Alien Tort Statute (ATS)

INTRODUCTION

Determining whether Mr. Fullman has an actionable claim under the Alien Tort Statute (“ATS”) and whether the Fourteenth Circuit has jurisdiction over this matter can be determined by the same answer. If Lansdale can be held liable under the ATS, the Fourteenth Circuit has jurisdiction. If suit is barred against Lansdale, due to his status as a corporation, the Fourteenth Circuit lacks subject-matter jurisdiction and, thus, the case must be dismissed.
The Supreme Court has not determined whether corporations can be held liable under the ATS, but this question has been addressed by various circuit courts with different results. This split in the circuits indicates that a universal customary international norm does not exist
establishing liability for a corporation. However, Mr. Fullman may nevertheless have an actionable claim under the ATS because Lansdale acted under the color of law by developing and executing an intricate plan with the Provencia government. Mr. Fullman’s potential claim also satisfies the presumption against extraterritoriality because Lansdale’s action substantially touched and concerned the United States. In addition, Mr. Fullman’s cause of action satisfies the requirement of specific intent because Lansdale acted with the purpose to carry out the genocide. Therefore, it appears that Mr. Fullman has an actionable claim, however his case may nevertheless be dismissed if the court invokes the principle of comity.
ANALYSIS

I. Customary international law likely does not recognize corporate liability, but Lansdale is nonetheless likely liable under the ATS because the company acted under the color of law.

There is no definitive rule as to whether corporations can be held liable under the ATS. In fact, various circuit courts have split on this question. This lack of uniformity illustrates that a customary international norm establishing corporate liability likely does not exist. Nevertheless, Lansdale may be liable under the ATS because the company acted under the color of law with the Provencia government to forcibly remove and eliminate the Chagan people.
A. Corporate liability has not reached a level of universality necessary to be a customary norm.

To determine if Christopher has an actionable tort under the ATS he must allege that there has been an actual violation of international law and that this law recognizes the defendant’s responsibility for said violation pursuant. The ATS provides that “[t]he 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.” Determining what constitutes the law of nations, however, has been rather elusive.
The Supreme Court recognizes that only three violations of customary international law were subject to suit under the ATS at the time of statute’s passage in 1789: the violation of safe conducts, infringement of the rights of ambassadors, and piracy.
The Court has since stated that the ATS provides “a cause of action for [a] modest number of international law violations.” To discern if a modern offense also violates the law of nations, which is also known as customary international law, courts will examine whether the offense “rest[s] on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th century paradigms.” Further, a customary norm should be “specific, universal, and
obligatory.” It is well established that the prohibition against genocide is a jus cogens norm. This norm is specific, universal, and obligatory. The crux of Christopher’s claim, however, is whether corporations can be liable for genocide under the law of nations. The Supreme Court has not explicitly ruled on this matter, but the Court has acknowledged that lower courts should take into consideration whether “international law extends the scope of liability for a violation of a given norm to the perpetrator being sued . . . [to] private actor[s] such as a corporation or individual.”
Without clear guidance from the Supreme Court, the circuits have independently addressed this question, reaching diverging results.
The Second Circuit has noted that, “customary international law has not to date recognized liability for corporations that violate its norms . . . [and] no international tribunal has ever held a corporation liable.” Conversely, the Ninth Circuit has held that corporations can be liable under the ATS. To discern if a customary international law exists the Ninth Circuit considers whether the offense in question is “limited to states and whether its application depends on the identity of the perpetrator.” In Doe v. Nestle USA, Inc, the court concluded that “ the prohibition against slavery is universal and may be asserted against the corporate defendants . . . [because] non-state actors were held liable at Nuremberg for slavery offenses.”
This issue has not been addressed by the Fourteenth Circuit; however, the very nature of the other circuits’ diverging opinions illustrates that the recognition of corporate liability is not universal and, thus, likely is not a customary international law. Nevertheless, if we bring this claim we should highlight the similarities between our case and the Ninth Circuit decision. It is well established that individuals can be held liable under the ATS for committing genocide. Thus, under the Ninth Circuit’s reasoning Lansdale could be held liable because other non-state actors have also been found liable for committing
the same offense.

B. Lansdale acted under the color of law by acting in concert with the Provencia government.

If the Western District Court of Cascadia rules in accordance with the Second Court, and holds that corporations cannot be held liable under the ATS, Mr. Fullman may, nevertheless, still have an actionable tort under the ATS. Mr. Fullman should plead that Lansdale is liable under the ATS because the company acted under color of law. Courts will employ the joint action test to determine if an actor has acted under the color of law. Under the test, courts will examine “whether state officials and private parties have acted in concert in effecting a particular deprivation of constitutional rights.” Courts have differed on the exact elements required of this test. Some courts require a “substantial degree of cooperative action between the [S]tate and private actors,” while other courts require that the “[s]tate and private actors share a common, unconstitutional goal.”
Lansdale appears to satisfy both versions of the joint action test. The Provencia government agreed to clear the Chagan from Mount Castro in exchange for an ore extraction and smelting complex from Lansdale. The two parties jointly developed an intricate plan, over the course of twenty-three meetings, to remove the Chagan. The plan included exact timelines and deadlines for forcibly removing the Chagan; estimates for the number of soldiers, bullets, and guns needed; and guidelines for disposing of the bodies and incarcerating any remaining living Chagan. In addition, Lansdale provided an entire cargo ship of military equipment, with instructions for optimal use, which was used in the operation. At the conclusion of the operation, 19,000 Chagan were killed and the remaining 1,000 members were forcibly detained. The details of this plan and its execution illustrate a high level of cooperation between the two actors and, in addition, both actors shared a common goal (i.e. the removal of the Chagan).
Although it appears unlikely that a separate customary norm has been established regarding corporate liability, Lansdale is, nevertheless, likely liable because they acted under the color of law.