The Tort in Torture
November 2022 | Adeshola Adesanwo (Staff Writer and Editor)
I. INTRODUCTION
The law of tort includes any wrongful act—other than a breach of contract—done intentionally or negligently, for which damages can be obtained. [1] The jurisdiction legislated by the Alien Tort Statute (ATS) has birthed controversy concerning whether the ATS works to shadow U.S. Courts from International Law, specifically human rights issues. The ATS provides:
“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.” [2]
This legislation has become a law by which foreign nationals demand justice for human rights violations. Recently, human rights activists have been proponents of strict liability specifically relating to corporate use of extraterritoriality—or diplomatic immunity—while operating abroad. That is, activists have attempted to hold corporations liable for human rights violations by way of the ATS. On the other hand, this battle for human rights under the ATS is perceived as a trojan horse of types, where federal judges and courts are inappropriately used to apply and inadequately enforce international law. [3]
The aim of this article, however, is to establish whether the Alien Tort Statute Clarification Act of 2022, which sought to include extraterritorial jurisdiction, will satisfy questions of extraterritoriality and corporate liability. In short, the clarification act seeks to grant jurisdiction, or extraterritoriality, to district courts of the United States for torts that take place outside of the domestic United States—torts that are in violation of the Law of Nations or a treaty of the United States. [4] This article will explore the recent Supreme Court decision in Nestlé USA, Inc. v. Doe (2021) to establish whether the Clarification Act should pass in order to effectively hold U.S. corporations liable for human rights violations abroad.
II. NESTLE USA, INC V. DOE I
In the Supreme Court’s most recent decision on the ATS, in Nestlé USA, Inc. v. Doe, the plaintiffs were a group of six individuals from Mali who alleged that they were kidnapped and then trafficked as child slaves to Ivory Coast – a West African country responsible for the majority of the global cocoa supply. [5] Defendants Nestlé USA and Cargill are U.S. companies that purchase, process, and sell cocoa from farms located in Ivory Coast, as well as provide these farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. [6] The Plaintiffs further allege that Nestlé had economic influence over the farms and labor practices. As such, they claim the company aided and abetted child slavery while continuing to purchase cocoa, even after Nestlé “knew or should have known,” that the cocoa farms utilized child slavery. [7] Moreover, plaintiffs alleged that decisions to orchestrate a slave-based supply chain all took place from corporate offices in the United States, and thus survived the extraterritoriality bar. [8] Finally, because Nestle made decisions that constituted aiding and abetting child slavery from U.S. headquarters, including sending U.S. employees to the farms to inspect conditions, federal jurisdiction applied under the ATS.
The 8-1 Supreme Court decision in Nestlé focuses on the question of extraterritoriality first, denying that a “sufficient connection” existed between forced labor and U.S. conduct because “general corporate activity” is not enough to support the application of the ATS. [9] Further, since all corporate conduct took place in Ivory Coast, corporate decision-making alone does not satisfy the application of the ATS. Due to extraterritoriality law, U.S. corporations cannot be held liable by foreign courts, because extraterritoriality acts as diplomatic immunity. This is how the question, and Supreme Court decision, on corporate liability comes into play in Nestlé USA, Inc. v. Doe.
Human rights activists demand that corporations are held liable for human rights violations they perpetrate, even if not directly, given that a tort may include both intentional or negligent wrongs—where a third party may also be held liable. The Supreme Court seems to agree. In various concurring and dissenting opinions, five Justices of the Supreme Court agreed that corporations are not immune from claims brought under the ATS. [10] Although Nestlé was decided on grounds other than corporate liability, the dissenting opinion by Justice Alito added that “[c]orporate status does not justify special immunity,” and Justices Sotomayor, Breyer, and Kagan reached the same conclusion, noting that these Justices would permit U.S. corporations to be sued under the ATS. [11]
III. ALIEN TORT STATUTE CLARIFICATION ACT
With corporate liability clearly established under the current ATS, The Alien Tort Statute Clarification Act (ATSCA) aims to extend the Court's reach and authorize extraterritorial jurisdiction. [12] This directly addresses the 8-1 decision in Nestlé and grants federal jurisdiction for actions of Nestlé and other corporations, regardless of whether actions take place on U.S. territory or abroad. Specifically, the ATSCA would determine that district courts of the United States have extraterritorial jurisdiction over any tort described if 1) an alleged defendant is a national of the United States or a non-citizen lawfully admitted for permanent residence or 2) an alleged defendant is present in the United States, irrespective of the nationality of the alleged defendant. [13] In theory, this gives the Court’s jurisdiction over any conduct by U.S. corporations abroad and affixes U.S. courts to international law and the law of nations, especially with respect to human rights violations.
The Ninth Circuit court held that because “major operational decisions” took place in the United States, the plaintiffs in Nestlé could in fact sue under the ATS. [14] This might imply that under the ATSCA, “major operational decisions” that lead to aiding and abetting human rights violations could impose strict liability on all corporate activity. On the other hand, considering Nestlé, the ATSCA may not have addressed the question of “sufficient connection”, but it may have granted stronger evidence by giving courts proper jurisdiction to decide on claims of aiding and abetting. If passed, the ATSCA could serve as a stepping stone to which human rights activists—if done appropriately—may begin to hold U.S. corporations liable for human rights violations that supplement their corporate activities and profits.
Sources
Mulligan, Stephen P. The Alien Tort Statute: a Primer. [Library of Congress public edition]. Vol. R44947. Washington, D.C.: Congressional Research Service, 2018.
Ibid.
Bhuta, Nehal. “The Ninth Life of the Alien Torts Statute - 'Kiobel' and After.” Journal of International Criminal Justice 12, no. 3 (2014): 539–50.
S.4155 - 117th Congress (2021-2022): Alien Tort Statute Clarification Act." May 5, 2022.
Dodge, William S. “Nestlé USA, Inc. V. Doe (U.S. Sup. Ct.).” International Legal Materials 61, no. 2 (2022): 175–92.
Ibid.
Mulligan, Stephen P. The Alien Tort Statute: a Primer. [Library of Congress public edition]. Vol. R44947. Washington, D.C.: Congressional Research Service, 2018.
Ibid.
Nestle USA, Inc. v. Doe, 593 US __ (2021).
Dodge, William S. “Nestlé USA, Inc. V. Doe (U.S. Sup. Ct.).” International Legal Materials 61, no. 2 (2022): 175–92.
Ibid.
S.4155 - 117th Congress (2021-2022): Alien Tort Statute Clarification Act." May 5, 2022.
Ibid.
Nestle USA, Inc. v. Doe, 593 US __ (2021).