Alien Tort Statute (ATS)

1. Doe v. Exxon
2. Bowoto v. Chevron
3. Document Summary – Ministry of Defense v. Elahi
4. Doe I v. Lui Qui
5. Record – Aldana v. Fresh Del Monte Produce, Inc.
6. Aldana v. Fresh Del Monte Produce, Inc.
7. Presbyterian Church of Sudan v. Talisman Energy Inc.p
8. Taveres v. Tavaraz
9. Belhas v. Ya’alon
10. Khulumani v. Barclay National Bank Ltd
11. Corrie v. Caterpillar
12. Cisneros v. Aragon
13. Sarei v. Rio Tinto
14. El-Masri v. United States
15. Mora v. New York
16. Jogi v. Voges
17. Sosa v. Alvarez-Machain

Author: international

Mentioned in these Entries

International Law Encyclopedia 10, International human rights law Part 29, International law topics, Investment treaty law and arbitration articles, Kiobel v. Royal Dutch Petroleum, MPEPIL: Human rights, MPEPIL: Public Law: U, MPEPIL: Specific treaties and instruments, Outline of Subject Matter Jursidiction, Transnational Litigation.

A Corporation Can be Held Liable in a Federal Common Law Suit Based on the Alien Tort Statute For Violating the Law of Nations in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): To satisfy Sosa, a plaintiff in an ATS suit must allege conduct that violates a substantive norm of international law accepted by civilized nations and defined with the requisite degree of specificity. To the extent that substantive norm is defined in part by the identity of the perpetrator, then the defendant must fall within that definition. Similarly, if the substantive norm is defined in part by the identity of the victim or the locus of events, then conduct committed against a different victim or in a different locale could not violate that norm and a suit under the ATS could not stand. See Sarei v. Rio Tinto, PLC, No. 02-56256, 2011 WL 5041927, at *43 (9th Cir. Oct. 25, 2011) (McKeown, J., concurring in part and dissenting in part) (“[T]he handful of international law violations that may give rise to an ATS claim are often restricted by the identity of the perpetrator, the identity of the victim, or the locus of events.”), petition for cert. pending, No. 11-649 (filed Nov. 23, 2011).

3. At the present time, the United States is not aware of any international-law norm, accepted by civilized nations and defined with the degree of specificity required by Sosa, that requires, or necessarily contemplates, a distinction between natural and juridical actors. See, e.g., Torture Convention art. 1 (defining “torture” to include “any act by which severe pain or suffering * * * is intentionally inflicted on a person” for certain reasons, “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”) (emphasis added); Genocide Convention art. 2 (defining genocide to include “any of the following acts” committed with intent to destroy a group, without regard to the identity of the perpetrator); Common Article 3 (prohibiting “the following acts,” without regard to the identity of the perpetrator).

More about A Corporation Can be Held Liable in a Federal Common Law Suit Based on the Alien Tort Statute For Violating the Law of Nations

Both natural persons and corporations can violate international-law norms that require state action. And both natural persons and corporations can violate international-law norms that do not require state action. The court of appeals examined the question of corporate liability in the abstract, and therefore did not address whether any of the particular international-law norms identified by petitioners (or recognized by the district court as satisfying Sosa’s “demanding” standard, 542 U.S. at 738 n.30) exclude corporations from their scope. Because corporations (or agents acting on their behalf ) can violate the types of international-law norms identified in Sosa to the same extent as natural persons, the question becomes whether or how corporations should be held accountable as a matter of federal common law for violations that are otherwise actionable in private tort suits for damages under the ATS.

Developments

B. Courts May Recognize Corporate Liability As A Matter Of Federal Common Law In Actions Under The ATS This Court has instructed courts to act as “vigilant doorkeep[ers],” Sosa, 542 U.S. at 729, and to exercise “great caution” before “adapting the law of nations to private rights,” id. at 728. Such restraint, however, does not justify a categorical exclusion of corporations from civil liability under the ATS.

1. The text of the ATS does not support the court of appeals’ categorical bar. To the contrary, whereas the ATS clearly limits the class of plaintiffs to aliens, 28 U.S.C. 1350, it “does not distinguish among classes of defendants,” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438 (1989). The historical context supports the different textual treatment of ATS plaintiffs and defendants. As explained in Sosa, the ATS was passed by the First Congress in 1789, after the well-documented inability of the Continental Congress to provide redress for violations of treaties and the laws of nations for which the United States might be held accountable. See 542 U.S. at 715-717. The Continental Congress had “implored the States to vindicate rights under the law of nations,” but only one State acted on that recommendation. Id. at 716. Notably, although that resolution “dealt primarily with criminal sanctions,” William R. Casto, The Federal Courts’ Protective Jurisdiction Over Torts Committed In Violation of the Law of Nations, 18 Conn. L. Rev. 467, 491 (1986) (Casto), the Continental Congress took the further step of recommending that the States also make available suits for damages, 21 Journals of the Continental Congress 1774-1789, at 1136-1137 (Gillard Hunt ed. 1912) (Continental Congress). And, indeed, the resolution provided that while it might at times be necessary “to repair out of the public treasury” to compensate for injuries caused by individuals, “the author of those injuries” should ultimately “compensate the damage out of his private fortune.” Continental Congress 1136.

Events like the “so-called Marbois incident of May 1784″—”in which a French adventurer, De Longchamps, verbally and physically assaulted the Secretary of the French [Legation] in Philadelphia”—exposed the inability of the national government to redress law-of-nations violations. Sosa, 542 U.S. at 716-717; Casto 491-492 & n.138. A “reprise of the Marbois affair,” Sosa, 542 U.S. at 717, occurred in 1787, during the Constitutional Convention, when a New York City constable entered the residence of a Dutch diplomat with a warrant for the arrest of one of his domestic servants. Casto 494. And, again, the “national government was powerless to act.” Ibid.

Details

From this history, the Sosa Court concluded that the First Congress intended the ATS to afford aliens a federal forum in which to obtain redress for the “relatively modest set of actions alleging violations of the law of nations” at the time. 542 U.S. at 720; see id. at 724 (noting importance of “private remedy”); see Tel-Oren, 726 F.2d at 782 (Edwards, J., concurring) (detailing evidence that the intent of the ATS “was to assure aliens access to federal courts to vindicate any incident which, if mishandled by a state court, might blossom into an international crisis”). Consistent with the recommendations of the Continental Congress, the First Congress both criminalized certain law-of-nations violations (piracy, violation of safe conducts, and infringements on the rights of ambassadors), see Act of Apr. 30, 1970, ch. 9, § 8, 1 Stat. 113-114 (1790 Act); id. § 28, 1 Stat. 118, and in the ATS provided jurisdiction over actions by aliens seeking civil remedies.

As the D.C. Circuit recently explained, there is no good “reason to conclude that the First Congress was supremely concerned with the risk that natural persons would cause the United States to be drawn into foreign entanglements, but was content to allow formal legal associations of individuals, i.e., corporations, to do so.” Doe, 654 F.3d at 47. Given the apparent intent to provide compensation to the injured party through a civil damages remedy in a federal forum (rather than simply address the international affront through criminal prosecution or diplomatic channels), there is also no good reason to conclude that the First Congress would have wanted to allow the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting. Take, for example, the 1787 incident involving the Dutch diplomat. If entry were made into his residence by the agent of a private process service company for the purpose of serving a summons on the diplomat, the international affront might equally call for vindication (and compensation) through a private suit against that company. Cf. 1790 Act, §§ 25-26, 1 Stat. 117-118 (providing that “any writ or process” that is “sued forth or prosecuted by any person” against an ambassador or “domestic servant” of an ambassador shall be punished criminally and would constitute a violation of “the laws of nations”). And later, in opining on a boundary dispute over the diversion of waters from the Rio Grande, Attorney General Bonaparte stated that citizens of Mexico would have a right of action under the ATS against the “Irrigation Company.” 26 Op. Att’y Gen. 250, 251 (1907).

2. More generally, the proposition that corporations are “deemed persons” for “civil purposes,” and can be held civilly liable, has long been recognized as “unquestionable.” United States v. Amedy, 24 U.S. (11 Wheat.) 392, 412 (1826); see Beaston v. Farmers’ Bank of Del., 37 U.S. (12 Pet.) 102, 134 (1838). Corporations are capable of “suing and being sued.” 1 Stewart Kyd, A Treatise on the Law of Corporations 13 (1793); see 1 William Blackstone, Commentaries on the Laws of England 463 (1765) (corporations may “sue or be sued * * * and do all other acts as natural persons may”); Cook County v. United States ex rel. Chandler, 538 U.S. 119, 125 (2003) (detailing “common understanding” that corporations have long had the “capacity to sue and be sued”).

More about the Issue

As particularly relevant here, corporations were capable of being sued in tort. This Court has explained that, “[a]t a very early period, it was decided in Great Britain, as well as in the United States, that actions might be maintained against corporations for torts; and instances may be found, in the judicial annals of both countries, of suits for torts arising from the acts of their agents, of nearly every variety.” Philadelphia, Wilmington,& Balt. R.R. v. Quigley, 62 U.S. (21 How.) 202, 210-211 (1859); see Chestnut Hill & Spring House Turnpike Co. v. Rutter, 4 Serg. & Rawle 6, 17 (Pa. 1818) (“[F]rom the earliest times to the present, corporations have been held liable for torts.”). In 1774, for example, Lord Mansfield’s opinion for the Court of King’s Bench held that a corporation could be held liable in damages for failing to repair a creek that its actions had rendered unnavigable. See Mayor v. Turner, (1774) 98 Eng. Rep. 980. Early American courts followed suit. See, e.g., Chestnut Hill, 4 Serg. & Rawle at 17; Gray v. Portland Bank, 3 Mass. (2 Tyng) 363 (1807); Riddle v. Proprieters of the Locks, 7 Mass. (6 Tyng) 168 (1810); Townsend v. Susquehanna Turnpike Co., 6 Johns. 90 (N.Y. Sup. Ct. 1809).

Holding corporations liable in tort for violations of the law of nations of the sort otherwise actionable in a federal common law action based on the ATS is thus consistent with the common law backdrop against which the ATS was enacted and subsequently amended. As even the Second Circuit recognized, this Nation’s “legal culture” has “long” grown “accustomed” to imposing tort liability on corporations. Pet. App. A8-A9; see Doe, 654 F.3d at 48 (“The general rule of substantive law is that corporations, like individuals, are liable for their torts.”) (citation omitted); 9A William M. Fletcher, Cyclopedia of the Law of Corporations § 4521 (2008 rev. ed.) (discussing tort suits against corporations). And the Sosa Court’s cautionary admonitions provide no reason to depart from the common law on this issue.

3. International law does not counsel otherwise. As discussed (see Part II.A, supra), international law does not dictate a court’s decision whether to recognize, and how to define, a federal common law cause of action to enforce a law-of-nations violation of the sort deemed potentially actionable under Sosa. But to the extent international law does speak to an issue, it should inform the court’s exercise of its residual common law discretion. Here, nothing in international law counsels in favor of the Second Circuit’s categorical bar to corporate liability.

The court of appeals relied heavily on its understanding that “no corporation has ever been subject to any form of liability under the customary international law of human rights.” But, even if correct, the court of appeals drew the wrong conclusion from that observation.

First, each international tribunal is specially negotiated, and limitations are placed on the jurisdiction of such tribunals that may be unrelated to the reach of substantive international law. See, e.g., Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, art. 10 (Rome Statute) (“Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”). Thus, the fact that no international tribunal has been created for the purpose of holding corporations civilly liable for violations of international law does not contribute to the analysis, because the same is true for natural persons. Cf. Flomo, 643 F.3d at 1019 (“If a plaintiff had to show that civil liability for such violations was itself a norm of international law, no claims under the [ATS] could ever be successful, even claims against individuals.”).

Resources

See Also

• Foreign Relations
• Alien Tort Claims
• Torture Victim Protection

Resources

Notes and References

1. ** Editor’s note: In 2011, the U.S. Court of Appeals for the Seventh Circuit also concluded that corporations can be liable under the ATS. Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011). The plaintiffs in the case were Liberian children who alleged that Firestone used hazardous child labor at its rubber plant in Liberia in violation of customary international law. After deciding that corporate liability exists under the ATS, the Flomo court proceeded to determine that the allegations of the plaintiffs did not present an adequate basis for finding a violation of customary international law, leading the court to affirm the district court’s dismissal of the case.