March 11, 2011
In a Mar. 8 talk sponsored by the Human Rights Program at Harvard Law School, Paul Hoffman, a leading litigator of claims brought under the Alien Tort Statute, offered a look at the history of lawsuits against corporations for their complicity in human rights violations—and a glimpse of some possible future developments.
The Alien Tort Statute provides for district court jurisdiction of civil actions by aliens for torts committed in violation of the law of nations or a treaty of the United States. Hoffman provided background on how the Statute has been used to bring human rights violators to justice over the past three decades. He referred to the period between 1980 and 1995 as the “dictator phase” of litigation, because human rights lawyers generally focused on suing foreign officials who violated human rights.
“In the course of all this litigation, we established a number of principles, one of which was that the Alien Tort Statute created a cause of action. It led to a body of jurisprudence in which victims were able to sue the individuals who had tortured them in U.S. courts,” he said. “These cases encouraged human rights victims and gave them the power to tell their story.”
Hoffman and others in his field first began considering suing corporations for their complicity in committing human rights violations in the 1990’s, aided in part by the corporate accountability movement that was growing at the time.
“We began to see that non-state actors are often most responsible for human rights violations, and that the government-centric view was inadequate in dealing with those violations,” he said. But the question of whether the Alien Tort Statute can apply to corporations remains open, Hoffman observed.
The human rights community was dealt a blow by the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum in September 2010, which held that corporations could not be held liable for violations of customary international law, and thus the Alien Tort Statute was held not to apply in that case. There are a number of cases pending in other circuits that might influence, or might be influenced by, the Kiobel appeal. Hoffman is certain that one of these cases will go up to the Supreme Court, which will provide some guidance on the issue.
But even if Kiobel is upheld on appeal, there are other avenues that human rights litigators can pursue in pushing for corporate accountability for human rights violations. One option would be to sue CEOs and other responsible individuals within the corporation for their involvement in human rights cases. In fact, in the Kiobel opinion, the Second Circuit explicitly stated that suing CEOs is permissible. Another option is bringing action in state court.
Hoffman underscored that, regardless of the decision in Kiobel, attempts to hold corporations accountable for human rights violations will not stop, because the human rights community has always been able to adapt to a changing legal and political environment.
“The bottom line of all this is that we started on the journey on the Alien Tort Statute not knowing where it would lead,” Hoffman said. “It was not a bunch of people sitting in a room saying ‘We have to sue corporations.’ It was more like, ‘How are we going to address this human rights problem? My sense is that these cases stand for the proposition of corporate accountability in ways that almost nothing else out there does now, at least symbolically. It’s one of the few places we can bring corporations to account for these kinds of violations.”
Recognizing the limits of U.S. lawyers bringing suit against U.S. corporations in district courts, Hoffman said that ultimate goal is to inspire international regulation of corporate conduct in order to enforce good corporate behavior.