The Alien Tort Statute Circuit Split: Two Questions for the Supreme Court
Wall, Amanda J., Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. THE CIRCUIT SPLIT: DEFINING CORPORATE LIABILITY ON TWO AXES A. The Kiobel Decision 1. The Y-Axis: Substantive Definition 2. The X-Axis: Narrow Definition B. The Flomo Decision (and the Kiobel dissent) 1. The Y-Axis: Jurisdictional Definition 2. The X-Axis: Narrow Definition C. The Doe Decision 1. The-Y-Axis: Jurisdictional Definition 2. The X-Axis: Broad Definition D. The Rio Tinto Decision 1. The Y-Axis: Substantive Definition 2. The X-Axis: Broad Definition III. THE BEST DEFINITION FOR CORPORATE LIABILITY: BROAD AND JURISDICTIONAL A. The Broad, Jurisdictional Definition Provides Clarity and Consistency in U.S. Law B. The Broad Jurisdictional Definition Recognizes the Role of Customary International Law C. The Broad, Jurisdictional Definition Avoids an Unjust Result IV. CONCLUSION
The Alien Tort Statute (ATS) has been described as "a jurisdictional provision unlike any other in American law, and of a kind apparently unknown to any other legal system in the world." (1) Its language permits aliens to sue in U.S. federal courts only for a tort "committed in violation of the law of nations or a treaty of the United States." (2) The ATS, in other words, grants jurisdiction for violations of treaties and of customary international law (CIL) (3) Although a part of U.S. law since 1789, the ATS has only recently become popular among human rights advocates seeking damages against perpetrators of human rights abuses abroad.
The Supreme Court has only once ruled on the scope and applicability of the ATS. (4) In Sosa v. Alvarez-Machain, the Court rejected the claims of a Mexican citizen (Alvarez) against another Mexican citizen (Sosa) for arbitrary detention that had occurred in Mexico, finding that the ATS permitted the Court to hear only a "very limited category defined by the law of nations and recognized at common law." (5) Those limitations were to be based on "norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms recognized [by the Court]." (6) This was a category that arbitrary detention simply did not fit into, leading to the dismissal of Alvarez's claims.
Since Sosa, several ATS cases have been heard by district and circuit courts, raising new questions about the statute's scope. Most recently, four circuit courts in the last year have addressed the question of whether corporations may be held liable for violations of customary international law under the ATS. Although this question has been alluded to in prior ATS decisions, (7) these four cases are the first to decide the issue head-on. The Second Circuit in Kiobel v. Royal Dutch Petroleum Co. (8) held that corporations are not liable for CIL violations under the ATS, while the Seventh Circuit in Flomo v. Firestone Natural Rubber Co., (9) the Ninth Circuit in Sarei v. Rio Tinto, PLC, (10) and the D.C. Circuit in Doe v. Exxon Mobil Corp. (11) held the opposite. The Supreme Court will rehear the petition from Kiobel in the coming term. Against this backdrop, it is valuable to analyze these four decisions to distill the essential questions that the Supreme Court must answer in order to alleviate the current circuit split.
Although these four cases only come to two different conclusions about corporate liability for CIL violations, these decisions actually differ in more than one important respect. In order to see where these decisions differ, it is important to ask not only whether there is corporate liability under the ATS, but what corporate liability is in the first place. Asking whether corporate liability should be available under the ATS puts the cart before the horse, neglecting this first and more fundamental legal question.
In fact, the four circuit decisions are actually based on the answers to two basic questions about the definition of corporate liability: (1) whether corporate liability should be defined as part of the jurisdictional question or part of the substantive question (the y-axis of the corporate liability grid), and (2) whether corporate liability should be defined broadly or narrowly (the x-axis of the corporate liability grid). …