Supreme Court to Consider Whether U.S. Corporations May Be Held Liable for International Violations

 
October 22, 2020, Washington, D.C. – Fifteen international human rights organizations submitted a brief to the United States Supreme Court in support of holding U.S. corporations complicit in serious human rights violations liable in U.S. courts. The case, Doe, et al. v. Nestlé USA, Inc./Cargill, Inc., concerns Nestlé USA’s and Cargill’s alleged role in child slavery and forced labor in the Ivory Coast for decades. Advocates say the case risks rendering the United States a safe haven for corporate human rights abusers by rendering American companies immune from liability in U.S. courts when the injury is committed abroad.

“Our brief makes clear: international law recognizes that companies can, and should, be held accountable for human rights violations like child slavery and forced labor,” said Center for Constitutional Rights Senior Staff Attorney Katherine Gallagher, who serves as counsel for the human rights organizations. “Just like other countries that hold their own companies accountable for serious harms, the Supreme Court should find that these former enslaved children can sue U.S. companies in U.S. courts.”

The case was brought under the Alien Tort Statute (ATS), a 1789 law that allows non-U.S. citizens to sue in U.S. courts for violations of international law when perpetrators are present in the U.S. Beginning in 1979 with CCR’s landmark case Filártiga v. Peña-Irala, the ATS has been used to hold accountable perpetrators – which grew to include corporations – of grave human rights violations. In 2013, the Supreme Court narrowed the application of the law to only those cases where the claims “touch and concern the territory of the United States...with sufficient force.” In 2018, the Supreme Court further narrowed the statute when it held that foreign corporations could not be sued under the ATS. In Nestlé/Cargill, the court will decide (1) whether U.S. corporations can be held liable at all under the ATS, and (2) whether aiding and abetting human rights violations from U.S. territory satisfies the “touch and concern” test the Court established in 2013.

“Corporate liability continues to be a fundamental feature of all major legal systems and indeed, corporations continue to be subject to suit and sanction in courts throughout the world for conduct that violates national and international norms,” the organizations argued in their brief, after surveying cases and laws from around the world. “Recognizing such liability under the ATS – rather than immunizing the unlawful conduct of U.S. corporations – ‘promotes harmony in international relations.’” 

The amicus brief filed yesterday urged the Court to affirm a lower court decision that held there is no categorical immunity for corporations under the ATS. To exempt corporations from liability for international human rights violations, the brief argues, would render the U.S. an outlier in the international community, as all major legal systems provide for corporate liability. The brief further argues that the activity alleged against Nestlé and Cargill undeniably “touches and concerns” the United States for purposes of ATS liability because the corporations are alleged to have provided payments and other acts that assisted the commission of forced labor and child slavery from the United States. Attorneys say allowing for liability only when the injury, here the forced child labor and slavery, took place on U.S. soil would allow corporations to profit from grave human rights abuses commited outside the U.S. in their supply chains, in outsourced labor, and other transnational business.

Joining the Center for Constitutional Rights in signing the brief were APRODEH (Peru), ALTSEAN-Burma, Canadian Lawyers for International Human Rights, the Canadian Network on Corporate Accountability, the European Center for Constitutional and Human Rights (Germany), Global Rights Compliance (U.K./Ukraine), Global witness (U.K.), the Human Rights Law Network (India), International Association of Democratic Lawyers (Belgium), the International Commission for Labor Rights (U.S.), the International Federation for Human Rights (France), Justice and Corporate Accountability Project (Canada), MiningWatch (Canada), and Rights and Accountability in Development-RAID (U.K.). The International Human Rights Organizations brief was one of 18 friend-of-the-court briefs filed in support of the plaintiffs.

For more information, visit the Center for Constitutional Rights’ case page.