Since the 1980s, the Alien Tort Statute (1) (ATS) has been the main vehicle used to bring human rights claims against corporations and individuals in the U.S. courts. Several recent decisions by the United States Supreme Court have radically restricted the scope of the ATS.
After a brief description of the rise of human rights litigation under the ATS and the cases that have restricted its use, this essay explores whether the Trafficking Victim Protection Act (TVPA) can take the place of the ATS as a vehicle for litigating claims of human rights abuses in civil cases or criminal prosecutions in the U.S. federal courts. It concludes that for a narrow but important class of human rights violations--those involving forced labor, sex and forced labor trafficking, and knowingly benefitting from any of these offenses--the TVPA offers a firm footing for both civil and criminal cases.
These offenses are the subject of considerable interest at the present time. The UN's Ruggie Principles (2) require states to "protect against human rights abuse within their territory and/or jurisdiction by third parties, including business enterprises" by "taking appropriate steps to prevent, investigate, punish and redress such abuse through effective policies, legislation, regulations and adjudication." (3) Both national and international groups are focusing on the need to hold corporations responsible. (4) At the Association Internationale De Droit Penal's next International Congress, delegates from dozens of countries will consider draft resolutions urging states to revise and develop their legal frameworks to enable the investigation and prosecution of human rights abuses that occur in a company's core business activity, in its supply or distribution chain, and in its other business arrangements that involve multiple legal entities. (5) Additionally, a broad coalition of 85 Swiss organizations is seeking to develop a framework to protect human rights and the environment abroad by setting common benchmarks for all companies based in Switzerland. (6)
Although the TVPA can make a contribution to efforts to hold corporations responsible for human rights violations, unfortunately many of its key statutory terms are unclear and, in some cases, poorly drafted. The flaws appeared as Congress repeatedly returned to the topic of trafficking in connection with reauthorizing funding for related programs, adding substantive provisions that seem to have received little scrutiny. (7) The courts have interpreted few of these terms, and it is difficult to say how much they will hamper enforcement.
This essay proceeds as follows. Part I briefly discusses the rise in ATS litigation and the Supreme Court's decisions restricting its application, which provide an incentive to search for alternatives and may also reflect judicial attitudes that could affect the interpretation of the TVPA. Part II discusses the enactment and amendment of the TVPA, and provides an overview of the key offenses as well as the civil and criminal remedies. Part III explores issues raised by Congress's failure to define key statutory terms, and what appears to be a significant drafting error. It offers tentative conclusions about the scope of those terms, and thus the reach of the statute. It is too early to say how helpful the TVPA will be in plugging even part of the gap left by the judicial restriction of the ATS.
THE RISE AND FALL OF ATS LITIGATION
The ATS has been interpreted to provide the federal courts with jurisdiction over civil actions based on customary international law, but in the past two decades the statute's reach has been substantially narrowed by judicial decisions. The ATS, which was passed as part of the first Judiciary Act of 1789, gives the federal courts original 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." (8)
Beginning with a landmark decision in 1980, lower federal courts held that the ATS provided a private cause of action under international law. In Filartiga v. Pena-Irala (9) the Second Circuit held that held the ATS provided federal jurisdiction in a suit brought by Paraguayan nationals against a citizen of Paraguay in United States for wrongfully causing the death of their son by the use of torture. (10) The court ended its opinion with language suggesting the federal courts could play an important role in what it called "the ageless dream" of freedom from gross human rights violations:
In the modern age, humanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations, as we have noted, is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence. (11) Human rights organizations and individual alien plaintiffs soon adopted the strategy of suing corporations (rather than foreign governments) under the ATS. (12) Plaintiffs saw the ATS as offering multiple advantages, including a neutral forum and favorable substantive law, as well as "liberal pretrial discovery; ... jury trials in civil litigation; higher damage awards, including punitive damages; class action litigation; contingent fee arrangements with counsel; the absence of 'loser pay' rules for the unsuccessful party; and statutory protections for international law violations." (13)
In response to the explosion of ATS litigation, the federal courts have cut back substantially on the statute's effective reach. The Supreme Court imposed two significant limitations. In Sosa v. Alvarez-Machain the Court limited the ATS to a narrow range of well-established and specifically defined international law violations. (14) In Kiobel v. Royal Dutch Petroleum the Court held that the presumption against extraterritorial application of statutes bars alien tort claims over conduct that does not "touch and concern the territory of the United States ... with sufficient force." (15) The lower courts have generally understood the Kiobel ruling to bar all suits based on tortious conduct that occurred solely overseas. (16) However, one lower court allowed an ATS suit alleging torture by U.S. military contractors in Iraq to go forward. (17) The lower federal courts have also applied a variety of other doctrines to limit ATS suits, including prudential or judicially created exhaustion remedies, forum non conveniens, and heightened pleading standards. (18) The decisions have had a dramatic effect: by one count, within the first two years after the decision in Kiobel, lower courts dismissed nearly 70 percent of the cases brought under the key statute used by plaintiffs seeking relief for human rights violations. (19)
Additionally, the question remains whether the ATS has any application to corporate defendants. The circuits split on the question of whether corporations were subject to suit under the ATS, with one influential circuit holding that corporate liability has not been established as part of international law. (20) The Supreme Court has granted certiorari to resolve the circuit split. (21)
The judicial decisions restricting the availability of the ATS reflect concerns about the judiciary's institutional competence and the proper allocation of authority within the federal constitutional system. Influential scholars have argued that the judicial development of international law norms without the clear sanction of and direction from the political branches violates the constitutional principles of federalism and separation of powers. (22) One scholar summed up the current state of affairs:
[T]here appears to be federal-court recognition that either Congress is unconcerned with activities occurring abroad absent clear statutory language expressing such a concern, or that courts are ill-equipped to adjudicate such cases even though they may have subject-matter and personal jurisdiction. These legal concerns dovetail with other public-policy concerns that courts may be taking [into] account .... (23) These decisions are relevant to the present discussion for two reasons. First, litigants who can no longer rely on the ATS are seeking alterative ground for their claims, and in some cases they have turned to the TVPA. (24) That pressure will intensify if the Supreme Court concludes that the ATS is not applicable to corporations. Second, the judicial attitudes that undergirded the cases construing the ATS may affect the courts' construction of the TVPA.
THE TVPA: NEW OPTIONS
The TVPA had its origins in the Victims of Trafficking and Violence Protection Act, which was enacted in 2000. (25) The Act's two primary purposes were "[t]o combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude, [and] to reauthorize certain Federal programs to prevent violence against women." (26) The provisions of the Act dealing with human trafficking have been widely known as the TVPA. (27) Several features of the original legislation are significant from the perspective of international human rights litigation. Pairing criminal provisions with provisions authorizing funding--which require periodic reauthorization--prompted Congress to return to the topic of human trafficking at regular intervals and expand the reach of the TVPA. Often, the groups lobbying for funding and their supporters in Congress and the executive branch used funding legislation as an occasion to make substantive changes intended to strengthen the TVPA. Second, the trafficking legislation enjoyed...