Resurrection Ecology and the Evolution of the Corporate Alien Tort Movement
Drimmer, Jonathan, Georgetown Journal of International Law
Within the field of evolutionary biology, an emerging sub-field involves the study of the eggs of living organisms dating back hundreds, and sometimes thousands, of years. Scientists--or resurrection ecologists, as they are known--will discover, incubate, and hatch these primordial vessels of life. The progeny are often bred, generating entire colonies of ancient species now living among us, and studied as to their structure, makeup, and reproductive capacities.
Much like the rediscovered egg of a resurrection ecologist, the Alien Tort Statute (ATS), (1) a once-dormant 200-year-old law, was rediscovered and, in 1980, hatched. For nearly fifteen years claimants then used the law--which permits aliens to file lawsuits in federal courts for torts in violation of the "law of nations"--against individuals and governments. In the mid-1990s, companies quickly became the primary focus of ATS litigation, and a colony of corporate ATS cases has now spawned.
This remark undertakes a study of those corporate ATS cases, focusing on two primary issues: how the birth and rise of the corporate ATS movement came about (including the reasons it began a full fifteen years after the ATS was rediscovered), and the trends that exist within those corporate ATS cases. That study reveals that globalization and a changing view of the responsibilities of corporations to non-shareholders was and remains a key stimulus for the corporate ATS movement, and that the law is but one tool among many being used against similar types of companies, arising from similar types of situations overseas.
II. BACKGROUND: THE ATS BEFORE 1993
A. The ATS Until 1979
Between its enactment in 1789 and 1980, the ATS was largely ignored. Until the 1960s, it never was invoked against corporate defendants. In the twenty years between 1960 and 1980, plaintiffs filed fifteen ATS cases against companies, all unsuccessful. (2) Only two involved claims resembling a modern ATS lawsuit, with one involving a claim of a sale under duress during World War II (3) and the other involving chemical exposure to Agent Orange in Vietnam. (4) Courts dismissed both. Cases involving transnational torts filed under other theories also were limited.
However, by the late 1970s--with the Vietnam War, campaigns related to apartheid South Africa, and other matters part of the public discourse--views of corporate responsibilities regarding overseas conduct began to change. Activists filed an increasing number of socially-oriented shareholder resolutions to try to alter corporate behavior and gain visibility for their causes. Socially responsible investing (SRI) also increased. Activists championed new legislation to require greater corporate ethical conduct at home and abroad. "Soft-law" regulation through voluntary codes of conduct emerged at the intra-firm and international levels, pursued by the United Nations, International Labor Organization, and others.
B. The 1980s
Those trends slowed somewhat in the 1980s. Government regulation of business was disfavored during the decade as reliance was placed on the free market. The apparent positive effects of that policy symbolically culminated at the end of the decade, when capitalism was credited, in part, with the fall of the Berlin Wall in 1989.
Nonetheless, consistent with a free market approach, the SRI movement continued to increase in popularity, and the number of shareholder resolutions continued to rise. Divestment efforts in South Africa also increased to a point where, by 1991, they helped pressure the South African government to announce it would transition away from apartheid.
Regarding the ATS, in 1980, the U.S. Court of Appeals for the Second Circuit, in Filartiga v. Pena-Irala, effectively revived the law. (5) The case involved Paraguayan citizens suing a Paraguayan police official for acts of torture and murder of a relative in Paraguay. …