In Balintulo v. Daimler, AG, et al. the plaintiff, Balintulo is suing Daimler and a number of other European and U.S. companies in federal court for violation of international laws by aiding and abetting the South African regime prior to 1994. Prior to 1994, South African was actively enforcing Apartheid. The plaintiff is arguing that Daimler and the other corporations were aiding and abetting the racist government in South Africa and therefore violated international law.
In 2007, the National Foreign Trade Council, the National Association of Manufacturers, the US Council for International Business, the Organization for International Ivnestment and USAEngage filed an Amicus Brief with the Second Circuit Court of Appeals in support of the defednats who are appealing a lower court ruling in the case. These parties do not want to open themselves up to liability for the actions of foreign governments where they do business. The amicus parties, the US government and the South African government asked the federal court to dismiss the case as it interferes with executive power and the executives ability to conduct international affairs.
Tuesday, September 14, 2010
Balintulo v. Daimler, AG, et al
Tuesday, July 6, 2010
Customary International Law Part II
Tuesday, June 22, 2010
Customary International Law
Customary international law are those aspects of international law that derive from custom. Coupled with general principles of law and treaties, custom is considered by the International Court of Justice, jurist, the United Nations, and its member states to be among the primary sources of international law. The United States looks at international law in many cases, both with domestic and international impact. There are some advocates/critics who do not believe the United States should use international law to solve domestic issues or international issues.
Customary International law includes treaties, conventions, legal writings of foreign jurist and legal opinions of foreign courts. For example, decisions by the the International Tribunal for Yugoslavia can be quoted as customary international law. While the law is valid and persuasive the weight behind it may be minimal when compared to domestic law. A great deal of this depends on the judge or jury that is being dealt with.
However, not everything that is foreign is customary international law. For example, when the United Nations makes a declaration it is not considered customary international law in U.S courts because there is no definitive law. Instead they are only aspirations or goals that are set forth. As such they cannot be used to define customary international law. There is a possibility that after these goals are met they would become customary international law.
Customary International law is a historic concept that has evolved and expanded over the years. Originally it was conduct that was recognized or practiced by the majority of state actors - for example recognizing that piracy was against the law. Customary international law is a law of consensus and agreement between actors. The law must be accepted by a number of states and cannot be rejected by a majority of states.Customary International Law includes peremptory norms (which are fundamental principals of law which are accepted by the international community of states as norms which cannot be avoided. For example, slavery, genocide, war of aggression, and crimes against humanity.
Customary international law is a potentially powerful tool that can cover a large variety of topics and can be used in numerous cases, especially the alien tort statute.
Monday, June 7, 2010
Abebe-Jira v. Negewo
The 11th Circuit dismissed both claims of Mr. Negewo and upheld the ruling of the lower court. When writing about the subject matter jurisdiction the court quoted Filartiga, "[S]ection 1350 should interpret international law as it has evolved and exists at the time of the case." (Filartiga 630 F.2d 876 (2d Cir. 1980)). The court then quotes a number of other cases that have interpreted Filartiga to allow rights that are already internationally recognized. For an alien to file a claim under section 1350 the alien needs to meet three conditions: (1) an alien sues (2) for a tort (3) committed in violation of the law of nations (i.e. international law.) Kadic. v Karadzic 70 F.3d 232 (2d Cir. 1995) Furthermore, Congress can enact legislation that allows certain groups of people access to the federal court system and this law allows that.
The claim that this was a non-justiciable political question was quickly thrown out by the court citing Linder v. Portocarrero , 963 F2d 232 (11th Cir. 1992)
Monday, May 24, 2010
Sinaltrainal v Coca-Cola Company
Tuesday, March 9, 2010
Defenses to ATS
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.
Monday, February 22, 2010
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.
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.