Enacted as part of the Judiciary Act of 1789, the Alien Tort Statute allows foreigners to bring lawsuits in U.S. courts for serious violations of international law. On Tuesday, the justices will hear oral argument in a pair of cases, Nestlé USA v. Doe I and Cargill, Inc. v. Doe I, that ask whether a lawsuit brought under the ATS by former child slaves in Ivory Coast can continue. The plaintiffs allege that the defendants, both U.S. companies, facilitated human-rights abuses on the plantations where the youths worked. The companies warn that allowing lawsuits like this one to go forward could be a drain on the U.S. economy and cause problems for U.S. foreign policy, while the plaintiffs counter that these are exactly the kinds of lawsuits that Congress intended to address with the ATS.

The late Judge Henry Friendly once described the ATS as a “kind of legal Lohengrin,” after the mythical German knight who arrives in a boat pulled by swans, because “no one seems to know whence it came.” From the time that it was passed in 1789 until the late 20th century, the ATS remained largely obscure. But in 1980, a Paraguayan doctor, Joel Filártiga, and his daughter, Dolly, relied on the ATS to file a lawsuit in federal court in New York against America Pena-Irala, a former Paraguayan police official living there. They claimed that Pena-Irala had kidnapped Joel’s son, Joelito, and tortured him to death in retaliation for Joelito’s opposition to the Paraguayan government. The U.S. Court of Appeals for the 2nd Circuit agreed with the Filártigas that it had the authority to hear the case under the ATS, reasoning that torture violates the law of nations.

After the 2nd Circuit’s decision in the Filártigas’ case, other lawsuits under the ATS seeking compensation for human-rights violations overseas followed – not only against foreign government officials, but also against multinational corporations for their role in aiding and abetting human-rights violations. The defendants in these cases resisted what they saw as efforts to make the United States, as Chief Justice John Roberts once put it, the “moral custodian” of the world. And in 2004, the court indicated that the kinds of claims that can be brought under the ATS are relatively limited. At Tuesday’s argument, lawyers for Nestlé and Cargill will urge the justices to place even more limits on those claims.

The plaintiffs in the dispute now before the court are six citizens of Mali who claim that as children they were sold to cocoa plantations in Ivory Coast. Once there, the plaintiffs say, they worked as many as 14 hours a day, six days a week, without pay and with very little food; they were “beaten with whips and tree branches” if they didn’t work fast enough. One plaintiff, known only as John Doe IV, says that when his efforts to escape failed, supervisors on the cocoa plantation tied him to a tree and beat him, cut the bottoms of his feet, and then rubbed chili pepper into his wounds.

The plaintiffs contend that Nestlé and Cargill aided and abetted human-rights abuses because they bought cocoa beans from cocoa plantations in Ivory Coast even though the companies knew that the plantations used child slavery. Nestlé and Cargill also provided the farmers with other support, the plaintiffs say, such as personal spending money and farming supplies such as fertilizers and tools.

A federal district court threw out the plaintiffs’ lawsuit. It ruled that the activities at the heart of the plaintiffs’ claims were normal for international corporations, and the only real connection to the United States was that Nestlé and Cargill are U.S. corporations. As a result, the district court concluded, the “focus” of the plaintiffs’ claims was outside the United States, and their lawsuit could not go forward under the ATS.

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