The Alien Tort Statute (ATS) allows non-U.S. citizens to bring claims for human rights violations in the United States. Enacted by the first Congress in 1789, the ATS provides American courts with jurisdiction over cases in which an “alien” sues for violations of the “law of nations” or a treaty to which the United States is a party.
Little is known about the original meaning and purpose of the ATS, as it largely lay dormant until 1980. But with the landmark decision by U.S. Court of Appeals for the Second Circuit in Filartiga v. Peña-Irala, the ATS was revived as a human rights tool. In Filartiga, two Paraguayan citizens residing in the U.S. brought suit against a Paraguyan former police chief, also living in the U.S., who had tortured and murdered a member of their family. The Second Circuit upheld jurisdiction under the ATS, finding that “the law of nations” or customary international law prohibits state-sanctioned torture.
Since Filartiga, the ATS has been widely used to hold individuals accountable for human rights violations committed abroad. And in 1996, Terry Collingsworth, now Executive Director of IRAdvocates, pioneered the use of the ATS as a tool for corporate accountability. Mr. Collingsworth filed the first ATS case against a corporation, John Roe I v. Unocal Corporation, seeking to hold Unocal liable for human rights violations committed during the construction of its gas pipeline in Burma.
After Unocal, the ATS was aggressively attacked by the corporate community which sought immunity from human rights scrutiny. In the 2013 U.S. Supreme Court case, Kiobel v. Royal Dutch Petroleum Co., the corporate community argued that only “individuals,” not corporations, are subject to liability under the ATS. This argument had previously been successful in the context of the Torture Victim Protection Act - on April 18, 2012, the Supreme Court held in Mohamad v. Palestinian Authority that corporations and organizations are excluded from liability under the TVPA.
The Supreme Court issued its decision in Kiobel on April 17, 2013. The Supreme Court’s holding does not exclude corporations or organizations from ATS liability. However, the Supreme Court did limit the ability of foreign plaintiffs to bring ATS claims against foreign defendants for torts committed entirely outside the United States. The court found such “foreign-cubed” cases do not touch and concern the territory of the United States with sufficient force to displace the presumption against extraterritorial application of U.S. law.
The ATS, however, nevertheless remains a vehicle through which to hold corporations liable when there is a sufficient connection to the U.S., and IRAdvocates will continue to use the ATS as a tool for the enforcement of human rights and corporate accountability. Furthermore, many of the ATS cases that IRAdvocates and Conrad & Scherer are litigating involve U.S. corporate defendants that engaged in substantial conduct in furtherance of the human rights violation here in the United States.
- For more information on the ATS and major cases, see Terry Collingsworth, The Key Human Rights Challenge: Developing Enforcement Mechanisms, 15 Harvard Human Rights Journal 183. March 1, 2002.
- More on Kiobel’s impact on ATS cases