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.
Wednesday, February 3, 2010
Tuesday, January 19, 2010
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.
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.
Thursday, January 14, 2010
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.
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.
Monday, January 4, 2010
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.
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.
Thursday, December 10, 2009
Al Odah v. United States
On March 11, 2003 the Court of Appeals for the District of Columbia ruled on Al Odah v. United States 321 F.3d 1134 (2003 C.A.D.C.). The short facts are as followed "aliens captured abroad during hostilities in Afghanistan and held abroad in United States military custody at the Guantanamo Bay Naval Base in Cuba brought three actions contesting the legality and conditions of their confinement. The ultimate question presented in each case is whether the district court had jurisdiction to adjudicate their actions.
The complaint alleges: The complaint alleges that the detainees were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to United States forces; and that they were transferred to Guantanamo Bay sometime between January and March 2002. A representative of the United States Embassy in Kuwait informed the Kuwaiti government of their whereabouts...plaintiffs claim a denial of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. They seek a declaratory judgment and an injunction ordering that they be informed of any charges against them and requiring that they be permitted to consult with counsel and meet with their families. Id. at 1136.
The court held that the rule put forward in Eisentrager 339 U.S. 763 (1950) precluded the aliens from claiming habeas corpus. The majority of the opinion breaks down the courts interpretation of the applicability of habeas corpus to aliens being held at a military detention facility that is on land leased to the United States military. The Court pays short attention to Filartiga or the Alien Tort Statute holding: the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts. Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager. Id at 1145
The complaint alleges: The complaint alleges that the detainees were in Afghanistan and Pakistan as volunteers providing humanitarian aid; that local villagers seeking bounties seized them and handed them over to United States forces; and that they were transferred to Guantanamo Bay sometime between January and March 2002. A representative of the United States Embassy in Kuwait informed the Kuwaiti government of their whereabouts...plaintiffs claim a denial of due process under the Fifth Amendment, tortious conduct in violation of the law of nations and a treaty of the United States, and arbitrary and unlawful governmental conduct. They seek a declaratory judgment and an injunction ordering that they be informed of any charges against them and requiring that they be permitted to consult with counsel and meet with their families. Id. at 1136.
The court held that the rule put forward in Eisentrager 339 U.S. 763 (1950) precluded the aliens from claiming habeas corpus. The majority of the opinion breaks down the courts interpretation of the applicability of habeas corpus to aliens being held at a military detention facility that is on land leased to the United States military. The Court pays short attention to Filartiga or the Alien Tort Statute holding: the detainees are in all relevant respects in the same position as the prisoners in Eisentrager. They cannot seek release based on violations of the Constitution or treaties or federal law; the courts are not open to them. Whatever other relief the detainees seek, their claims necessarily rest on alleged violations of the same category of laws listed in the habeas corpus statute, and are therefore beyond the jurisdiction of the federal courts. Nothing in Eisentrager turned on the particular jurisdictional language of any statute; everything turned on the circumstances of those seeking relief, on the authority under which they were held, and on the consequences of opening the courts to them. With respect to the detainees, those circumstances, that authority, and those consequences differ in no material respect from Eisentrager. Id at 1145
Tuesday, December 8, 2009
Sandhu v. Burke 2000 WL 191707
Sandhu v Burke, was decided on February 10, 2000 and is currently not reported in the federal reporters. The case can be found online at 2000 WL 191707.
In Sandhu v. Burke the plaintiffs, Sukhminder Singh Sandhu and Ranjit Singh Gill were both attempting to prevent extradition to India. Sandhu was charged with robbery and conspiracy to commit robbery of a national bank in Ahmedabad, India. Mr. Gill was charged with murder, attempted murder and murder in furtherance of a common intention in connection with the shooting deaths on July 31, 1985 of a member of the Indian Parliament, his wife, and a constituent in Delhi, India.
The case history spans over a decade and had numerous procedural issues. Throughout the case the petitioners were attempting to prevent an extradition to India claiming that upon extradition they would face torture, false imprisonment and other harms.
The court heard oral arguments stating that the principles of international law preclude extradition to India even if Article 3 of the Convention (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment) is not self-executing . Sandhu v. Burke 2000 WL 191707-10. The plaintiffs contend that under jus cogens norms of international law, the right to bodily integrity as well as the right to be free from torture and extradjudicial execution are rights that are judicially enforceable independent of any treaty. Id. The court did not agree holding that jus cogens is only applicable when there is no controlling executive or legislative act or judicial decision. Id.
In regards to Filartiga, the court held in a footnote that the reliance on Filartiga is misplaced. Filartiga concerned tort claims brought under the Alien Tort Statute...the case currently before this Court, however, arises not in the realm of torts but in the context of extradition. In the extradition context, there is no equivalent to the ATS. Id at ft.10
In Sandhu v. Burke the plaintiffs, Sukhminder Singh Sandhu and Ranjit Singh Gill were both attempting to prevent extradition to India. Sandhu was charged with robbery and conspiracy to commit robbery of a national bank in Ahmedabad, India. Mr. Gill was charged with murder, attempted murder and murder in furtherance of a common intention in connection with the shooting deaths on July 31, 1985 of a member of the Indian Parliament, his wife, and a constituent in Delhi, India.
The case history spans over a decade and had numerous procedural issues. Throughout the case the petitioners were attempting to prevent an extradition to India claiming that upon extradition they would face torture, false imprisonment and other harms.
The court heard oral arguments stating that the principles of international law preclude extradition to India even if Article 3 of the Convention (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment) is not self-executing . Sandhu v. Burke 2000 WL 191707-10. The plaintiffs contend that under jus cogens norms of international law, the right to bodily integrity as well as the right to be free from torture and extradjudicial execution are rights that are judicially enforceable independent of any treaty. Id. The court did not agree holding that jus cogens is only applicable when there is no controlling executive or legislative act or judicial decision. Id.
In regards to Filartiga, the court held in a footnote that the reliance on Filartiga is misplaced. Filartiga concerned tort claims brought under the Alien Tort Statute...the case currently before this Court, however, arises not in the realm of torts but in the context of extradition. In the extradition context, there is no equivalent to the ATS. Id at ft.10
Friday, December 4, 2009
Hawkins v. Comparet-Cassani
In Hawkins v. Comparet-Cassani the prisoner had a stun belt placed on him prior to sentencing proceeding and later activated. Hawkins brought a civil rights action against county, judge, sheriff, and other defendants. The court held that most of the plaintiff's causes of actions were bared for one reason or another. Plaintiff cited Filartiga, claiming that the actions of the defendant constitute torture.
Plaintiff claimed that torture is a violation of jus cogens norms. When dealing with jus cogens that courts will look at different sources of law including international law. 33 F.Supp.2d 1244, 1255. (1999 C.D. Cal.) The court held that the treaties put forward by the plaintiff were not self-executing treaties (Universal Declaration of Human Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture) nor were they treaties but non-binding resolutions of the General Assembly. 33 F.Supp.2d 1244, 1257 (1999 C.D. Cal). The court was unwilling to go into detail regarding Filartiga.
Plaintiff claimed that torture is a violation of jus cogens norms. When dealing with jus cogens that courts will look at different sources of law including international law. 33 F.Supp.2d 1244, 1255. (1999 C.D. Cal.) The court held that the treaties put forward by the plaintiff were not self-executing treaties (Universal Declaration of Human Rights and the Declaration on the Protection of All Persons from Being Subjected to Torture) nor were they treaties but non-binding resolutions of the General Assembly. 33 F.Supp.2d 1244, 1257 (1999 C.D. Cal). The court was unwilling to go into detail regarding Filartiga.
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