Supreme Court slices and dices 1789 law protecting non-citizens

International law in the 21st century has expanded to include the protection of human rights.


In decisions only meant to protect powerful American corporations against federal lawsuits by non-citizens, the Supreme Court has emaciated the Alien Tort Statute, 28 U.S.C. Sec. 1350.  “The Alien Tort Statute (ATS) is a U.S. federal law first adopted in 1789 that gives the federal courts jurisdiction to hear lawsuits filed by non-U.S. citizens for torts committed in violation of international law.  When the ATS was drafted in the 18th century, international law dealt primarily with regulating diplomatic relations between States and outlawing crimes such as piracy.   However, international law in the 21st century has expanded to include the protection of human rights. In the 60 years from the signing of the Universal Declaration of Human Rights in 1948 to the present decade, universal human rights have moved from being an aspirational concept to a legal reality. This remarkable evolution gave the ATS renewed significance in the late 20th century. Today, the Alien Tort Statute gives survivors of egregious human rights abuses, wherever committed, the right to sue the perpetrators in the United States.”  This is no longer true, because of the actions of SCOTUS.

The language of the Alien Tort Statute is as follows: “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.”  The language is plain.  The law grants the federal district courts original jurisdiction over certain civil actions.  A non-citizen (“alien”) must be the plaintiff.  The action must be for a tort only (it cannot, for example, involve a contract).  The tort must be committed in violation of the law of nations (in other words, international common law) or a treaty in which the United States is a signatory.  One would think that would include the Universal Declaration of Human Rights.  “In fact, the Universal Declaration of Human Rights explicitly references slavery, stating in Article 4: No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”

The ATS law does not specify who the defendant is, or where the tort is committed.  Yet the Supreme Court has slapped on additional requirements concerning those two elements, effectively emasculating the statute.

This statute adds the power to federal district courts to hear cases not normally within their jurisdiction.  Presumably, it was meant to protect aliens who are able to serve an action on a defendant within the United States, if the tort cause of action arises from violation of a treaty or violation of international law.

But most recently the Court stood the law on its head and cut it to ribbons.  “The Supreme Court  . . .   reversed a lower-court ruling that had allowed six men to sue Nestle USA  and Cargill over claims they were trafficked as child slaves to farms in the West African nation of Ivory Coast that supply cocoa to the two giant food companies.”  In an irony of ironies, the decision was written by Clarence Thomas, the only Black member of the Supreme Court.  Furthermore, it was an 8-1 decision, so all the liberal justices voted to favor of the corporations and against the plaintiff victims.  This is truly terrible.

“The Court began its analysis by using its “two-step framework for analyzing extraterritorial issues.” Under this framework, the Court presumes that a statute, here the ATS, does not apply to foreign conduct. In other words, as the Court stated, the assumption is that “a statute applies only domestically,” and then “asks ‘whether the statute gives a clear, affirmative indication’ that rebuts this presumption.” The Court concluded that the ATS cannot be read to apply to foreign conduct because, “the ATS does not expressly ‘regulate conduct’ at all, much less ‘evince a clear indication of extraterritoriality.’” The Court therefore concluded that courts are without power to “give ‘extraterritorial reach’ to any cause of action judicially created under the ATS.

“Having decided that the ATS cannot apply extraterritorially, the Court then shifted its focus to the second part of its analysis, explaining that “where the statute, as here, does not apply extraterritorially, plaintiffs must establish that ‘the conduct relevant to the statute’s focus occurred in the United States.’” The Court concluded that the plaintiffs could not meet this test because “[n]early all the conduct that they say aided and abetted forced labor — providing training, fertilizer, tools, and cash to overseas farms — occurred in Ivory Coast” rather than the United States.”   

How the Court can conclude that ATS gives no “clear indication of extraterritoriality” is just total blindness.  The statute requires that the cause of action arise from a treaty or from international law.  Does the Court really think that an act taking place solely within the United States is likely to be affected by a treaty or international law?  Of course not; such an act is going to be regulated by American law.

The Court stated: “Although this jurisdictional statute does not create a cause of action, our precedents have stated that courts may exercise common-law authority under this statute to create private rights of action in very limited circumstances. See, e.g., Sosa v. Alvarez-Machain, 542 U. S. 692, 724 (2004); Hernández v. Mesa, 589 U. S. ___, ___, ___ (2020) (slip op., at 6, 14). Respondents here seek a judicially created cause of action to recover damages from American corporations that allegedly aided and abetted slavery abroad.”  These “limited circumstances” are that “courts in certain circumstances likely could recognize causes of action for violations of three historical torts: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.”  

This is all rather amazing.  Why, for Heaven’s Sake, would Congress in 1789 give the power to federal courts to hear actions by aliens affected by violations of international law and treaties if the court was not permitted to decide if such a violation existed.   The Ivory Coast has signed a slew of treaties involving human rights.  Why aren’t the courts permitted to decide if torts arising from human rights violations are actionable?

The reason why the Court holds that federal courts cannot find general violations of international law is based on Erie R. Co. v. Tompkins, 304 U. S. 64 (1938),  which “denied the existence of any federal ‘general’ common law.”  But Erie R. Co. v. Tompkins held that “federal courts did not have the judicial power to create general federal common law when hearing state law claims under diversity jurisdiction.  In reaching this holding, the Court overturned almost a century of federal civil procedure  case law, and established the foundation of what remains the modern law of diversity jurisdiction as it applies to United States federal courts.”  But the Tompkins decision does not involve a statute like ATS, which latter clearly directs the district court to hear a relatively narrow body of cases: cases brought by aliens involving only torts and those arising out of international law or treaties.  What would be the point of granting such power and then limiting it to a very narrow set of actions, far narrower that what is normally thought to be international law?

In Nestle, the concern is compounded by the fact that the defendants are American corporations, who obviously made decisions within the United States that violated international law, even though most of the acts carrying out those violations were on the Ivory Coast.  

The problem with Nestle and its predecessor, Kobel v. Royal Dutch Petroleum Co., is that henceforth cases involving human rights violations are going to be forced into state courts.   Of course, the case can then be removed to federal court, but the latter will be called upon to apply the law of the state where the case arises, not international law or treaties.  If under its choice of law rules, the state court would apply international law or treaty violations, then the result would be the one sought in Nestle.  But the state’s choice of law rules might actually call for application of the law of the foreign country, which might permit slavery.     

Clearly, SCOTUS has created a mess.  Fortunately, Congress could unscramble the mess, simply by amending ATS to read: “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.  Having such jurisdiction, said courts shall be empowered to find and determine any causes of action arising under international law, the law of nations, or a treaty of the United States regardless of the type of and where the cause of action arises, even if there is no specific statute applicable thereto.”   Hopefully, that would broaden the powers of the district courts in handling such matters.      


If you liked this article, please donate $5 to keep NationofChange online through November.