Criticism of the ATS

As mentioned previously, there has been some criticism towards the Alien Tort Statute. Much of the hostility stems from corporations that do business in the United States but have a sizable presence outside the U.S. These corporations have very little difficulty agreeing to corporate responsibility, but they balk at the thought of actual enforcement of the corporate responsibility. (Roth, K 2005 'Rules on Corporate Ethics Would Help, Not Hinder Mutlinationals', Financial Times, June 21 archived at www.hrw.org) These entities argue that the ATS allows aliens to enforce codes of conduct for potential violations that occurred outside the U.S. or by a subsidy of the larger corporation.

The counter-argument is that many of the protocols or voluntary controls put forward by the transnationals do not have any form of enforcement or accountability. This means that corporations can say they are doing "good" but are not punished by violating or ignoring their own rules. (Betton, J 2008 'The Global Contact of Human Rights Violations: The Impact of the Alien Tort Claims Act' Journal of Business Systems, Governance and Ethics) These business do have a good argument in that it can be difficult if not impossible for them to police subsidies in countries that have weak and/or corrupt governments or that they should be liable for the selling of goods in a country that violates human rights (e.g. South Africa during Apartheid). The transnational corporations generally get the support of the government on their side for a number of reasons examples include - political question doctrine, there is no known complicity by the parent company, or that the ATS is granting more rights to aliens than it does to citizens.

The reality of the situation is different, the courts have traditionally found issue with the lawsuits brought by plaintiff as either lacking standing or not a violation of international norms. Furthermore, even if the plaintiff somehow wins in court there is the difficulty of collecting the judgment. The debate regarding the ATS and its impact on transnational corporations will continue to grow as the law is used more and more in federal courts.