Dear Editor,
The US Congress should enact the Alien Tort Statute Clarification Act (ATSCA) so that human rights violations can be addressed and upheld.
A Just Security article, Answering the Supreme Court’s Call for Guidance on the Alien Tort Statute stated, “In June 2021, the U.S. Supreme Court held in Nestlé v. Doe that the plaintiffs, who were allegedly trafficked as children from Mali to Ivory Coast to engage in slave labor on cocoa plantations, could not sue U.S. companies that supported those plantations under the Alien Tort Statute (ATS). The Court held that, because most of the relevant conduct occurred abroad, applying the ATS would be impermissibly extraterritorial. The Nestlé decision threatens the ability of other plaintiffs to bring ATS claims too, from victims of war crimes in Ukraine to victims of religious persecution in China.” https://www.justsecurity.org/81730/answering-the-supreme-courts-call-for-guidance-on-the-alien-tort-statute/
In 1789 the First Congress enacted the Alien Tort Statute (ATS) which explained that ‘The 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.’ This means that any person though not a US citizen can sue defendants “who are subject to jurisdiction in the United States for money damages in U.S federal court for violating their rights under international law.” Presently Senators Dick Durbin and Sherrod Brown have introduced the Alien Tort Statute Clarification Act. The ATSCA provides by stating, ‘the district courts of the United States have extraterritorial jurisdiction over any tort [covered by the ATS if] . . . an alleged defendant is a national of the United States or an alien lawfully admitted for permanent residence . . . or an alleged defendant is present in the United States, irrespective of the nationality of the alleged defendant.’
Another Just Security article, Nestlé & Cargill v. Doe Series: Meet the “John Does” – the Children Enslaved in Nestlé & Cargill’s Supply Chain, showed Neal Katyal, arguing for Nestle and Cargill, telling the court that Corporations ‘cannot be liable under international law for human rights crimes, including aiding and abetting child slavery.’
Unlike the United States’ protective approach in relation to its corporations and extraterritorial cases, the UK has advanced the extraterritorial reach of legislation. According to Martin Dixon’s book International Law, “However, it is clear that UK Legislation may have an extra-territorial reach in that it can cover actions taking place abroad. So, in Al Skeini and others v Secretary of State for Defence (2009), the House of Lords decided that the Human Rights Act 1998 did have extra-territorial effect in the sense of regulating the actions of UK public authorities abroad (being UK armed forces in Iraq). The House was clearly influenced by the fact that the legislation was protected in nature and that such extra-territorial reach was entirely consistent with the human rights obligations under the European Convention on Human Rights that the statute was designed to support. While the House emphasized that the question of extra-territoriality must be one of the construction of the legislation in the light of its purpose, this demonstrates a relaxation of the UK’s once hostile attitude to extra-territoriality, at least where this is beneficial to individuals.”
Having the ATSCA enacted is very important in correcting the violations of human rights outside of the United States especially “when individual perpetrators come to the United States and when corporations that aid and abet such violations are subject to personal jurisdiction here.” Furthermore, this legislation will ensure that the US is not safe haven for human right violators. It will solidify the United States approach that human rights violations by individuals and corporations can be prosecuted.
Yours sincerely,
Sharmini Rampersaud
Cert Law and Politics