While many victims of human rights violations overseas have chosen to bring claims in federal courts in the U.S. under the Torture Victim Protection Act (TVPA) or the Alien Tort Statute (ATS), state courts also provide an important forum for such claims. Plaintiffs have brought human rights claims in state courts for many years, and many cases brought under the ATS and TVPA in federal court have also included state law claims.
While ATS claims use international law for substantive causes of action, human rights claims brought in state court can either be governed by state law or foreign law. Historically, states primarily made this choice based on where the actual tort took place. Today, states vary in their practices, with many states basing their choice of law determination on the jurisdiction that has the “most significant relationship” to the parties and issues involved in the case. This “most significant relationship” test is flexible, creating more opportunities for state courts to apply their own state’s law to the dispute.
Another important distinction between claims brought under the ATS or TVPA and claims brought under state law has been referred to as the “garden variety tort” problem: rather than using the language of international human rights, plaintiffs are forced to use the language of common torts. Claims for slavery become false imprisonment; claims for torture become assault and battery. While this difference appears merely semantic, it can be a significant drawback for human rights advocates promoting the participation of the U.S. in the international human rights regime.
There are a number of advantages to seeking relief under state law. First, the burden of proof under domestic law is often lower than under international law, making it easier for victims to prove their claims. Second, state law offers a broader range of claims to victims. In 2004 in Sosa v. Alvarez-Machain, the Supreme Court set forth a limited framework for claims that would qualify under the ATS, stating that they must be “specific, universal, and obligatory.” The Court found that a single, arbitrary detention of one day was not sufficient to constitute a “violation of the law of nations” under the ATS. Under state law, however, the plaintiff in Sosa may have had an actionable claim for, among other things, false imprisonment. As another example, the Seventh Circuit held that the child labor at issue in Flomo v. Firestone did not meet the Sosa standard, and so did not constitute a claim under the ATS. This same claim, however, would have been actionable in state court under state law.
Another advantage to pursuing relief under state law is that corporate liability and aiding and abetting liability are undisputed. Defendants have argued that there should be no liability for corporations and no aiding and abetting liability under the ATS. While the U.S. Supreme Court has not directly addressed either issue, both forms of liability exist under state law. This will save state court litigants from years of expensive litigation over these issues.
There may also be disadvantages to litigating human rights claims under state law. First, each state has its own tort laws and procedural rules, so some states may offer a more or less attractive legal framework to plaintiffs. Second, state laws often provide for short statutes of limitations compared to the 10-year statute of limitations under the ATS and TVPA. This is particularly problematic for human rights claimants, who often reside in rural conflict zones, have limited access to media, and are suffering from the effects of trauma. Finally, as mentioned above, when a human rights claim is brought as a “garden variety tort” under state law, its ability to contribute to the development of a human rights legal regime in the United States is limited.
As corporations cannot be sued under the TVPA following the Supreme Court’s 2012 decision in Mohamad v. Palestinian Authority, and the issue of corporate liability under the ATS has yet to be fully addressed, state law claims may be one of the best ways for victims of corporate human rights abuses to attain justice.