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Al ien Tort Claims Act: A Feasible Means for Holding Ameri can Corporations
Accountable for Overseas I nternational Law Transgressions?
INTRODUCTION
Of the top 100 economies in the world, most are transnational corporations (TNCs), not
countries.1And of these TNCs, most are American.
2It 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.
1ALICE 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).2See 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,3in which
most of Earths denizens live. Not long ago, Nike, for example, was exposed for using child
labor.4To 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 ATCAprovides 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
3Anup Shah, Corporations and Workers Rights, GLOBAL ISSUES (May 28, 2006),
http://www.globalissues.org/article/57/corporations-and-workers-rights.4Id.
5Id.
6Alien Tort Claims Act, 28 U.S.C. 1350 (2012).
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Despite its seeming clarity, the ambit of the ATCA is unclear.7For 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,9and 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:FilartigaandMarcos
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
7See generally Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013); Sosa v. Alvarez-Machain, 124 S. Ct.
2739 (2004).8JERNEJ LETNAR CERNIC,HUMAN RIGHTS LAW AND BUSINESS:CORPORATE RESPONSIBILITY FOR FUNDAMENTAL
HUMAN RIGHTS 162(2010)9Id.
10Id. (quoting IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975)).
11CERNIC,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
12Filartiga v. Pena-Irala, 630 F.2d 876, 878-79 (2d Cir. 1980).
13Id.at 878.
14Id.
15Id.
16Id.at 878-79.
17Id.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 55.22Together, 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
18Id.at 880.19Id.at 878.
20Id.at 880.
21Id.at 881 (quoting U.N. Charter art. 55).
22Filartiga,supra note 12, at 881 (quoting U.N. Charter art. 56).
23Filartiga,supranote 12, at 881.
24Id.at 882.
25Id.(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 byi) 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
26Filartiga,supranote 12, at 882-83.
27Id.at 883.
28In reEstate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1474 (9th Cir. 1994).
29Id.at 1476.
30Id.at 1469.
31Id.
32Id.
33Id.
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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
34Id.at 1473.
35Id.at 1474.
36Id.at 1474-76.
37Id.at 1474.
38Id.at 1473.
39Id.
40Id.
41Id.at 1474.
42Id.
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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 violatesjus 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 didFilartiga andMarcosteach 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 thanFilartiga. WhileFilartiga 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,
Marcosrequired 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 afterMarcoswas decided, the United States Supreme Court affirmed the
Second and Ninth Circuits construal of the ATCAs ambit in Sosa.
B: An Affirmation ofFilartigaandMarcos: Sosa
The genesis of Sosa v. Alvarez-Machainwas a kidnapping that occurred in 1985.47
An
agent of the Drug Enforcement Administration (DEA) was on an assignment in Mexico, where
43Id.at 1475 (quotingFilartiga,supranote 12, at 884-85) (alteration in original)).
44Marcos,supranote 28, at 1475.
45Id.
46Id.
47Sosa,supra note 7, at 2746.
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he was captured, tortured, and murdered.48
DEA officials came to believe Humberto Alvarez-
Machain 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.53He 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 inMarcos,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
48Id.
49Id.
50Id.
51Id.
52Id. at 2746-2747.
53Id.at 2747.
54Id.
55Id.
56Id.
57Id.at 2754.
58Marcos,supranote 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 wasoutside the ambit of this very
limited category of international law violations federal courts have been enabled to adjudicate,
however,62which 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
59Sosa,supra note 47, at 2755.
60Id.
61Id.at 2754.
62Id.
63Id.at 2755.
64Id.at 2758. For more information on this point, see infrapp. 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 effectiveboth 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
65Id.at 2761.
66Id.at 2755-56.
67Id.at 2756.
68Id.
69Id.
70Id.
71Id.
72Id.
73See 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
74Id.
75Id.at 2761-62.
76Id.at 2755.
77Id.at 2762.
78Id.
79See 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,
80Id.
81Id.
82Id.at 2762-63.
83Id.at 2763.
84Id.
85Id.
86Id.
87Id.
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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.90Taking 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 ofthejudicial 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
88Id.
89Id.at 2764.
90Id.
91Id.at 2764-65.
92Id.at 2765.
93See suprap. 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.
Sosais still good law, but it was significantly qualified byKiobel.
C. A Significant Qualification of Sosa:Kiobel
Kiobelprovided 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 inKiobelwere 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
94Sosa,supra note 47, at 2766-67.
95Id.at 2768.
96Kiobel,supranote 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
97Id.
98Id.
99Id.at 1664.
100Id.
101Id.
102Id.
103Id.
104Id.at 1669.
105Id.at 1665.
106Id.
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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.110Indeed, 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
107Id.
108Id.
109Id.
110Id.
111Id.
112Id.
113Id.
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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 willof the United
States onto conduct occurring within the territorial jurisdiction of another sovereign, and
therefore carries less direct foreign policy consequences.118Continued 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
114Id.
115Id.
116Id.at 1666-67.
117Id.at 1667.
118Id.
119Id.
120Id.at 1668.
121Id.
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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]orporationsare 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
andMarcos! 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,Kiobeldid not K.O.Filartiga andMarcos.
How is that? My answer: Justice Kennedys concurring opinion + Justice Breyersopinion
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
122Id.
123Id.
124Id.at 1669.
125Id.
126Id.
127Id.
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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 majorityopinions
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 Sosaare 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.
128Id.(Kennedy, J., concurring).
129Id.
130Id.at 1670 (Breyer, J., concurring in judgment).
131Id.
132Id.at 1671.
133Id.
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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 Breyerwrote,
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
134Id.
135Id.at 1672.
136Id.
137Id.at 1678.
138Id.
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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 inKiobelearlier 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 fromFilatiga,Marcos, and Sosathat the
ATCA may be applied extraterritorially. InFilartiga andMarcos, 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 inFilartigafrom the Second Circuit or the
Second Circuit to consider the merits of the alien plaintiffs claims inMarcos, 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 likeKiobelput any hope of foreignersclaims 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 Robertssmajority opinions
reasoning inKiobelwould 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. ChiefJustice 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 readingKiobelto 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,
139Id.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 inKiobel 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? Theresponse 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
140Id. at 1664-65.
141SeeAmericas 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 regardingKiobel
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 territoryor 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
145Id.
146Kiobel,supra note 7, at 1675 (Breyer, J., concurring in judgment)
147Id.at 1676.
148Restatement (Third) of Foreign Relations Law Intro. (1987).
149Id.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 inKiobel, 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
150Sosa,supra note 7, at 2768-69.
151Kiobel,supranote 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].153This 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
152See 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 anAmerican 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
154See id.
155Id.
156Id.at 1671 (Breyer, J., concurring in judgment).
157Id.
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I believe there are strong arguments thatKiobel 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 it158
that 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 describedpiracy 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
158Sosa,supranote 7, at 2761.
159Kiobel,supra note 7, at 1667 (majority opinion).
160Id.at 1672 (Breyer, J., concurring in judgment).
161Id.
162Id.(quoting United States v. Palmer, 3 Wheat. 610, 632 (1818) (alteration in original)).
163Kiobel,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 theLusitania, 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. InFilartigaandMarcos, 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 toFilartiga,Marcos, and Sosa.
Part B: Would American TNCsViolations 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
164Id.
165Id.
166See suprapp. 3-8.
167Id.
168Id.
169Sosa,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 18th
-
century 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
170Id.at 2761-62.
171See suprapp. 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.