A Primer on Human Rights Litigation

Modern human rights law developed in response to the events of the World War II, although it has earlier precursors. In 1948, the U.N. General Assembly adopted the Universal Declaration of Human Rights, a non-binding declaration. More than seventy human rights treaties followed, including the Genocide Convention, the International Covenant on Civil and Political Rights, and the Convention Against Torture. Customary international law also prohibits violations of fundamental human rights, including torture, summary execution, genocide, war crimes, and slavery.

Since the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala, victims of human rights violations outside the United States have used U.S. courts to bring claims for damages. A large number of these cases have relied on the Alien Tort Statute (ATS), which dates from 1789, but many have been brought under more recent federal statutes such as the Torture Victim Protection Act (TVPA) and the Trafficking Victims Protection Reauthorization Act (TVPRA). A few cases have relied on state law. This post discusses the limits of the ATS, the TVPA, and the TVPRA and then briefly considers other limits on human rights litigation in U.S. courts.

Alien Tort Statute

The Alien Tort Statute (ATS) was part of the first Judiciary Act of 1789. As codified today, it provides: “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.” The ATS was rarely relied on until 1980, when the Second Circuit held in Filartiga v. Pena-Irala that it could be used to sue a Paraguayan police inspector for torturing to death the son of a political dissident. The suit met the requirements of the ATS, the court held, because the plaintiffs were non-U.S. citizens, torture is a tort, and torture is a violation of customary international law, the modern equivalent of the law of nations.

Other cases followed. In 1984, the D.C. Circuit held in Tel-Oren v. Libyan Arab Republic that plaintiffs could not use the ATS to sue the Palestinian Liberation Organization (PLO) for terrorism and torture, although the three judges could not agree on the reason. Judge Edwards thought that neither terrorism nor torture by a non-state actor, like the PLO, clearly violated international law; Judge Bork thought that, because the ATS was a purely jurisdictional statute, it did not provide a cause of action; and Judge Robb thought that the case should be dismissed under the political question doctrine. Judge Bork’s assertion that ATS cases need an express cause of action would lead Congress to pass the TVPA, discussed below.

In 1995, the Second Circuit held in Kadic v. Karadzic that the ATS provided jurisdiction over claims against the Bosnian-Serb leader Radovan Karadzic for genocide, war crimes, torture, and summary execution. Addressing the state-action question that Judge Edwards raised in Tel-Oren, the Second Circuit held that genocide and war crimes violated customary international law even if the perpetrator did not act under color of state law, whereas the state-action requirements for torture and summary execution could be met by acting in concert with a foreign state.

Around the same time, the first ATS suits against corporations were filed. In Doe v. Unocal, villagers from Myanmar alleged that the U.S. company Unocal had aided and abetted the Myanmar military in subjecting them to forced labor, murder, rape, and torture in connection with the building of a pipeline. In a 2002 decision, the Ninth Circuit held that the aiding and abetting claims could proceed. Although the panel was unanimous that aiding and abetting liability required knowledge and substantial assistance, the panel majority looked to international law as the source of the rule, whereas Judge Reinhardt’s concurrence looked to federal common law. The case settled in 2005 before it could be reheard en banc.

The U.S. Supreme Court’s first ATS decision came in 2004 with Sosa v. Alvarez-Machain. The plaintiff brought a claim for arbitrary detention against individuals who kidnapped him from Mexico at the behest of the U.S. Drug Enforcement Agency and brought him to the United States for a criminal trial. Addressing the cause of action issue raised by Judge Bork in Tel-Oren, the Supreme Court recognized an implied cause of action under the ATS for violations of human rights norms that are generally accepted and specifically defined. But the Court held that Alvarez’s claims relating to a brief arbitrary detention did not meet that test.

In 2010, the Second Circuit held in Kiobel v. Royal Dutch Petroleum that claims against corporations did not meet the Sosa standard because customary international law did not recognize a norm of corporate liability. When the Supreme Court granted review to resolve a circuit split on this question, the U.S. government argued that human rights norms apply equally to corporations and to natural persons. But, as explained below, the Supreme Court decided Kiobel on an alternative ground. It did the same in two subsequent cases in which it granted cert to resolve the circuit split, leaving the question of corporate liability under the ATS undecided.

In Kiobel v. Royal Dutch Petroleum (2013), the Court applied the presumption against extraterritoriality to the ATS cause of action, holding that claims against a foreign oil company for aiding and abetting human rights violations by the Nigerian government did not touch and concern the United States sufficiently to overcome the presumption. In Jesner v. Arab Bank (2018), the Court held that the ATS cause of action should not apply to foreign corporations. And in Nestlé, USA v. Doe (2021), the Court held that U.S. corporations could not be sued for aiding and abetting child slavery in Côte d’Ivoire because the plaintiffs alleged no more than general corporate decision-making in the United States while all other activity related to the claims occurred abroad. Five Justices agreed in separate opinions that there was no reason to distinguish corporate defendants from natural persons, although some of these Justices also questioned whether Sosa should be overruled.

While Sosa is (for the time being) still good law, these decisions have nonetheless significantly narrowed the ATS cause of action. Under Nestlé, the ATS requires conduct in the United States beyond general corporate decision-making. Although some claims against U.S. corporations may be able to meet that standard, many will not. It is also not clear whether ATS claims against individual defendants—like Filartiga—can continue, since these claims do not involve conduct in the United States. Although five Justices in Nestlé agreed in separate opinions that corporations could be sued, the Court did not decide that question, so circuit precedent continues to bar all claims against corporations in the Second Circuit. The circuits are also divided on the standard for aiding and abetting liability under the ATS, with some requiring that the defendant acted with knowledge of the human rights violation and others requiring that the defendant acted with a purpose to facilitate it.

Torture Victim Protection Act (TVPA)

In 1992, Congress passed the Torture Victim Protection Act (TPVA) to create an express cause of action against individuals for torture and extrajudicial killing under color of foreign law. The TVPA was a response to the uncertainty created by Judge Bork’s opinion in Tel-Oren over the need for a cause of action. Unlike the ATS, the TVPA also allows U.S. citizens to bring claims.

However, the TVPA permits claims only against “individual[s].” The Supreme Court held in Mohamad v. Palestinian Authority (2012) that the TVPA does not, therefore, permit claims against non-natural persons, including corporations.

Trafficking Victims Protection Reauthorization Act (TVPRA)

In 2003, as part of the Trafficking Victims Protection Reauthorization Act (TVPRA), Congress created a civil cause of action to supplement the criminal prohibitions against slavery, forced labor, human trafficking, and similar offenses. In 2008, as part of another reauthorization, Congress amended the TVPRA to apply extraterritorially.

The civil cause of action allows victims to bring claims for damages against perpetrators and anyone who “knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known has engaged in [one of the offenses].” Courts have held that the TVPRA permits suits against corporations.

Limits on Human Rights Litigation

In addition to the limits on the causes of action under the ATS, TVPA, and TVPRA discussed above, it is worth noting other common obstacles to bringing human rights litigation in courts in the United States. First, the U.S. court must have personal jurisdiction over the defendant. For suits against individuals, personal jurisdiction is usually based on domicile if the defendant has moved to the United States or on service while the defendant is temporarily present in the United States. For suits against U.S. corporations, U.S. courts have general jurisdiction over claims that arise abroad. For suits against non-U.S. corporations, however, U.S. courts lack general jurisdiction and will only have specific jurisdiction if the claims arise out of or relate to contacts with the U.S. forum, which may be difficult to show in the case of human rights violations abroad.

Second, individual defendants sometimes raise a defense of foreign official immunity. Foreign heads of state, heads of government, and foreign ministers are absolutely immune from suit in courts in the United States while they remain in office. Other officials and all former officials are immune from suits based on acts taken in their official capacities. Whether human rights violations can be considered acts taken in an official capacity is contested.

Third, various other doctrines are sometimes raised as defenses. When foreign courts provide an alternative forum, human rights claims are sometimes dismissed on grounds of forum non conveniens. The Ninth Circuit has held that human rights claims might be dismissed for failure to exhaust local remedies and has sometimes dismissed such claims under its distinctive doctrine of international comity abstention. Some courts have held that some human rights claims raise nonjusticiable political questions. On the other hand, courts have tended to reject the act of state doctrine as a defense, reasoning that human rights violations cannot constitute acts of state.