State Action and Corporate Human Rights Liability

This Essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute (ATS). It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. [section] 1983. It also argues that, even if it were appropriate to borrow in this manner from the [section] 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds. The Essay assumes for the sake of argument that corporations are not categorically excluded as defendants under the ATS, although this is currently a matter of some controversy. (1) I. BACKGROUND Enacted in 1789 as part of the First Judiciary Act, the ATS provides that "[t]he district courts shall have original jurisdiction of 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) By its terms, the ATS covers only cases involving an alleged violation of international law. For a variety of reasons, the alleged international law violation in ATS cases is almost always a violation of the "law of nations," also known today as "customary international law," rather than a violation of a treaty. As with violations of most provisions of U.S. constitutional law, violations of international law, whether customary or treaty-based, generally require state action. (3) This is true even for violations of many international human rights norms, such as the prohibition on torture. (4) The use of the ATS for international human rights litigation can be traced to the Second Circuit's 1980 decision in Filartiga v. Pena-Irala, (5) in which two Paraguayan citizens sued a former Paraguayan police official for torturing and murdering a member of their family. (6) The court in Filartiga held that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties," and that, as a result, "whenever an alleged torturer is found and served with process by an alien within our borders, [the ATS] provides federal jurisdiction." (7) In this and similar cases brought against foreign government officials, the defendant is alleged to have perpetrated the abuse, and to have acted under color of state law in doing so, so there is usually little difficulty in these cases in meeting the state action requirement. (8) In recent years, however, a large number of ATS cases have been brought against private corporations, relating to their involvement with abusive regimes. For a variety of reasons, corporate defendants are attractive targets for ATS suits: corporations are not thought to benefit from the sovereign immunity doctrines that apply to governmental defendants; (9) most large corporations have a presence in the United States, making it easy to obtain personal jurisdiction over them in this country; they typically have substantial assets that can be reached by U.S. courts; and they have an incentive to settle cases in order to avoid bad publicity. The Supreme Court considered the scope of the ATS in its 2004 decision, Sosa v. Alvarez-Machain. (10) That case, like the corporate cases, involved a suit against a private actor. A Mexican national who had been abducted from Mexico at the behest of the United States was suing a private Mexican citizen for his role in the abduction. After reviewing the history of the ATS, the Court concluded that although the statute was "a jurisdictional statute creating no new causes of action," (11) it served to "underwrite litigation of a narrow set of common law actions derived from the law of nations." (12) The Court also held that claims could not be brought today under the ATS "for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted," (13) and the Court identified these paradigms as the norms against violation of safe conducts, infringement of the rights of ambassadors, and piracy. …