If the Shoe Does Not Fit: Why the ATS Does Not Work

Article excerpt

Generally speaking, international law regulates the conduct of states in their relations with each other and in their relations with individuals within their jurisdictions. Of course, individuals may also be subject to international law. This is most notably the case in the field of international criminal law, which recognizes individual responsibility for international crimes. International human rights law confers obligations on states--both positive and negative--and grants rights to individuals. This is trite law.

While these jurisdictional principles are uncontroversial, the use of the Alien Tort Statute (ATS) (1) confounds these basic principles and tends towards a distortion of the international legal order. The ATS operates on the basis that universal jurisdiction may be asserted, as a matter of customary international law, over actors who are alleged to have committed human rights abuses abroad. The United States stands largely alone in its attempt to provide a civil cause of action for human rights violations committed abroad with no factual or legal nexus with the United States.

The Georgetown Journal of International Law's 2012 Symposium on Corporate Responsibility and the Alien Tort Statute was organized in the wake of the latest attempt to extend the reach of the ATS to hold corporations liable for human fights abuses in the case of Kiobel v. Royal Dutch Petroleum Co. (2) However, following oral arguments, and in view of the new ATS case Sarei v. Rio Tinto, PLC, (3) the Supreme Court has decided to order reargument in Kiobel as to "[w]hether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." (4) This order is significant because it appears to signal that the Supreme Court is finally going to consider what gives the United States the right, under either international or domestic law, to assert its jurisdiction over crimes committed abroad, against aliens, and by aliens.

Corporate responsibility for human rights abuses is an extremely important question. There are significant movements towards greater corporate social responsibility for corporations and there will be an inevitable overlap with the substantive human rights obligations placed on states. This is not, however, the first question. We want to ensure that responsibility is placed at the door of those who deserve it. Impunity is to be battled against and human fights litigation must continue to move forward and become part of the national--as well as the international--legal discourse. We must be careful, however, not to conflate the "should" with the "how."

The ATS is a bold statute. It seeks to plug an accountability gap that is at times gaping. Yet the use of the ATS to achieve this goal presents problems of exceptionalism, of credibility, and of legitimacy. We are veering towards a type of legal colonialism that is at odds with the foundations of international law. The divide between the idealists and the realists has consequently widened and progress is stalled.

This Remark seeks to bring some perspective to this broader concern and offer some alternatives for moving forward. It advocates a "back to basics" approach to international law for determining what is customary international law and when a state may exercise its civil jurisdiction over the nationals of a third state. It will look not only at the lack of international consensus as to what extent corporations may be directly accountable for alleged human rights abuses in international law, but also more broadly at the difficulties a statute as jurisdictionally vague as the ATS presents. This Remark then considers the expansion of extraterritoriality under the European Convention on Human Rights (ECHR) and suggests that a regional framework's use of extraterritoriality based on a genuine and effective link with the forum state offers a way forward for human rights litigation in domestic courts. …