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About Human Trafficking

Sean Fletcher

A Free Market Solution to Human Trafficking.

Inconsistent Rulings, Minimal Protection, and the Need for a Different Approach

There are three main statutes that come into play when dealing with human trafficking. The Alien Tort Statute (ATS), Trafficking Victims Protection Act (TVPRA), and the Convention Against Torture (CAT). Depending on where you are, different jurisdictions have different approaches to the ATS. 

History of the ATS

The ATS was enacted in 1789 to confer jurisdiction on federal courts over claims by aliens for “the modest number of international law violations with a potential for personal liability at the time.” Sosa v. Alvarez–Machain, 542 U.S. 692, 724, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The ATS was largely unused, however, until this Circuit held that the statute provided jurisdiction over an alien's claim of “deliberate torture perpetrated under color of official authority.” Filartiga, 630 F.2d at 878. In Filartiga, Paraguayan citizens living in the United States brought an action under the ATS against a former Paraguayan official—also then living in the United States—for torturing and killing their family member while in Paraguay. Id. at 878. After reviewing the relevant sources of international law, we held that the prohibition of torture has become a part of customary international law, and therefore torture by government officials violates the law of nations. Id. at 878, 884. However, while the plaintiffs in Filartiga urged that the ATS should be treated as a statute not only conferring jurisdiction but also creating causes of action, we construed the ATS “not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.” Id. at 887. We also recognized that because ATS jurisdiction depends on a violation of a law of nations, “a more searching preliminary review of the merits” is required than the review conducted for asserting jurisdiction under the “arising under” grant of federal jurisdiction under 28 U.S.C. § 1331...Filartiga spawned an expansion in ATS litigation, and courts differed in their conclusions as to whether the ATS merely granted jurisdiction or whether it also created private causes of action for international law violations. The Supreme Court took up this issue in 2004 in its only interpretation of the ATS. In Sosa v. Alvarez–Machain, a Mexican national was abducted in Mexico and transported by agents of the *317 United States Drug Enforcement Administration (“DEA”) and Mexican officials to California to be prosecuted for the torture and murder of a DEA agent in Mexico. 542 U.S. at 697–98, 124 S.Ct. 2739. Following his acquittal in the criminal case, the Mexican national filed an action in the district court for the Central District of California under the ATS against his abductors. The district court awarded damages and the Ninth Circuit affirmed the ATS judgment. The Supreme Court reversed on the basis that the circumstances of the illegal detention did not violate international law.  

The ATS was largely unused until Flitarga, which expanded ATS litigation by allowing jurisdiction of claims of violations of the law of nations or treaties made by the United States. What constitutes a violation of the law of nations will be discussed in more detail shortly. Courts differed in their conclusions of whether or not the ATS gave rise to a cause of action rather than just jurisdiction, which was discussed and decided on in Sosa. In Sosa the supreme court determined that in order to give rise to a cause of action, the offense must constitute a violation of the law of nations or a treaty of the United States. 

Determining a violation of the law of nations

“To demonstrate a violation of the law of nations, a plaintiff must prove a violation of international law norms that (1) are norms of “international character” that nations abide by out of a sense of legal obligation; (2) are “defined with a specificity comparable to the 18th-century paradigms discussed in Sosa ”; and (3) are “of mutual concern” to nations. Abdullahi v. Pfizer, Inc., 562 F.3d 163, 174 (2d Cir.2009); accord id. at 192 (Wesley, J., dissenting); see Kiobel, 621 F.3d at 131 (“To attain the status of a rule of customary international law, a norm must be ‘specific, universal, and obligatory.’ ” (quoting Sosa, 542 U.S. at 732, 124 S.Ct. 2739)).” In order to prove a violation of the law of nations, one must prove that a norm of international character has been violated, and it has to be defined with specificity (fairly well defined in a specific manner). Also, the law must be of mutual concern to the nations. Human trafficking, or slavery, has been recognized to meet all of these criteria. 

This Court has previously recognized that the traditional notion of slavery, in which one human being purports to own another, constitutes a violation of customary international law. See Kadic, 70 F.3d at 239. Indeed, the prohibition of slavery is “one of the most well-established customary rules” in international law. Yasmine Rassam, Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and the Slave Trade Under Customary International Law, 39 Va. J. Int'l L. 303, 310–11 (1999); see also Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926, Sept. 25, 1926, 60 L.N.T.S. 253 (committed to by 99 countries, including the United States).

The international prohibition against slavery has evolved to encompass more modern variants such as forced labor and servitude.8 An early marker of this development was the Supplementary Convention *320 on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (“Supplementary Convention”), which denounced forms of coerced servitude mirroring slavery, including any “practice whereby a child or young person under the age of 18 years[ ] is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.” Supplementary Convention art. 1(d), Sept. 7, 1956, 226 U.N.T.S. 3 (committed to by 123 countries, including the United States). Following the extensive use of forced labor during World War II, the London Charter, which authorized the punishment of war criminals and “crystalliz[ed] preexisting customary international law” concerning fundamental human rights, Kiobel, 621 F.3d at 133 (internal quotations omitted), provided for individual liability for the crimes of deportation for slave labor and enslavement of the civilian population. Charter of the International Military Tribunal—Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis art. 6, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279.

The United Nations International Labour Organization (“ILO”) has addressed forced labor as a distinct international violation, defining forced labor as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.” International Labour Organization Convention No. 29 Concerning Forced or Compulsory Labour art. 2, June 28, 1930, 39 U.N.T.S. 55 (“ILO Convention 29”). According to the ILO Convention 29, forced labor “for the benefit of private individuals, companies or associations” is also prohibited, and ratifying members of the ILO agreed to end this type of forced labor within their respective borders. Id. art. 2.9 The ILO's Abolition of Forced Labour Convention of 1957 prohibited ratifying nations' use of forced labor for specific ends, including economic development and political coercion. International Labour Organization Convention No. 105 Concerning the Abolition of Forced Labour art. 1, June 25, 1957, 320 U.N.T.S. 291.

Assuming, without deciding, that these sources suffice to demonstrate a firmly established consensus in international law prohibiting slavery and the related practices of forced labor and involuntary servitude, the norm prohibiting these practices is limited to certain types of conduct, and a review of the facts presented by Velez does not demonstrate a violation of this norm.10

To determine what constitutes forced labor under international law, we turn once again to the ILO. ILO Convention 29's definition of forced labor can be broken into three elements: “(1) work or service performed; (2) under the menace of any penalty; (3) for which the person has *321 not offered himself or herself voluntarily.” International Labour Organization, Casebook of Court Decisions 12 (2009) [hereinafter, ILO Casebook]. In a subsequent report on ILO Convention 29, the ILO lists as one of the indicators of forced labor “[p]sychological compulsion, i.e. an order to work, backed up by a credible threat of a penalty for non-compliance.” ILO, A Global Alliance Against Forced Labour 6 (2005), http://www.ilo. org/public/english/standards/relm/ilc/ilc93/pdf/rep-i-b.pdf [hereinafter, ILO Report]; see Bridgestone, 492 F.Supp.2d at 1013 (citing the ILO Report). The “menace of any penalty” element does not necessarily need to be a physical penalty but can include credible threats of financial penalties, denunciation to immigration authorities, and deportation. ILO Report at 6. Labor can also be “forced” if it takes place in a “climate of fear” in which consent is impossible, even if the victim was not threatened directly with any penalty. Prosecutor v. Krnojelac, Case No. IT–97–25, Appeals Judgment ¶ 194 (Int'l Crim. Trib. for the Former Yugoslavia Sept. 17, 2003).

According to the ILO, however, the international definition of forced labor (as formulated in the international instruments described above) does not cover “low wages or poor working conditions,” even though some domestic legislation considers that kind of environment to constitute forced labor. ILO Report at 5. It also does not include “situations of pure economic necessity” caused by a lack of employment alternatives. Id. Instead, pursuant to the various international instruments, forced labor must involve a “severe violation of human rights and restriction of human freedom.” Id.

In applying the ATS to forced labor claims, courts in the United States have tended to require more than evidence of terrible working conditions and inadequate wages to state a cognizable violation of customary international law. See, e.g., Bridgestone, 492 F.Supp.2d at 1012, 1016 (dismissing forced labor claims of workers on a Liberian rubber plantation because they alleged only “matters of wages and working conditions that fall outside any specific, universal, and obligatory understanding of the prohibition against forced labor”). Decisions in which ATS forced labor claims have been permitted to proceed have typically involved egregious violations of human dignity. See Licea v. Curacao Drydock Co., 584 F.Supp.2d 1355, 1361–63 (S.D.Fla.2008) (describing how plaintiffs were held in captivity; how they suffered severe injuries due to the nature of their work but were denied medical treatment; and how in escaping, they risked imprisonment and death and the persecution of their families by the Cuban government); Doe I v. Reddy, No. C 02–05570, 2003 WL 23893010, at *9 (N.D.Cal. Aug. 4, 2003) (finding that allegations sufficed both to provide jurisdiction and state claims for forced labor, debt bondage, and trafficking under the ATS when they included “coercive conduct through threats, physical beatings, sexual battery, fraud and unlawful substandard working conditions”); Manliguez v. Joseph, 226 F.Supp.2d 377, 381–82 (E.D.N.Y.2002) (describing how the plaintiff was often locked in the apartment in which she provided domestic labor, was prohibited from interacting with others, denied medications and basic personal effects, and was often given only one meal per day

The definition of human trafficking turns on whether or not the labor came with consent or lack thereof, and in some cases such as child labor consent is impossible. Examples of human trafficking methods include beatings, threats, physical violence, sexual battery, fraud, and substandard working conditions. For example, in the movie “The Whistleblower” the girls were kept chained to the wall and beaten shot or killed if they attempted to escape or call the police. This movie was shown in Professor Nagle’s International law class, and it painted a picture of human trafficking within the UN.  Professor Nagle is an expert in human trafficking and will be discussed later in this paper. 

Another law that is supposed to protect human trafficking victims is the Trafficking Victims Protection Act, which was enacted in 2000 in part of a global effort to curb human trafficking.

The TVPA

The Trafficking Victims Protection Act was enacted in 2000, and the amendment creating its civil cause of action (part of the TVPRA), codified at 18 U.S.C. § 1595, was enacted only in December of 2003 and amended in December of 2008. Pub.L. No. 108–193, § 4(a)(4), 117 Stat. at 2877; Pub.L. No. 110–457, § 221, 122 Stat. 5044, 5067 (2008) (amending the civil cause of action to remove references to specific crimes and therefore expanding its scope to include forced labor). Velez left Sanchez's home in November 2003, and thus all of the alleged trafficking and forced labor took place before the civil cause of action under the TVPRA was enacted.

1617 There is a well-established presumption against the retroactive application of legislation, including amendments creating a private cause of action. Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 950, 117 S.Ct. 1871, 138 L.Ed.2d 135 (1997); Landgraf v. USI Film Prods., 511 U.S. 244, 284–86, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) *325 (holding that a 1991 amendment permitting compensatory damages for violations of the Civil Rights Act of 1964 did not apply retroactively). Landgraf commands this Court to apply a two-part test to determine retroactivity. First, we must determine whether Congress has “expressly prescribed the statute's proper reach.” Landgraf, 511 U.S. at 280, 114 S.Ct. 1522. If not, then we must evaluate “whether [the statute] would impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed.” Id.

Nothing in the language of the TVPRA or its legislative history indicates that Congress intended retroactive application. Thus, the first prong of Landgraf is not met. As to the second prong, while criminal liability may have existed prior to the 2003 amendments, the civil remedy added in 2003 fits within the Landgraf definition of “impermissibly retroactive legislation” because it increases a party's liability for previously occurring conduct. Hughes, 520 U.S. at 946, 117 S.Ct. 1871. Compare Doe v. Siddig, 810 F.Supp.2d 127, 135 (D.D.C.2011) (rejecting the retroactive applicability of the TVPRA's civil cause of action because it “represented a significant expansion of civil liability”), and Nattah v. Bush, 770 F.Supp.2d 193, 205 (D.D.C.2011) (finding that the civil cause of action did not cover conduct occurring in July 2003), with Adhikari v. Daoud & Partners, 697 F.Supp.2d 674, 683 (S.D.Tex.2009) (holding that 18 U.S.C. § 1596, a provision that merely expanded federal courts' jurisdiction to extraterritorial violations under the TVPRA without giving plaintiffs new substantive rights, applied retroactively). At least one other Court of Appeals has reached the same conclusion. Ditullio v. Boehm, 662 F.3d 1091, 1100–02 (9th Cir.2011) (holding that Section 1595 does not apply retroactively to conduct occurring before December 19, 2003 because “[i]t changed substantive law and attached new legal burdens to violations of the [TVPRA]”).

Some courts have applied the TVPRA retroactively while others have not. This has lead to the inconsistent application of the TVPRA, where the factors that determine retroactivity come from Langraf. 

The presumption against statutory retroactivity is founded upon elementary considerations of fairness dictating that individuals should have an opportunity to know what the law is and to conform their conduct accordingly. It is deeply rooted in this Court's jurisprudence and finds expression in several constitutional provisions, including, in the criminal context, the Ex Post Facto Clause. In the civil context, prospectivity remains the appropriate default rule unless Congress has made clear its intent to disrupt settled expectations. Pp. 1497–1501.

(e) Thus, when a case implicates a federal statute enacted after the events giving rise to the suit, a court's first task is to determine whether Congress has expressly prescribed the statute's proper reach. If Congress has done so, there is no need to resort to judicial default rules. Where the statute in question unambiguously applies to preenactment conduct, there is no conflict between the antiretroactivity presumption and the principle that a court should apply the law in effect at the time of decision. Even absent specific legislative authorization, application of a new statute to cases arising before its enactment is unquestionably proper in many situations. However, where the new statute would have a genuinely retroactive effect—i.e., where it would impair rights a party possessed when he acted, increase his liability for past conduct, or impose new duties with respect to transactions already completed—the traditional presumption teaches that the statute does not govern absent clear congressional intent favoring such a result. Bradley did not displace the traditional presumption. Pp. 1501–1505.

Langraf established specific factors, namely the intent of congress when writing the statute whether explicit or implicit (Unless congress specifically named the statute to be retroactive, it will probably not be held to be retroactive). 

ATS Revisited by another Jurisdiction 

In Velez, a district court in New York held that a plaintiff could not bring a claim under the ATS for human trafficking occurring outside of the United States. Id. at *6. Although the court recognized that “human trafficking and forced labor violate specific norms accepted by the civilized world,” the court found that the ATS “has always been understood as covering torts committed abroad.” Id. (citing Sosa v. Alvarez–Machain, 542 U.S. 692, 715, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004)). Because the plaintiff's claims in the case arose out of conduct occurring exclusively in the United States, the court held that the claims were not within the statute's grant of jurisdiction. Id. In a footnote, however, the court noted that while the ATS could conceivably apply to torts occurring in the United States, the case before it lacked an “international savor” as the plaintiff's “status as a foreign national [was] pure happenstance; she could just as easily have been sent from Idaho as from Ecuador.” … Despite the court's holding in Velez, the undersigned finds that the ATS grants jurisdiction for torts committed both inside and outside of the United States, particularly when those torts have an “international savor,” as do the torts in this case where the defendants allegedly trafficked many of the plaintiffs into this country under false pretenses and then forced the plaintiffs to work here in sub-standard conditions under threats of deportation. According to the Supreme Court in Sosa, the requisite harm necessary to bring a claim under the ATS is a violation of the law of nations, which is “any claim based on the present-day law of nations ... [resting] on a norm of international character accepted by the civilized world.” Sosa, 542 U.S. at 725, 124 S.Ct. 2739.6 Neither the Supreme Court nor the text of the statute says anything of an extraterritorial requirement. In short, to sue under the ATS, plaintiffs must be aliens suing in tort for a violation of the law of nations. This case meets those jurisdictional requirements. Nothing more is required and this Court declines to implement an extraterritoriality requirement when Congress and the United States Supreme Court have not done so. Accord Jama v. U.S. I.N.S., 22 F.Supp.2d 353 (D.N.J.1998) (allowing claim under ATS for torts occurring domestically).

Here the court found that the ATS does apply to violations outside of the United States, but only when those violations constitute a violation of the law of nations. This is different from Velez, where they found that the ATS had only domestic application. This disparity in enforcement leads to many victims not receiving their just compensation in some locales of America, and being fully compensated in others. There is a need for a different solution. This case holds that the ATS definitely has extrajudicial application.

“‘Claims cognizable under the ATS are those that are ‘specific, universal, and obligatory’ international legal norms.’ Adhikari v. Daoud & Partners, 697 F.Supp.2d 674, 686 (S.D.Tex.2009) (quoting Sosa, 542 U.S. at 732, 124 S.Ct. 2739). While the Supreme Court in Sosa urged the lower courts to exercise restraint in recognizing such norms, id. at 725, 124 S.Ct. 2739, the undersigned has no doubt that human trafficking and forced labor violate specific norms accepted by the civilized world.”

Here they find that the ATS violates the norms accepted by the civilized world, constituting a violation of the law of nations, which according to what we’ve discussed so far in this jurisdiction constitutes a cause of action for the ATS. Now let’s discuss the interplay between the TVPRA and the ATS.

Interplay between the TVPRA and the ATS

“This Court will consider the interplay between the TVPRA and the ATS using the same framework.

First, the Court compares the statutory texts. As with the TVPA, as noted by the Eleventh Circuit in Aldana, the definitions of the claims at issue are drawn from different sources under the two statutes. The TVPRA, which is a reauthorization of the TVPA, provides definitions for both human trafficking and forced labor while the definitions of these terms under the ATS must be ascertained by referenced to the law of nations. Even further, as noted by the plaintiffs, the TVPRA differs from the ATS in at least two other ways: (1) the TVPRA applies to U.S. citizen plaintiffs, but the ATS does not; and (2) the TVPRA includes a statute of limitations and a requirement for staying civil claims during criminal procedures, but the ATS does not. See 18 U.S.C. §§ 1589, 1590. These statutory differences are sufficient to show that Congress intended that claims for human trafficking and forced labor under the ATS to survive Congress's passage of the TVPRA.7

Second, precedent, as noted above, supports the conclusion that Congress did not intend the TVPRA to be the exclusive *1226 remedy for victims of human trafficking and forced labor. The Eleventh Circuit has held that claims under the ATS were not were not preempted by Congress's passage of the TVPA. Aldana, 416 F.3d at 1250–51 (citing Sosa, 124 S.Ct. at 2761–62; AbebeJira v. Negewo, 72 F.3d 844, 847–48 (11th Cir.1996)); Contra Enahoro v. Abubakar, 408 F.3d 877, 884–86 (7th Cir.2005); see also Adhikari, 697 F.Supp.2d at 687–88 (adopting the reasoning of the Eleventh Circuit in Aldana and the Second Circuit in Kadic in finding that the TVPRA and the ATS provide separate and distinct causes of action for human trafficking and forced labor). After reviewing the statutes and the reasoning of the Eleventh Circuit in Aldana, the Court sees no reason to treat the TVPRA differently from the TVPA.

Third, principles of statutory construction heavily favor a finding that Congress did not intend to preempt recovery for human trafficking and forced labor under the ATS when it passed the TVPRA. The Eleventh Circuit has held that “amendments by implication are disfavored. Only when Congress' intent to repeal or amend is clear and manifest will we conclude that a later act implicitly repeals or amends an earlier one.” Patel v. Quality Inn. So., 846 F.2d 700, 704 (11th Cir.1988). Congress's intent to repeal or amend the ATS as it applies to human trafficking and forced labor claims through its passage of the TVPRA is anything but clear. Given the fact that Congress knew that the courts, including the Eleventh Circuit, were allowing plaintiffs to bring claims simultaneously under both the ATS and the TVPA, Congress could have easily indicated in the TVPRA that it intended to amend the ATS. It did not. Absent any evidence that Congress intended to prevent litigants from being able to bring claims for human trafficking and forced labor under both statutes, this Court declines to amend the ATS by implication. See Aldana, 416 F.3d at 1251 (“To accept that the [TVPA] provides the exclusive remedy for acts of torture is to accept that it amends the [ATS]. Such an intent is not apparent from the face of the statute, and ‘amendments by implication are disfavored.’ ”).”

Congress when it passed the TVPRA did not intend it to replace the ATS; that much is clear. Especially because of cases like Velez where the court refused to apply the ATS to extrajudicial trafficking, the TVPRA was intended to supplement the ATS. However, the TVPRA has limited application retroactively due to a lack of clear congressional intent. 

ATS Denied

“An applicant requesting CAT protection under a “acquiescence” theory need not *246 show that the government knows or willfully accepts that the applicant will be tortured; instead, it is sufficient to show “that the public official, prior to the activity constituting torture, [has] awareness of such activity and thereafter breach[es] his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7) (2006); Zheng v. Ashcroft, 332 F.3d 1186, 1194-97 (9th Cir.2003).In light of Patel's challenge, the particular words employed in denying relief are especially significant. When faced with a similar claim, the Fifth Circuit concluded that the following language was consistent with the governing standard:

I guess another aspect of this would be whether if the money lenders who have not yet been paid came after her might the government look the other way and therefore be at least complicit in whatever might happen to [her] at the hand of these loan sharks, and perhaps then whatever would happen to [her] that might be seen as torture if the government were aware of any penalties being meted out and took no action to protect the respondent.

Chen v. Gonzales, 470 F.3d 1131, 1141-42 (5th Cir.2006) (emphasis in original). On the opposite end of the spectrum, however, the Ninth Circuit opined that the use of the word “sanction” improperly placed a higher burden on the petitioner. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1055, 1058-60 (9th Cir.2006)…Our review of the record reveals that although the IJ recited the proper standard for analyzing Patel's CAT claim, she erred in applying it. The IJ concluded Patel failed to submit any evidence to support his argument that “the governments of Kenya or India would be involved in his torture.” (J.A. 63). The IJ went on to opine that “[t]here is no evidence that the Indian government, through Raju or through any other agent, is responsible for the disappearance of [another individual who participated in Raju's human trafficking operation].” (J.A. 64). The IJ further concluded there was no evidence to demonstrate a “clear probability that the Kenyan government would target the respondent for torture.” (J.A. 65). This language reflects that the IJ held Patel to a higher standard than appropriate under the CAT. Accordingly, while we indicate no opinion regarding the ultimate disposition of Patel's CAT claim, we remand this issue to the agency for further consideration of whether Patel's evidence establishes the Kenyan government would acquiesce in his torture.2 Menghesha v. Gonzales, 450 F.3d 142, 147 (4th Cir.2006).

In some jurisdictions the mere awareness that torture or human trafficking was going on was enough to satisfy a claim under the ATS, however in other jurisdictions, and for corporations, such as in Kiobel, this is not the case.

“In Sosa the Supreme Court instructed the lower federal courts to consider “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739 (emphasis added). That language requires that we look to international law to determine our jurisdiction over ATS claims against a particular class of defendant, such as corporations.30 That conclusion is reinforced by Justice Breyer's reformulation of the issue in his concurring opinion: “The norm [of international law] must extend liability to *128 the type of perpetrator (e.g., a private actor) the plaintiff seeks to sue.” See id. at 760, 124 S.Ct. 2739 (Breyer, J., concurring) (emphasis added) (citing id. at 732 n. 20, 124 S.Ct. 2739 majority opinion).

The Supreme Court's instruction to look to international law to determine the scope of liability under the ATS did not involve a revolutionary interpretation of the statute—in fact, it had long been the law of this Circuit. In Filartiga, we had looked to international law to determine our jurisdiction and to delineate the type of defendant who could be sued. See 630 F.2d at 889 (“[T]he question of federal jurisdiction under the Alien Tort Statute ... requires consideration of the law of nations.”); id. at 880 (“In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” (emphasis added)); see also Khulumani, 504 F.3d at 269 (Katzmann, J., concurring) (“We have repeatedly emphasized that the scope of the [ATS's] jurisdictional grant should be determined by reference to international law.”). Likewise, in Kadic v. Karadzić, 70 F.3d 232 (2d Cir.1995) (Newman, J.), and in Judge Harry T. Edwards's notable concurring opinion in Tel–Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C.Cir.1984) (Edwards, J., concurring)—both cited with approval by the Supreme Court in Sosa—international law provided the rules by which the court decided whether certain conduct violated the law of nations when committed by non-state actors. In Kadic, we held that a private actor could be liable under the law of nations for genocide, war crimes, and crimes against humanity, 70 F.3d at 239–41, but in Tel–Oren, Judge Edwards expressed the view that a private actor could not be liable for torture under the ATS, 726 F.2d at 791–95 (Edwards, J., concurring); see also, e.g., Flores, 414 F.3d at 254–66 (looking to customary international law for the applicable norms).

13 Since Sosa, we have continued to adhere to the method prescribed in Sosa footnote 20 by looking to customary international law to determine both whether certain conduct leads to ATS liability and whether the scope of liability under the ATS extends to the defendant being sued.

In Kiobel, the lower court found that corporations were not people within the meaning of the ATS, and the Supreme Court found that the ATS did not have extrajudicial application. 

“To attain the status of a rule of customary international law, a norm must be “specific, universal, and obligatory.” Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (quoting with approval the statement of a lower court) (internal quotation marks omitted); see also Flores, 414 F.3d at 248 (“[C]ustomary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”); Restatement (Third) § 102(2) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”). Defining such norms “is no simple task,” as “[c]ustomary international law is discerned from myriad decisions made in numerous and varied international and domestic arenas.” Flores, 414 F.3d at 247. The sources consulted are therefore of the utmost importance. As the Supreme Court re-emphasized in Sosa, we look to “those sources we have long, albeit cautiously, recognized”:

‘[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.’”

Here in Kiobel they discuss what a violation of the law of nations would be, even though they don’t decide to apply that rationale (That a violation of the law of nations qualifies for a cause of action under the ATS) to their case. They then discuss the possibility of holding a corporation liable for the acts it has taken or aided in taking. 

“Since Nuremberg, international tribunals have continually declined to hold corporations liable for violations of customary international law. For example, the charters establishing both the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda, or (‘ICTR’) expressly confined the tribunals' jurisdiction to ‘natural persons.’”

They disagree with the lower court and find that corporations should be liable for the acts they commit, although they end up reaching the same conclusion as the lower court when it comes to the result of the case. 

The factual premise of the majority opinion in the Kiobel case is incorrect. At the end of the Second World War the allied powers dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations—and did so on the authority of customary international law. E.g., Control Council Law No. 2, “Providing for the Termination and Liquidation of the Nazi Organizations,” Oct. 10, 1945, reprinted in 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 131 (1945); Control Council Law No. 9, “Providing for the Seizure of Property Owned by I.G. Farbenindustrie and the Control Thereof,” Nov. 30, 1945, reprinted in 1 id. 225, www.loc.gov/rr/frd/Military_ Law/enactments-home.html (visited June 24, 2011). The second of these Control Orders found that I.G. Farben (the German chemical cartel) had “knowingly and prominently engaged in building up and maintaining the German war potential,” and it ordered the seizure of all its assets and that some of them be made “available for reparations.” Id.

And suppose no corporation had ever been punished for violating customary international law. There is always a first time for litigation to enforce a norm; there has to be. There were no multinational prosecutions for aggression and crimes against humanity before the Nuremberg Tribunal was created. “Prosecutorial responses to international crimes have occurred at both the national and international levels, with varying degrees of success. The first international tribunal was the Nuremberg IMT [International Military Tribunal] which sat between 1945 *1018 and 1946 to prosecute high-ranking Nazis.” Robert Cryer, “International Criminal Law,” in International Law 752, 770–71 (Malcolm D. Evans ed., 3d ed.2010); see also Jonathan A. Bush, “Nuremberg: The Modern Law of War and Its Limitations,” 93 Colum. L.Rev. 2022, 2023 (1993). Doubts about the Tribunal's legitimacy focused on whether there were established international norms against such conduct, see, e.g., Cryer, supra; Jonathan A. Bush, “ ‘The Supreme ... Crime’ and Its Origins: The Lost Legislative History of the Crime of Aggressive War,” 102 Colum. L.Rev. 2324, 2329–30 (2002), not on whether, if there were, violators could, consistently with international law, be punished by an international tribunal—for the first time in history.

We have to consider why corporations have rarely been prosecuted criminally or civilly for violating customary international law; maybe there's a compelling reason. But it seems not; it seems rather that the paucity of cases reflects a desire to keep liability, whether personal or institutional, for such violations within tight bounds by confining it to abhorrent conduct—the kind of conduct that invites criminal sanctions. It would have seemed tepid to charge the Nazi war criminals with battery, wrongful death, false imprisonment, intentional infliction of emotional distress, fraud, conversion, trespass, medical malpractice, or other torts. And it was natural in light of the perceived effect of the Nuremberg trials on German and international opinion concerning the type of practices in which Hitler's government had engaged that a tradition would develop of punishing violations of customary international law by means of national or international criminal proceedings; it was a way of underscoring the gravity of violating customary international law.

This case disagrees with Kiobel in that corporations should be held liable for their actions. Here, again, we have inconsistent application of the law and different results. This calls for another solution to human trafficking. 

“the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. “[T]here is no clear indication of extraterritoriality here,” Morrison, 561 U.S., at ––––, 130 S.Ct., at 2883, and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred. On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U.S. 247, 130 S.Ct., at 2883–2888. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

What we have here is the overall conclusion of the Kiobel case, wherein they find that a mere corporate presence is not enough to satisfy the ATS. As has been stated before, there are inconsistent rulings and application of the laws relating to human trafficking. 

Current Human Trafficking Numbers

The following data came from Professor Nagle. 

U.S. Department of Labor’s
LIST OF GOODS PRODUCED BY CHILD LABOR OR FORCED LABOR 

By Country 

Country 

List of Goods 

Kenya COFFEE • FISH* • MIRAA • RICE • SISAL • SUGARCANE • TEA • TOBACCO 

KEY 

FORCED LABOR 

Country 

Afghanistan Argentina 

Bangladesh Benin
Brazil Burma 

Cameroon Chad 

CHILD LABOR 

BOTH * good added in 2014, child labor List of Goods 

† good added in 2014, forced labor 

Kyrgyz Republic Lesotho Madagascar Malaysia Mauritania 

Mongolia Namibia Nicaragua Nigeria Pakistan 

Paraguay Philippines 

Rwanda Sierra Leone Suriname Tanzania Turkey Uganda Uzbekistan Yemen 

COTTON • TOBACCO
CATTLE
SAPPHIRES • STONES • VANILLA* ELECTRONICS† • GARMENTS • PALM OIL* CATTLE • GOATS 

COAL • FLUORSPAR • GOLD 

CATTLE 

BANANAS • COFFEE • GOLD • GRAVEL • PUMICE STONE • SHELLFISH • TOBACCO 

COCOA • GRANITE • GRAVEL • MANIOC/CASSAVA • SAND 

BRICKS • CARPETS • COAL • COTTON • GLASS BANGLES • LEATHER • SUGARCANE • SURGICAL INSTRUMENTS • WHEAT 

BRICKS • CATTLE • COTTON • LIMESTONE • PORNOGRAPHY • SUGARCANE
BANANAS • COCONUTS • CORN • FASHION ACCESSORIES • FISH • GOLD • HOGS • PORNOGRAPHY • 

PYROTECHNICS • RICE • RUBBER • SUGARCANE • TOBACCO TEA
COCOA • COFFEE • DIAMONDS • GRANITE • PALM OIL GOLD 

CLOVES • COFFEE • GOLD • NILE PERCH • SISAL • TANZANITE • TEA • TOBACCO
CITRUS FRUITS • COTTON • CUMIN • FURNITURE • HAZELNUTS • PEANUTS • PULSES • SUGAR BEETS BRICKS • CATTLE • CHARCOAL • COFFEE • FISH • RICE • SUGARCANE • TEA • TOBACCO • VANILLA COTTON
FISH* 

Lebanon TOBACCO 

Angola DIAMONDS 

Liberia DIAMONDS • RUBBER 

Azerbaijan COTTON 

Malawi TEA • TOBACCO 

Mali COTTON • GOLD • RICE 

Belize BANANAS • CITRUS FRUITS • SUGAR CANE 

Mexico CHILE PEPPERS • COFFEE • CUCUMBERS • EGGPLANTS • GREEN BEANS • MELONS • ONIONS • PORNOGRAPHY • SUGARCANE • TOBACCO • TOMATOES 

Bolivia BRAZIL NUTS/CHESTNUTS • BRICKS • CATTLE • CORN • GOLD • PEANUTS • SILVER • SUGARCANE • TIN • ZINC 

Mozambique TOBACCO 

Burkina Faso COTTON • GOLD 

Nepal BRICKS • CARPETS • EMBELLISHED TEXTILES • STONES 

Niger CATTLE • GOLD • GYPSUM • SALT • TRONA 

Cambodia ALCOHOLIC BEVERAGES* • BRICKS • CASSAVA • FISH • MEAT* • RUBBER • SALT • SHRIMP • TEXTILES* • TIMBER* • TOBACCO 

North Korea BRICKS • CEMENT • COAL • GOLD • IRON • TEXTILES • TIMBER 

Central African Rep. DIAMONDS 

Panama COFFEE • MELONS • SUGARCANE 

China ARTIFICIAL FLOWERS • BRICKS • CHRISTMAS DECORATIONS • COAL • COTTON • ELECTRONICS • FIREWORKS • FOOTWEAR • GARMENTS • NAILS • TEXTILES • TOYS 

Peru BRAZIL NUTS/CHESTNUTS • BRICKS • COCA • FIREWORKS • FISH • GOLD • TIMBER 

Colombia
Congo, Dem. Rep. Ecuador
El Salvador Ghana
Guinea
India 

Iran Kazakhstan 

BRICKS • CARPETS • COAL • POPPIES
BLUEBERRIES • BRICKS • COTTON • GARLIC • GARMENTS • GRAPES • OLIVES • STRAWBERRIES • 

TOBACCO • TOMATOES • YERBA MATE
BIDIS • BRICKS • DRIED FISH • FOOTWEAR • STEEL FURNITURE • GARMENTS* • GLASS • LEATHER • 

JUTE TEXTILES • MATCHES • POULTRY • SALT • SHRIMP • SOAP • TEXTILES COTTON • CRUSHED GRANITE 

BEEF • BRICKS • CASHEWS • CATTLE • CERAMICS • CHARCOAL • COTTON • FOOTWEAR • GARMENTS • MANIOC/CASSAVA • PINEAPPLES • RICE • SISAL • SUGARCANE • TIMBER • TOBACCO 

BAMBOO • BEANS • BRICKS • JADE • PALM THATCH • PHYSIC NUTS/CASTOR BEANS • RICE • RUBBER • RUBIES • SESAME • SHRIMP • SUGARCANE • SUNFLOWERS • TEAK 

COCOA CATTLE 

CLAY BRICKS • COAL • COCA • COFFEE • EMERALDS • GOLD • PORNOGRAPHY • SUGARCANE CASSITERITE • COLTAN • COPPER • DIAMONDS • HETEROGENITE • GOLD • WOLFRAMITE BANANAS • BRICKS • FLOWERS • GOLD
COFFEE • FIREWORKS • SHELLFISH • SUGARCANE 

COCOA • FISH • GOLD • TILAPIA 

CASHEWS • COCOA • COFFEE • DIAMONDS • GOLD 

BIDIS • BRASSWARE • BRICKS • CARPETS • COTTON* • EMBELLISHED TEXTILES • FIREWORKS • FOOTWEAR • GARMENTS • GEMS • GLASS BANGLES • HYBRID COTTONSEED• INCENSE • LEATHER GOODS/ACCESSORIES • LOCKS • MATCHES • RICE • SILK FABRIC • SILK • THREAD • SOCCER BALLS • STONES • SUGARCANE* • THREAD/YARN 

CARPETS 

COTTON 

Cote d’Ivoire COCOA • COFFEE 

Russia PORNOGRAPHY 

Dominican Republic BAKED GOODS • COFFEE • RICE • SUGARCANE • TOMATOES 

Senegal GOLD 

Egypt COTTON • LIMESTONE 

South Sudan CATTLE 

Ethiopia CATTLE • GOLD • HAND-WOVEN TEXTILES 

Tajikistan COTTON 

Guatemala BROCCOLI • COFFEE • CORN • FIREWORKS • GRAVEL • SUGARCANE 

Thailand FISH • GARMENTS • PORNOGRAPHY • SHRIMP • SUGARCANE 

Honduras COFFEE • LOBSTERS • MELONS 

Turkmenistan COTTON 

Ukraine COAL • PORNOGRAPHY 

Indonesia FISH • GOLD • PALM OIL • RUBBER • SANDALS • TOBACCO 

Vietnam BRICKS • GARMENTS 

Jordan GARMENTS 

Zambia CATTLE • COTTON • GEMS • STONES • TOBACCO 

4 

UNITED STATES DEPARTMENT OF LABOR’S BUREAU OF INTERNATIONAL LABOR AFFAIRS 

LIST OF GOODS PRODUCED BY CHILD LABOR OR FORCED LABOR 5 

The trend is disturbing. There are hundreds of goods that are produced and shipped into the United States because of human trafficking. The current solutions are simply not working well enough. 

Free Market Solution/Conclusion  

I propose the starting of a company that would certify goods as human trafficking free. This company would hire private investigators to go through inventory and travel to the origin of the inventory to verify whether or not it had been produced through human trafficking. The company would have an aggressive advertising campaign in order to promote awareness of human trafficking. The company I am speaking about would be called HTF Today and would employ businessmen, teachers, and lawyers as well as private investigators. This is my dream, and I hope that someday it comes to fruition. Professor Nagle has been very helpful in explaining the prevalence of human trafficking and the inadequacies of the current legal system. This is a global concern, and with the help of companies that are certified as human trafficking free putting pressure on traffickers to stop what they are doing I believe we can make a difference. Apartheid was not ended until private corporations stood up and said they weren’t going to take it anymore, and I believe that human trafficking will follow the same path. This solution only addresses labor trafficking, unfortunately, however, it can make a positive impact on the world.