Law 548NPublic International Law Holden Agnew-Pople

Alien Tort Claims Act: A Feasible Means for Holding American Corporations Accountable for Overseas International Law Transgressions? INTRODUCTION Of the top 100 economies in the world, most are transnational corporations (TNCs), not countries.1 And of these TNCs, most are American.2 It follows, then, that American TNCs have a profound influence on humankind, for influence is a concomitant of wealth. The aforementioned information is by no means a revelation to anybody, including those living in the far reaches of civilization. No matter where one is, except North Korea, McDonalds golden arches, Ford trucks, Coca-Cola cans, and Apple devices are ubiquitous. American TNCs, like all TNCs, have thrived as a result of the mid-twentieth-century paradigmatic emergence of neoliberalism. Countries and intergovernmental organizations, such as the World Trade Organization, have worked assiduously to attenuate the role of governments in economic matters and facilitate the international movement of capital, goods, and services. To the dismay of humanitarians, international law has not kept pace with the revolutionary developments in the international marketplace. Criminal law and tort law matters are, for all important purposes, exclusively in countries domains. In other words, there is not an international agent that is capable of imposing liability and remedying damages for transgressions of international law by international actors, such as American TNCs.

ALICE DE JONGE, TRANSNATIONAL CORPORATIONS AND INTERNATIONAL LAW: ACCOUNTABILITY IN THE GLOBAL BUSINESS ENVIRONMENT 1 (2011). A transnational corporation is [a] commercial enterprise that operates substantial facilities, does business in more than one country and does not consider any particular country its national home. Transnational Company, BUSINESSDICTIONARY.COM, http://www.businessdictionary.com/definition/transnational-company.html (last visited Nov. 11, 2013). 2 See Scott DeCarlo, The Worlds Biggest Companies, FORBES (Apr. 8, 2009), http://www.forbes.com/2009/04/08/worlds-largest-companies-business-global-09-global_land.html.

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Sadly, many American TNCs take advantage of the limitations of international laws jurisdictional shortcomings to wreak havoc in undeveloped and developing countries,3 in which most of Earths denizens live. Not long ago, Nike, for example, was exposed for using child labor.4 To use another example, Coca Cola, another ubiquitous American TNC, has been accused of intimidating workers around the world, even hiring . . . paramilitaries to intimidate or kill union leaders.5 The current windfall experienced by American TNCsthat is, having the privilege to do business around the world, but not having accompanying responsibilities in many of themmust end. After all, the United States is the worlds foremost advocate of individual dignity. This begs the question, is it impossible for liability to be imposed on American TNCs for their transgressions abroad? International legal organizations are paper tigers, and Congress is the epitome of inaction (it can hardly pass a budget to support the governments activities! Remember what happened in October!). Fortunately, a little-known section of the United States Code almost as old as the United States itself may provide the solution: the Alien Tort Claims Act (ATCA), 28 U.S.C. 1350. This ATCA provides that [t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.6

Anup Shah, Corporations and Workers Rights, GLOBAL ISSUES (May 28, 2006), http://www.globalissues.org/article/57/corporations-and-workers-rights. 4 Id. 5 Id. 6 Alien Tort Claims Act, 28 U.S.C. 1350 (2012).

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Despite its seeming clarity, the ambit of the ATCA is unclear.7 For example, it is unclear whether the actions of American TNCs in foreign countries that transgress the international human rights of foreign denizens create a cause of action. In this essay, I shall analyze whether the ATCA provides a cause of action for foreign denizens who have had their international human rights violated by American TNCs. My conclusion is that it does. I. BACKGROUND The ATCA was enacted by Congress as far back as 1789.8 Despite this fact, however, it remained virtually dormant until recently,9 and it is for this reasonthat is, its lack of subjection to litigationthat it is described as a kind of legal Lohengrin.10 For instance, the ATCA does not specify the legal nature of jurisdiction granted to the federal courts.11 In the 1980s and 1990s, the federal circuit courts finally traversed through the uncharted territory that was the ATCA and addressed its amorphousness by providing it with somewhat of an ambit. A. The Burgeoning of the ATCA: Filartiga and Marcos In 1980, the Second Circuit was confronted with the issue of whether federal-court jurisdiction existed under the ATCA where the plaintiffs immediate family member, a citizen of Paraguay, was kidnapped and tortured to death in Paraguay by the Asuncion, Paraguay, Inspector
7

See generally Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013); Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004). 8 JERNEJ LETNAR CERNIC, HUMAN RIGHTS LAW AND BUSINESS: CORPORATE RESPONSIBILITY FOR FUNDAMENTAL HUMAN RIGHTS 162 (2010) 9 Id. 10 Id. (quoting IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975)). 11 CERNIC, supra note 8.

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General of Police, who later moved to New York.12 The torture was alleged to have been the result of the deceaseds fathers opposition to Paraguayan President Alfredo Stroessners government (like the deceased, the plaintiffs were also Paraguayan citizens).13 The plaintiffs brought this action in the United States for several reasons. First, they were unable to bring any action to obtain any type of relief in Paraguay, the state in which the crimes occurred. After the deceaseds father commenced a criminal action in the Paraguayan courts against Pena (the Asuncion, Paraguay, Inspector General of Police) for kidnapping and torturing the deceased, his attorney was arrested, tortured, threatened with death, and disbarred.14 Second, one of the plaintiffs and the defendant both happened to move to the United States shortly after the failed criminal prosecution attempt, each having been there on a temporary visitors visa.15 When the deceaseds sister, who was living in Washington, D.C., learned Pena was living in Brooklyn, New York, she had him served with a summons to appear before the United States District Court for the Eastern District of New York and a civil complaint, which stated, among others, the following causes of action: the U.N. Charter, the Universal Declaration on Human Rights, the U.N. Declaration Against Torture, the American Declaration of the Rights and Duties of Man, customary international law of human rights, and international law.16 Jurisdiction was claimed to exist under the Alien Tort Claims Act.17

12 13

Filartiga v. Pena-Irala, 630 F.2d 876, 878-79 (2d Cir. 1980). Id. at 878. 14 Id. 15 Id. 16 Id. at 878-79. 17 Id. at 879.

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The District Court dismissed the complaint, having held jurisdiction was nonexistent.18 The Second Circuit reversed.19 The Second Circuit found that official torture is prohibited by international law and, consequently, constitutes a cause of action under the ATCA.20 Its finding was supported by several factors. First, it looked to the United Nations Charter, which provides in Article 55 that the United Nations shall promote . . . universal respect for, and observance of, human rights and fundamental freedoms for all.21 The United Nations Charter further provides in Article 56 that [a]ll members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55.22 Together, these two articles make[] it clear that in this modern age a states treatment of its own citizens is a matter of international concern.23 The Second Circuit noted that despite the fact there is no universal agreement regarding the precise ambit of the human rights and fundamental freedoms guaranteed by the Charter, no state presently dissents from the view that the phrases guarantees are greater than the right to be free from torture.24 Therefore, it concluded that the right to be free from torture is part of customary international law. The Second Circuit also looked to the Universal Declaration of Human Rights, which states in Article 5 that no one shall be subjected to torture. This prohibition was seen as important to the Second Circuit, because the General Assembly has stated that the Charter precepts embodied in the Universal Declaration of Human Rights constitute basic principles of international law.25 A third authority the Second Circuit
18 19

Id. at 880. Id. at 878. 20 Id. at 880. 21 Id. at 881 (quoting U.N. Charter art. 55). 22 Filartiga, supra note 12, at 881 (quoting U.N. Charter art. 56). 23 Filartiga, supra note 12, at 881. 24 Id. at 882. 25 Id. (quoting G.A. Res. 2625 (XXV) (Oct. 24, 1970)).

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looked to was the Declaration on the Protection of All Persons from Being Subjected to Torture, a United Nations General Assembly resolution which expressly prohibits any state from permitting torture.26 This Declaration, like the Universal Declaration of Human Rights, was adopted without dissent by the United Nations General Assembly.27 In 1994, the Ninth Circuit followed the Second Circuits example by i) having held federal-court jurisdiction existed to adjudicate Philippine citizens claims against former Philippine President Ferdinand Marcos, who moved to the United States in 1986, for international law violations in which he engaged28 and ii) having held the former had a cause of action against the latter.29 During Ferdinand Marcoss presidency (1965-1986) in the Philippines, it is alleged that he was responsible for the torture, summary execution, or disappearance of tens of thousands of people.30 To attempt to avoid the repercussions of his actions, he and his family fled to Hawaii in February 1986.31 To his dismay, one month after he moved to Hawaii, a large number of lawsuits were filed against him in American federal courts by the people and families of people who were negatively affected by his aforementioned ruthless actions.32 The Judicial Panel on Multi-District Litigation consolidated all these cases in the United States District Court for the District of Hawaii on September 5, 1990.33

26 27

Filartiga, supra note 12, at 882-83. Id. at 883. 28 In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1474 (9th Cir. 1994). 29 Id. at 1476. 30 Id. at 1469. 31 Id. 32 Id. 33 Id.

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Marcoss Estate tried to have the lawsuits dismissed by arguing, among other things, subject matter jurisdiction was lacking under the ATCA34 and a cause of action under the ATCA was lacking.35 The Ninth Circuit disagreed with both theories.36 Regarding the former, the Ninth Circuit held that torture, summary execution, and disappearance committed by a president and his military officials, all of which are prohibited by international law, are within the jurisdictional grant of the ATCA.37 First, the Ninth Circuit disagreed with the Estate that the ATCA is purely a jurisdictional statute,38 which is significant, because a jurisdictional statute alone does not confer jurisdiction on the federal courts. Rather, the rights of the parties must stand or fall on federal substantive law to pass constitutional muster.39 The Ninth Circuit held the ATCA also provides for federal substantive law to govern disputes under it, because international law, a violation of which the ATCA allows the federal district courts to have original jurisdiction for related torts brought by an alien, is part of federal common law.40 Second, the Ninth Circuit disagreed that the assertion of federal jurisdiction over an action between aliens regarding injuries occurring in a foreign nation violates Article III of the Constitution.41 The Ninth Circuit stated there is ample indication the Arising Under Clause of Article III of the Constitution is meant to apply to all cases involving foreigners.42 Regarding the latter, the Ninth Circuit held that the ATCA creates a cause of action for violations of specific, universal and obligatory international human rights standards which

34 35

Id. at 1473. Id. at 1474. 36 Id. at 1474-76. 37 Id. at 1474. 38 Id. at 1473. 39 Id. 40 Id. 41 Id. at 1474. 42 Id.

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confer [ ] fundamental rights upon all people vis--vis their own governments,43 and the allegations before it satisfied the specific, universal and obligatory standard.44 The allegations of torture meet this standard, because official torture violates jus cogens.45 As to summary execution and causing disappearance, the Ninth Circuit made the conclusory statement that the prohibition against them is similarly universal, definable, and obligatory.46 What did Filartiga and Marcos teach us about the ATCAs scope? The holdings of these cases stated that the ATCA is not merely a jurisdictional statute; it also provides a cause of action for those wishing to file an action under it. Marcos, however, provided a narrower cause of action than Filartiga. While Filartiga appeared to hold that an alien plaintiff has a cause of action under the ATCA as long as that alien has been affected by a violation of international law, Marcos required that there be the violation of a specific, universal, and obligatory international human right in order for an alien plaintiff to have a cause of action under the ATCA. The holdings of these cases also provided that federal district courts have jurisdiction even where both parties were foreigners. These cases, then, construed the ATCA has having a large ambit. A decade after Marcos was decided, the United States Supreme Court affirmed the Second and Ninth Circuits construal of the ATCAs ambit in Sosa. B: An Affirmation of Filartiga and Marcos: Sosa The genesis of Sosa v. Alvarez-Machain was a kidnapping that occurred in 1985.47 An agent of the Drug Enforcement Administration (DEA) was on an assignment in Mexico, where

43 44

Id. at 1475 (quoting Filartiga, supra note 12, at 884-85) (alteration in original)). Marcos, supra note 28, at 1475. 45 Id. 46 Id. 47 Sosa, supra note 7, at 2746.

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he was captured, tortured, and murdered.48 DEA officials came to believe Humberto AlvarezMachain was responsible for those gruesome acts, which led to his having been indicted and the United States District Court for the Central District of California having issued a warrant for his arrest.49 To the chagrin of DEA officials, however, the Mexican government would not extradite him.50 Consequently, the DEA hired Mexican nationals to abduct him and bring him by private plane to the United States, where he was arrested.51 Alvarez-Machain ended up getting acquitted, and he returned to Mexico in 1993.52 There, he filed a civil action against Jose Francisco Sosa, one of the Mexican nationals the DEA hired to abduct him and bring him to the United States, and the DEA.53 He alleged that his abduction by Sosa was a violation of international law and, consequently, he was able to recover damages under the ATCA.54 Both the district court and the Ninth Circuit agreed he was correct that he was entitled to damages under the ATCA.55 The United States Supreme Court, which granted certiorari to clarify the ambit of the ATCA, reversed.56 Unlike the Second and Ninth Circuits, the Court held the ATCA is a jurisdictional statute.57 This is significant, because, as the Ninth Circuit acknowledged in Marcos,58 a jurisdictional statute alone does not confer jurisdiction on the federal courts; federal substantive law is needed to complement it. One reason the Court reached this holding is because the ATCA

48 49

Id. Id. 50 Id. 51 Id. 52 Id. at 2746-2747. 53 Id. at 2747. 54 Id. 55 Id. 56 Id. 57 Id. at 2754. 58 Marcos, supra note 28, at 1473.

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was placed in Section 9 of the Judiciary Act, which, the Court noted, is a statute concerning federal-court jurisdiction.59 Another reason the Court reached this holding is because an authority on the historical origins of the ATCA stated it does not create a statutory cause of action.60 Despite the fact the Court held the ATCA is a jurisdictional statute, it held its enactment nevertheless enabled federal courts to adjudicate claims resulting from a very limited category of international law violations.61 Alvarez-Machains claim was outside the ambit of this very limited category of international law violations federal courts have been enabled to adjudicate, however,62 which is why it reversed the Ninth Circuits judgment. How is it that the federal courts are able to adjudicate any claims under the ATCA if it is purely a jurisdictional statute? One line of the Courts reasoning is that federal courts were able to adjudicate some international law claims brought by alien plaintiffs once the ATCA was enacted because torts in violation of international law during the late eighteenth century would have been recognized within the common law of that era.63 Therefore, substantive law was not needed to complement it to provide causes of action under it. Another line of the Courts reasoning is that Congress was anxious to provide the nations federal courts with the ability to redress injuries to foreign dignitaries and interests performed on American soil, which it was previously unable to do.64 A third line of the Courts reasoning is that General William Bradford, the Attorney General of the United States in 1795, stated that Americans who took part in a

59 60

Sosa, supra note 47, at 2755. Id. 61 Id. at 2754. 62 Id. 63 Id. at 2755. 64 Id. at 2758. For more information on this point, see infra pp. 11-12.

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French plunder of a British slave colony in Sierra Leone could be sued in federal court under the ATCA.65 The question then necessarily became, what torts in violation of international law were recognized within the common law during the late eighteenth century? The Court answered that in the late eighteenth century, international law comprised three principal areas.66 The first concerned how states are to interact with one another.67 The second concerned the rules governing human conduct outside state boundaries.68 A prime example of a component within this area of international law is admiralty law. The third was a hybrid of the former two, that is, i) it controlled state and individual behavior and ii) was effective both inside and outside states boundaries.69 Specifically, it addressed violation of safe conducts, infringement of the rights of ambassadors, and piracy.70 According to the Court, the drafters of the ATCA probably had in mind the third area of international law when they enacted it.71 Congress was concerned, the Court stated, that without a national remedy for violations of this area of international law an all-out war would be the likely result of such an issue one day.72 In May 1784, for example, the French were indignant after the Secretary of the French Legion was physically assaulted by a French adventurer but nothing was done to redress him, because there was no legislation in place to address a tort between two foreigners.73 Congress therefore responded, the Court deduced, by i) vesting the

65 66

Id. at 2761. Id. at 2755-56. 67 Id. at 2756. 68 Id. 69 Id. 70 Id. 71 Id. 72 Id. 73 See id. at 2757.

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Court with original jurisdiction over all cases involving ambassadors, other public ministers, and consuls, and ii) enacting the Judiciary Act, which reinforced the Courts original jurisdiction over suits brought by diplomats, created alienage jurisdiction, and the statute at issue, the ATCA.74 Contentious issues involving foreign countries could finally be redressed in a courtroom, which lessened the concern that the sword, so to speak, would be the solution. Having reached the conclusion that the drafters of the ATCA probably had in mind the third area of international lawviolation of safe conducts, infringement of the rights of ambassadors, and piracywhen they enacted the ATCA, the Court was able to address the big question: Precisely what claims are actionable under the ATCA? Its answer: [W]e think courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.75 The Court articulated a series of reasons why only a restrictive group of causes of action should be recognized under the ATCA. First, the prevailing conception of the common law, through which international law has a degree of force within the United States,76 has been modified in a manner that limits its reach regarding internationally-generated norms.77 It is no longer seen as a transcendental body of law binding on all states unless a statute is passed that states otherwise.78 Rather, it is seen as something that is created to address a specific problem after much thought has been given to the issue and the repercussions have been considered.79

74 75

Id. Id. at 2761-62. 76 Id. at 2755. 77 Id. at 2762. 78 Id. 79 See id.

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Second, in contrast to the early days of the United States, there is no longer a federal general common law.80 That said, while the Court has assumed it has the ability to create innovative authority over substantive law regarding particularly important foreign relations issues, it is customary for the Court to seek congressional guidance prior to doing so.81 Third, the Court opined a decision to create a private right of action is one better left to legislative judgment in most cases.82 This is because the creation of a private cause of action often has collateral consequences.83 For example, the creation of a civil cause of action for a trivial criminal matter would interfere with the check of prosecutorial discretion. Fourth, the potential implications the ATCA could have for the United Statess foreign relations support there being a high bar to new private causes of action for violating international law under the statute.84 It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens.85 The legislative branch, which is responsible for policy decisions and has adequate resources to analyze the costs and benefits of such decisions, should therefore be left to deal with these consequential decisions, the Court stated.86 Fifth, the Court has no congressional mandate to seek out and define new and debatable violations of the law of nations.87 In light of the first four factors, this factor, the Court stated,

80 81

Id. Id. 82 Id. at 2762-63. 83 Id. at 2763. 84 Id. 85 Id. 86 Id. 87 Id.

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militates in favor of judicial caution when considering the breadth of private rights claims that may be brought under the ATCA.88 After reading the aforementioned five reasons the Court articulated to support its holding that only a small number of international law violations in addition to violation of safe conducts, infringement of the rights of ambassadors, and piracy should be actionable under the ATCA, one wonders, why allow for any expansion? One reason, according to the Court, is that the United States has recognized international law since it became a state.89 Second, international disputes implicating the United Statess foreign relations is one of the select areas in which federal common law still exists.90 Taking these two factors into account, the Court noted that [i]t would take some explaining to say now that federal courts must avert their gaze entirely from any international norm intended to protect individuals.91 Third, the issue as to what international norms are l[ies] at the intersection of the judicial and legislative powers.92 As mentioned earlier, Alvarez-Machains claimarbitrary detentiondid not meet the Courts criteria for an actionable claim under the ATCA, as the international law violation he claimed injured him is not defined with a specificity comparable to the features of the eighteenth-century paradigms the drafters of the ATCA had in mind.93 Why? He could not support his proposition using any sources of international law that have long been recognized by the Court as authoritative: treaties; controlling executive/legislative/judicial decisions in the United States; the customs and usages of civilized nations; and the works of jurists and

88 89

Id. Id. at 2764. 90 Id. 91 Id. at 2764-65. 92 Id. at 2765. 93 See supra p. 10.

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commentators, which evidence the immediately-prior two.94 Instead, his proposed general prohibition of arbitrary detentions would have had breathtaking implications, as [h]is rule would support a cause of action in any federal court for any arrest, anywhere in the world, authorized by the law of the jurisdiction in which it took place, and would create a cause of action for any seizure of an alien in violation of the Fourth Amendment.95 Whoa! If he were to have been able to prevail on this claim, the Court would have compromised the spirit of the reasons it articulated for not creating causes of action under the ATCA that lack specificity comparable to international laws proscriptions of violating safe conducts, infringing the rights of ambassadors, and piracy: to not go beyond residual federal common law discretion and to not disaffect foreign states. Sosa is still good law, but it was significantly qualified by Kiobel. C. A Significant Qualification of Sosa: Kiobel Kiobel provided the Court with an opportunity to qualify federal courts jurisdiction over ATCA claims. In contrast to Sosa, where the DEA, an American entity, was alleged to have violated an international right belonging to the alien plaintiff, the defendants in Kiobel were not American entities. They were Dutch, British, and Nigerian.96 The alien plaintiffs, a group of Nigerian nationals who were residing in the United States, filed a civil action under the ATCA against Dutch, British, and Nigerian corporationsspecifically, Royal Dutch Petroleum Company, Shell Transport and Trading Company, and Shell Petroleum Development Company of Nigeria, a joint subsidiary of the former two which was incorporated in Nigeriafor, they alleged, aiding and abetting the Nigerian government commit violations of international law in
94 95

Sosa, supra note 47, at 2766-67. Id. at 2768. 96 Kiobel, supra note 7, at 1662.

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Nigeria against Nigerian citizens.97 The issue for the Court, then, was whether foreign corporations could be sued for breaches of international law they committed in a foreign state.98 The Court began its analysis by explaining that there is a presumption against extraterritorial application of American statutes.99 Pursuant to this canon of interpretation, if a statute does not clearly indicate it may be applied extraterritorially, it cannot.100 The presumption against extraterritoriality exists to prevent conflicts between American and foreign laws, which would likely result in tension in the United Statess foreign relations.101 The principles underlying the presumption against extraterritorial application, the Court held, constrain federal courts in their application of the ATCA.102 As the Court stressed in Sosa, the ATCA could have severe collateral consequences, against which the presumption against extraterritorial application is meant to guard.103 The Court disagreed with the alien plaintiffs that the presumption against extraterritorial application could be rebutted by the ATCAs text, history, and purposes.104 To rebut the presumption, the alien plaintiffs would have had to have demonstrated that the ATCA evinces a clear indication of extraterritoriality.105 The Court found that the text did not evince any indication of extraterritoriality.106 Although the ATCA covers actions by aliens for violations of international law, that does not

97 98

Id. Id. 99 Id. at 1664. 100 Id. 101 Id. 102 Id. 103 Id. 104 Id. at 1669. 105 Id. at 1665. 106 Id.

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imply extraterritorial reach, as international law violations affecting aliens can occur inside the United States.107 Next, the Court found that the historical background against which the ATCA was enacted is incapable of overcoming the presumption against extraterritorial application.108 First, the Court reached this conclusion by having referenced its finding in Sosa that the three principle international law violations the drafters of the ATCA had in mind were violation of safe conducts, infringement of the rights of ambassadors, and piracy.109 The Court found the fact that the drafters of the ATCA had those three international law violations in mind significant, because the first two have no necessary extraterritorial application.110 Indeed, Blackstone, an international law scholar who wrote prolifically about these international law issues, described them in terms of conduct occurring within the forum state.111 The Court also reached its conclusion that the historical background against which the ATCA was enacted is incapable of overcoming the presumption against extraterritorial application because the ATCA was passed shortly after two notorious events that involved the violation of international law occurred in the United States.112 In 1784, a fellow Frenchman verbally and physically assaulted the Secretary of the French Legion in Philadelphia.113 There was no legislation in place at the time to redress the latters injuries, which led the French Minister Plenipotentiary to formally protest this fact to Congress and threaten to leave the United

107 108

Id. Id. 109 Id. 110 Id. 111 Id. 112 Id. 113 Id.

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States.114 The other event occurred in 1787, when a New York constable entered the Dutch ambassadors home to arrest one of his domestic servants.115 Once again, the aggrieved foreign dignitary had no means of redress, which embarrassed American politicians.116 According to the Court, those events provide no support for the argument Congress meant for the ACTA to have extraterritorial application.117 As to the fact the drafters of the ATCA also had in mind piracy, the Court found that applying American law to pirates does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences.118 Continued the Court: Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.119 Finally, the Court held that the purposes of the ATCA do not evince a clear indication of extraterritoriality.120 In the words of the Court, there is no indication that the [ATCA] was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.121 The Court then went on to reiterate that [t]he United was, however, embarrassed by its potential inability to provide judicial relief to foreign officials injured in the

114 115

Id. Id. 116 Id. at 1666-67. 117 Id. at 1667. 118 Id. 119 Id. 120 Id. at 1668. 121 Id.

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United States.122 Consequently, the Court inferred that the main purpose of the ATCA was to ensure that the United States could redress such incidents.123 Going back to the alien plaintiffs claim, it was denied.124 The Court found that all the relevant conduct took place outside the United States.125 It was immaterial that Royal Dutch Petroleum Company and Shell Transport and Trading Company have subsidiaries in the United States, as even where claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.126 The fact that a corporation has a mere presence in a country does not constitute sufficient force, because [c]orporations are present in many countries, and it would reach too far to say that mere corporate presence suffices.127 What Chief Justice Robertss majority opinion said, then, was, Hasta la vista, Filartiga and Marcos! Recall that in each of those cases it was assumed the ATCA does apply to at least certain international law violations that occur outside the United States. Be Chief Justice Robertss opinion as it may, Kiobel did not K.O. Filartiga and Marcos. How is that? My answer: Justice Kennedys concurring opinion + Justice Breyers opinion concurring in the judgment says so. In Kennedys concurring opinion, he stated it was proper for Chief Justice Robertss majority opinion to have left the door open, so to speak, for another day to define more precisely what constitutes sufficient force to displace the presumption against extraterritorial
122 123

Id. Id. 124 Id. at 1669. 125 Id. 126 Id. 127 Id.

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application.128 This is because, he stated, there may be future cases before the Court where the conduct at issue occurred in a foreign country but where the conduct does have a sufficient force to displace the presumption against extraterritorial application.129 As for Justice Breyers opinion, he concurred with Chief Justice Robertss majority conclusion, but he disagreed with his reasoning.130 He was joined by Justices Ginsburg, Sotomayor, and Kagan.131 He disagreed with Chief Justice Robertss majority opinions reasoning, because he does not believe the presumption against extraterritoriality should have been invoked.132 Rather, he would find jurisdiction under the ATCA where i) the alleged tort occurs within the United States, ii) the defendant is an American national, or iii) the defendants conduct substantially and adversely affects an important American national interest, which includes a direct interest in preventing the United States from becoming a safe harbor for a torturer or other common enemy of mankind, and, in addition to one of those three requirements being satisfied, the requirements that were set forth in Sosa are satisfied, that is, that the international law violation consists of a violation of safe conducts, an infringement of the rights of ambassadors, piracy, or a present-day international law violation that is based on a norm accepted by the civilized world and defined with a specificity comparable to the features of one of the former three.133 In other words, he opined that international law violations that occur outside the United States may give rise to a cause of action under the ATCA so long as distinct American interests are at issue.

128 129

Id. (Kennedy, J., concurring). Id. 130 Id. at 1670 (Breyer, J., concurring in judgment). 131 Id. 132 Id. at 1671. 133 Id.

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Piracy in particular is an international law violation that Justice Breyer says is a cause of action under the ATCA, regardless of where it occurs.134 Todays pirates, Justice Breyer wrote, certainly include torturers and perpetrators of genocide, [a]nd today, like the pirates of old, they are fair game where they are found.135 This is because, he explained, they are common enemies of the world over and, consequently, all countries have an equal interest in their apprehension and punishment.136 In the case at hand, however, as Justice Breyer explained, there were no distinct American interests at issue.137 Neither of the parties were American, the conduct took place abroad, and it is not alleged that the defendants themselves engaged in acts or torture, genocide, or the equivalent.138 II. ARGUMENT ATCA jurisprudence makes it clear that the following is required to successfully bring a claim under the statute: i) the underlying action must have occurred within the United States or, if not, must touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application, and ii) the claim must be based on a violation of safe conduct, an infringement of the right of an ambassador, piracy, or a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [the United States Supreme Court has] recognized. Whether foreign denizens may avail themselves of the ATCA to redress harm that has resulted to them from international law violations by American TNCs in their countries, then, will depend
134 135

Id. Id. at 1672. 136 Id. 137 Id. at 1678. 138 Id.

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on whether such a claim of this class is able to comply with the aforementioned ATCA jurisprudence. Part A: Does the ATCA Provide Jurisdiction for Foreign Denizens Against American TNCs that Have Infringed Their Human Rights? It is certainly uncontroversial to state that the release of the United States Supreme Courts majority opinion in Kiobel earlier this year was a blow to foreign denizens wishing to avail themselves of the ATCA to redress harm that has resulted to them from international law violations. This is because one was able to safely infer from Filatiga, Marcos, and Sosa that the ATCA may be applied extraterritorially. In Filartiga and Marcos, for example, neither the parties nor the locale where the international law violations occurred were American, but that did not preclude a favorable ruling for the alien plaintiffs in Filartiga from the Second Circuit or the Second Circuit to consider the merits of the alien plaintiffs claims in Marcos, and in Sosa, where the locale at which the alleged international law violation was Mexico, the Supreme Court did not hesitate to consider the merits of the claim. Kiobel, however, got rid of the inference that the ATCA may be applied extraterritorially. It did so by having held i) the presumption against extraterritoriality applies to claims brought under the ATCA, ii) nothing in the statute rebuts that presumption. To some, it looks like Kiobel put any hope of foreigners claims against American TNCs resulting from international law violations that occurred abroad down for the count, so to speak. My perspective, however, is, to use another idiom, that Kiobels bark is a lot worse than its bite. I say so for three reasons. First, I do not believe Chief Justice Robertss majority opinions reasoning in Kiobel would apply to a claim where a foreign denizen brings a claim against an American TNC for the latter having harmed the former by having violated an international law
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abroad. Second, I believe that Justice Kennedys concurring opinion and Justice Breyers opinion concurring in the judgment together would allow for a claim where a foreign denizen brings a claim against an American TNC for the latter having harmed the former by having violated an international law abroad. Third, I believe that there is a good argument that Chief Justice Robertss majority opinion should be overruled. 1. Chief Justice Robertss Majority Opinions Reasoning Would Not Apply If a foreign denizen were to bring a claim under the ATCA against an American TNC for the latter having harmed the former by having violated an international law abroad, I do not believe Chief Justice Robertss majority opinions reasoning would apply. I hold this belief for two reasons. First, the concerns Chief Justice Roberts had concerning the ATCA if it were extraterritorial would be inexistent in such a situation. Second, Chief Justice Robertss opinion provided a significant exception to the presumption that the ATCA is not extraterritorial, that is, if a claim brought under the ATCA, despite the underlying action having occurred outside the United States, touches and concerns the United States with sufficient force to displace the presumption against extraterritoriality. A judicial opinions literal holding is not as important as the reasoning behind it. That said, it is not important when reading Kiobel to know what the holding is. Rather, what is important is to know why the presumption against extraterritorial application was applied by Chief Justice Robertss opinion to the ATCA. As Chief Justice Roberts explained, the presumption against extraterritoriality is meant to protect against unintended clashes between our laws and those of other nations which could result in international discord.139 Therefore,

139

Id. at 1664 (majority opinion).

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having held the danger of adverse foreign policy consequences is magnified under the ATCA compared to other statutes, he applied it to the ATCA.140 While facts analogous to those in Kiobel would certainly cause rifts between the United States and other states if the Court were to allow such cases to be litigated, the same dangers would not be present in a case where a foreign denizen brings a claim against an American TNC for the latter having harmed the former by having violated an international law abroad. In fact, the opposite would prove to be true, that is, if such a case were successfully litigated by a foreign denizen, the relation between the United States and the formers country would be enhanced. Go to the undeveloped world, such as an African country, and ask, Does the United States consider your countrys interests? The response will be overwhelmingly negative.141 This is not surprising. One reason in particular is that, according to Nigerian journalist Sundoy Dare, American TNCs are viewed as economic predators in Africa, violating Africans rights under international law to maximize their gains.142 Moreover, African states are, for the most part, incapable of defending their citizens against such international law violations.143 Why? Lacking the technological capacity to harness massive reserves of fold, diamonds, and cobalt [African leaders] grant licenses to foreign corporations to operate in their domain, and then appropriate the resulting revenue to maintain themselves in power.144 Therefore, when an African state is caught between protecting a vital source of revenue, and defending the rights and privileges of

140 141

Id. at 1664-65. See Americas Global Image Remains More Positive than Chinas, PEW RESEARCH CENTER (July 18, 2013), http://www.pewglobal.org/2013/07/18/americas-global-image-remains-more-positive-than-chinas/. 142 See Sundoy Dare, A Continent in Crisis, Africa and Globalization, THIRD WORLD TRAVELER , http://www.thirdworldtraveler.com/Africa/Continent_Crisis.html (last visited Dec. 15, 2013). 143 Id. 144 Id.

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its citizens, the state, in order to ensure an ongoing flow of revenue, sides with the TNCs against the citizens.145 Another reason, in addition to enhancing the relation between the United States and other countries, the dangers normally inherent in the extraterritorial application of an American statute would not be present by extraterritorially applying the ATCA to American TNC international law violations abroad affecting foreign denizens is that it is standard for states to exercise jurisdiction over conduct committed by their nationals in foreign states.146 Indeed, the amicus brief the European Commission submitted to the United States Supreme Court regarding Kiobel stated that, consistent with international law, it is uncontroversial that the United States may exercise jurisdiction over ATCA claims involving conduct by its own nationals in foreign states.147 Therefore, if the United States were to exercise jurisdiction over ATCA claims involving international law violations by American TNCs harming foreign denizens in foreign states, there would not be a resulting rift between the United States and other states: the United States would simply be acting in accordance with an international custom. The Restatement (Third) of the Foreign Relations Law of the United States, which consists of . . . international law as it applied to the United States,148 supports my argument in the above paragraph. Section 402 states that a state may apply its law, among other areas, to the activities, interests, status, or relations of its nationals outside its territory or to conduct outside its territory that has or is intended to have substantial effect within its territory.149 Why does this source matter? Because the Court treated it as an authority as to whether a principle of
145 146

Id. Kiobel, supra note 7, at 1675 (Breyer, J., concurring in judgment) 147 Id. at 1676. 148 Restatement (Third) of Foreign Relations Law Intro. (1987). 149 Id. at 402.

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international law rests on a norm of international character accepted by the civilized world and is defined with a specificity comparable to the features of the eighteenth-century paradigms the Court has recognized.150 In addition to the fact Chief Justice Robertss concerns regarding the extraterritorial application of the ATCA would be inexistent if it were applied extraterritorially to redress the harm to foreign denizens caused by international law violations by American TNCs abroad, his majority opinions reading would also not apply to the aforementioned situation because his opinion provided a significant exception to the presumption that the ATCA is not extraterritorial. If a claim brought under the ATCA, despite the underlying action having occurred outside the United States, touches and concerns the United States with sufficient force, the presumption against extraterritoriality may be displaced. Chief Justice Robertss majority opinion left open for another day the determination of what conduct adequately touches and concerns the United States with sufficient force to displace the presumption against extraterritoriality that applies to the ATCA. There is no case law that gives meaning to that phrase, but it seems certain an American TNCs conduct in foreign countries would satisfy this condition and, consequently, remove the presumption against extraterritorial application as applied to this scenario. Unlike the defendants in Kiobel, which merely had a corporate presence in the United States,151 American TNCs are incorporated in the United States. Therefore, it is in the United States where the policy decisions are made that affect, among others, those harmed in foreign countries by international law violations. Because Americans are directly responsible for such
150 151

Sosa, supra note 7, at 2768-69. Kiobel, supra note 7, at 1669 (majority opinion).

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actions, then, the underlying action of this class of ATCA claim touches and concerns the United States with great force and likely displaces the presumption against extraterritorial application. Additionally, American TNCs are subject to in personam jurisdiction in their respective states of incorporation.152 This provides another strong argument why the underlying action of ATCA claims brought against American TNCs for the harm foreign denizens from international law violations committed by the former should be construed as touching and concerning the territory of the United States with sufficient force to displace the presumption against extraterritorial application. It is axiomatic that if a party is subject to in personam jurisdiction in a state, it is neither unfair nor inconvenient to require it to defend an action there, including ones that arise in foreign forums. 2. Justice Kennedys Concurring Opinion and Justice Breyers Opinion Concurring in the Judgment Would Allow It Both Justice Kennedys concurring opinion and Justice Breyers opinion concurring in the judgmentin which Justices Ginsburg. Sotomayor, Kagan joinedimply it would be permissible for a foreign denizen to bring a claim under the ATCA against an American TNC for the latter having harmed the former by having violated an international law abroad. This is important, because the two opinions added together consist of a majority of the Courts justices. In his concurring opinion, Justice Kennedy stated Justice Robertss majority opinion properly left open a number of significant questions regarding the reach and interpretation of the [ATCA].153 This is because there may be future cases not covered by Justice Robertss majority opinion where the presumption against extraterritorial application may need to be made
152

See generally International Shoe Co. v. Washington, 326 U.S. 310 (1945) (holding there are instances in which the continuous corporate operations within a state are so substantial and of such a nature to justify actions against it there for actions in which the defendant engaged elsewhere). 153 Kiobel, supra note 7, at 1669 (Kennedy, J., concurring).

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inapplicable.154 What kinds of cases did he have in mind? [H]uman rights abuses committed abroad.155 In his opinion concurring in the judgment, Justice Breyer stated he would not invoke the presumption against extraterritoriality.156 Instead, he would find jurisdiction under the ATCA where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendants conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a harbor (free of civil as well as criminal liability for a torturer or other common enemy of mankind.157 This is certainly inclusive of a situation where a foreign denizen brings a claim under the ATCA against an American TNC for the latter having harmed the former by having violated an international law abroad. If nothing else, the second category of Justice Breyers test would be met, for the defendant, an American TNC, would be an American national. Because Justice Breyers opinion is broader than Justice Kennedys opinion in that Justice Breyer would not invoke the presumption against extraterritoriality, and Justice Kennedys opinion would impliedly permit a foreign denizen to bring a claim under the ATCA against an American TNC for the latter having harmed the former by having violated an international law abroad, the two opinions, which together consist of a majority of the Courts justices, would arguably allow just that to happen. 3. It is Arguable Kiobel Should be Overturned

154 155

See id. Id. 156 Id. at 1671 (Breyer, J., concurring in judgment). 157 Id.

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I believe there are strong arguments that Kiobel should be overturned. One, there is a strong argument that Chief Justice Robertss majority opinion is based on fallacious reasoning. Second, the opinion is contrary to precedent. Regarding the former, the statutory background against which the ATCA was enacted does appear to rebut the presumption against extraterritoriality as it applies to it. This is because at least one of the three kinds of activities that the Court held the framers of the ATCA had in mind when they enacted it158that is, piracynormally takes place abroad. Chief Justice Robertss majority opinion emphasized that piracy occurs on the high seas.159 But, as Justice Breyer noted, that does not mitigate the foreign nature of the crime.160 That is because the robbery and murder that make up piracy do not normally take place in the water; they take place on a ship. And the ship is just like land, in that it falls within the jurisdiction of the nation whose flag it flies.161 Indeed, in the early 19th century Chief Justice Marshall described piracy as an offenc[e] against the nation under whose flag the vessel sails, and within whose jurisdiction all on board the vessel are.162 Chief Justice Robertss majority opinion also attempted to downplay the foreign nature of piracy by stating that [a]pplying U.S. law to pirates . . . does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign and therefore carries less foreign policy consequences.163 However, as Justice Breyer noted, applying American law to pirates does typically involve applying American law to acts

158 159

Sosa, supra note 7, at 2761. Kiobel, supra note 7, at 1667 (majority opinion). 160 Id. at 1672 (Breyer, J., concurring in judgment). 161 Id. 162 Id. (quoting United States v. Palmer, 3 Wheat. 610, 632 (1818) (alteration in original)). 163 Kiobel, supra note 7, at 1672 (Breyer, J., concurring in judgment).

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that take place in a foreign state.164 Chief Justice Robertss use of the words territorial jurisdiction, Breyer persuasively argued, does not sensibly distinguish land from sea for purposes of isolating adverse foreign policy risks, as the Barbary Pirates, the War of 1812, the sinking of the Lusitania, and the Lockerbie bombing all make all too clear.165 Taking into account the information that is contained in the above three paragraphs, Chief Justice Robertss majority opinions reasoning does not support applying the presumption against extraterritorial application. Rather, the opposite is true, that is, the fact that the framers of the ATCA had, among other things, piracy in mind when they enacted it rebuts the presumption against extraterritorial application. In addition to Chief Justice John Robertss majority opinion being based on fallacious reasoning, it is also contrary to precedent. In Filartiga and Marcos, the Ninth and Second Circuits, respectively, applied the ATCA extraterritorially.166 In each case, the parties on both sides were foreign denizens and the underlying actions took place in a foreign country. 167 Nevertheless, jurisdiction was deemed proper in each case.168 The Court, in turn, referred to both cases with approval in Sosa.169 Kiobel, then, is in contrast to Filartiga, Marcos, and Sosa. Part B: Would American TNCs Violations of International Law that Harm Foreign Denizens Be Actionable Under the ATCA? An alien plaintiff only has a cause of action under the ATCA if it is based on a violation of safe conduct, an infringement of the right of an ambassador, piracy, or a norm of international character accepted by the civilized world and defined with a specificity comparable
164 165

Id. Id. 166 See supra pp. 3-8. 167 Id. 168 Id. 169 Sosa, supra note 7, at 2739.

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to the features of the 18th-century paradigms [the United States Supreme Court has] recognized.170 The question, then, is necessarily, would an American TNCs violation of international law that harms a foreign denizen constitute a violation of safe conduct, an infringement of the right of an ambassador, piracy, or a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18thcentury paradigms [the United States Supreme Court has] recognized. The answer is, it depends. More satisfactory of an answer is that there are at least some international law violations that could result in a proper ATCA action. I shall not articulate all of them here, as it is not the purpose of this essay to adumbrate every conceivable situation for which an ATCA action would be proper. Rather, as I explained in the introduction, the purpose is to determine whether it is possible in any circumstance for an American TNCs violation of international law to be actionable under the ATCA. Assuming the conduct occurred on U.S. territory or, more likely, the conduct occurred in a foreign country and what I argued in Part A is truethat is, that the ATCA applies extraterritorially if the defendant is an American TNCthe answer is affirmative. If an American TNC were to commit torture abroad, for example, the victims could properly file an action against it under the ATCA. This is because the global proscription of torture rests on a norm of international character accepted by the civilized world and defined with specificity comparable to the eighteenth-century paradigms that have been recognized.171 III. CONCLUSION

170 171

Id. at 2761-62. See supra pp. 3-8.

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I believe that the ATCA is able to provide a cause of action for foreign denizens who have had their international human rights violated by American TNCs. This is because I believe it would properly be applied extraterritorially in such circumstances and there are at least some international law violations that, if committed by an American TNC against a foreign denizen abroad, could result in a proper ATCA action. Whether a particular international law violation by an American TNC against a foreign denizen abroad is actionable under the ATCA will depend on whether the violation at issue is based on a violation of safe conduct, an infringement or the right of an ambassador, or a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the aforementioned paradigms. There is hope, then, that American TNCs can be held accountable for their particularly egregious actions overseas.

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