Alien Tort Claims Act

Expansion of ATCA Litigation

Since 1980, ATCA litigation has expanded from an initial application to oppression by foreign governments of their own citizens to private individuals to U.S. and non-U.S. companies. Complaints have spread from alleged human rights abuses to alleged environmental damages. Complaints against businesses have been mostly by poor rural citizens of developing countries.

To date, no ATCA plaintiff has prevailed at trial against a U.S. corporation. However, Unocal settled out of court in an ATCA case arising in Myanmar (Burma). The business concern is that, if any suit prevails, then all multinational corporations (MNCs) will be sued in due course. The U.S. Chamber of Commerce, the National Association of Manufacturers, the National Foreign Trade Council, and the George W. Bush administration have all opposed business application of the ATCA. The counterargument is that MNCs avoiding human rights abuses exposure should have nothing to fear in U.S. federal courts.

In 1980, the Second Circuit Court of Appeals held in Filártiga v. Peña-Irala that torture committed by a Paraguayan police officer in Paraguay was a violation of the law of nations. The defendant was resident in the U.S. at the time of the litigation. The Second Circuit permitted a suit by Bosnian Serbs against the president of the so-called Bosnian-Serb republic within BosniaHerzegovina in the 1995 case Kadic v. Karadzic. In 1995, in Wiwa v. Royal Dutch Petroleum Co., the Second Circuit permitted Nigerian emigrants to sue two foreign holding companies for alleged participation in human rights violations against them by government forces in connection with their opposition to oil exploration activities in Nigeria. The case involved as well claims of coercive land appropriation without adequate compensation and environmental claims of air and water pollution. In 1996, in Mushikiwabo v. Barayagwiza, a U.S. district court awarded $105 million to five Rwandan citizens for torture and execution of relatives by government forces and Hutu political militias during the 1994 genocide campaign against the Tutsi. Since the early 1990s, at least an estimated two dozen companies have been sued over alleged complicity in abuses committed in other countries—for example, torture in Guatemala (Del Monte), murder in Colombia (Coca-Cola), and environmental damage in Ecuador (Chevron Texaco).

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