The primary instrument plaintiffs have relied upon to establish their jurisdiction for cases that fall within our inquiry is the Alien Tort Statute (ATS) of 1789. 1
An overview of the Alien Tort Statute
Enacted in 1789 and revived in 1980 for human rights cases in the landmark case Filártiga v. Peña-Irala 2 , the ATS has been the central basis for asserting jurisdiction in most tort cases brought in the U.S. against multinational corporations for human rights violations committed transnationally. .
U.S. federal courts may hear civil cases:
- Introduced by a non-US citizen,
- Introduced by a victim of a serious violation of the “law of nations”, or customary international law 3 ,
- Which “touch and concern the territory of the United States” “with sufficient force” to displace the presumption against extraterritoriality, 4
- In which the defendant is on U.S. soil when the suit is brought.
- In 2018, the U.S. Supreme Court excluded “foreign corporations” from the jurisdictional reach of the ATS; 5 the question of whether US corporations can be sued under the ATS is currently pending before the U.S. Supreme Court in Nestle USA, Inc. v. Doe I/Cargill, Inc. v. Doe I 6 .
In addition to the Alien Tort Statute, the Torture Victim Protection Act (TVPA) is another tool which allows U.S. courts to hear cases involving violations of international law committed against private persons.
An overview of the Torture Victim Protection Act
Adopted in 1991, the TVPA allows U.S. and foreign nationals to sue in federal court for redress from perpetrators of torture or extrajudicial executions who act under authority or color of a foreign nation, 7 including those carried out outside the U.S. The TVPA does not replace the ATS, but complements it. On the one hand, the TVPA’s scope is more limited than that of the ATS because only acts of torture and extrajudicial executions can be litigated under the TVPA. On the other hand, the TVPA extends the scope of the ATS, in that it accords the right to sue not only to foreigners, but to U.S. citizens as well. 8 However, as the U.S. Supreme Court recently clarified, only natural persons are subject to liability under the TVPA. 9 It can therefore only be used to sue corporate officers, but not corporations.
Increasingly, the federal Trafficking Victims Protection Reauthorization Act (TVPRA) is being used in human rights actions against corporations.1 The TVPRA specifically grants U.S. courts extraterritorial jurisdiction over claims for trafficking, enslavement and forced labor since 2008, when the expanded TVPRA was enacted.
Alongside ATS or TVPRA claims. plaintiffs regularly bring state tort law claims against corporations for conduct that violates basic rights, such as assault and battery, sexual assault, intentional infliction of emotional distress and wrongful death.