From Aiding Pirates to Aiding Human Rights Abusers: Translating the Eighteenth-Century Paradigm of the Law of Nations for the Alien Tort Statute
Lovejoy, Martha, Yale Human Rights and Development Law Journal
The Alien Tort Statute [ATS], alternately hailed as a "potent weapon for human rights" and a threat to developing nations and American corporate interests alike, was secured a second act by the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain. The Sosa decision confirmed the A TS as actionable, but restricted its application to offenses "comparable to the features of the eighteenth-century paradigms, offenses against ambassadors, violations of safe conduct and piracy, that Congress had in mind when it enacted the ATS." Whether aiding and abetting liability is available under the ATS remains a live issue. This Note analyzes Sosa's historical paradigm, examining whether aiding and abetting liability was available for the archetypical violation of the law of nations: piracy. It concludes that aiding and abetting liability for piracy was available and common in English and American law from the sixteenth century to the eighteenth century. The Note outlines the theories of aiding and abetting piracy and applies those theories to contemporary human rights problems.
In the Papua New Guinean civil war, the government bombed human targets, burned villages, raped women, and shot civilians to support the security of the largest economic entity in the country, mining company Rio Tinto. (1) Could Rio Tinto be held liable for aiding and abetting human rights abuses in American courts under the Alien Tort Statute [ATS]? (2) During South Africa's apartheid, companies provided banking services for the government; their oil fueled the military trucks; the cars they produced drove the South African police officers who shot demonstrators on the streets. Companies housed South African government weapons and provided security for high-risk areas. (3) Is that support sufficient to constitute aiding and abetting violations of the law of nations under the ATS?
Human rights litigators hope so, building ATS cases to bring human rights to the attention of United States-based companies operating in foreign countries. (4) Yet whether plaintiffs can sustain such actions depends on a historical framework set forth by the Supreme Court in 2004. In Sosa v. Alvarez-Machain, the Court instructed lower courts to "require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the eighteenth-century paradigms we have recognized." (5) Since Sosa, courts and scholars have grappled with the boundaries and content of these "paradigms." (6) The Court intended this restriction to serve a "doorkeeping" (7) function, urging cautious use of the statute. In Sosa, the Court measured the defendant's conduct against the seriousness of piracy, the archetypical Blackstonian international crime. (8)
This Note analyzes the "eighteenth-century paradigm" of the law of nations as prescribed by the Court for the purposes of refining one of the most contested issues in international law today: corporate aiding and abetting liability for human rights abuses. It seeks to accomplish two goals. First, by taking a close look at the historical prosecution of piracy, the Note confirms that aiding and abetting violations fit firmly into the eighteenth-century paradigm of the law of nations. Second, the Note uses the framework of the piracy liability to provide guidance into the type of aid that was considered triable in the Founders' era, and the concepts that were at the foundation of liability. Individuals who aided pirates were held liable for three basic types of aid: counsel and procurement of piracy, material aid to pirates, and deriving material benefit from business with pirates. Extent of involvement, duty and profit were all considered relevant to the determination of liability. The Note translates the historical paradigm, using it as a benchmark, as the Sosa court did, to measure the viability of contemporary corporate aiding and abetting liability under the ATS. …