Alien Tort Statute Research Articles

Subjective Side (Mens Rea) of Aiding and Abetting War Crimes and Crimes Against Humanity in the Context of the Alien Tort Statute

The American Alien Tort Statute (ATS) is a landmark instrument on a global scale, since, based on its provisions, plaintiffs in American courts have sought compensation for human rights violations committed on other continents. Many of these cases involved war crimes and crimes against humanity. And since such large-scale crimes are almost never committed by a single perpetrator, one of the key issues before the courts in these cases was the question of establishing standards of liability for aiding and abetting such crimes. In considering these cases, the American courts based their decisions on the provisions of international law and thus developed a substantial body of case law, the study of which will undoubtedly be valuable in light of the legal challenges posed by the war in Ukraine. The objective of the article is to examine the requirements for the mens rea of aiding and abetting war crimes and crimes against humanity through the prism of the case law applying the Alien Tort Statute. From a methodological point of view, the study focuses on the analysis of the case law of American courts through the prism of international law. An important component of the research is to determine the contents of customary international law, the provisions of which are subject to separate proof in the relevant cases. The article itself is a part of comparative legal research with the aim of drawing lessons that could be used to solve the complex legal problems arising from the war in Ukraine. The article examines two standards of aiding and abetting used by American courts in cases under the Alien Tort Statute, namely, the purpose standard and the knowledge standard. The author examines the American precedents in which the courts have used one or the other standard. It is argued that the origins of the disagreement should be sought in international law, since American courts in the relevant category of cases rely on international law. The author analyses the arguments of Judge Katzmann, whose position forms the basis for all subsequent decisions applying the purpose standard. The critical analysis of Judge Katzmann's arguments is complemented by a thorough examination of the practice of international criminal tribunals - from the Nuremberg Tribunal to the later tribunals for Yugoslavia, Rwanda and Sierra Leone. The author concludes that the standard of knowledge is predominant and should be considered a rule of customary international law and should define the criteria of liability for harm caused by gross violations of internationally recognised human rights.

Influencing Enforcement: The Application of International Law in Independent Judiciaries—The Case of the Alien Tort Statute

What explains the variation in the interpretation and enforcement of international law by domestic judges? Can independent judiciaries control the enforcement of countries’ commitments to international law? In this paper, we leverage a unique source of data—cases related to the Alien Tort Statute—to investigate how independent judges might be able to enforce international commitments to human rights without concern for whether the state (here the United States) has opted into the commitments in the first place. We show that behavioral factors in judicial decision making, and particularly those related to judicial ideological preferences, are potent predictors of judicial enforcement of international law. This implies that states with highly independent judiciaries are right to be worried about their abilities to control enforcement domestically, although we also find evidence that the U.S. government get a special degree of deference in these cases.

The Alien Tort Statute of 1789 is no longer available to foreigners toclaim for wrongdoings on foreign soil

The Alien Tort Statute (“ATS”) of 1789 was part of the first law to be enacted by the First Congress of the USA. Its original purpose was primarily to remedy harms suffered by aliens at the hands of US citizens. For two centuries it remained dormant. Then it became a vehicle to advance human rights. Sosa v Humberto Alvarez-Machain 542 US 692 (2004) was the first of four ATS cases decided by the Supreme Court of the United States (SCOTUS). Kiobel v Royal Dutch Petroleum Co 569 US 108 (2013) followed and with it, the court limited the application of the ATS. It coined the term “touch and concern” whereby only those with a nexus with the US could pursue grievances. It also enforced the principle of extraterritoriality. Jesner v Arab Bank, PLC 584 US ___ (2018); 138 S Ct 1386 (2018) brought further clarity by imposing clear limits on which parties may be defendants in ATS cases. Nestlé USA, Inc v John Doe I; Cargill, Inc v John Doe I 593 US ___ (2021); 141 S Ct 1931 (2021) precluded future cases of human rights abuses against corporations when allegations can only be made that general corporate decision-making occurred in the US. In future, plaintiffs will have to establish a strong domestic nexus with the US for a claim under the ATS to be successful. Eventually the statute lost its attractiveness for foreign plaintiffs wanting to settle in US courts human rights scores committed in foreign places. Yet some aggrieved Namibians tried to pursue a case against Germany in an attempt to extricate monetary compensation from the former colonial power as restitutional compensation on the basis of the provisions in the ATS. Their attempts failed. Compensation for German atrocities committed during the colonial era in German South West Africa was pursued by the Namibian government outside of the courts. This article illustrates that, at the hand of decisions by the highest court in the US involving particular groups of foreigners, legal avenues using the ATS as a basis have now been closed.

Extraterritoriality in a Nevada Shipping Container: Accountability for Drone Warfare through the Post-Nestlé Alien Tort Statute

Extraterritoriality in a Nevada Shipping Container: Accountability for Drone Warfare through the Post-Nestlé Alien Tort Statute

Nestle v. Doe: Supreme Court Deals Setback to Forced Child Laborers, but US Corporations Lose Bid for Alien Tort Statute Immunity

Nestle v. Doe: Supreme Court Deals Setback to Forced Child Laborers, but US Corporations Lose Bid for Alien Tort Statute Immunity

The Expectation Game: The Alien Tort Statute, Corporate Liability, and the International Law Forum After Nestle

The Expectation Game: The Alien Tort Statute, Corporate Liability, and the International Law Forum After Nestle

The Expectation Game: The Alien Tort Statute, Corporate Liability, and the International Law Forum After Nestle

The Expectation Game: The Alien Tort Statute, Corporate Liability, and the International Law Forum After Nestle

The Role of Soft-Law in Adjudicating Corporate Human Rights Abuses: Interpreting the Alien Tort Statute in the Light of the UN Guiding principles on Business and Human Rights

The Role of Soft-Law in Adjudicating Corporate Human Rights Abuses: Interpreting the Alien Tort Statute in the Light of the UN Guiding principles on Business and Human Rights

U.S. Supreme Court Holds Claims Against U.S. Corporations for Aiding and Abetting Child Slavery Impermissibly Extraterritorial, Declines to Resolve Domestic Corporate Liability

In Nestlé USA, Inc. v. Doe, et al., former child slaves who were trafficked into Côte d'Ivoire to work on cocoa farms filed suit under the Alien Tort Statute (ATS) against U.S.-based companies that purchase cocoa from and provide other support to the farms, alleging that the companies aided and abetted child slavery. By an 8–1 vote, the Supreme Court held that the case involved an impermissible extraterritorial application of the ATS under the Court's precedent in Kiobel. The Court declined to resolve whether domestic corporations may be held liable under the ATS, although five justices across several opinions expressed the view that such corporations are not immune from ATS suits. The question of whether the Court should ever create new causes of action under the ATS prompted significant debate, with three justices suggesting that they would overrule Sosa v. Álvarez-Machain and a fourth indicating that there are strong arguments to reject judicial creation of any new ATS causes of action.

Nestlé United States, Inc. v. Doe. 141 S. Ct. 1931.

On June 17, 2021, the United States Supreme Court reversed and remanded a suit filed against Nestlé USA and Cargill under the Alien Tort Statute (ATS) for lack of jurisdiction. This case has already garnered attention over the nature of the dispute (child slaves in Africa), the Supreme Court's treatment of jurisdiction under the ATS, and the finding shared by five of the nine Supreme Court justices that domestic corporations can potentially be sued under the ATS. This analysis focuses on the child slavery and global supply chain aspects of the decision.

The Future of International Corporate Human Rights Litigation: A Transatlantic Comparison

Imposing legal liability on corporations for their involvement in human rights violations remains problematic. In the United States, civil liability in such circumstances developed in a series of Alien Tort Statute cases. This evolution came to an abrupt end with the cases of Kiobel v. Royal Dutch Petroleum and Jesner v. Arab Bank. As corporate human rights litigation declined in the United States, courts in Europe were presented with their first civil cases, and plaintiffs had some successes. Legal remedies for corporate human rights violations also made it onto the agenda of policy makers at the European Union and national European governments with laws requiring companies to conduct human rights due diligence throughout their operations. Against this background, this article investigates the current state and potential future development of corporate human rights litigation in the United States and Europe. It seeks to answer the following questions: Is the United States losing its prominent place as a preferred forum for human rights litigation against corporate defendants, as recent Supreme Court decisions suggest? What made the U.S. courts attractive in the first place? Is Europe taking over this role, and if so, should the United States be concerned about these developments? Are recent doctrinal and legislative trends in Europe transferable to the U.S. legal system and suitable to fill the gaps left by Kiobel and Jesner? Finally, what do these shifts on both sides of the Atlantic mean for victims of human rights violations and their prospects of effectively pursuing their rights?

Nestlé USA, Inc. v. Doe (U.S. Sup. Ct.)

On June 17, 2021, the U.S. Supreme Court delivered its opinion in Nestlé USA, Inc. v. Doe, a human rights case brought under the Alien Tort Statute (ATS), alleging that U.S. companies aided and abetted child slavery in Ivory Coast. By a vote of 8 to 1, the Court held that the claims were impermissibly extraterritorial because nearly all the conduct occurred abroad. The Court left open the possibility that the implied cause of action under the ATS applies to U.S. corporations.

Pharmaceutical Companies, Human Rights, and the Alien Tort Statute.

On January 3, 2019, U.S. District Judge Theodore D. Chuang of the U.S. District Court of the District of Maryland took a crucial first step in redressing one of the worst human subjects research ethics violations in U.S. history.

Parent Company Direct Liability for Overseas Human Rights Violations: Lessons from the UK Supreme Court

Human rights violations are perpetrated by corporate actors with troubling frequency. In most cases, plaintiffs do not have access to remedy. For 30 years, the United States has been a beacon of hope, its courts adjudicating human rights claims against corporate defendants under the Alien Tort Statute. Then, in Kiobel v. Royal Dutch Petroleum, the Supreme Court closed the door on human rights plaintiffs. This Article charts the rise of the United Kingdom as a venue to bring suit. The U.K. Supreme Court, in a far-reaching judgment from 2019, upheld a decision to allow plaintiffs to sue a London-headquartered parent company for grave environmental damage and harm to local communities’ livelihoods that occurred through the operations of the company’s Zambian subsidiary. The dichotomy in approaches between the U.S. and the U.K. courts has prompted consideration of the following: is there anything that can be drawn from the U.K. litigation to improve access to remedy in the U.S. courts for victims of human rights violations by corporate actors? The article concludes that the argument used in the U.K. case law to attribute liability directly to parent companies should be taken up in the U.S.

Brief of International Law Scholars as Amici Curiae in Support of Respondents, Nestle USA, Inc. & Cargill, Inc. v. Doe I

This amicus brief was filed with the U.S. Supreme Court on behalf of international law scholars in Nestle USA, Inc. v. Doe I and Cargill, Inc. v. Doe I, suits alleging that U.S. corporations participated in child slavery in Ivory Coast. The brief explains that customary international law permits corporate liability for human rights violations. Customary international law establishes human rights norms that prohibit certain conduct but does not provide the means of enforcing those norms. Enforcement is instead left to states, which may act collectively through treaties or separately by providing liability under domestic law. International criminal tribunals generally have been given jurisdiction only over natural persons because some nations do not hold corporations criminally liable. In concluding suppression conventions, like the Genocide Convention and the Torture Convention, nations have similarly limited their obligations to prosecute or extradite to natural persons. But limitations on particular enforcement mechanisms are not limitations on the underlying norms themselves. This is confirmed by the wide-spread practice of states providing both criminal and civil liability for human rights violations, including corporate violations, in their domestic laws. Customary international law therefore permits the United States to recognize a cause of action against domestic corporations under the Alien Tort Statute (ATS) for violations of human rights norms as long as the norm at issue applies to corporations and the United States has jurisdiction to prescribe. There is no doubt that customary international law prohibits slavery and that this norm applies to juridical persons. The United States has jurisdiction to prescribe based on the U.S. nationality of the defendants and on the character of slavery as a universal jurisdiction offense.

The Hague Rules on Business and Human Rights Arbitration

Let me start with the goals of the Hague Rules on Business and Human Rights Arbitration. The Business and Human Rights Arbitration Project dates back to 2013. In that year the U.S. Supreme Court ruled in the Kiobel v. Shell case that the U.S. Alien Tort Statute of 1789 has no extraterritorial effect. It denied victims of human rights abuses by companies access to U.S. courts to obtain damages for alleged violations. As a consequence, the idea arose that arbitration could be used as an alternative route for dispute resolution available to corporations and rights holders to resolve their disputes in the business and human rights field.

May the Fourth Be with You: Charting the Future of Corporate Liability Under the Alien Tort Statute After Jesner v. Arab Bank

The Alien Tort Statute ( the “ATS”) has been the subject of much curiosity ever since it became a conduit for human rights lawsuits nearly 40 years ago. Many of these lawsuits have been directed at corporate defendants, with businesses around the world accused of conscience-shocking behavior. However, the Supreme Court has in recent years restricted the scope of corporate ATS liability. In 2013, the Court held in Kiobel that the presumption against extraterritoriality applies to the ATS, and in 2018, it held in Jesner that foreign corporations cannot be sued under the ATS. In the wake of these developments, observers have questioned whether the statute’s vitality is reaching its end. This Note charts the path forward for the ATS. After tracing the development of the statute from its murky Founding origins to its modern incarnation as a powerful litigation tool, the Note examines how several circuits have analyzed the issues of corporate liability and the presumption against extraterritoriality under the ATS. The Note ultimately argues that the Fourth Circuit’s approach provides the best regime for the ATS in light of Jesner and the other considerations that have long informed ATS cases.

Reforming International Human Rights Litigation against Corporate Defendants after Jesner v. Arab Bank

In April 2017, the U.S. Supreme Court, in Jesner v. Arab Bank, denied terror victims in Israel access to U.S. courts, holding that foreign corporations may not be sued under the Alien Tort Statute (ATS). The petitioners alleged that Arab Bank, a Jordanian financial institution, had facilitated acts of terrorism by maintaining bank accounts for known jihadists, and that it had used its New York branch to clear Dollar transactions and launder money for a US-based charity said to be affiliated with Hamas. The Majority argued that courts should not use the ATS to create new private rights of action, but should leave this task to the legislator. The decision is said to deal the deathblow to U.S. Human Rights litigation, but as this article argues, seems a logical consequence of the Supreme Court’s latest restrictions on personal jurisdiction over foreign corporate defendants and a growing concern to respect the sovereignty rights of foreign states. It confirms a trend towards more judicial reticence and, in this regard, suggests an increasing convergence of U.S. and foreign attitudes towards judicial discretion as well as international jurisdiction rules. However, on substance, the decisions leads to significant jurisdictional gaps to hold multi-national corporations accountable for the violation of international human rights. Based on a comparative analysis of EU procedural and substantive rules, this article makes suggestions for a harmonized legal regime to judge foreign corporations’ liability for human rights violations before domestic courts.

Pirates: And What You Can Do About Them

Piracy may seem antiquated, but it is still a very real threat to the maritime industry with an annual cost of several billion dollars. This problem stems from 'pirate' being too good a job (in a very literal sense) to pass up. Piracy pays a lot, and pirates face virtually no repercussions for doing it, even in the event of capture. For reasons including piracy laws that are simply not robust enough for contemporary pirates, procedural inadequacies, and the practise of bribing judges and prison guards, pirates remain undeterred in their endeavours. This article aims to provide a thorough overview of what constitutes maritime piracy under the United Nations Convention on the Law of the Sea (UNCLOS) and its differing domestic interpretations, and the reasons why people become pirates. The article also poses some solutions as to what can be done to mitigate the effects of piracy, including insurance and private security, and asks if pirates could be sued under the Alien Tort Statute. Solutions to 'solve' piracy, such as an international pirate court, are also touched upon.

Roadblocks to Remedies: Recently-Developed Barriers to Relief for Aliens Who Suffer Harm by U.S. Officials' Illegal Acts, Contrary to the Founders’ Desires and International Law Obligations

The premise of this article is that the founding generation of the United States intended that non-citizens harmed by U.S. officials, especially those harmed in violation of international law, would be provided a judicial remedy in the form of damages, consistent with international law. In fact, throughout the 1800s and most of the 1900s, aliens were able to recover damages for such violations, consistent with the founders’ intentions. However, in the 1980s, both Congress and federal courts began creating roadblocks to judicial remedies for those suffering such harms. These developments contradict the founders’ intent and the country’s practice throughout most of its history. In addition, federal courts continue to hold foreign officials liable in claims brought by non-citizens for the same customary international law violations for which it fails to hold U.S. officials liable, resulting in an ugly hypocrisy. The article acknowledges that the United States’ role and status in the world is different today than it was at the country’s founding, but suggests that United States’ compliance with international law – including ensuring a remedy when its officials commit torts against non-citizens in violation of international law and the U.S. Constitution – is as relevant today as it was then. Finally, the article proposes various actions Congress and the courts should take to in order to comply with the founders’ intent (and international law obligations) to provide for judicial remedies to aliens who suffer harm from torts in violation of their rights under both customary international law and the U.S. Constitution. Although scholars have discussed the fact that the Alien Tort Statute, enacted in 1789, had U.S. citizens in mind as defendants, the scholarly literature has largely overlooked the fact that the ATS evidences an intent by the founding generation to ensure that aliens were provided remedies for harms from torts in violation of their legal rights by U.S. officials. Scholars have also generally overlooked the practice of U.S. courts and Congress to assure such remedies during the 1800s and well into the 1900s. Moreover, although some scholars have discussed various doctrines that have resulted in U.S. courts being unable or unwilling to hold U.S. officials liable for torts in violation of both international and Constitutional law, no scholar has yet described how the several statutes and common law doctrines developed over the last thirty years have worked together to create roadblocks to remedies for aliens harmed by the actions of U.S. officials.