We've written elsewhere about the importance of the Supreme Court's pending decision in Jesner v. Arab Bank, the most recent Alien Tort Statute (ATS) case to come before the Supreme Court. Radiolab's More Perfect just released a show delving into the history of the ATS, starting with the seminal Filartiga case and going up through Jesner.
This hour is well worth your time if you are interested in human rights law in the United States. On the downside, the show focuses entirely on what are often referred to as "foreign cubed" cases--where the plaintiffs and defendants are both foreign, and the acts at issue in the case took place in a foreign jurisdiction. Drawing conclusions from those cases alone, the episode suggests that the ATS may be just another form of U.S. overreach. Had they looked at the cases against, for example, Chiquita Brands, or the many U.S. military contractor cases, it would have been clear that the ATS is also used to hold U.S. companies accountable who may not be justiciable elsewhere. It seems perfectly fair for a plaintiff to travel to the jurisdiction where a defendant is at home to sue them, and in fact preferable for that defendant. Think about it: if you had the misfortune to be sued, would you rather defend yourself in your own court system, in your own language, under laws you could understand, or in a foreign jurisdiction, where there may be questions of corruption, language, etc.?
All that to say, while the producers wanted to place the history of the ATS is a broader context of the shifting perceptions of U.S. exceptionalism from pre-WWII to the present, they may have sacrificed some accuracy about the role of the ATS in pursuit of that goal by excluding non-foreign cubed cases.
To their credit, they include the voices of victims of human rights abuse, and provide an engaging narrative arc of the history of this (admittedly bizarre) statute. If their conclusion about Jesner is correct, and corporate liability under the ATS is about to become more limited, we need to be ready with new strategies to bring corporate human rights abusers to justice. That's what we're up to here at the Lab.
Charity Ryerson is a co-founder and legal designer for Corporate Accountability Lab.