Note: Tortured Language: "Individuals," Corporate Liability, and the Torture Victim Protection Act

By Brad Emmons. Full text here.

The Torture Victim Protection Act (TVPA) allows persons who have been subjected to torture or extrajudicial killing to pursue a tort action against “individual[s]” who have committed such actions “under actual or apparent authority, or color of law, of any foreign nation.” In the past decade, activists and human rights organizations have lodged dozens of accusations of human rights violations against well-known corporations on several continents. In light of these circumstances, the survivors of such violations have increasingly turned to the TVPA as an avenue for redress against corporations who have allegedly hired paramilitary or security forces to violently disrupt labor demonstrations or other forms of protest.

Although the first circuit court to consider such actions allowed them to proceed, a small but growing number of circuit courts are rejecting the suggestion that corporations may be liable under the Act, noting that the statute uses the word “individual” instead of “person” when describing the liable actor. Because several appellate courts continue to reject other statutory bases for such actions against human rights abusers, corporations are confronted with virtually no economic incentive to refrain from engaging in such practices. As such, Congress’s purposes for adopting the TVPA are thwarted by the limitations that some appellate courts find in the language of the Act. With the Supreme Court poised to consider the question of corporate liability under the TVPA during the current term, the fate of the sole tort remedy available for many victims of torture hangs in the balance.

The Note argues that while the language of the TVPA is ambiguous and open to multiple interpretations, strong policy interests weigh in favor of allowing torture survivors to pursue a civil action against corporations for human rights abuses under the statute. After considering these policy interests, the history and language of the Act, and the accompanying legislative history, the Note calls on the Supreme Court to recognize that corporations should be held liable for torture under the TVPA.