Alien Tort Claims

The Alien Tort Claims Act was adopted in 1789 by the first U.S. Congress. In essence, the statute permits suits by aliens in federal courts for certain international-law violations, including human-rights violations. It provides jurisdiction only for those claims alleging violations of "the law of nations or a treaty of the United States." 28 U.S.C. § 1350.

How Often Is The Alien Tort Claims Act Used?

The Alien Tort Claims Act was little used for nearly two centuries until the 1980s, when activists and plaintiff's lawyers discovered this powerful weapon in their arsenal and began using the Alien Tort Claims Act as a means of suing foreign nationals, U.S. nationals, and companies in federal court for alleged human-rights abuses and/or violations of international law overseas.

How Do Courts Handle Corporate Liability Under The Alien Tort Claims Act?

In 2010 and 2011, four circuits weighed in on corporate liability under the Alien Tort Claims Act. The most infamous of these is arguably the case of Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010). The plaintiffs in Kiobel were Nigerian citizens who sued Royal Dutch Shell and a Nigerian affiliate for human-rights violations that occurred in conjunction with the Nigerian government during the course of Royal Dutch Shell's operations there. Id. at 117. The Second Circuit Court of Appeals examined the "customary international law" to determine whether corporate liability would be appropriate at all. While American law has long recognized corporate personhood and liability, the Second Circuit determined that the provisions of international law historically had been applied against states or individuals, but not corporations. Id. at 119–20. The Second Circuit concluded that the Alien Tort Claims Act does not confer jurisdiction over corporations, as corporate liability is not a part of the "customary international law." Id. at 145.

Conversely, the other three circuits that have addressed the issue have reached different conclusions. In Doe VIII v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), the plaintiffs, a group of Indonesian villagers, sued Exxon Mobil for extrajudicial killing, torture, and prolonged arbitrary detention, among other tort claims, in conjunction with its operations in Indonesia. The D.C. Circuit Court of Appeals examined in depth the history of the Alien Tort Claims Act, tracing corporate tort liability back to the time of the drafting of the act itself. Thus, the court reasoned, such liability would have been within the intent of the drafters of the statute. Id. at 47–8. The court specifically refused to follow the Second Circuit's analysis in Kiobel and held that corporations could be held liable under the act for their actions overseas. Id. at 50–7.