Hathaway, Ewell and Nohle, ‘Has the Alien Tort Statute Made a Difference? A Historical, Empirical, and Normative Assessment’

ABSTRACT
The Alien Tort Statute (ATS), which allows aliens to file civil suit in US courts for violations of the law of nations, has been considered by many to be one of the most important legal tools for human rights litigation in the United States and perhaps even the world. The effectiveness of this tool, however, has been gradually eroded in a series of Supreme Court decisions. The statute’s latest trip to the Supreme Court came in October Term 2020 in a pair of cases: Nestlé USA, Inc v Doe and Cargill, Inc v Doe, brought by former enslaved children trafficked from Mali to Côte d’Ivoire to work on cocoa plantations. The Court granted certiorari to consider whether the ATS could be used to seek compensation from corporations. The majority never reached the issue, holding instead that the plaintiffs sought inappropriately to apply the ATS extraterritorially. While the decision was not as bad for plaintiffs as some had expected, commentators lamented that the decision could have broad implications. This is an essential moment, then, to step back and assess the ATS. Before deciding how to move forward, it is necessary to assess where we have been, what the ATS has achieved, where it has fallen short, and to assess the range of options for human rights victims seeking justice.

To do that, this Article undertakes the most comprehensive empirical study of the ATS to date. Using a database of every single case brought under the ATS in U.S. federal court that has resulted in a published opinion, this Article provides a detailed picture of ATS litigation from 1789 to the present. This quantitative data is augmented with detailed interviews with participants on both sides of the cases. The Article arrives at three main conclusions that lead to three sets of recommendations. First, the greatest barrier to ATS suits is the limitation on extraterritorial effect of the statute. In light of this finding, we recommend alternative strategies to provide accountability for human rights violations that take place outside the United States. Second, plaintiffs generally do not receive significant material benefits from ATS litigation, but they still benefit from the opportunity to be heard and to bring attention to the harms they have suffered. Given this finding, we suggest greater attention to options for alternative dispute resolution. Third, the ATS and other existing tools have proven inadequate for reaching corporate contributions to human rights violations. Hence serious consideration should be given to legislation, including due diligence requirements, aimed directly at this problem.

Hathaway, Oona A and Ewell, Chris and Nohle, Ellen, Has the Alien Tort Statute Made a Difference? A Historical, Empirical, and Normative Assessment (September 20, 2021). Cornell Law Review, volume 107, 2022, forthcoming.

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