HOSTIS HUMANI GENERIS: HAVE SHIFTING ATTITUDES TOWARDS THE ALIEN TORT STATUTE AND CORPORATE INDEMNITY ALLOWED U.S. CORPORATIONS TO BECOME "ENEMIES OF MANKIND?"

• Author: Colby, Alexandrie

1. INTRODUCTION

   An obscure, single-sentence statute from the Judiciary Act of 1789, the Alien Tort Statute (ATS), provides a potential means for foreign nationals to bring action for redress where there has been a "violation of the law of nations or a treaty of the United States." (1) For almost two-hundred years, parties rarely invoked the ATS until 1980 when two Paraguayan citizens brought suit alleging that a Paraguayan police official tortured a family member to death and claimed proper jurisdiction existed under the statute. (2) The case brought a flood of new litigation and claimants who looked to the ATS as a legal avenue to address violations of human rights; however, the Supreme Court of the United States has increasingly limited the statute's scope and applicability. (3) The Supreme Court limited its applicability yet again in its recent decision in Nestle USA, Inc. v. Doe, which addressed the question of whether domestic corporations may be held liable under the statute under an aiding and abetting theory. (4)

   This Note explores the shifting attitudes towards the Alien Tort Statute and the corresponding recognition and prioritization of human rights issues by the Obama and Trump Administrations. (5) Part II will address the history of the Alien Tort Statute and its modern appearances in litigation as a means to address issues of corporate liability and human rights. (6) Part III will discuss recent litigation in the Supreme Court regarding the ATS, as well as the Executive Branch's responses to the case and international human rights law. (7) Part IV will analyze how the shifting attitudes of the executive branch regarding corporate liability under the Alien Tort Statute and overall responses to human rights abuses in the international arena have impacted the long-term enforcement and recognition of such rights, specifically via the ATS. (8) Finally, Part V will conclude by reaffirming the importance of the United States' role in the enforcement of international human rights, and the need for a viable mechanism for victims to obtain redress. (9)

2. HISTORY

   1. Historical Origins of the Alien Tort Statute

      The Alien Tort Statute originates from a single sentence in the First Judiciary Act of 1789. (10) Congress created the ATS to benefit U.S. foreign relations by providing a means by which foreign plaintiffs may seek relief for international law violations. (11) Following concern that the states would not be capable of appropriately addressing issues arising under international law, the Framers sought to provide federal jurisdiction for claims with the potential to impact U.S. foreign relations. (12) The statute grants federal jurisdiction for civil actions brought by non-U.S. citizens, but limits jurisdiction to torts that have been "committed in violation of the law of nations or a treaty of the United States." (13) Although virtually unused for two centuries, the ATS re-emerged in the 1980s as a potential means to address human rights violations. (14)

   2. The Revival of the Alien Tort Statute

      The Supreme Court breathed life into the ATS in Filartiga v. Pena-Irala. (15) The plaintiffs, Paraguayan citizens Dr. Joel Filartiga and Dolly Filartiga, claimed that Noberto Pena-Irala tortured and murdered their son and Dolly's brother in an act of political retaliation. (16) The Second Circuit held it had federal subject matter jurisdiction under the ATS because "an act of torture committed by a state official against one held in detention violate[d] established norms of the international law of human rights, and hence the law of nations." (17) In the wake of a booming human rights movement, human rights defenders viewed the court's decision in Filartiga as a triumph. (18) The decision not only provided a tangible means for international law to be enforced, but allowed U.S. federal courts the opportunity to provide a substantive and independent analysis of international laws. (19)

      Human rights defenders consider the rise of the ATS sensational but brief. (20) The newly elected Reagan Administration curtailed the use of the ATS, in stark opposition to the Carter Administration's views on how the ATS should be interpreted and applied. (21) Just a few years after the Second Circuit's decision in Filartiga, the D.C Circuit addressed whether the ATS could create a cause of action in Tel-Oren v. Libyan Arab Republic, and in doing so, established a foundation for future federal court decisions. (22) The Supreme Court first began to restrict the modern application of the ATS in the landmark Supreme Court case, Sosa v. Alvarez-Machain. (23) In its narrow holding, the Court found that while the "jurisdictional statute creat[ed] no new causes of action," the historical context implied that "the common law would provide a cause of action for [a] modest number of international law violations." (24) The Supreme Court affirmed that the federal judiciary may recognize common law claims arising out of a violation of international law, merely stressing that an international law violation must be "of similar stature as those Congress had in mind when it enacted the [Alien Tort] statute." (25)

   3. The Alien Tort Statute and Corporate Liability

      The Supreme Court continued to chip away at the ATS's applicability. (26) In Kiobel v. Royal Dutch Petroleum, the Supreme Court established a "presumption against extraterritoriality[,]" meaning that the ATS would not apply to conduct occurring wholly in a foreign territory. (27) Again addressing corporate liability under the ATS, the Supreme Court in Jesner v. Arab Bank held that foreign corporations could not be held liable under the ATS. (28) Whether any claims under the ATS will continue to be viable remains undetermined as the courts continue to address the scope of the ATS, and commentators continue to dispute the validity limitations imposed on the ATS by the Supreme Court. (29) The Supreme Court recently ruled on two consolidated cases addressing the lingering issue from Jesner: whether domestic corporations may be held liable under the Alien Tort Statute. (30)

3. FACTS

   1. Nestle and Cargill in the Supreme Court

      Petitioners, Nestle USA, Inc. (Nestle) and Cargill, Inc. (Cargill), were accused of permitting the use of trafficked children to work on their cocoa farms in Cote d'Ivoire where the children were allegedly used as slave labor, abused, and forced to work in unsafe conditions. (31) The Respondents, John Doe, et al., alleged that Nestle and Cargill had knowledge of this action as established by the companies' visits to the farms and subsequent reports, which were issued to their U.S. offices. (32) The case presented two questions for the Supreme Court of the United States, the first being "whether a claim against a domestic corporation brought under the Alien Tort Statute... may overcome the extraterritoriality bar where the claim is based on violations of international law by aiding and abetting slavery and forced labor from the United States." (33) The second question addressed the unresolved issues from Jesner, regarding whether "domestic corporations are excepted from liability under the Alien Tort Statute." (34)

      In its brief, Petitioner Nestle argued that it had no role in the Respondent's injuries and that the reasoning in Jesner also applied in this case--that the presumption against extraterritoriality applies to all corporations, including domestic ones. (35) Additionally, the Petitioners argued that they could not be held liable, stating that aiding and abetting is not sufficient to meet the "focus" requirement of the Alien Tort Statute, and that even if it did meet the focus requirement, the claim would still be barred because the issues are extraterritorial. (36) The Petitioners emphasized that the implications of holding U.S. corporations liable based on "allegations of U.S. headquarters oversight" would spur significant litigation and implicate foreign policy considerations. (37)

      In its opposition brief, the Respondents initially argued that the writ of certiorari should be denied as the court of appeals held that they should be permitted to amend their complaint and, moreover, that the ATS may permit domestic application. (38)

      In contrast to the Petitioners' assertions that the claim does not meet the "focus" requirements of the ATS, the Respondents argued that the lower court accurately applied the Morrison v. National Australia Bank, Ltd., "focus" test and determined that "[t]he focus of the ATS is not limited to principal offenses... [and] aiding and abetting comes within the ATS's focus." (39) Moreover, the Respondents argued that courts of appeal have consistently recognized that corporate aiding and abetting claims are actionable under the ATS and may be brought when the injury occurred on foreign soil, however, in this case, the alleged aiding and abetting occurred in the United States. (40)

      In its brief in support of the Petitioners' claims, the Trump administration encouraged the Supreme Court to accept the writ of certiorari on the case, arguing that domestic corporations may not be held liable under the ATS. (41) In addition to arguing in favor of accepting the case, the Trump Administration encouraged the Supreme Court to determine whether the ATS may allow for a claim of aiding and abetting. (42) The Trump administration made a complete reversal of the argument it set forth in its brief in Jesner, in which it argued corporations could be held liable for customary international law violations. (43)

      Nestle v. Doe came down in an 8-1 opinion written by Justice Thomas in which the Supreme Court held that the "generic allegations" made by the Respondents against Nestle and Cargill did not sufficiently connect the cause of action (aiding and abetting) with the corporation's conduct in the United States. (44) Justice Thomas utilized a "focus" test, rather than the touch and concern test discussed in Kiobel, as a way to rebut the presumption...