The Alien Tort Statute (ATS) is a single sentence in the Judiciary Act of 1789, "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." The ATS has no written legislative history, although, it clearly established a federal jurisdiction for civil tort action against pirates and foreign diplomats. The ATS grants federal courts jurisdiction over three common law torts as violations of international law: acts of piracy, violations of safe conducts, and interference with the rights of ambassadorsi. The Supreme Court has ruled once on the scope of the ATS in Sosa v. Alvarez-Machain in 2004, a decision that left unclear the major issue of corporate liability for aiding and abetting violations of human rights by governments of countries in which they do business. Conflicting Circuit court rulings on aiding and abetting liability under the ATS caused the Supreme Court to hear Kiobel v. Royal Dutch Petroleum in 2012.
After being little used for nearly 200 years, in Filartiga v. Peňa-Irala plaintiffs invoked the ATS in human rights litigation. The plaintiff argued that torture violated international law and that the ATS should provide relief. The Second Circuit agreed with the plaintiff and granted him $10.4 million, thereby establishing a precedent for federal litigation based on alleged violations of international law. Similar cases have been brought in states under ordinary common law, in some cases concurrently with federal ATS claims. Plaintiffs soon began filing claims in Federal courts against corporations, accusing them of aiding and abetting human rights violations by governments of countries where they do business.
In its 2004 decision in Sosa v. Alvarez-Machain, the Supreme Court tried to limit the causes of action under the ATS to those envisioned in 1789 and urged lower courts to take a "restrained conception of the discretion a federal court should exercise in considering such a new cause of action." The Court also affirmed that Federal district courts have sole jurisdiction over ATS cases (although cases have been filed in several states, notably California, under state common law), but did not reach the issue of corporate liability or aiding and abetting, which is the allegation in virtually ATS cases. The Court warned courts to take into account the impact on U.S. foreign policy and set guidelines for whether a tort constitutes a cause of action: universality, obligatory nature and specificity. Since Sosa, lower federal courts have recognized a number of ATS claims: torture; extrajudicial killing; racial discrimination; genocide; war crimes; and slavery, including forced labor.
On April 17, 2013, the U.S. Supreme Court handed down a highly consequential ruling in Kiobel v. Royal Dutch Petroleum, a lawsuit brought by Nigerian nationals under the ATS. The Court ruled that the ATS does not have extraterritorial application. At the same time the Court left the door open to a narrow category of claims that plaintiffs can make. USA*Engage and the NFTC have long supported companies that are sued for aiding and abetting human rights abuses by governments of countries in which they operate. USA*Engage and the NFTC have filed numerous amicus briefs in these cases, including two in Kiobel, and have facilitated defendant companies’ strategies. Click here for an analysis of the decision.
Torture Victim Protection Act
In 1992, Congress enacted the Torture Victim Protection Act (TVPA) to create a private right of action for torture and extrajudicial killing committed under "actual or apparent authority, or color of law, of any foreign nation" by a foreign government. The TVPA requires an exhaustion of remedies in the nation where the conduct occurredii, and has a statute of limitations of 10 years and specifically does not apply to private actors such as corporations.
Alien Tort Statute Case List
To follow is a list of current and recent ATS cases by Federal Circuit, some of which also involve the TVPA. Click here for descriptions of each case, including a brief summary of the allegations and proceedings and a status update.
• Doe v. ExxonMobil
• Arias v. DynCorp
• Doe v. Chiquita Brands Int'l, Inc.
• Saleh v. Titan Corp., Saleh v. Titan Corporation, and Ibrahim v. Titan Corporation
• Balintulo et al., v. Daimler, et al.
• Abrams v. Societe Nationale Des Chemins De Fer Francais
• Arar v. Ashcroft
• Arndt v. UBS
• Bano v. Union Carbide Corp
• Bigio v. Coca-Cola Company
• Bodner v. Banque Paribas
• Chowdhury v. WorldTel Bangladesh Holding. Ltd.
• Flores v. Southern Peru Copper Corp.
• Licci v. American Exp. Bank Ltd.
• Linde v. Arab Bank, PLC
• Liu Bo Shan v. China Construction Bank Corp.,
• Mastafa v. Chevron Corp.
• The Presbyterian Church of Sudan v. Talisman Energy, Inc.
• Turedi v. Coca-Cola Co.
• Tamam v. Fransabank Sal.
• Vietnam Association for Victims of Agent Orange v. Dow Chemical Co.
• Kiobel v. Royal Dutch Petroleum
• Abdullahi v. Pfizer; Adamu v. Pfizer
• Wiwa v. Royal Dutch Petroleum Co., Wiwa v. Shell Petroleum Development Co. of Nigeria, Ltd.,Wiwa v. Anderson
• Hereros ex rel. Riruako v. Deutsche Afrika-Linien Gmblt & Co.
• Iwanowa v. Ford Motor Co.
• Doe I v. Cisco Systems, Inc.
• Lizarbe v. Rondon
• Al Shimari v. CACI Internationa Inc.- Al Shimari v. CACI Premier Tech., Inc
• Al-Quraishi v. Nakhla
• Estate of Manook v. Research Triangle Institute, International
• Mohammed Aziz v. Alcolac Incorporated.
• Saharkhiz v. Nokia Corp.
• Abecassis v. Wyatt
• Adhikari v. Daoud & Partners
• Beanal v. Freeport-McMoran, Inc.
• Okpabi v. Royal Dutch Shell
• Aikpitanhi v. Airlines of Spain
• Chavez v. Carranza
• Enahoro v. Abubakar, considered on remand in Abiola v. Abubakar
• Flomo v. Firestone Natural Rubber
• Genocide Victims of Krajina v. L-3 Services, Inc.
• Holocaust Victims of Bank Theft v. Magyar Nemzeti Bank
• Roe v. Bridgestone Corp.
• Vieira v. Eli Lily and Co.
• Bauman v. Daimler Chrysler Corp.
• Bowoto v. Chevron Corp.
• John Doe v. Nestle
• John Doe v. Wal-Mart Stores, Inc.
• Mujica v. Occidental Petroleum
• Sarei v. Rio Tinto PLC
• Abagninin v. AMVAC Chemical Corporation
• Chunzhu v. Yahoo! Inc.
• Deutsch v. Turner Corp.
• Hamid v. Price Waterhouse
• Mohamed v. Jeppesen Dataplan, Inc.
• Sosa v Alvarez-Machain v. United States
• Corrie v. Caterpillar, Inc.
• Zheng v. Yahoo! Inc.
• Doe v. Unocal Corporation
• Doe I v. The Gap, Inc.
• Wang Xiaoning v. Yahoo! Inc.
• Carrizosa v. Chiquita Brands Int'l, Inc.
• Estate of Rodriguez v. Drummond Co. and Suarez v. Drummond Co.
• Aldana v. Fresh Del Monte Produce Inc.
• Baloco ex rel. Tapia v. Drummond Co. Inc.
• Cabello v. Fernandez-Larios
• Doe v. Drummond Company
• Jean v. Dorelien
• Licea v. Curacao Drydock Co. Inc.
• Magnifico v. Villanueva
• Minor R.M. v. Bin Rashid
• Prince Hotel, SA v. Blake Marine Group
• Sinaltrainal v. Coca-Cola Company
• Ungaro-Benages v. Dresdner Bank AG
USA*Engage/NFTC Amicus Briefs in ATS Cases
1. John Doe v. Unocal Corporation – USA*Engage, the National Foreign Trade Council (NFTC), the National Association of Manufacturers (NAM), the U.S. Chamber of Commerce, the U.S. Council for International Business (USCIB), and the Organization for International Investment (OFII) filed an amicus brief with the Ninth Circuit in April 2003 urging the Court to affirm the district court's dismissal of the ATS case against Unocal involving the company's oil exploration in Burma.
2. Sosa v. Alvarez-Machain – USA*Engage, the NFTC, the NAM, the U.S. Chamber of Commerce, and the USCIB filed an amicus brief in October 2003 with the Supreme Court urging the Court to confine the causes of action under the ATS to those envisioned by the framers in 1789.
3. Sarei v. Rio Tinto – The NFTC filed an amicus brief in September 2006 with the Ninth Circuit supporting the defendants' petition for a rehearing en banc of a panel's ruling that Rio Tinto had failed to exhaust domestic remedies in the ATS case brought by plaintiffs in Papua New Guinea.
4. Talisman Energy v. Republic of Sudan – The NFTC, the USCIB and the Independent Petroleum Association of America filed an amicus brief in May 2007 with the Ninth Circuit asking the Court to uphold District Court's decision to dismiss the ATS case brought against Talisman Energy for aiding and abetting violations of international law by the government of Sudan.
5. American Isuzu Motors v. Ntsebeza – USA*Engage, the NFTC, the USCIB, the OFII and the NAM filed an amicus brief in February 2008 with the Supreme Court supporting a petition for certiorari to hear the ATS case originally brought in 2001 against numerous multinational companies for aiding and abetting apartheid in South Africa. The Second Circuit had remanded the case to District court.
6. Balintulo Khulumani v. Daimler, Ford, General Motors and Rheinmetall – USA*Engage, the NFTC, USCIB and the NAM filed an amicus brief in September 2009 in the Second Circuit urging reversal of the District Court decision to allow the ATS case against companies for aiding and abetting apartheid to proceed.
7. John Doe v. ExxonMobil – USA*Engage, the NFTC, the NAM, and the USCIB filed an amicus brief with the U.S. Court of Appeals for the District of Columbia in December, 2010, in the ATS case. The brief argued that the use of Delaware and District of Columbia law by nationals of Aceh province in Indonesia to sue ExxonMobil for aiding and abetting violations of human rights was unconstitutional.
8. Carijano v. Occidental Petroleum Company – The NFTC filed an amicus brief in the Ninth Circuit in January, 2011, asking the Circuit Court to rehear en banc the Appeal Court's decision to reverse the District Court's decision dismiss the case on grounds of forum non conveniens. The Court's panel had decided the case should not be heard in Peru, but in U.S. Federal court because of the addition of a U.S. non-governmental organization as a plaintiff.
9. Barbara Bauman v. DaimlerChrysler – The NFTC and the OFII submitted an amicus brief in the Ninth Circuit in July 2011supporting the defendant's petition for an en banc review of a panel's ruling that the ATS case brought against Daimler Chrysler should be heard in U.S. Federal court simply because its products are sold in the U.S. rather than in Argentina.
10. John Doe v. Nestle, Archer Daniels Midland and Cargill – The NFTC and the U.S. Chamber of Commerce filed an amicus brief with the Ninth Circuit in October 2011 urging the Ninth Circuit to affirm the District court's dismissal of ATS claims brought against U.S. corporations for forced labor allegations by farmers in Cote d'Ivoire.
11. Asid Mohamad v. Palestinian Authority and Palestinian Liberation Organization – The NFTC, the American Petroleum Institute, the U.S. Chamber of Commerce, the OFII, the U.S. Council for International Business, and USA*Engage filed an amicus brief in December, 2011 with the Supreme Court on behalf of neither party asking the Court to hear the case to affirm that the Torture Victim Protection Act does not extend liability to private companies.
12. Ester Kiobel v. Royal Dutch Petroleum Co. – The NFTC, USA*Engage, the NAM, the OFII, the American Insurance Association and the American Petroleum Institute submitted an amicus brief to the Supreme Court on February 3, 2012 urging the Court to uphold the Second Circuit's ruling that there is no corporate liability under the ATS.
13. Rio Tinto v. Alexis Holyweek Sarei – The NFTC, the American Petroleum Institute, the Organization for International Investment, and the National Mining Organization filed an amicus brief on February 3, 2012 supporting a petition of certiorari with the Supreme Court on behalf of Rio Tinto. The brief argued that active participation in a violation rather than mere knowledge should be required for liability.
14. Kiobel v. Royal Dutch Shell - On August 8, 2012, the NFTC filed an amicus brief with the Supreme Court supporting a petition of certiorari in the Court's rehearing of the important ATS case, Kiobel v. Royal Dutch Shell. The brief was filed along with NFTC affiliate USA*Engage and six other major U.S. and five European business associations. The brief argues that the ATS does not apply to acts committed outside the territory of the U.S. especially in the absence of an international consensus supporting the exercise of extraterritorial civil jurisdiction.
i The original ATS granted federal courts jurisdiction "concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States." Sosa v. Alvarez-MA chain, 542 U.S. 692 (2004) (citing Act of Sept. 24, 1789, Ch. 20, §9(b), 1 Stat. 79). The current version of the ATS states that "district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violations of the law of nations or a treaty of the United States." 28 U.S.C. § 1350 (2006).
ii Courts excuse the exhaustion requirement when foreign remedies are unobtainable, ineffective, inadequate, or obviously futile. See, e.g., Abiola v. Abdulsalami, 435 F. Supp. 2d 830 (N.D. Ill. June 27, 2006); Doe v. Saravia, 348 F. Supp. 2d 1112, 1151 (E.D. Cal. 2004); Xuncax v. Gramajo, 886 F. Supp. 162, 178 (D. Mass. 1995); S. Rep. No. 102-249, p.9 (1991).
International Law and the Nation-State at the U.N.: A Guide for U.S. Policymakers