A Truck Stop Instead of Saint Peter's: the Trafficking Victims Protection Reauthorization Act Is Not Perfect, but it Solves Some of the Problems of Sosa and Kiobel

JurisdictionUnited States,Federal
CitationVol. 44 No. 2
Publication year2016

A Truck Stop Instead of Saint Peter's: The Trafficking Victims Protection Reauthorization Act is not Perfect, But It Solves Some of the Problems of Sosa and Kiobel

Jonathan S. Tonge*

Table of Contents

I. Introduction...............................................................................453

II. Filartiga, Sosa & Kiobel: The Rise & Reduction of the ATS................................................................................................456


A. Filartiga and the Birth of Civil Litigation To Combat Human Rights Violations.........................................................457
B. How the ATS Has Been Blunted by U.S. Courts......................459

1. Sosa: Norms of International Law....................................459
2. Kiobel: "Touch and Concern"..........................................461

III. How the Trafficking Victims Protection Reauthorization Act (2008) Overcomes the Limitations of the ATS..............................................................464


A. Express Extraterritoriality.......................................................465
B. Limitations of Sosa to Claims that Violate International Norms ....................................................................................... 465
C. The Plain Meaning of the TVPRA Includes Corporations.......468

IV. Potential Impediments Within the TVPRA............................469


A. "Severe" Forms of Human Trafficking and the Palermo Protocol.................................................................................... 470
B. The "Knowing" Standard........................................................471
C. The Limitations of "Coercion"................................................472
D. Constitutional Challenges ........................................................ 474
E. Diplomatic Immunity...............................................................475

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V. Case Studies: ATS v. TVPRA.....................................................475


A. Economic Activity: Doe I v. Nestle USA, Inc..........................476
B. Noneconomic Activity: Kiobel v. Royal Dutch Petroleum Co.............................................................................................478

VI. Conclusion..................................................................................480

[Page 453]

I. Introduction

After his wife became pregnant, Vannak Prum left their home in Cambodia and crossed over the border to Thailand, as thousands do each year, hoping to find work and return in a few months with enough money to pay the hospital bills.1 Prum spent the next three years on a Thai fishing boat working twenty-hour days against his will.2 He witnessed the beatings and murders of fellow slaves while harvesting mackerel and sardines that make up twenty percent of the American market for those fish.3 Similar means are used in the Thai shrimp industry, the largest in the world, which relies on slave labor in the farming and harvesting of shrimp that is sold at the four largest global retailers in the world: Walmart, Carrefour, Costco, and Tesco.4

Shyima Hall, an Egyptian author and activist working to combat human trafficking, was sold when she was eight years old to another Egyptian family that moved to California and forced her to work for up to twenty hours a day for four years, suffering physical and verbal assaults.5 Domestic workers in the Middle East, India, and around the world are unexpectedly thrown into this thinly veiled cycle of slavery.6 In Paris, the "City of Light," there are thousands of household slaves, lured from North Africa by promises of a French education in return for au pair services.7 In reality, the girls are domestic slaves, held under threat of violent beatings and sexual assault, in a state of malnutrition and poor health, to serve their "employers."8

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Brahima Male was twelve years old when he was offered work in Cote d'Ivoire.9 Once across the border from Mali, he was sold for less than thirty U.S. dollars to a cocoa farmer.10 The use of forced child labor in the cocoa industry of West Africa is well documented.11 Poor Malian children are promised money and jobs but are instead sold into slavery in Cote d'Ivoire and Ghana to work without pay under the constant threat of violence in order to harvest the cocoa that provides seventy percent of the world's chocolate.12 When the widespread use of child slaves on cocoa farms was uncovered by a Knight Ridder Newspapers investigation in 2001, the industry mounted a successful lobbying campaign to defeat proposed legislation that would require the industry to certify their products as "slave free."13 Meanwhile, in America, children are sold the idea that uncommonly talented elves residing in an uncommonly outfitted Hollow Tree® are responsible for the production of chocolate and cookies.14 In an advertisement "sure to melt the hearts of audiences everywhere," Nestle Toll House sounds the call to "bake the world a better place."15

Human trafficking and forced labor occur in many contexts around the world. In the United States, temporary workers are exploited on farms for little or no pay yet are unable to leave without money or documents, and are

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often unknowingly violating the terms of their temporary work permits.16 Workers participating in the H-2 guest worker program have complained of a wide variety of threats and coercion, including wage theft, beatings, rape, starvation, and imprisonment.17 The number and variety of sex trafficking victims in America and around the world defy simple categorization. More than four million women and children are victims of sex trafficking, including those from less-developed parts of the world like Southeast Asia and the former Soviet Union, but also hundreds of thousands of American youth.18 Sex trafficking is the third largest criminal enterprise in the world, behind drugs and arms dealing.19

Estimates of the number of people suffering as victims of human trafficking vary widely, as the illegal nature of the practice keeps authoritative data hidden.20 In its 2012 report, the United Nations' International Labour Organization (ILO) estimated 20.9 million people are victims of human trafficking around the world; a conservative estimate that stands in stark contrast to the ILO's previous "minimum estimate" of 12.3 million people in 2005.21 This means there are more slaves today than at any other time in human history.22 Alarmingly, there are more slaves living today than the total number of people taken from Africa as part of the transatlantic slave trade that lasted from the sixteenth to nineteenth century.23

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What all of these examples have in common is the potential to have their harms redressed through civil litigation in the United States. When American citizens and American businesses benefit financially from trafficking and forced labor—here or around the world—there exists a possibility for civil relief. As one of the largest and most powerful economies in the world, it is unsurprising that much of the financial benefit from this global activity lands in the United States. However, when it does, the possibility of redress should land with it as well.

This Note will focus on the use of civil litigation in America to address human trafficking violations around the world. Specifically, this Note will address how the Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)24 provides the much needed tools to overcome some of the restraints apparent from recent decisions that limit the effectiveness of victims seeking accountability through the Alien Torts Statute (ATS).25 Part II will examine the beginnings of civil litigation under the ATS with the Filartiga decision,26 the first Supreme Court case utilizing the statute after nearly 200 years of inactivity. Part II will then discuss modern litigation under the ATS as a means of combatting human rights violations, focusing on the ways in which the ATS has been used in the past and how its scope and utility has been narrowed through recent Supreme Court decisions. Part III proposes the TVPRA, amended in significant ways in 2008, as a better path in combatting a broad array of human rights violations in light of the hurdles now apparent in litigation under the ATS. Part IV will address impediments and challenges such an approach could face. Part V will compare two recent ATS cases and determine whether the TVPRA would have been a more successful vehicle for those suits.

II. Filartiga, Sosa & Kiobel: The Rise & Reduction of the ATS

Under the ATS, U.S. district courts have "original jurisdiction [over] any civil action by an alien for a tort only, committed in violation of the law of

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nations or a treaty of the United States."27 The statute has been used to bring litigation seeking to broaden the scope of accountability around the world for human rights abuses, but the few U.S. Supreme Court cases interpreting the ATS have limited its applicability in important ways. This section will examine the beginnings of litigation under the ATS in modern times with an examination of the Filartiga decision. Next, this section will discuss the limitations of the ATS as a tool for victims of human rights abuses in light of the U.S. Supreme Court decisions in Sosa and Kiobel.28

A. Filartiga and the Birth of Civil Litigation To Combat Human Rights Violations

The modern American starting point for utilizing civil litigation as a tool to combat human rights violations is Filartiga v. Pena-Irala, a case in which the U.S. Court of Appeals for the Second Circuit (Second Circuit) resurrected the ATS—a statute that had lain practically dormant for nearly two centuries.29 The ATS was enacted by the First Congress in 1789 to grant original jurisdiction to district courts over "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."30 This brief but sweeping...

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