The Alien Tort Statute on its deathbed? SCOTUS grants certiorari in two aiding and abetting cases.

The US Judiciary Act of 1789, 28 U. S. C. §1350. which is now known as the Alien Tort Statute, provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of of the law of nations or a treaty of the United States.” For nearly forty years it has been used as the gateway to bring suits in the US District Courts against individuals and corporations based on alleged violations of norms of international law.

The Supreme Court has three times considered the scope of the ATS: in Sosa in 2004 when it decided that the norms of the ‘law of nations’ had to be as well established as the three such norms in existince when the ATS was passed in 1789 (piracy, offences against ambassadors, violations of safe conducts); in Kiobel in 2013 when it decided that the ATS was subject to the presumption against extra-territorial application of US standards and; in Jesner v Arab Bank in 2018, when it decided that foreign corporations could not be subject to liability under the ATS. But what about US corporate defendants?

It now seems that there is a chance of killing off the ATS altogether, although ATS type claims could still be brought in the future as tort claims in the state or federal courts. On 2 July the US Supreme Court granted certiorari to hear appeals in two Alien Tort Statute decisions, involving claims against Nestle and Cargill alleging aiding and abetting forced labour by farmers in Côte d’Ivoire from whom they bought cocoa.

The questions presented, each of which is the subject of a circuit conflict, are:

1. Whether a defendant is subject to suit under the ATS for aiding and abetting another person’s alleged violation of the law of nations based on allegations that the defendant intended to pursue a legitimate business objective while knowing (but not intending) that the objective could be advanced by the other person’s violation of international law.
2. Whether the “focus” test of Morrison v. National Australian Bank, Ltd., 561 U.S. 247, 248 (2010), governs whether a proposed application of the ATS would be impermissibly extraterritorial under Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013).
3. Whether there is a well-defined international-law consensus that corporations are subject to liability for violations of the law of nations.

The third question is particularly interesting in that this is the same issue as came before the Supreme Court of Canada in the strike out decision in Nevsun v Araya in its decision at the end of February 2020. Almost all the material on this issue derives from the decisions of US federal courts in ATS cases. As they say, “If you want to know about customary international law, ask an American lawyer.” – and you will get no definite answer on this one.