The Alien Tort Statute, passed as part of the Judiciary Act of 1789, gives federal courts the power to hear cases brought by foreigners who allege “a violation of the law of nations or a treaty of the United States.” The Supreme Court in Kiobel v. Royal Dutch Petroleum (2013) held that this law presumptively doesn’t apply to violations committed abroad—though that presumption can be overcome when claims “touch and concern the territory of the United States ... with sufficient force.” Then in Jesner v. Arab Bank, PLC (2018), the Court ruled that foreign corporations cannot be sued under the ATS because international norms about corporate liability are not settled. A lawsuit against a U.S. corporation based on actions taken abroad would thus seem to be a long shot, but the U.S. Court of Appeals for the Ninth Circuit has obliged with just that eventuality, in a case over atrocities committed in Côte d’Ivoire.
The underlying crimes around which this controversy revolves make up part of an ongoing series of human rights abuses in West Africa. The use of child slavery has garnered international attention and focused scrutiny on the cocoa trade from which abusive plantations draw their revenue. Nestlé, known for its chocolate among others foods and beverages, has condemned the modern slave trade and joined accords aimed at eliminating human trafficking in the region. But Nestlé U.S.A. and its Swiss parent find themselves in a long-running suit over the enslavement of a number of Malians on Ivorian plantations, on the basis of the corporations’ alleged purchase of cocoa on farms that used slaves.
This case has now dragged on for nearly a decade and a half. Plaintiffs have twice successfully appealed to the Ninth Circuit after having their case dismissed by the district court. On this second appeal, the first of its kind post-Jesner, the Ninth Circuit found that U.S. corporations could be sued under the ATS, even though the Supreme Court held that foreign corporations can’t be liable and that corporate liability is not a universal international law standard, as seemingly required by the law.
The Supreme Court has insisted on a narrow and rigorous interpretation of the ATS to further the goals of comity and separation of powers. U.S. law cannot realistically be expected to apply in every corner of the globe and the sovereignty of foreign governments must be respected in cases governed by foreign law, even where U.S. actors are involved. Nor is it the job of the judiciary to make foreign policy; it falls to Congress to create causes of action and to the president to conduct diplomacy. In this instance, the political branches have decided, within their prerogatives, that the best way to promote human rights in Côte d’Ivoire is to encourage foreign investment and generate the kind of economic growth that so often serves as the foundation for legal and political reform.
Cato has thus filed an amicus brief in support of Nestlé U.S.A.’s petition for Supreme Court review. We argue that American corporations may not be sued under the ATS any more than foreign ones can, and that such liability would overstep the proper role of the federal judiciary. If the lower-court decision is allowed to stand, similar claims will be drawn to the Ninth Circuit, making its holding the de facto national rule and inviting future long and dubious litigation against American companies. This outcome would undercut American foreign policy and sabotage international trade. The Supreme Court should take this case and make clear that only Congress and the president can do those things.