In a decision with significant implications for lawsuits against corporate entities asserting violations of international human rights law, the U.S. Court of Appeals for the Second Circuit recently held, in Kiobel v. Royal Dutch Petroleum Co., that corporations are not subject to liability for claims brought under the Alien Tort Statute (ATS).1 Although ATS claims against corporations first emerged less than 15 years ago, they have become commonplace. Kiobel puts a halt to that practice for now, at least in the Second Circuit.
The ATS gives federal courts jurisdiction 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.”2 Enacted in 1789, the ATS lay largely dormant for nearly 200 years. It received new life in 1980, when the Second Circuit held that the Act permits aliens to bring actions in federal court for violations of customary international law—in that case, allegations of torture by a former official of Paraguay living in the United States.3 Despite arguments by the Government that the ATS was a jurisdictional provision only, the Supreme Court held in Sosa v. Alvarez-Machain that the ATS did more than establish a ground for federal court jurisdiction, that it also authorized causes of action for a limited class of violations of international law—specifically, “norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features” of the “narrow set of violations of the law of nations” that were recognized at the time of the ATS’s enactment.4 Those offenses, as identified by Blackstone, were “violation of safe conducts, infringement of the rights of ambassadors, and piracy,” and Sosa held that “any claim based on the present-day law of nations” must rest on norms that are equally well-defined and universally accepted.5
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