A Natural Interpretation Of The Alien Tort Statute 1789

AuthorCiara Kennefick
Pages63-73
Cork Online Law R eview 2006 6
Kennefick, A Natu ral Interpretation of the
Alien Tort Statute 1789
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A NATURAL INTERPRETATION OF THE ALIEN TORT STATUTE
1789
Ciara Kennefick
In this essay, the author discusses the recent case law of the United
States courts relating to the Alien Tort Statute. There have been a number of
recent cases under the legislation where the defendants have been private
corporations. The decisions at state and appeal court level have not always
been consistent; the federal Supreme Court has yet to conclusively decide a
number of important issues of interpretation. The author contends that that
Court’s decision in Sosa was overly restrictive. Furthermore, she argues for a
lower standard of liability than has sometimes been applied; for an
extension of the justiciable causes of action; and for incorporating into law
the notion of corporate social responsibility, as expressed in the voluntary
codes drawn up in recent years by numerous multinational corporations.
The Alien Tort Statute was originally part of the Judiciary Act of 1789,
passed by the first United States Congress. It states that:
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 n ations or a
treaty of the United States.1
Until the first successful application of the Alien Tort Statute (hereafter
ATS) in the Filartiga2 case in 1980, it had been rarely invoked before federal
courts. Filartiga gave birth to a string of cases which incrementally extended
the causes of action to various human rights violations committed by state
actors. This essay analyses the significant ATS cases in which the defendants
were private corporate actors. While, at the time of writing no corporate claim
has yet been decided on its merits, the issue of corporate liability for violations
of international law has provoked extensive (often contradictory) ex cathedra
commentary and intense scholarly debate.
In this essay I will argue that there are numerous legal and political
reasons in favour of a broad interpretation of this act. Part A will broadly
outline the case law in this area and argue that corporations should be held
liable for an extensive range of human rights violations under the ATS. Part B
will propose that federal courts should not require actual knowledge or
intention in order to hold corporations liable for violations of “international
customary law or treaties of the United States.” In part C I will outline both
the political and financial reasons in favour of an extensive category of causes
of actions and a relatively low standard of liability, which does not require
actual knowledge or intention. It is argued that a legally appropriate, workable
and just test can be gleaned from the case law in this area.
Multinational giants such as the East India Company, Cecil Rhodes’
South Africa Company and United Fruit Company in Central America in the
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2 Filartiga v Pena-I rala, 630 F.2d 876 (2d Cir. 1980) .
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