A Natural Interpretation Of The Alien Tort Statute 1789

• Author: Ciara Kennefick
• Pages: 63-73

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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1 28 U.S.C. § 1350.

2 Filartiga v Pena-I rala, 630 F.2d 876 (2d Cir. 1980) .

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