Aliens Among Us: Factors to Determine Whether
Corporations Should Face Prosecution in U.S. Courts
for their Actions Overseas
TABLE OF CONTENTS
Introduction .................................................................................. 514
I. History and Scope of the Alien Tort Statute ................................ 517
A. Origins of the ATS ................................................................. 517
B. Scope of the ATS ................................................................... 518
1. Jurisdictional Reach of the ATS According to
Sosa v. Alvarez-Machain ................................................. 519
2. Contemporary Crimes Recognized as Violating
International Norms ........................................................ 520
3. The Role of Custom ........................................................ 521
II. Corporate Liability Under the Alien Tort Statute ........................ 522
A. Tensions Between the Circuits Prior to the Second
Circuit’s Decision in Kiobel .................................................. 522
B. The Second Circuit’s Clear Answer ...................................... 524
1. Facts and Procedural History .......................................... 524
2. Corporate Liability .......................................................... 525
3. Subsequent Decisions ...................................................... 525
C. The Supreme Court’s Decision in Kiobel .............................. 527
1. Presumption Against Extraterritoriality .......................... 527
2. Corporate Liability .......................................................... 528
D. Confusion After the Supreme Court’s Decision in Kiobel .... 529
III. Proposed Factors Courts Should Use to Determine the
Meaning of “Touch and Concern” ............................................... 530
A. Citizenship of the Defendant ................................................. 531
B. Location of the Conduct ........................................................ 534
1. Specific Personal Jurisdiction ......................................... 535
2. Sufficient Conduct Under the ATS ................................. 536
C. The Nature of the Alleged Violation ..................................... 539
Conclusion .................................................................................... 543
514 LOUISIANA LAW REVIEW [Vol. 77
INTRODUCTION
In the spring of 1960, thousands of people gathered outside a police
station in the town of Sharpeville, South Africa.1 The majority of
individuals in the crowd were protesting the government’s mandate that
all black South Africans carry a “passbook,” a government issued form of
identification.2 According to the police reports, protestors began to throw
stones at officers in an attempt to force their way into the police station.3
The police opened fire on the protestors in response, and when the firing
ceased approximately two minutes later, 69 people were dead.4 Instances
such as the massacre in Sharpeville were not uncommon in apartheid5
South Africa.6
In 2002, a number of apartheid victims brought suit in the United
States District Court for the Southern District of New York, alleging both
direct and secondary tort liability for violations of international law.7
Interestingly, the claimants did not seek to hold the South African
government, policemen, or other perpetrators of violence liable.8 Instead,
the claimants sued, among others, International Business Machines
Corporation (“IBM”) and Ford Motor Company—two U.S. corporations
conducting business in South Africa.9 The United States Second Circuit
Copyright 2016, by DUSTIN COOPER.
1. See Sharpeville Massacre, 21 March 1960, S. AFR. HIST. ONLINE,
http://www.sahistory.org.za/topic/sharpeville-massacre-21-march-1960
[https://perma.cc/5PBJ-5C3K] (last updated Jun. 21, 2016).
2. Id.
3. Id.
4. Id.
5. In the late 1940s, the South African Government instituted a separation
of the races, beginning with classification and anti-miscegenation laws. These
actions proceeded to geographic segregation. Subsequently, the Bantu Authorities
Act of 195 1 created “homelands.” Black South Africans were forcib ly removed
to the homelands the Act crea ted and were then stripped of their South African
citizenship. This system of separation is known as “apartheid.” See generally
South Africa Profile – Timeline, BBC, http://www.bbc.com/news/world -africa-
14094918 [https://perma.cc/4XQD-YNS9] (last updated Jun. 25, 2015).
6. See States of Emergency in South Africa: The 1960 s and 1980s, S. AFR.
HIST. ONLINE, http://www.sahistory.org.za/topic/state-emergency-south-africa-
1960-and-1980s [https://perma.cc/66RD-PDMT] (last updated Oct. 10, 2013).
7. See In re S. Afr. Apartheid Litig., 617 F. Supp. 2d 228, 243 (S.D.N.Y.
2009).
8. See id.
9. Id. The plaintiffs alleged that IBM trained South African government
employees to use IBM hardware and software to create identity materials, such as
2016] COMMENT 515
Court of Appeals heard the plaintiffs’ plea for relief almost 15 years after
suit was originally filed.10 The court was tasked with determining whether
United States federal courts have jurisdiction over international matters
under 28 U.S.C. § 1350, commonly referred to as the Alien Tort Statute
(“ATS”).11
The ATS is a jurisdictional provision, providing in full, “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.”12 The First Congress in 1789 enacted this statute, not long
after the ratification of the Constitution, but the ATS has largely lain
dormant for almost two centuries.13 Beginning in the 1980s, however, the
Supreme Court breathed new life into the ATS,14 eventually waking the
proverbial sleeping giant. Courts have subsequently used this 33-word,
one-sentence statute to hold individuals and corporations liable for their
actions overseas that concern issues such as the apartheid in South
Africa,15 child slavery in the Ivory Coast,16 and the torture of individuals
in Iraq.17 The implications of the statute as applied to international
business activities were likely unimaginable to the members of the First
Congress who enacted the statute in the 18th century.
Courts and corporations need clear guidance for when such matters
can be adjudicated in the United States. U.S. corporations are increasingly
conducting business overseas,18 which could mean that U.S. corporate
activity affects more non-citizens and that the ATS will be increasingly
utilized as a form of redress for foreign nationals. This potential increase
those that were the subject of protest in Sharpeville. The allegations a gainst Ford
were that it assisted the South African government in obtaining vehicles that were
used to aid in the persecution of the plaintiffs. See id.
10. See Balintulo v. Ford Motor Co., 796 F.3d 160 (2d Cir. 2015).
11. 28 U.S.C. § 1350 (2012).
12. Id.
13. 14A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
PROCEDURE JURISDICTION AND RELATED MATTERS § 3661.1 (4th ed. 2016).
14. Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980).
15. See, e.g., Balintulo v. Daimler AG, 727 F.3d 174 (2d Cir. 2013).
16. See, e.g., Doe I v. Nestlé USA, Inc., 766 F.3d 1013 (9th Cir. 2014).
17. See, e.g., Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 527 (4th
Cir. 2014).
18. See U.S. Companies Using International Expansion to Drive Growth and
Profitability, BUS. WIRE (Aug. 13, 2013, 11:42 AM), http://www.businesswire.com
/news/home/20130813006035/en/U.S.-Companies-International-Expansion-Drive
-Growth-Profitability#.Vg1DpXpViko [https://perma.cc/AWN4-8M6P] (stating
that in a recent survey of 161 company executives, two-thirds expect international
markets to be among their company’s top priorities over the next three years).