Alien vs. (Human Rights) Predator

January 30, 2008 | | Comments Off on Alien vs. (Human Rights) Predator

The Alien Tort Claims Act (ATCA) of 1789 grants jurisdiction to United States federal courts over “any civil action 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 (2006).

Though perhaps seemingly bland in its one-sentence text, the significant effect of the ATCA is to provide an American legal venue to victims of human rights abuses who could not otherwise bring their abusers to justice in local courts due to bureaucratic reasons, domestic intimidation, or otherwise. The ATCA does so even if neither party has any connection to the United States.

This dated piece of legislation was adopted in a time very different from the present, given that the ATCA was passed as part of the original Judiciary Act of 1789 that established the “inferior courts” that we recognize today as our federal district courts and courts of appeals. Clearly the American court system and laws have evolved over time, but though the ATCA dates from our nation’s constitutional founding and fell out of regular use long ago, the pithy statute has taken on an increased salience in recent years.

As noted above, the effect of the ATCA is to provide a venue in a U.S. federal court for human rights violations. Importantly, the ACTA allows for alien plaintiffs to sue non-national individuals, rather than countries. But as Corporations and Business Associations class indoctrinates us, an “individual” need not be a human being, it can be a corporate entity in the legal sense.

Although intended to apply to a limited number of tort actions, such as piracy, violations of safe-conducts, and interference with the rights of ambassadors, the ACTA’s limits were tested in 1980 when a Paraguayan man successfully used the ATCA to sue a police official who kidnapped and tortured his son to death in Paraguay. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

More recently, in July 2007 a federal jury delivered its verdict in the first corporate ATCA case to make it through trial, finding that Drummond Coal Company was not guilty of the 2001 murder of three union leaders at one of its mines in Colombia. Rodriquez v. Drummond, 256 F. Supp. 2d 1250 (N.D. Ala. 2002). It should be noted that the case is being appealed, however, as the trial judge excluded eyewitness testimony linking the company’s operations to Colombian paramilitaries.

Why is the Alien Tort Claims Act of 1789 important? Because it represents a new (or, more aptly, a rediscovered) arrow in the quiver of options available to those seeking compensation for gross human rights violations. In the important corporate context, the ATCA brings legal, reputational, and financial risks to transnational corporations whose tortious or negligent actions abroad can be proximately linked to serious harms in affected individuals and groups.

Though the use of the ATCA has been unsuccessful thus far in actions against companies such as Shell, Chevron, Chiquita, and Wal-Mart, the fact that these cases are no longer being dismissed outright (by summary judgment or motions to dismiss), but instead being heard by judges and juries to their completion, bodes well for human rights activists. If nothing else, it will place on constructive notice companies with less than stellar relations with local communities who may feel the collateral effects of both transnational corporations and individuals who disregard human welfare.

For more information on the Alien Tort Claims Act, including a variety of articles and case summaries, see Global Policy Forum here.

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