v. Alvarez-Machain does not sound the death knell for the use of the Alien Tort Statute to maintain human rights claims against private corporations in the U.S. courts. The decision clarifies the nature of claims under the Alien Tort Statue to some extent, and places some limits on the theories available in actions against private corporations, but for the most part such suits remain as viable after Sosa as they were before. That is not to say, however, that victims of corporate human rights violations in developing countries should hold out much hope that their lot will be bettered through Alien Tort Statute litigation in the United States. Even before Sosa, such suits had a chance of producing results favorable to foreign plaintiffs only with respect to a very narrow category of human rights violations. This paper first briefly describes the evolution of the Alien Tort Statute from the time it was reinvigorated in Filartiga v. Pena-Irala to the Supreme Court's decision in Sosa. It then discusses the implications of Sosa for human rights claims against private corporations and assesses the potential significance of federal human rights litigation as a mechanism for addressing the problems of those whose human rights are adversely affected by US corporations operating abroad.

Remarks by Ingrid Wuerth

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Legal Mechanization of Corporate Social Responsibility Through Alien Tort Statute Litigation: A Response to Professor Branson with Some Supplemental Thoughts

Courts continue to struggle with theories of liability for corporations under the Alien Tort Statute (“ATS”) (a/k/a Alien Tort Claims Act (“ATCA”). Recent cases like Kiobel (2d Circuit, 2010) and Doe v. Exxon Mobile (DC Circuit, July 2011) have raised issues of whether corporations can be sued at all under the ATS, illustrate that issues about corporate liability under the ATS continue to percolate within the judiciary.Written in early 2010 and just published in July 2011, this Response essay argues that as Alien Tort Statute jurisprudence “matures” or becomes more sophisticated, the legitimate limits of the law regress. The further expansion within the corporate defendant pool – attempting to pin liability on parent, great grandparent corporations and up to the top – raises the stakes and complexity of ATS litigation. The corporate social responsibility discussion raises three principal issues about how a moral corporation lives its life: how a corporation chooses its self-interest versus the interests of others, when and how it should help others if control decisions may harm the shareholder owners, and how far the corporation must affirmatively go to help right the perceived wrongs in the world in which they operate. Although these questions could be posed simply as ones of policy or morality, with the injection of the ATS into the discussion they become questions that must be answered by examining the dictates and limits of law. Every expansion of liability, whether it is in terms of the persons or entities who may be sued or the nature of claims recognized as creating legal obligations, should be viewed cautiously. In our zeal to “right every wrong,” we should not lose sight of some fundamental principles of corporate law and the limits of the judicial process that are at risk as the ATS liability net widens.

Westphalian Procedure, Post-Westphalian Substance: Alien Torts in Bolivia

This paper argues that the Post-Westphalian International Legal System protects substantive rights, subject to procedural constraints of the Westphalian state system - using the example of Alien Tort Statute litigation with respect to the former head of state of Bolivia.

Climate Change and International Human Rights Litigation: A Critical Appraisal

Litigation over the effects of climate change has taken various forms, of which litigation based on international human rights law is perhaps the most ambitious. Plaintiffs argue that major emitters of greenhouse gases have violated rights to life and health by contributing to environmental and health injuries associated with global warming. International human rights litigation in international tribunals is unlikely to have any effect, but conceivably American courts might be open to these arguments in Alien Tort Statute litigation. If so, this would be a mistake. Because the health of the global climate is a public good, because American courts have limited ability to control the behavior of corporations on foreign territory, and because optimal climate policy varies greatly across countries, it is unlikely that American courts can provide remedies that are economically sound and politically acceptable.