Defenses to ATS

The possible defenses that can be raised against an ATS claim include the classic federal defenses, for example, lack of subject matter jurisdiction, lack of venue, forum non conviniens, collateral estoppel, res judicata, etc.

Each of these has their own strengths and weaknesses. However, the strongest defense is probably lack of subject matter jurisdiction. Since the inception of the Alien Tort Statute, courts have been loath to greatly expand the areas of law that are in violation of international norms. As mentioned in a previous post, slavery, piracy and attacking a diplomat were the original international norms. Today we can include genocide and torture as violations of international norm. Besides these five areas, most other violations are still up in the air as to applicability. Most cases that go in front of a judge on an ATS claim are dismissed by the judge as failure to state a claim.

If that doesn't work, the defendant could always try forum non convineins or lack of venue. These can be very powerful tools as long as the "violations" took place in a country which has stable laws or could conceivably protect the interest of the plaintiff in a civil suit. Collateral estoppel and res judicata will only work if the same issues have been raised in a prior lawsuit. If for claim proceeds past the initial steps of the lawsuit the plaintiff will still have to prove that the defendant knew or should have known about the violation and that the defendant could stop or have prevented the violation. These are all difficult burdens for the plaintiff to meet.

At the moment the defendant is in a stronger position regarding ATS claims than the plaintiff, however, that may change in the future.

ATCA under attack

Numerous business groups have recently attacked the validity and scope of the Alien Tort Statute. Alien victims have sued multinational corporations for complicity in human rights violations, including torture, extrajudicial killing, forced labor, and genocide. The National Foreign Trade Council (NFTC) and the International Chamber of Commerce (ICC) are seeking to repeal or limit the law by restricting who can access the alien tort statute or what type of claims can pass judicial scrutiny (this may not be much of an issue as many ATS cases are dismissed during initial pleadings and court stages). Cases like Doe v. Unocal are currently the minority.

In The Presbyterian Church of Sudan v. Talisman Energy, villagers and the Church are suing Talisman for its participation in the Sudanese Government's ethnic cleansing of Christian and other non-Muslim minorities in southern Sudan. The villages were destroyed shortly after a government decision to go forward with the forced moving/killing.

The NFTC has announced it will lobby Congress to have ATCA weakened to ensure that companies cannot be held liable. The NFTC is attempting to get Congress to significantly curtail the powers of the ATS with the help of sister organizations and groups who want to protect the interest of business groups in the United States. The groups hope to shield business from accountability for actions either they or their subsidies take while conducing business. While there is nothing inherently wrong with desiring to protect ones interest, the Alien Tort Statute is a powerful tool that is just being used and to curtain its power at this point could prove disastrous for the future claims. At the moment the interest of the corporations are being largely protected by the courts as they struggle to determine what is an international norm that is being violated. Business interest need not worry, in fact over time being held accountable may actually help the corporations as positive press will stem from actually acting with the desire to be held accountable.

Doe v. Unocal

Doe v. Unocal 248 F.3d 915 (9th Cir. 2001) was a lawsuit filed against Unocal for alleged human rights violations.

In September 1997, the plaintiff, Burmese villagers filed suit against Unocal and their parent company, the Union Oil Company of California under the ATS. The suit was filed for alleged human rights violations, including forced labour, in the construction of the Yadana Gas pipeline project in Myanmar, formerly Burma.

Unocal had a joint venture arrangement with the Myanmar Government for the construction and operation of an oil pipeline, in the context of which the victims alleged the harm they suffered occurred. These are the grounds on which the plaintiffs' alleged that Unocal was liable for the tortious actions of the Myanmar government. There was some evidence that the Unocal officials had information or knowledge that the abuses were occurring from both consultants and human rights groups.

In 1997, a U.S. federal district court in Los Angeles agreed to hear Doe v. Unocal. The Court ruled that corporations and their executive officers can be held legally responsible under the ATS for violations of international human rights norms in foreign countries, and that U.S. courts have the authority to adjudicate such claims. The Court dismissed the case on the grounds that Unocal could not be held liable unless Unocal wanted the military to commit abuses, and that plaintiffs had not made this showing.

Plaintiffs appealed this decision, and on September 18, 2002, the United States Court of Appeals for the 9th Circuit reversed the District Court’s decision allowing the lawsuit against Unocal to go forward.

In February 2003, the 9th Circuit Court decided to rehear the appeal before an eleven-judge en banc panel.

In December 2004, Unocal agreed to settle after a motion for summary judgment failed in the court. The settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. The basis of this settlement is largely based on the failure of the motion for summary judgment. The Court of Appeals stated, "the evidence does suggest that Unocal knew of forced labor was being utilized and that the Joint Venture benefited from the practice" and "[Unocal]knew or should reasonably have known that its conduct - including the payments and the instructions where to provide security and build infrastructure - would assist or encourage the Myanmar military to subject Plaintiff to forced labor." Doe v. Unocal 395 F.3d 932, 947 and 953 (9th Cir. 2002).

Positive Aspects of the ATS

Many of the same criticisms against the ATS can be seen as positives. The debate is largely based on two groups, the big business/multinational corporations who are afraid of being sued in a US court for an action that occurred in a different country against labor groups, ethnic minorities and other minority groups. The two interest while not diametrically opposed do have a great deal of tension.

A large corporation who is afraid of getting caught doing something illegal may go to extra lengths to hide it once it is done. A large corporation may be leery of investing in a foreign country if they are worried about the political practices in that country for fear of being found an aider of those atrocities. For example Coke may not want to invest in China because of human rights abuse, which the general public or under the ATS Coke may be found liable for China's human rights abuses because of the business generated by Coke in China.

At the other end of the spectrum are the individuals or groups who are abused or have their human rights violated. For example in Pena, Joelito was tortured and killed by a police officer who was acting, either explicitly or implicitly, under the orders of the state to put pressure on Dr. Filartiga. Other examples are numerous and include ethnic groups that are forced to move or are wiped out for oil fields, workers trying to unionize in numerous developing nations being abused by the multinationals.

The debate is largely about economics from the corporations view point, they cannot operate effectively if they have to worry about being sued in a US federal court for an action that may have occurred thousands of miles away. The individuals abused see it as David vs. Goliath and they need to have their day in court and make sure Goliath does not abuse others.

Corporations claim that it will infringe on their ability to operate, critics of this argument state that by being held accountable businesses will have to operate effectively and within their own laws or face public distress or dislike. In essence a corporation is no longer able to say we will abide by human rights and then do nothing to address human rights abuses. This is a powerful idea, as most multinationals can just pick up and leave a country when the political, social or economic atmosphere is no longer to their liking. The ATS will allow an alien abused by a company grounds for redress in a US court instead of a court in their home country which may or may not be in the hands of powerful elite who have strong ties to the multinational corporation.

This debate is not going anywhere and both sides have some strong valid points. Where one falls will largely depend on what you think is more important, paying a few cents more for a consumer good, or the knowledge that the individuals who made the consumer good were well treated and not abused by the corporation who employs them.

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.

ATS abuse

There are some groups who view the ATS as a negative thing. The logic is that the ATS allows aliens to sue other aliens or corporations on grounds that a U.S. citizen could not claim. They further claim that it is a deterrent to multinational corporations from working in the United States if they face liability for something they may have done half-way around the globe. Furthermore, in order for a court to determine what is a tort in the violation of international norms a court must look at sources that are outside the United States and thereby diluting American jurisprudence and independence.

While each of these arguments are somewhat valid they do ignore key facts. In short, U.S. citizens generally have the same if not more rights than an alien suing in federal court; multinationals may face potential liability but given the general protections provided to corporations this argument seems weak; our courts have already been looking at international norms to determine international issues.

Other areas of law

The Alien Tort Statute is unique in American jurisprudence in that it relies heavily on foreign law. The law itself was an effort to conform with international norms, particularly with diplomats, rights to property and piracy. For the majority of the statutes history these three areas were all that were encompassed.

However, with the passage of Filartiga v. Pena-Irala and other ATS suits, both prior and post, have expanded area of laws that can be viewed when determining torts that are in violation of the law of nations. For example, in the United States courts have looked at domestic law, Torture Prevention Act and at international law, Universal Declaration of the Rights of Man or the Convention Against Torture.

Domestic law will be given preference, however, that does not detract from the power of international law. Furthermore, more weight will be given to laws that codify and create an enforceable instrument as opposed to laws or declarations that speak of broad principles (text that is aspirational).

This blog in the future will look at many of these possible sources of international law ranging from the Convention Against Torture to the International Criminal Tribunal of Rwanda to the International Criminal Court. The sources of inspiration for expanding the scope of torts in violation of the law of nations is enormous.