Bloomberg Law
Sept. 10, 2021, 8:00 AM

SCOTUS Child Slavery Ruling Shows Congress Needs to Act on ATS

Kenneth Foard McCallion
Kenneth Foard McCallion
McCallion & Associates LLP

The U.S. Supreme Court recently sounded the final death knell to attempts by the international human rights community to hold corporations liable for violations of international law under the Alien Tort Statute (ATS).

Following an appeal by Nestlé USA Inc., the U.S. affiliate of Swiss-based Nestlé Cargill Inc. (Cargill), Justice Clarence Thomas, writing for a majority of the court in Nestlé USA Inc. v. Doe, found in favor of these two corporations. The court held Nestlé could not be held accountable for allegedly aiding and abetting forced and child labor in the Ivory Coast.

This decision immunized them from any liability in U.S. courts for clear-cut violations of international law. There are reliable estimates that as many as 1.56 million children aged 5 to 17 were forced to harvest cocoa in Cote d’Ivoire and Ghana in 2018 and 2019 alone. The plaintiffs who brought the case were six former child slaves transported from Mali and forced to work in Ivory Coast cocoa farms.

Supreme Court Puts Restrictions on ATS

The ATS was one of the first statutes enacted by Congress as part of the First Judiciary Act of 1789. A model of simplicity, the statute was designed to signal to the world that the United States was prepared to join the international community as a responsible member. The country was opening U.S. courts to foreign nationals who had suffered damages because of violations of “the law of nations.”

The statute grants U.S. federal district courts jurisdiction to hear claims brought “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States” (28 U.S.C. § 1350). It does not have any qualifying language requiring that the violation must impact the U.S., nor does it state it applies only to conduct by individuals.

And yet, time and time again, the U.S. Supreme Court and other federal courts have grafted restrictions onto the statute that are not to be found in its plain language.

The ATS mainly went unused for more than a century, until 1980, when a Paraguayan doctor, Joel Filártiga, filed a lawsuit in the U.S. against Americo Peña-Irala, a former Paraguayan police official living in New York.

The plaintiff alleged that Peña-Irala had kidnapped Filártiga’s son and tortured him to death in retaliation for Filártiga’s opposition to the Paraguayan government. The U.S. Court of Appeals for the Second Circuit agreed that the ATS applied that torture violates the law of nations.

Human Rights Cases

In the years following the Filártiga decision, plaintiffs represented by human rights attorneys successfully used the ATS as a basis for federal lawsuits seeking compensation for human rights violations that occurred overseas. The ATS was also used against multinational corporations for their roles in aiding and abetting human rights violations by foreign governments.

For example, in Bodner v. Bank Paribas, Judge Sterling Johnson held the court had subject matter jurisdiction under the ATS over claims by foreign nationals that French banks schemed to loot, convert, and withhold from rightful owners of property confiscated during Nazi occupation. The defendants’ counsel made no argument that the scope of the ATS did not apply to corporations such as the banks involved. There was no argument that damages to Holocaust victims were “extraterritorial,” beyond the scope of the jurisdiction of the U.S. courts.

The legal pendulum has sadly swung in the opposite direction. Now the doors of the federal courthouses have been primarily shut to claims by foreign nationals that corporations and foreign governments have victimized with clear-cut violations of international law. Following the Supreme Court’s lead, federal courts have denied jurisdiction to plaintiffs with overwhelmingly meritorious cases alleging violations of international law.

For example, in September 2020, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal of Rukoro v. Federal Republic of Germany, finding an insufficient showing of jurisdiction under the Foreign Sovereign Immunities Act (FSIA).

Descendants of Herero and Nama (in present-day Namibia) tribal community members were subjected to the genocidal onslaught of German colonial forces between 1904-1908. German authorities meticulously packaged up the victims’ heads and shipped them to Berlin for medical experimentation and resale as part of a burgeoning international trade in human body parts.

There was was an evidentiary showing that the taking of the body parts had a direct effect in the U.S. since some of the skulls and other human remains were sold by Germany to the American Museum of Natural History in New York. But the Second Circuit noted that the “terrible wrongs elucidated in Plaintiffs’ complaint must be addressed through a vehicle other than the U.S. court system.”

But no international judicial forum exists for individuals or indigenous groups victimized by human rights abuses.

It is high time that Congress reassert its constitutional mandate to decide what U.S. laws mean and what they do not, rather than sitting back to wait for the federal courts to eviscerate their statutes through judicial interpretation. Only then can the U.S. reassert its rightful role as the champion of human rights and open its courthouses to aggrieved foreign nationals.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Kenneth Foard McCallion is a New York-based human rights attorney at McCallion & Associates LLP. He is also the author of the recently published companion books: “Profiles In Courage in the Trump Era” and “Profiles in Cowardice In the Trump Era.”

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