By Gillian Cassell-Stiga '11
When I landed in Quito, I was more uncertain about what to expect from my summer internship at International Rights Advocates (IRAdvocates) than how to adjust to life in Ecuador for three months. I had worked in South America before, but accepted the internship after just a single phone interview with my supervising attorney. IRAdvocates is the successor to the litigation arm of the International Labor Rights Fund and was formed in an effort to hold corporations and governments accountable for human rights violations worldwide through the use of innovative legal mechanisms. The organization devotes a large percentage of its caseload to claims brought in U.S. federal courts by foreign plaintiffs under the Alien Tort Statute (ATS), also known as the Alien Tort Claims Act. The statute allows for federal jurisdiction over foreign human rights violations by U.S. corporations. In many cases, there is no other basis for jurisdiction in U.S. courts, which are generally pro-plaintiff and apply more stringent human rights standards than foreign courts. Federal courts in the U.S. also have jurisdiction over the more significant assets of U.S. corporations and are in a position to provide greater relief to victims in foreign countries where assets may be insufficient to meet claims.
Once settled in Quito, I began working at the offices of Conrad & Scherer LLP. Through a strategic partnership, the firm serves as the office for IRAdvocate’s sole attorney in South America. I was excited by the prospect of working on human rights litigation with the abundant resources of a private firm. A number of our cases dealt with environmental contamination and related injuries to human health. In addition, we handled suits brought on behalf of workers, community dissenters and their families, all of whom had experienced violent abuse at the hands of paramilitaries hired by corporations as “security” on development projects. In preparation for litigation, I conducted research on uncommon and fascinating legal issues including forum non-conveniens, spoliation of evidence and the procedures for deposing persons imprisoned in Colombia. Most of my time was dedicated to researching and drafting the complaint for a massive contamination case, but I also reviewed client files and interviews with minor plaintiffs from a poor Andean village and investigated the bleak prognoses of their high-level exposure. The tragic histories of these permanently disabled children helped me to understand the incredible relief that even a small settlement in their favor would provide.
But winning these cases is an uphill battle, and a recent ruling by the U.S. Court of Appeals for the Second Circuit could present a significant roadblock to bringing ATS claims. In its Sept. 17th ruling in Kiobel v. Royal Dutch Petroleum Co., the appellate court held that ATS liability does not extend to corporate defendants. Interpreting the scope of ATS liability as governed by customary international law, the court held that “because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS.” The Second Circuit ruling directly contradicts the Eleventh Circuit, which previously recognized the possibility of corporate ATS liability in Romero v. Drummond (2008). In Romero, plaintiffs alleged that corporate executives hired paramilitaries to torture and assassinate labor union leaders. While the court granted summary judgment and dismissed the claims, finding insufficient evidence of a relationship between the executives and paramilitary actors, it held that ATS provided jurisdiction over corporate defendants. It will now be up to the Supreme Court to address the clear circuit split on the issue of corporate liability, and they may do so rather soon by granting a conditional cross-petition from Presbybterian Church of Sudan v. Talisman Energy. Should the court side with the Second Circuit, another obstacle will be thrown in the way of those trying to hold U.S. corporations accountable for human rights violations abroad.
While in Quito, I prepared for a meeting in which we would advise plaintiffs to accept settlement in one of our cases. We expected there to be some resistance, as the offered amount fell short of the inflated expectations that many of our clients held regarding what could be gained from litigation. Sadly, the recent Second Circuit decision will only further impair IRAdvocate’s ability to secure such settlements and it is unclear how far the decision will roll back accountability for corporations operating abroad. But regardless of the uncertainty ahead, organizations like IRAdvocates are still working on creative solutions to uphold liability for companies and even during my last week in Quito, my supervising attorney was preparing to leave for interviews with plaintiffs for a developing case in Peru.
A version of this article appeared in print in the October 2010 issue of the Bridge.
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