In a brief filed last week, the Trump administration reversed its position on corporate liability under the Alien Tort Statute (ATS) and asked the Supreme Court to issue Certiorari in Cargill, Inc. against Doe I and determine that domestic companies are not subject to complaints for human rights violations under the ATS. The document also asked the Court to reject the possibility of state liability under the ATS, or alternatively to find that state liability is not available if the main crime occurs outside the United States. Three months after the Canadian Supreme Court ruled that Canadian companies could be sued abroad for human rights violations in the Canadian courts, the Trump administration pleads for the US Supreme Court to go in exactly the opposite direction.
The ATS is a provision of the Justice Act of 1789 that gives federal courts jurisdiction over "any civil lawsuit brought by a foreigner solely in tort that violates international law or a United States treaty." In Sosa (2004), the Supreme Court recognized an implicit plea under the ATS for well-established norms of human rights. As a result, the Second Circuit in Kiobel (2010) found that corporate liability for human rights violations was not well founded to meet the Sosa standard. The Supreme Court issued certiorari to resolve the issue of corporate liability, but resolved the case by applying the extra-territorial presumption to the ATS plea in Kiobel (2013). The Court re-issued certnerari the decision on the question of corporate liability in Jesner (2018), but again circumvented the question by finding that the ATS plea does not apply to foreign companies.
The plaintiffs in Cargill alleged that Cargill and Nestle operated a cocoa supply chain based on child slave labor that provided financial support and technical assistance to producers in Ivory Coast, although they knew that these producers used children as slaves. The Ninth Circle found that Jesner's ATS excluded claims against foreign corporate defendants, but not against the US corporate defendants Cargill and Nestle USA. The Ninth Circle also considered that the application of the ATS plea to these facts was domestic rather than extraterritorial in nature, since the ATS focuses on behavior that supports and encourages violations of human rights, and the plaintiffs alleged that such behavior occurred in the United States.
In Kiobel and Jesner, two different administrations spoke in favor of corporate liability under the ATS for human rights violations that comply with the Sosa standard. In Kiobel, the Obama administration submitted an Amicus brief, noting that actionable international human rights standards apply to individuals and businesses alike (pages 20-21), arguing that “(h) old businesses who are liable for violations of the law under international law ”is in line with the background of common law, against which the ATS was enacted and subsequently amended (on page 26). In Jesner, the Trump administration submitted an Amicus letter, affirming that international human rights standards apply to individuals and businesses alike (pages 13 to 14), arguing that “(d) the history of the ATS confirms that this is permitted. Courts recognize, in appropriate cases, common law claims against companies for violations of international law ”(on page 15).
The Trump administration's new mandate changes position compared to just three years earlier. Significantly, the mandate does not speak against corporate liability based on the content of customary international law. Although the Second Circuit in Kiobel (2010) framed the question of whether there is a “standard of corporate liability” according to international customary law, I have explained both in science and in an Amicus letter that such a question makes no sense. The international customary law of human rights establishes norms of behavior; It does not dictate how states should enforce these standards. There is no doubt that international human rights standards (including the ban on slavery) apply to businesses. Therefore, the United States is free to apply these standards to companies.
Instead, the new Trump administration report speaks out against corporate liability solely for reasons of U.S. law. Raising concerns about the separation of powers, it is argued that the decision to extend the ATS plea to corporations should be left to Congress (pages 9-10). In a footnote, the administration explains its change of position on the grounds that Jesner "not only rejected the government's conclusion (regarding corporate liability), but also its basic analytical framework" (on page 9, note 3). That is not true. As I noted at Just Security, the only parts of Justice Anthony Kennedy's opinion in Jesner that commanded a majority were explicitly limited to foreign companies, and the consistent opinions of Judges Samuel Alito and Neil Gorsuch that were fourth and fifth The majority of the respondents said that there are significant differences between ATS lawsuits against foreign defendants and those against US defendants.
It seems that I am not the only one affected by the unsupported change in the position of the United States. Deputy Attorney General Edwin Kneedler, who has served as lawyer for the United States in both Kiobel and Jesner, does not appear on the cover of Trump's new administrative report. This is particularly noticeable because it appears on the covers of three other briefs filed here on the same day (here, here and here).
It makes little sense to believe that the act of inclusion should provide protection against liability for violations of human rights. In the separate opinion of judge Pierre Leval in Kiobel it was noted that under the majority approach of the second circuit
Businesses can now trade or exploit slaves freely, use mercenary armies to do dirty work for despots, genocide, or torture prisons for a despot's political opponents or piracy – all without civil liability to victims.
It is not imaginative to believe that US companies could participate in some of these activities. US companies have been sued for torture and war crimes under the ATS. And of course, Cargill himself has allegations that US companies have supported and encouraged slavery.
The new Trump administration report also argues that the Supreme Court should reject the possibility of liability liability under the ATS, although the Petition for Certiorari did not request a review of the issue and the appeals courts unanimously recognized this liability. As with corporate liability, the order does not argue against a liability based on customary international law. The letter acknowledges that liability for aid is well established under international law (pages 14 to 15), as Chimène Keitner also discussed in detail (pages 81 to 94). Instead, the new Trump administration report reiterates concerns over the separation of powers to argue that the decision to recognize such liability should be left to Congress (pages 15-17).
It is important to recognize that the Trump administration's position on aid is not limited to lawsuits against companies, but also for lawsuits against natural persons. One of the leading international liability grant cases is the so-called Zyklon B case, in which people were tried and convicted by a British military court for delivering poison gas to concentration camps, "knowing" that the gas would be used for Annihilation used. Bruno Tesch was hanged for aiding and abetting war crimes. However, under the Trump administration's position, he would not have had civil liability.
Alternatively, relying on the presumption of extraterritoriality, the brief argues that liability aid should not be allowed if the violation of human rights has occurred outside the United States (pages 18-19). As I explained recently, the presumption analysis is a two-step process based on the Supreme Court's current approach. In the first step, a court asks whether the presumption has been refuted by clearly indicating the geographical scope. If not, a court then asks in a second step whether the application of the provision should still be considered domestic, since the focus of the provision is in the United States (on pages 1608-09). As a rule, supplementary criminal laws such as state aid laws are given the same geographical scope as the underlying crime (on pages 1616-17).
However, the analysis of the cause of ATS is different. In Kiobel, the Supreme Court applied the presumption of extraterritoriality to the ATS plea. In step one, Kiobel concluded that the ATS had no clear indication of extraterritoriality. But strangely enough, the Court never reached the focus question in step two. If this had happened – as I argued in the same article (pp. 1607-08) – it would have concluded that the focus of the ATS was either on providing legal remedies for violations of international law by US citizens or International law more generally focused on providing legal remedies for violations. In both cases, the focus of the ATS lawsuit would not be geographical and the location of the human rights violation does not matter. The Kiobel court naturally did not do that. Instead, the only announcement was that claims in an ATS case "must affect and affect" the territory of the United States. The courts disagree on exactly what that means (as I discussed here), but the second and ninth circuits have reasonably come to the conclusion that behavior in the United States that supports and encourages violations of human rights violations abroad , is sufficient.
What has to do with the Trump administration's basic argument that any decision to expand the ATS plea should be left to Congress? It should be recalled that the second Bush administration in Sosa argued that any decision to create an ATS reason for action should be left to Congress. The Sosa Supreme Court explicitly rejected this argument as being inconsistent with the understanding of the first Congress of 1789 that common law would be a plea for violations of international law, a category of law that would inevitably evolve and expand over time. The "leave it to Congress" argument has now been reused as a refusal to widen the existing plea rather than a refusal to create a new one.
Sosa promised an ATS plea, the contours of which were coherently shaped by customary international law. Such a plea would apply to a limited number of human rights standards, but to companies (because international law does this) and would recognize liability for aid (because international law does so). Such a plea would affect the understanding of the first congress in 1789 that an explicit plea for violations of international law would not be required, but would of course be under the control of today's congress, which could grant an explicit plea (as in 1992 with the Torture Protection Act) or a limitation of the implied plea (as never before).
Instead, the Supreme Court has put forward an ATS plea that makes inconsistent distinctions to remove certain cases under the guise of postponing Congress. In the Jesner case, the Court made a distinction between U.S. and foreign companies – a distinction that even the new Trump administration complains about contradicts Congress's intent (on page 11). The Trump administration is now calling on the Court to make further inconsistent distinctions between companies and individuals, as well as liability as a helper and carer and liability as a client.
The Trump administration's Jesner letter argued that the First Congress "had no good reason to distinguish between lawsuits against individuals and lawsuits against companies." Jesner's letter referred to an incident in 1787 that violated the rights of the Dutch ambassador and argued that the violation of such rights by a company "may be best confirmed (and compensated) by a private lawsuit against the company could ”(on page 17). .
There is also no good reason to believe that today's Congress wants to protect a modern Bruno Tesch who supports and encourages human rights violations, or to allow the act of inclusion to protect US defendants from liability for torture or slavery. However, these are the distinctions that the Trump administration would have the Supreme Court make, ostensibly out of Congress.
Image: 11 trafficked children were arrested by the police on the border between Burkina Faso and Ivory Coast in February 2008. They were supposed to be exploited in cocoa plantations in the south of the Ivory Coast. Photo by Veronique de Viguerie / Getty Images