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.

Abebe-Jira v. Negewo

On January 10, 1996, the US Court of Appeals for the Eleventh Circuit issued a ruling on Abebe-Jira v. Negewo 72 F.3d 844 (11th Cir. 1996). Negewo claimed that the lawsuit should not have been heard because the courts did not have subject matter jurisdiction and that a non-justiciable political question was present.

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)

Sinaltrainal v Coca-Cola Company

On August 11, 2009, the Eleventh Circuit issued its opinion in Sinaltrainal v. Coca-Cola Company, upholding the Southern District of Florida's dismissal of four suits brought under the Alien Tort Statute and the Torture Victims Protection Act against The Coca-Cola Company and its Colombian subsidiary. The Colombian subsidy was the part of Coca-Cola that was allegedly suppressing the workers in violent ways. The plaintiffs alleged that the defendants collaborated with Columbian paramilitary forces to murder and torture trade union leaders in Columbia.

Sinaltrainal stands in stark contrast to the recent trend in federal courts across the country allowing ATS cases filed against multi-national corporations operating abroad to clear various threshold jurisdictional hurdles and move forward to trial. These corporate ATS cases often allege that corporations are vicariously liable, under theories of aiding and abetting and conspiracy. Although corporate defendants have prevailed in the few cases that have gone to trial, the costs associated with these suits--including litigation costs and damage to a corporation's brand and image based on the appearance of ties to alleged abuses--can be just as damaging.

Another aspect of Sinaltrainal is the Eleventh Circuit's reliance on the U.S. Supreme Court's recent decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which extends the heightened pleading standards laid out in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) to all cases. To maintain their ATS claims, the plaintiffs in Sinaltrainal had to sufficiently plead that "the paramilitaries were state actors or were sufficiently connected to the Columbian government so they were acting under color of law." Slip op. at 22-23. Accordingly, the plaintiffs alleged in their complaint that it is "universally acknowledged that the regular military and the civil government authorities in Columbia tolerate the paramilitaries, allow them to operate, and often cooperate, protect and/or work in concert with them." Id. at 23. The court, however, found this allegation lacking under Iqbal and held that the plaintiffs' "conclusory allegation that the paramilitary security forces acted under color of law is not entitled to be assumed true and is insufficient to allege state-sponsored action." Id. at 23. This holding suggests that Iqbal may put the brakes on the growing trend of allowing cases based on dubious theories of vicarious corporate ATS liability to proceed to trial.

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.