A New International Tool of Justice: How Human Rights Advocates Are Trying to Use an Obscure Legal Statute to Hold Corporations Liable for Atrocities Occurring across the World
Wade, Jared, Risk Management
There has been an ongoing legal battle occurring on the margins of society ever since an innocuous statute buried deep in early U.S. law was uncovered by human rights advocates nearly three decades years ago. Their goals are to expose and seek justice for atrocities committed across the world, and they began by crusading against infamous war criminals such as Radovan Karadzic, the Bosnian Serb leader who was recently dragged out of hiding to face U.N. charges for his role in the ethnic cleansing of Muslims and Croats during the Bosnian war. Now, however, their focus has moved over to corporations, and human rights advocates are seeking damages from companies they believe have been complicit in human rights abuses. No company has lost a case thus far, but many believe it is only a matter of time. And once that occurs, a floodgate of human rights lawsuits may open.
The Alien Tort Claims Act (ATCA) is nearly as old as the United States. Its entire 33-word mandate reads" "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."
For most of its first 200 years, the statute lay dormant with no affect on the legal system--neither domestically nor internationally Even today, legal minds debate its origin. The First Congress signed the act into law in 1789, but numerous questions surround the lawmakers' true intentions.
Most contend that it was enacted primarily for national security and that its main goals were dealing with piracy on the high seas and protecting foreign ambassadors. Some claim it was included so as not to discourage foreign investment in the fledgling nation. Still others believe Congress sought an ideological "badge of honor" that showed the nation's willingness to make enforcing international standards a duty under domestic law.
Historians and legal minds will undoubtedly continue this debate, but ultimately, the most salient opinion probably comes from renowned Judge Henry Friendly of the United States Court of Appeals. "Although it has been with us since the First Judiciary Act ... no one seems to know whence it came."
Much more important than the genesis of the ATCA, however, are the questions regarding its present and future. Today, the ATCA represents a pivotal and polarizing link between human rights and international business. For more than 15 years, human rights organizations have used a broad judicial interpretation of the act to file suit against multinational corporations including Royal Dutch Shell, Bridgestone Firestone and Coca-Cola in hopes of holding them financially and morally responsible for human rights abuses across the globe. And for more than 15 years, companies have been challenging these lawsuits, successfully getting nearly every case dismissed.
To many, the fact that these cases are even considered is foolish and each should be granted immediate dismissal. Indeed, ATCA cases can only be brought by non-U.S, citizens for acts committed outside of U.S. soil--and in cases like that against Royal Dutch Shell, against non-U.S. companies. Still, there are currently dozens of related cases under litigation and they are heard due to the act's mandate for U.S. federal courts to rule on anything, anywhere that violates that "law of nations," a phrase understood to include the agreed-upon, inalienable international standards of the world, such as the protections provided by the Universal Declaration of Human Rights or the Geneva Conventions.
The outcomes of the currently pending cases are what will determine the act's lasting significance. Based on results, it would seem companies have little reason for concern. Thus far, only one case has reached a trial decision. Ideologically, however, the most significant judicial interpretation developments have favored human rights advocates, raising the possibility that much of the corporate success has been the result of thin or overextended cases rather than any inherent weakness in the ATCA itself. …