Response to the Coporate Campaign against the Alien Tort Claims Act, A


A RESPONSE TO THE CORPORATE CAMPAIGN
AGAINST THE ALIEN TORT CLAIMS ACT

Francisco Rivera*

INTRODUCTION

Multinational corporations, along with certain governmental, business,
and trade sectors, have begun a full attack against the Alien Tort Claims Act
(ATCA).' Proponents of the ATCA maintain that the law has been an
invaluable tool for holding accountable those who commit international human
rights abuses, including corporations. The ATCA allows foreign plaintiffs to
file lawsuits in U.S. courts "for a tort only, committed in violation of the law
of nations or a treaty of the United States."' Traditionally, the defendants in
ATCA lawsuits have been foreign government officials or foreigners who
committed violations of human rights while acting under color of law. In an
attempt to break with this tradition, an increasing number of victims have been
attempting to successfully hold multinational corporations liable under the
ATCA for human rights abuses. Although there is precedent for the
proposition that private parties may be held liable in U.S. federal courts under
the ATCA for certain violations of customary international law, no American-
based corporation has ever faced a trial on the merits under the ATCA. And
there is a growing movement seeking to prevent this from happening.

Corporations that have been sued, or that fear being sued under the
ATCA, are attempting to weaken the law through lobbying groups such as the
International Chamber of Commerce, the National Foreign Trade Council,
USA-Engage, the U.S. Chamber of Commerce, and the U.S. Council of
International Business. Victims of human rights abuses have also-recruited
human rights organizations, religious groups, and labor unions to counter this
attack. To the victims and their allies, the corporate attack on the ATCA is
only an attempt by multinational corporations to avoid accountability for their
wrongdoing.

The arguments on both sides of the debate are passionate and complex.
The debate has centered not only on whether "corporate ATCA" cases should
be decided on the merits, but also on whether the ATCA itself should be
repealed and ATCA precedents be overruled. The debate has become more
heated in the aftermath of a September 2002 three-judge panel decision in the
Ninth Circuit which held that the California-based energy company Unocal

* B.A. cum laude, Boston College, 1998; M.A. American University School of
International Service, 2000; J.D. cum laude, American University, 2003.

1. 28 U.S.C. § 1350 (2003).
2. Id.



IND. INT'L & COMP. L. REV.

could be held liable for its complicity in certain types of human rights abuses
committed by the Burmese3 military. In essence, the panel found that
plaintiffs had presented evidence that Unocal knowingly provided substantial
assistance to the military in its commission of forced labor, murder, and rape.
Although that decision has been vacated, and there is a possibility that an en-
banc hearing that took place this past summer might result in a different
outcome, the decision has already had a ripple affect because it threatens to be
the first case where a U.S. corporation will face a trial for human rights
violations actionable under the ATCA.

An ominous struggle thus lies ahead. According to people like Elisa
Massimino, D.C. director of the Lawyers Committee for Human Rights, one
of the groups defending the ATCA, "[w]hat is at stake is the last 20 years of
jurisprudence and the way [the ATCA] can hold human-rights violators
accountable." 5 Probably taking advantage of having a Republican-controlled
Congress and an administration that is friendly to corporate interests the
business community has already begun a lobbying campaign in Congress to
explore ways to prevent the application of the ATCA to corporations
conducting business abroad. Multinational corporations and their partners
have also established a working group to provide support for companies that
have been sued under the ATCA.6 The human rights community has also
rallied its troops and has begun public awareness campaigns and other efforts
to defend the ATCA.7

This paper attempts to address what Terry Collingsworth, Executive
Director of the International Labor Rights Fund, calls the business
community's "series of misleading fictions about the scope and application of
the ATCA.' ' The first topic addressed in the paper is whether private actors,
especially U.S. corporations doing business abroad, can be held liable under

3. The military government calls the country Myanmar. See http://www.myanmar.com
(Myanmar website) (last visited Nov. 5, 2003).

4. John Doe I v. Unocal Corp., Nos. 00-56603, 00-57197, 00-56628, 00-57195, 2002
WL 31063976 (9th Cir. Sept. 18, 2002), reh'g granted, 2003 WL 359787 (9th Cir. Feb.14,
2003).

5. Tom Carter, Old Law Finds New Use Against Oppressors, WASH. TIMES, Mar. 17,
2003, at A12.

6. Kenny Bruno, De-Globalizing Justice, The Corporate Campaign to Strip Foreign
Victims of Corporate-Induced Human Rights Violations of the Right to Sue in U.S. Courts, 24
MULTINATIONAL MONITOR 3 (Mar. 2003), available at http://multinationalmonitor.org/
mm2003/03march/march03corp2.html (last visited Sept. 10, 2003) (discussing the various
approaches the business community is taking in attacking the ATCA).

7. For example, Earth Rights International (ERI), an environmental NGO that represents
plaintiffs in various ATCA lawsuits, has organized a campaign to defend the ATCA. Earth
Rights International, http://www.earthrights.org/atca/index.shtml (last visited Sept. 10, 2003).
On its website, ERI allows visitors to sign an electronic petition, or they could join the
"Alliance to Defend the ATCA." Id.

8. Terry Collingsworth, The Alien Tort Claims Act-A Vital Tool for Preventing Cor-
porations from Violating Fundamental Human Rights, at 2, available at http://www.labor
rights.org/publications/ILRF.pdf (last visited Nov. 6, 2003) [hereinafter A Vital Tool].

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the ATCA in the first place. Assuming that the ATCA applies to private
actors, the paper addresses some of the other major concerns expressed by the
corporate opponents of the ATCA, including policy and economic arguments
against its application to multinational corporations doing business abroad. In
response to these attacks, the paper then addresses whether there are any viable
alternatives to ATCA litigation aimed at holding corporations accountable for
their foreign operations, followed by a discussion of the compatibility of
human rights concerns with U.S. foreign policy and corporate interests.
Lastly, in an attempt to dismiss concerns over whether only investment abroad
would expose a corporation to ATCA liability, the paper discusses and
analyzes the high legal standards courts have required plaintiffs to meet in
order to hold corporations accountable under the ATCA.

I. CAN CORPORATIONS BE LIABLE UNDER THE ATCA FOR VIOLATIONS OF

"THE LAW OF NATIONS"?

Although the only subjects of international law have traditionally been
states, that is no longer the case. Building on Nuremberg precedent, U.S.
courts have held that private actors, such as corporations-foreign and
U.S.-may be sued under the ATCA depending upon the nature of the
offense.9 Through a progression of ATCA decisions, from Kadic'° to
Drummond (one of the latest ATCA decisions to-date)," courts have held that
corporations may be liable under the ATCA as well as under its sister statute,
the Torture Victim Protection Act (TVPA). 2

Several post-World War l cases laid the groundwork for the application
of the ATCA to private parties. In United States v. Flick, United States v.
Krauch, and United States v. Krupp, for example, the heads of major German
corporations were prosecuted for, inter alia, war crimes and crimes against
humanity. 3 By holding individuals responsible for certain violations of
international law, these cases transformed the concept of the state as the sole
object of international law. Several decades later, building from these post-
World War II cases and also from the jurisprudence in the post-Filartiga4 era,
in its Kadic decision the second circuit incorporated the concept of private
party liability into the ATCA, and held that private parties could be held liable

9. See discussion infra at IV(A) regarding the types of claims actionable under the
ATCA against private parties and state actors.

10. Kadic v. Karadzic, 70 F.3d 232 (2nd Cir. 1995).
11. Estate of Rodriquez v. Drummond Co, 256 F. Supp. 2d 1250 (N.D. Ala. 2003).
12. See 28 U.S.C. § 1350 (note). The Torture Victim Protection Act provides U.S.

citizens as well as aliens a cause of action for acts of torture and extrajudicial killing. See
discussion of TVPA infra at III(b)(1).

13. See Steven R. Ratner, Corporations and Human Rights: A Theory of Legal
Responsibility, 111 YALE L.J. 443, 477-78 (2001) (discussing history of post-WWII cases).

14. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

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IND. INT'L & COMP. L. REV.

under the ATCA for certain violations of international law. 5 Subsequent
rulings, like National Coalition Government of Union of Burma v. Unocal,
Inc.16 in 1997 and Wiwa v. Royal Dutch Petroleum Co.' 7 in 2002, extended the
holding in Kadic, finding that corporations, like other private actors, may be
liable under the ATCA for aiding and abetting in certain violations of
international law. Subsequent rulings have expanded on Unocal and Wiwa,
increasing the number of offenses actionable against private parties under the
ATCA.' 8 Other rulings have made clear that the number of actionable offenses
under the ATCA is limited to violations universally condemned and readily
definable.' 9 Recent decisions have also held that corporations can be held
liable under the TVPA as well as under the ATCA,2° as after all, private
corporations are also "persons" under the law and have no immunity as such
under domestic or international law.21 In total, a little more than two-dozen
cases have been filed against U.S. and multinational corporations so far.22 To
date, no U.S. corporation has faced trial in an ATCA case.

15. Kadic, 70 F.3d at 239.
16. Nat'l Coalition Gov't of the Union of Burma v. Unocal 176 F.R.D. 329,348 (C.D. Cal.

1997) (noting that a private company utilizing slave labor may be subject to liability under the
ATCA).

17. Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386 (KMW), 2002 WL 319887
(S.D.N.Y. Feb. 28, 2002).

18. See, e.g., Estate of Rodriquez, 256 F. Supp. 2d at 1250 (holding that violation to right
of association is actionable under the ATCA). In Presbyterian Church of Sudan v. Talisman
Energy, 244 F. Supp. 2d 289 (S.D.N.Y. 2003), Judge Allen G. Schwartz of the U.S. District
Court in New York City rejected Talisman's argument that a corporation is "legally incapable
of violating the law of nations." Id. at 308. The court added that, "given private individuals are
liable for violations of international law in certain circumstances, there is no logical reason why
corporations should not be held liable, at least in cases of jus cogens violations." Id.

19. See Beanal v. Freeport-McMoran, 197 F.3d 161 (5th Cir. 1999) (rejecting cultural
genocide as an actionable claim under the ATCA); Flores v. Southern Peru Copper Corp., 253
F. Supp. 2d 510 (S.D.N.Y. 2002) (rejecting actions based on environmental harms even if pled
as violations of the right to life).

20. See, e.g., Sinaltrainal v. Coca Cola Co., 256 F. Supp. 2d 1345, 1359 (S.D.Fla. 2003)
("Bearing in mind that a corporation is generally viewed the same as a person in other areas of
law, it is reasonable to conclude that had Congress intended to exclude corporations from
liability under the TVPA, it could and would have expressly stated so."); Estate of Rodriquez
256 F. Supp. 2d at 1263 (holding that the TVPA applies to corporations).

21. See Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35
VAND. J. TRANSNAT'L L. 801, 803 (2002).

22. There has been a recent increase in corporate ATCA lawsuits. For example, on April
24, 2003, a suit was filed against Occidental Petroleum and its security contractor, Airscan, Inc.,
for their role in the murder of innocent civilians in the hamlet of Santo Domingo, Colombia on
December 13, 1998. Lisa Girion, Occidental Sued in Human Rights Case, L.A. TIMES, Apr. 25,
2003. On April 5, 2003, attorney Ed Fagan filed a 6.1 billion dollar lawsuit in New York and
Nevada on behalf of former workers of the diamond companies Anglo American and De Beers,
alleging that the former workers were wrongly fired for labor strikes, subjected to forced labor,
and were attacked, imprisoned, and tortured during labor protests. Nicol Degli Innocenti,
Chemical Groups Face Legal Action from Apartheid Victims, FIN. TIMES, Apr. 14, 2003, at 23.

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H. OBJECTIONS TO THE ATCA

Corporate attacks on the ATCA have focused primarily on policy and
economic considerations.2 3 On the policy side, some say that corporate ATCA
lawsuits improperly intrude upon foreign relations, which is an area
exclusively reserved for the executive branch. On the economic side, some
say that corporate ATCA cases discourage foreign investment, which
negatively affects the interests of the U.S., the corporations, and the foreign
countries where the corporations are doing business.

A. Policy Arguments Against the ATCA

One of the major arguments against the application of the ATCA in
general, as well as in particular to multinational corporations, centers on the
notion that courts are an improper forum to judge U.S. foreign policy.

23. Judicial attacks on the ATCA, on the other hand, have focused more on Constitutional
arguments. For example, in a recent concurring opinion in the D.C. Circuit in a case concerning
detainees at Guantdnamo Bay, Al Odah v. U.S., 321 F.3d 1134 (D.C. Cir. 2003), Judge
Randolph suggests that the ATCA is an unconstitutional exercise of power. The argument is
rooted in a separation of powers analysis and centers on whether Congress clearly expressed an
intent to provide a cause of action for violations of the law of nations under Article III
jurisdiction. Id. at 1147-48. Further, Judge Randolph questions whether the law of nations
really is part of federal common law and suggests that the ATCA was meant to apply only to
torts existing in 1789, like piracy. Id. Although such a radical interpretation of the ATCA is
isolated and contradicts the vast ATCA jurisprudence that has been established in the past
twenty-three years, some corporate defendants in ATCA cases have expressed an interest in
adopting Judge Randolph's position in future cases. Nevertheless, all jurisdictions that have
addressed these issues in a majority opinion have rejected Judge Randolph's apprehensions
about the constitutionality of the ATCA, the incorporation of the law of nations into federal
common law, as well as the jurisdictional nature of the act. See, e.g., Xuncax v. Gramajo, 886
F. Supp. 162, 179 (D. Mass. 1995) ("§ 1350 yields both ajurisdictional grant and a private right
to sue for tortious violations of international law.., without recourse to other law as a source
of the cause of action"); Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994) (joining
the Second Circuit "in concluding that the [ATCA] creates a cause of action for violations of
specific, universal and obligatory international human rights standards .... ); Kadic, 70 F.3d
at 246 (rejecting Judge Bork's concurring opinion in Tel-Oren and holding that the ATCA
provides a cause of action for "violations related to genocide, war crimes, and official torture");
Presbyterian Church of Sudan, 244 F. Supp. 2d at 289 (holding that "ATCA provides a cause
of action in tort for breaches of international law"); Sarei v. Rio Tinto PLC., 221 F. Supp. 2d
1116, 1130-31 (C.D. Cal. 2002) (holding that "the ATCA both confers federal subject matter
jurisdiction and creates an independent cause of action for violations of treaties or the law of
nations"); John Doe I, 2002 WL 31063976 at *8 (stating that the ATCA also provides a cause
of action, as long as "plaintiffs ... allege a violation of 'specific, universal, and obligatory'
international norms as part of [their] ATCA claim"); Estate of Cabello v. Fernandez-Larios, 157
F.Supp.2d 1345, 1358 (S.D. Fla. 2001) (holding the same as John Doe I); Forti v. Suarez-
Mason, 672 F.Supp. 1531, 1539 (N.D. Cal. 1987); Paul v. Avril, 812 F.Supp. 207, 212 (S.D.
Fla. 1993) (holding that "[t]he plain language of the statute and the use of the words 'committed
in violation' strongly implies that a well pled tort if committed in violation of the law of nations,
would be sufficient [to give rise to a cause of action]"); Abebe-Jira v. Negewo, 72 F.3d 844, 847
(llth Cir. 1993).

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IND. INT'L & COMP. L. REv.

Although the lawsuits name corporations as the defendants, opponents to the
act suggest that the factual setting in these cases necessarily involves passing
judgment on the acts of foreign governments with whom the corporations have
a relationship. In effect, therefore, courts presiding over corporate ATCA
cases would be determining U.S. foreign policy.

Pati Waldmeir, a columnist for the London Financial Times, recently
wrote an article criticizing ATCA judicial activism as "the naked arrogance of
American power.'

,1
4 "Altering the behavior of foreign states" she says, "is the

business of diplomats or soldiers but not of judges."25 The executive branch,
not the judicial branch, has been constitutionally given foreign affairs powers,
and therefore judges have neither the authority nor the expertise to preside
over such matters.

Thabo Mbeki, current President of South Africa, also criticizes the
notion that U.S. courts can or should preside over claims that arise through
actions in foreign countries. Speaking on the recently filed lawsuits for
apartheid damages, discussed below, President Mbeki recently stated that "[it
is] completely unacceptable that matters that are central to the future of our
country should be adjudicated in foreign courts which bear no responsibility
for the well-being of our country and the observance of the perspective
contained in our constitution of the promotion of national reconciliation. ' 26

In this sense, ATCA lawsuits are perceived to undermine not only the
exclusive role of the executive branch in foreign affairs, but foreign sovereign
immunity as well.

Further, opponents of the ATCA argue that such lawsuits also undermine
U.S. interests in the "war on terrorism." Peter Nickles, defense lawyer for
Southern Peru Copper Corporation in an ATCA case, argues that "[g]iven the
current need to foster consensus regarding the fight against international terror-
ism, and the need of our Executive Branch to conduct foreign relations without
interference from the judiciary, constant interference by U.S. courts with
foreign affairs threatens to work as a powerfully counterproductive force., 27

The State Department seems to agree, to some extent, with this
argument. On July 29, 2002, per a request from the judge presiding over the
Exxon case,28 the State Department's Legal Advisor, Mr. William H. Taft IV,
wrote a letter asserting that "adjudication of this lawsuit at this time would in

24. Patti Waldmeir, An Abuse of Power, LONDON FIN. TIMES, Mar. 14, 2003, available
at www.ft.com.

25. Id.
26. Emonitors, For the Week Ending April 22, 2003, available at http://www.world

monitors.com/emonitors.html (last visited Nov. 6, 2003).
27. Peter J. Nickles et al., Court Properly Limits Scope of Alien Tort Claims Act, 18

LEGALBACKGROUNDER 2 (2003), available at http://www.cov.compublications/325.pdf (last
visited Sept. 10, 2003).

28. John Doe, I v. Exxon Mobil Corporation, No. 01-1357 (LFO) (D.D.C.) (involving
allegations of rape, torture, and kidnapping by Indonesian soldiers paid to protect an Exxon
Mobil natural gas plant in the province of Aceh in Indonesia).

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fact risk a potentially serious adverse impact on significant interests of the
United States, including interests related directly to the on-going struggle
against international terrorism," and added that adjudication of the lawsuit may
diminish U.S. efforts to promote human rights in Indonesia. 29 Although the
State Department's letter was addressing a.particular case under particular
circumstances, opponents of the ATCA say that the policy considerations
outlined above are applicable to all ATCA cases, or at least those that involve
multinational corporations as defendants.

Opponents of the ATCA also warn that the judiciary will be detri-
mentally affected by foreign plaintiffs who will fill the dockets with a
"crippling wave" of ATCA lawsuits concerning personal injuries that have no
connection to the United States.3" Some opponents have even characterized
the ATCA "movement" as having evolved into a "free-for-all in which foreign
plaintiffs invoke the ATCA as an all-encompassing basis for jurisdiction in
routine personal injury cases involving any conduct occurring abroad."'"
Michael Freedman, the writer for Forbes magazine who also wrote a recent
article "warning" companies about the dangers of the ATCA, wrote earlier this
year that "[e]verybody loves America. Especially foreign tort plaintiffs who
are doing a little forum shopping. 32

There is something to be said about this argument. The U.S. legal
system does provide certain advantages and incentives for foreign plaintiffs
who lack proper domestic and international judicial mechanisms to address
their harms.33 For example, unlike many other domestic courts, U.S. courts
allow for civil remedies that include not only high damage awards, but also
punitive damages. 4 Corporations have traditionally opposed high punitive

29. Taft Letter, July29,2002, available athttp://www.laborrights.org/projects/corporate/
exxon/stateexxonmobil.pdf [hereinafter Taft Exxon Letter].

30. Nickles et al., supra note 27.
31. Id.
32. Michael Freedman, Ich bin ein Tort Lawyer, FORBES, Jan. 6, 2003, available at

http://www.forbes.com/global/2003/0106/017.html (last visited Sept. 20, 2003).
33. See Beth Stephens, Translating Filartiga: A Comparative and International Law

Analysis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INT'L
L. 1, 2 (2002) (arguing that "[g]iven the absence of effective international mechanisms,
enforcement generally occurs within domestic legal systems."). See also Richard L. Herz,
Litigating Environmental Abuses Under the Alien Tort Claims Act: A Practical Assessment, 40
VA. J. INT'L L. 545, 550 (2000) (arguing that international fora are often inadequate, especially
to redress human rights violations by transnational corporations).

34. The following is a brief survey of some of the high damages awarded by U.S. courts
in ATCA cases:

* Estate of Marcos, 978 F.2d at 493: $760 million in compensatory damages and
1.2 billion in punitive damages.

• Abebe-Jira, 72 F.3d at 844: $1.5 million
" Kadic, 70 F.3d at 232.: $4.5 billion
" Forti, 672 F Supp. at 1531: $80 million
* Paul, 812 F. Supp. at 207: $41 million
" Romagoza Arce v. Garcia, NO. 99-8364 (S.D. Fla. 2002): $54.6 million

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IND. INT'L & COMP. L. REv.

damage awards. Foreign plaintiffs, on the other hand, see such punitive
damages available in the United States as a possible deterrent for future human
rights violators, while at the same time sending a message to current or
previous abusers that they may be held accountable for their violations.35 In
addition to the high monetary awards, plaintiffs in U.S. courts do not have to
worry about paying for the costs of litigation should they lose the case. The
availability of contingent agreements between clients and lawyers also
provides another incentive for foreign plaintiffs to use U.S. courts to redress
their harms. Procedurally, the U.S. legal system also provides certain incen-
tives. The broad discovery tools available in U.S. courts, for example, are
often not available in some foreign countries. Critics of the ATCA say these
advantages provide an incentive for frivolous claims by foreign plaintiffs.

Ultimately, opponents suggest that this abuse of the U.S. judicial system
will result in enormous legal costs to corporations that engage in business
activities abroad. Corporations say they should not have to defend themselves
from lawsuits that have no real connection to the United States. According to
the U.S. Chamber of Commerce, "U.S. national interests require that we not
allow the continuing misapplication of this 18th century statute to 21st century
problems by the latter day pirates of the plaintiffs' bar.136

B. Economic Arguments Against the ATCA

Probably the main catalyst for the recent increase in opposition to the
ATCA has been a class action suit brought by apartheid victims against over
100 U.S. firms that engaged in business activities with the apartheid regime in
South Africa. The plaintiffs claim that the apartheid regime could not have
maintained apartheid for so long had it not been for the support of multi-
national corporations. 37 To many corporations, this is the type of frivolous
lawsuit that epitomizes how the expansionist movement is abusing the
ATCA.38

35. See Michael Ratner, Civil Remedies for Gross Human Rights Violations, at
http://www.pbs.org/wnet/justice/law-background-torture.html (last visited Sept. 20, 2003)
(commenting on the effect, use and benefits of civil remedies in U.S. courts for gross human
rights violations).

36. Press Release, John E. Howard, Vice-President of International Policy and Programs
for the U.S. Chamber of Congress, U.S. Chamber of Commerce, The Alien Tort Claims Act: Is
Our Litigation-Run-Amok Going Global?, U.S. Chamber of Commerce Press Release (Oct.,
2002), available at http://www.uschamber.com/press/opeds/0210howarditigation.htm (last
visited Sept. 20, 2003).

37. Wambui Chege, S. Africa Asks U.S. Court to Dismiss Apartheid Cases, REUTERS,

(July 29,2003), available athttp://www.forbes.com/newswire/2003/07/29/rtr1041980.html (last
visited Nov. 6, 2003).

38. Similar suits have been filed recently. On March 28, 2003, for example, Makhetha
v. Credit Commercial De France was filed in federal court in the Eastern District of New York,
seeking to hold French and Swiss banks and other financial institutions responsible for allegedly
aiding and abetting the apartheid regime in South Africa by providing the funds that enabled

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John E. Howard, vice president of international policy and programs at
the U.S. Chamber of Commerce, recently asked corporations the following:

Did you know that, under current U.S. law, foreigners could
sue your company in U.S. courts-if you simply did business,
paid taxes and complied with the laws of a foreign country in
which those foreigners allege that an atrocity occurred? Did
you know that foreign nationals could sue your company if
your products or resources were used in a U.S. military
campaign against terrorists in those foreign nations? Did you
know that your company could be sued if it was present in a
country where that country's government had engaged in
actions to put an end to riots, rebellion or other disorders,
whether or not you played any role in the disorders or the
government's response? 39

In his article, John Howard warned that, under the ATCA, "all of this is
possible."'

The danger, according to the U.S. Chamber of Commerce and other
corporate groups, is not only that ATCA suits are an unacceptable extra-
territorial extension of U.S. jurisdiction, but also that a U.S. company could be
liable simply by virtue of the fact that it did business in, paid taxes to, and
otherwise complied with the laws of the country in which the violations
occurred. It does not matter if a company had nothing to do with the actual
violations or any participants therein. This is one of the main battle-cries of
ATCA opponents; namely, that a company that does business in certain
countries with questionable human rights records may be liable under the
ATCA "simply for having invested there."'" Therefore, critics say, application
of the ATCA to corporations investing abroad might discourage U.S. com-
panies from investing abroad, and possibly discourage foreign companies from
investing in the United States. For these reasons, opponents of the ATCA say
that these lawsuits are frivolous, they discourage foreign investment, and they
constitute an abuse of the judicial system by opportunistic plaintiffs.

Ill. OBJECTIONS TO IMPUNITY

Those who defend the ATCA say that civil lawsuits are one of the few
ways to hold companies accountable for their role in violations of international

South Africa to expand its police and security structures. See Business and Human Rights - A
Resource Website, at http://208.55.16.210/Complicity.htm (last visited Nov. 7, 2003).

39. Howard, supra note 36.
40. Id.
41. Michael Freedman, Supping With The Devil, FORBES, April 28, 2003, available at

http://www.forbes.con/global/2003/0428/034.html (last visited Nov. 6, 2003).

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IND. INT'L & COMP. L. REV.

human rights norms. Without any effective alternative to ATCA civil litiga-
tion, corporations could literally get away with murder. Moreover, the goals
of ATCA litigation, namely the protection and promotion of human rights, are
goals shared both by the United States in its foreign policy, especially in the
"war on terrorism," as well as by socially responsible corporations. ATCA
advocates emphasize that corporations that respect the law of nations should
not fear being hailed into U.S. courts under the ATCA. ATCA liability should
be a concern only of those corporations whose conduct violates one of the very
few actionable claims under ATCA. Even then, U.S. courts have put in place
numerous and complex legal hurdles to prevent frivolous suits from surviving
pre-trial motions.

A. No Effective Alternative to ATCA Litigation

Proponents of the ATCA attempt to focus the debate on the issue of
accountability. Within this framework, human rights advocates suggest that
there is no effective alternative to the ATCA. Voluntary initiatives of self-
regulation, for example, are unenforceable and therefore ineffective in achiev-
ing the goal of accountability.

For example, in December 2000, after two years of negotiation under the
auspices of the governments of the United States and United Kingdom, several
leading human rights groups and extraction companies established the Volun-
tary Principles on Security and Human Rights, which provide guidelines for
companies working in extractive industries in countries such as Indonesia for
"maintaining the safety and security of their operations within an operating
framework that ensures respect for human rights and fundamental freedoms. 42

Critics of these codes of conduct point out that because the codes are voluntary
in nature, and lack any significant enforcement mechanism, they fail to force
companies to truly address social concerns.

In the context of the anti-sweatshop campaign, for example, author S.
Prakash Sethi says that companies "have been all too willing to make promises
in the form of codes of conduct whenever they're forced to respond to public
concern, but they have treated these promises as harmless paper exercises that
they will not need to put into practice anytime soon-if ever."4 ATCA advo-
cates suggest that companies that have signed these voluntary codes of conduct
or similar initiatives should not complain about being held accountable for

42. Voluntary Principles on Security and Human Rights Fact Sheet, Feb. 20, 2001, DEP'T
STATE FACT SHEET, available at http:l/www.state.gov/gldrl/rls/293 l.htm (last visited Sept. 20,
2003).

43. Aaron Bernstein, Nike: Free Speech or "False Promise"?, Bus. WK. (Apr. 9,2003);
S. Prakash Sethi, Setting Global Standard: Guidelines for Creating Codes of Conduct in
Multinational Corporations (2003) (book review), available at http://www.businessweek.com
bwdaily/dnflash/apr2003/nf20O3049_6634_dbO2l.htm (last visited Sept. 11, 2003).

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CORPORATE CAMPAIGN AGAINST THE ATCA

their signed agreements to respect human rights." According to ATCA pro-
ponents, the fact that companies are complaining about being held accountable
"raises questions about the nature of their putative commitment to honor the
principles of [such initiatives]."4"

Furthermore, Sethi argues, these codes of conduct also diminish incen-
tives for more strenuous government regulations. For example, Rio Tinto, a
UK signee of the Voluntary Principles, has a dreadful environmental and
human rights record in Indonesia. According to the environmental NGO
Friends of the Earth, UK regulations are too lenient to have any real effect on
the corporation's accountability for their overseas operations.' The UK has
failed to strengthen its regulations on the mining industry in part because of
the belief that such companies will regulate themselves through the observance
of initiatives like the Voluntary Principles. Human rights advocates, on the
other hand, say that without real enforcement mechanisms, and without stricter
government regulations, the companies need only pay lip service to concerns
about human rights violations. Therefore, in practical terms, the absence of
any enforcement mechanism prevents voluntary codes of conduct from
achieving the goal of corporate accountability with the same effectiveness as
ATCA litigation.

The recent creation of the United Nation's Draft Norms on the Respon-
sibility of Transnational Corporations has certainly been well-received by
international non-governmental organizations as a step above and beyond the
scope of the voluntary codes of conduct.47 The draft Norms, and the accom-
panying Commentary, constitute a comprehensive checklist of international
human rights principles and obligations which every transnational corporation
should follow when doing business abroad.4" The Norms, if fully adopted by
the U.N. Human Rights Commission, will undoubtedly mark a step in the right
direction towards corporate accountability for violations of international
human rights norms. Nevertheless, the enforcement of such norms, or even
their adoption by the full U.N. Human Rights Commission, is not guaranteed.
The international business community, in the U.S. and abroad, concerned that
the draft Norms marks a move away from voluntary principles, is already
mounting yet another offensive in order to prevent the draft Norms from being

44. Collingsworth, supra note 8.
45. Id.
46. See Indonesia: Friends of the Earth Challenges Rio Tinto on Mining 'Impact',

EMonitors (Apr. 23, 2003), available at http://www.worldmonitors.com/emonitors.html (last
visited Nov. 6, 2003).

47. Lawyer's Committee for Human Rights' Press Statement, Nongovernmental
Organizations Welcome the New UN Norm on Transnational Business, Aug. 13,2003, available
at http://www.lchm (last visited Nov. 6, 2003).

48. See Commentary for the Norms on the Responsibility of Transnational Corporations
and Other Business Enterprises with Regard to Human Rights, E/CN.4/Sub.2/2003/38 (2003),
available at http://wwwl .umn.edu/humanrts/links/CommentApril2003.html (last visited Nov.
6, 2003).

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IND. INT'L & COMP. L. REV.

adopted. 9 If adopted, the Norms could possibly do for the accountability of
multinational corporations what the United Nation's Declaration of Human
Rights has done for the accountability of states. The Norms could serve as a
guide for the relevant law that transnational corporations should follow. Yet,
unless and until the Norms are adopted with strong enforcement mechanisms
-whether at the national or international level-ATCA-type litigation will
remain the best alternative for multinational corporate accountability.

Similarly, pressure by a corporation's shareholders is another important,
yet less effective tool than the ATCA in achieving corporate accountability.
For example, shareholders of Sears Canada have unsuccessfully put forward
for the past three years a proposal to ensure that the company purchase mer-
chandise manufactured solely from factories providing fair working condi-
tions."0 Unfortunately, only a small percent of shareholders vote in favor of
this and other similar proposals."

The alternatives to ATCA litigation, therefore, seem to fall short of the
ultimate goal of accountability.52 ATCA litigation seems like the best way,
albeit not the only way, to hold corporations accountable for their acts abroad
in violation of the law of nations. Neither codes of conduct, nor self-policing
reports, nor shareholder pressure is as effective as the ATCA would potentially
be in preventing and remedying corporate human rights violations, or in
promoting socially responsible corporate practices.

B. The Goals of ATCA Litigation are Shared by the United States and
Socially Responsible U.S. Corporations.

By signing voluntary codes of conduct or similar initiatives, corporations
have made clear that, at least theoretically, they agree that corporate interests
are not incompatible with human rights concerns. In fact, these voluntary
initiatives cover a much broader range of rights than the few fundamental
human rights covered under the ATCA. Thus, opponents of the ATCA are not
arguing that corporations do not have to act socially responsible in their
business activities abroad. Indeed, having an image of a socially responsible
corporation is in their best interest. Rather, opponents of the ATCA challenge

49. Jonathan Birchall, Companies Face UN Scrutiny on Human Rights, FIN. TIMES, Aug
13, 2003, available at http://www.lchr.org/workers-rights/wr-other/wr-ft-article.htm (last
visited Nov. 6, 2003).

50. See Canada: Sears Canada Shareholders seek anti-sweatshop policy, Emonitors
(Apr. 23, 2003), available at http://www.worldmonitors.com/emonitors.html (last visited Sept.
22, 2003).

51. Id.
52. Another alternative to civil litigation aimed at holding corporations accountable for

their actions has been the lobbying efforts in favor of disclosure requirements for U.S.
businesses operating abroad. See International Right to Know Report: Empowering
Communities Through Corporate Transparency, available at http://www.irtk.orgirtkreport.pdf
(last visited Sept. 22, 2003).

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CORPORATE CAMPAIGN AGAINST THE ATCA

the judicial enforcement of their voluntary commitments. Among the many
reasons for their opposition to ATCA litigation, opponents consider such
litigation as an improper intrusion by the judicial branch in matters of foreign
affairs.

i. The Legislative and Judicial branches favor adjudication of
violations of the "law of nations" in U.S. courts.

Specifically, opponents question whether Congress really intended for
claims of violations of fundamental human rights to be heard by federal courts
through ATCA lawsuits. Proponents answer by saying that even if congres-
sional intent in legislating the ATCA in 1789 is unclear,53 Congress spoke on
this issue in modem times when it passed the Torture Victim Protection Act
in 1992 and sided with the human rights activists.

The TVPA provides aliens as well as U.S. citizens a cause of action in
federal courts for claims of torture and extrajudicial killing.54 The TVPA was
expressly designed by Congress "[t]o carry out obligations of the United States
under the United Nations Charter and other international agreements pertain-
ing to the protection of human rights by establishing a civil action for recovery
of damages from an individual who engages in torture or extrajudicial
killing."5 5 In adopting the TVPA, Congress observed that "[the ATCA] should
remain intact to permit suits based on other norms that already exist or may
ripen in the future into rules of customary international law. 56 By enacting
the TVPA and expressly affirming the ATCA, Congress decided that
adjudicating human rights lawsuits in U.S. courts is consistent with U.S.
foreign policy and support for human rights worldwide.5 7

Thus, Congress is not as concerned as the opponents of the ATCA about
the foreign policy implications of judicial decisions involving fundamental
human rights abuses committed abroad. In a very basic sense, ATCA lawsuits
implicate foreign relations in that foreign governments will not receive with
open arms allegations of violations of fundamental human rights norms
committed within their borders. Nevertheless, Congress has clearly expressed
its intent that such suits should be heard by U.S. courts despite separation of

53. In a pre-Fildrtiga decision, the Second Circuit noted that "although [the ATCA] has
been with us since the first Judiciary Act... no one seems to know from whence it came." llT
v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).

54. 28 U.S.C. § 1350 (note); Pub. L. No. 102-256, 106 U.S. Stat. 73 (1992).
55. Id. pmbl.
56. H.R. REP. No. 102-367, at 4 (1991). See also S. REP. No. 102-249, at 4-5 (1991).
57. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 105-06 (2d Cir. 2000) (finding that

Congressional intent as expressed in the TVPA was to allow the types of human rights violation
raised by plaintiffs to be heard in U.S. courts).

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IND. INT'L & COMP. L. REV.

powers concerns.58 The Supreme Court has agreed with this principle,
although not in an ATCA context. In Japan Whaling, the Supreme Court
stated that "under the Constitution, one of the Judiciary's characteristic roles
is to interpret statutes, and [it] cannot shirk this responsibility merely because
our decision may have significant political overtones."59 Therefore, despite
possible foreign policy implications, Congress has clearly expressed its intent
to provide an effective remedy in U.S. courts for human rights abuses. Any
concerns about the propriety of opening up U.S. courts to aliens who seek to
hold violators of fundamental human rights accountable should be raised with
Congress, not with the judiciary.

ii. The protection and promotion of human rights has been an
inextricable and vital element of the Executive branch's public foreign
policy rhetoric.

The executive branch has also expressed in equally clear terms that the
protection of human rights is a crucial component of U.S. foreign policy.
Proponents of the ATCA therefore argue that these cases have little chance of
disrupting foreign relations or trampling separation of powers concerns
because the goals of ATCA litigation are entirely consistent with the Execu-
tive's own statements regarding human rights.

On numerous occasions throughout this nation's history, the executive
branch has stated that human rights are not incompatible with U.S. foreign
policy. For example, Section 502B of the Foreign Assistance Act of 1961,
which was adopted in 1974, declares the joint view of the Congress and the
President that "a principal goal of the foreign policy of the United States shall
be to promote the increased observance of internationally recognized human
rights by all countries."'

Similarly, former and current Presidents and Secretaries of State have all
regarded accountability and human rights as a primary goal and mechanism of
U.S. foreign policy. For example, the first President Bush, in a statement
regarding the passing of the TVPA, noted his "strong and continuing commit-

58. See id.
[T]he present law, in addition to merely permitting U.S. District Courts to
entertain suits alleging violation of the law of nations, expresses a policy
favoring receptivity by our courts to such suits . . .[and] has ...
communicated a policy that such suits should not be facilely dismissed on
the assumption that the ostensibly foreign controversy is not our business.

Id. (emphasis added). See also First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759,
773 (1972) (Powell, J., concurring) ("I would be uncomfortable with a doctrine which would
require the judiciary to receive the Executive's permission before invoking its jurisdiction.
Such a notion, in the name of the doctrine of separation of powers, seems to me to conflict with
that very doctrine.").

59. Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986).
60. 22 U.S.C. § 2304(a)(1) (1994).

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CORPORATE CAMPAIGN AGAINST THE ATCA

ment to advancing respect for and protection of human rights throughout the
world."61 He added that "[t]he United States must continue its vigorous efforts
to bring the practice of torture and other gross abuses of human rights to an
end wherever they occur... [and that] we must maintain and strengthen our
commitment to ensuring that human rights are respected everywhere. 62

Similarly, Madeleine Albright commented in early 2000 that "[s]overeignty
carries with it many rights, but killing and torturing innocent people are not
among them."63

The State Department's website further reiterates the Administration's
commitment to human rights in U.S. foreign policy, stating that "[b]ecause the
promotion of human rights is an important national interest, the United States
seeks to: [1] Hold governments accountable to their obligations under univer-
sal human rights norms and international human rights instruments; [2]
Promote greater respect for human rights, including freedom from torture... ;
[and 3] Promote the rule of law, seek accountability, and change cultures of
impunity."'  Secretary of State Colin Powell similarly assured the American
people and the world that "President Bush, the Congress of the United States
and the American people are united in the conviction that active support for
human rights must be an integral part of American foreign policy. '65 More
recently, Secretary Powell stated during the release of the State Department's
2002 Country Reports on Human Rights Practices that "[i]n a world marching
toward democracy and respect for human rights, the United States is a leader,
a partner and a contributor. We have taken this responsibility with a deep and
abiding belief that human rights are universal [and] their protection worldwide
serves a core U.S. national interest." 66 He added that "[sipreading democratic
values and respect for human rights around the world is one of the primary
ways we have of advancing the national security interests of the United
States.,

67

Furthermore, the executive branch has already criticized the human
rights records of some of the specific countries involved in corporate ATCA

61. Statement on Signing the Torture Victim Protection Act of 1991, March 12, 1992,
cited in DAVID WEISSBRODT ET AL., INTERNATIONAL HUMAN RIGHTS, LAW, POLICY, AND
PROCESS 544 (3d ed. 2001).

62. Id.
63. Madeleine Albright, Press Briefing on the Release of Country Reports on Human

Rights Practices, 1999 (Feb. 25, 2000), quoted in WEISSBRODT, supra note 61, at 545.
64. United States Department of State, Human Rights, at http://www.state.gov/g/drl/hr/

(last visited Nov. 6, 2003).
65. Colin L. Powell & Lorne W. Craner, Release of the Country Reports on Human

Rights Practices for 2001, Remarks to the Press March 4, 2002, at
http://www.state.gov/secretary/rm/2002/8635pf.htm (last visited Sept. 11, 2003).

66. Colin L. Powell, Preface to 2002 Country Reports on Human Rights Practices,
available at http://www.state.gov/g/drl/rlsfhrrpt12002/18132.htm (last visited Sept. 11, 2003).

67. Introduction: 2002 Country Reports on Human Rights Practices, Department of State
Bureau of Democracy, Human Rights, and Labor, Mar. 31, 2002, available at http://www
.state.gov/g/drl/rls/hrrpt/2002/18134.htm (last visited Sept. 11, 2003).

2003]



IND. INT'L & COMP. L. REv.

cases, thus minimizing the separation of powers considerations. Burma and
Colombia are two examples of such countries. In the 2002 Country Reports
on Human Rights Practices, the State Department characterizes the Burmese
military regime's human rights record as "extremely poor., 68  Regarding
Colombia, the Report mentions that "labor leaders nationwide continue[d] to
be attacked by paramilitaries, guerrillas, and narcotics traffickers."69 Thus,
judicial decisions highlighting these abuses would not undermine the executive
branch's role in foreign affairs, but would instead reinforce the importance of
the protection of human rights as stated in official U.S. foreign policy public
statements. Judicial determination of fundamental human rights in ATCA
cases is thus absolutely compatible with President Bush's "[pledge] to support
all individuals who seek to secure their unalienable rights [and] ... those who
fight for fundamental freedoms ... 70

Despite all these statements in support of accountability for human rights
violations abroad, opponents of the ATCA have been somewhat successful in
obtaining letters of interest from the State Department supporting the position
that judicial determination of at least some corporate ATCA cases would
undermine the administration's efforts on the war on terrorism as well as
negatively impact U.S. foreign relations with some countries. This was pre-
cisely the argument the State Department made in the Exxon case. On May 10,
2002, pursuant to a petition by the Exxon-Mobil Corporation, U.S. District
Court Judge Louis F. Oberdorfer, the presiding judge in the case, sent a letter
to the State Department requesting "out of an abundance of caution, in the
tense times in which we are living.., whether the Department of State has an
opinion (non-binding) as to whether adjudication of this case at this time
would impact adversely on interests of the United States."'" The Taft Letter,
as the State Department's letter of interest is known, asserts that "adjudication
of this lawsuit at this time would in fact risk a potentially serious adverse
impact on significant interests of the United States, including interests related
directly to the on-going struggle against international terrorism," and that
adjudication of the lawsuit "may also diminish [the] ability [of the United
States] to work with the Government of Indonesia ("GOI") on a variety of
important programs, including efforts to promote human rights in Indonesia."72

In a recent New York Times article, Arlen Specter, a Republican member of

68. 2002 Country Reports on Human Rights Practices, Burma, Bureau of Democracy,
Human Rights, and Labor, Mar. 31, 2002, available at http:// www.state.gov/g/drl/rls/hrrpt/
2002/18237.htm (last visited Sept. 11, 2003).

69. 2002 Country Reports on Human Rights Practices, Colombia, Bureau of Democracy,
Human Rights, and Labor, available at http://www.state.gov/g/drl/rls/hrrpt/2002/18325.htm
(last visited Sept. 11, 2003).

70. George W. Bush, Human Rights Day, Bill of Rights Day, and Human Rights Week,
2002, A Proclamation by The President of the United States of America (Dec. 9, 2002),
available at http://www.state.gov/g/drl/rls/rnm/l15808pf.htm (last visited Sept. 11, 2003).

71. Judge Oberdofer Letter, May 10, 2002 (on file with author).
72. Taft Exxon Letter, supra note 29.

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CORPORATE CAMPAIGN AGAINST THE ATCA

the Senate Judiciary Committee, stated that Congress and President George
H.W. Bush had already considered this argument in 1992-when the Torture
Victim Protection Act became law-and rejected it.7 3

Unfortunately, proponents of the ATCA say the Exxon letter is not an
isolated case. Rather, it is an example of the administration's contradiction
between U.S. human rights foreign policy and the implementation of that
policy. In the Unocal case, the State Department saw no conflict between
adjudicating claims over human rights abuses by the Burmese military and
U.S. foreign relations with that country.74 Upon an invitation by District Judge
Richard Paez of the Central District of California, Michael Matheson (State
Department acting legal advisor) stated in a letter dated July 8, 1997 that "the
Department can state that at this time adjudication of the claims based on
allegations of torture and slavery would not prejudice or impede the conduct
of U.S. foreign relations with the current government of Burma."" Conclud-
ing that there is simply no public interest in the perpetration of human rights,
the court forcefully dismissed this defense. But that letter was written in 1997.
In 2001, the State Department, through another Taft Letter, said that pursuit
of a lawsuit for similar human rights violations against Rio Tinto, the world's
largest mining company, headquartered in Papua New Guinea, would harm
American interests. 76 The case was subsequently dismissed.

Proponents of the ATCA suggest that such letters of interest contradict
other policy statements made by all three branches of government as well as
statements of support made by the State Department and the Department of
Justice in previous non-corporate ATCA cases. For example, when Filartiga
was decided in 1981, the State Department actively supported the idea of using
the ATCA to hold foreign officials liable for certain human rights violations.
In Filartiga, the State Department and the Department of Justice filed an
amicus in support of using U.S. courts to redress torture violations by foreign
officials, regardless of sovereign immunity and foreign policy considerations. 7

"Like many other areas affecting international relations," the amicus argued,
"the protection of fundamental human rights is not committed exclusively to
the political branches of government., 7' The amicus continued, stating that
when an alien alleges a violation of a human right which has been widely
shared to be protected among the world's nations, "there is little danger that

73. Arlen Spectar, The Corut of Last Resort, N.Y. TIMES, Aug. 7, 2003, available at
http://www.nytimes.com2003/08/07/opinion/07SPEC.html (last visited Nov. 6, 2003).

74. Matheson Unocal Letter, July 8, 1997 (on file with author).
75. Id.
76. Taft Rio Tinto Letter, Oct. 31, 2001, available at http://www.state.gov/documentsl

organization/16529.pdf.
77. Brief of Amici Curiae U.S. Department of Justice, Filartiga, 630 F.2d 876.
78. United States: Memorandum for the United States Submitted to the Court of Appeals

for the Second Circuit in Filartiga v. Pena-Irala (Torture; Human Rights Obligations; Judicially
Enforceable Remedies) 19 I.L.M. 585, 603 (citing Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, at 423, 430 (1964)).

2003]



IND. INT'L & COMP. L. REv.

judicial enforcement will impair our foreign policy efforts. To the contrary,
a refusal to recognize a private cause of action in these circumstances might
seriously damage the credibility of our nation's commitment to the protection
of human rights. 79

The State Department's position in Exxon could not be any more
different. When the letter became known, human rights organizations, mem-
bers of Congress, as well as the media, immediately reacted. Fifty members
of Congress sent a letter to Secretary of State Colin Powell expressing concern
over the Taft Exxon Letter. ° The following are some examples of reactions
from the media and human rights NGOs:

New York Times Editorial: "The Bush administra-
tion, promiscuously invoking the war against terrorism,
is using its influence inappropriately to assist an Ameri-
can oil company that has been sued for misconduct
overseas. The intervention reinforces the impression
that the administration is too cozy with the oil indus-
try." The editorial added, "the administration's state-
ment was an invitation to more abuse, a sign that
human rights could become a needless casualty of the
antiterror campaign.'

* Wall Street Journal: In an article titled White House
Sets New Hurdles for Suits Over Rights Abuses, the
WSJ pointed out that "[almong oil and gas companies,
Exxon Mobil was the second-largest campaign donor in
the 2000 election cycle -- after Enron Corp. -- with 89%
of its contributions going to Republicans, according to
the Center for Responsive Politics in Washington."82

" Human Rights Watch: "It is the height of hypocrisy
for the State Department to publicly promote human
rights principles for the oil and gas industry and then
tell a judge that scrutiny of an oil company's human
rights record runs counter to foreign policy.'83

79. Id. at 604.
80. Taft Exxon Letter, supra note 29.
81. Oily Diplomacy, N.Y. TIMES, Aug. 19, 2002, at A14, available at http://www.global

policy. org/security/natres/oil/indonesia2002/lO28diplomacy htm (last visited Sept. 11,2003).
82. Peter Waldman & Timothy Mapes, White House Sets New Hurdles For Suits Over

Rights Abuses, WALL ST. J., Aug. 7, 2002.
83. Press Release, Common Dreams Progressive Newswire, U.S./lndonesia: Bush Back-

tracks on Corporate Responsibility (Aug. 7, 2002) (quoting Kenneth Roth, Executive Director
of Human Rights Watch), available at http://www.commondreams.org/news2002/0807-04.htm
(last visited Sept. 11, 2003).

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CORPORATE CAMPAIGN AGAINST THE ATCA

Lawyers Committee for Human Rights: "Interven-
tion by the State Department in this private litigation
would send the message that the United States supports
the climate of impunity for human rights abuses in
Indonesia, and does not support efforts by American
extractive companies to develop and implement
policies that promote and protect human rights."'

Renowned legal scholars were also outraged by the Taft-Exxon Letter.
For example, Harold Koh, Professor of international law at Yale who also
served as Assistant Secretary of State for Democracy, Human Rights, and
Labor in the State Department from 1998 to 2001, filed an affidavit in support
of the plaintiffs' position and criticized the Taft Letter. In his affidavit,
Professor Koh argues that

it has never been United States policy that honest govern-
mental accounting of Indonesian human rights practices-
whether by Congress, the courts or the executive branch-
should be relaxed because of the need to conduct cooperative
counterterrorism initiatives or because the foreign officials
might understand that honest accounting as 'perceived disres-
pect for its sovereign interests. 5

Proponents of the ATCA, therefore, urge courts to dismiss such letters of
interest as irrelevant to the status of what constitutes a violation of the law of
nations. Contrary to assertions by business interests, adjudication of these
cases ultimately serves a core interest of the United States in ensuring that U.S.
corporate entities comply with international human rights obligations in their
conduct abroad.

c. Investment Abroad Alone Does Not Rise to a Violation of "the Law of
Nations"

Foreign policy and separation of powers considerations aside, opponents
argue that corporations should not be liable in U.S. courts for having
investments or for conducting business in countries with shady human rights
records. The response by ATCA advocates is simply that investment alone is
not enough to establish ATCA liability. The standard for liability is much
higher, and courts are well-equipped to dismiss improper cases. The fact that
courts have dismissed several corporate ATCA cases for failure to allege an

84. Letter to Mr. Taft from Michael Posner, Executive Director of LCHR, available at
http://www.lchr.org/workers_rights/wr_indonesia/Ltr-TaftLExxon070102.pdf (last visited Sept.
11,2003).

85. Koh Aff. submitted in Exxon case 17 (quoting Taft Exxon Letter, supra note 29).

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IND. INT'L & COMP. L. REV.

actionable claim under the ATCA evidences the capacity of federal judges to
dismiss cases that fail to meet the very high standards of ATCA liability. 86

To date, because of the narrow scope of claims actionable under the
ATCA against private parties and because the standard for ATCA liability is
so high, no plaintiff has successfully obtained a judgment against a U.S.
corporation under the ATCA for actions committed abroad. In essence, the
success of claims under the ATCA against a corporation depends on 1)
whether the offense is universally condemned and well-defined; 2) whether the
offense requires the plaintiff to establish state action; and 3) whether the
corporation as a private actor can be held liable for the acts of the state or other
parties under theories of third party liability.87 If these requirements are met,
corporate ATCA cases should move forward. After all, as Professor Koh
recently stated, "If we're going to try these [multinational corporations] for
violating a nickel-and-dime contract .. . why can't you sue them for
genocide?

88

i. Offense must be universally condemned and readily defined.

The first hurdle in establishing the liability of corporations under the
ATCA is alleging a violation of the "law of nations"; that is, a violation that
is universally condemned and well-defined. 89 The ATCA does not provide a
cause of action for any and all violations of international law. In fact, the list
of actionable offenses under the ATCA is very limited. U.S. courts have held
the following torts to be in violation of the law of nations within the meaning
of the ATCA: summary execution,9° torture,91 causing disappearance, 92

86. See Bruno, supra note, at 3. (arguing that "courts have had no trouble dismissing
ATCA cases against corporations, and they are exceedingly difficult to bring.").

87. See Kadic, 70 F.3d at 232 (holding that non-state actors may be liable for certain
violations of international law).

88. Adam Liptak, U.S. Courts' Role in Foreign Feuds Comes Under Fire, N.Y. TIMES,
Aug. 3,2003, available athttp://www.nytimes.com/2003/08/03/politics/03LEGA.html?hp (last
visited Nov. 6, 2003).

89. See, e.g., Filartiga, 630 F.2d at 876.
90. See, e.g., Kadic, 70 F.3d at 232; Forti, 672 F. Supp. at 1531, affd on reh'g, 694 F.

Supp. 707 (N.D. Cal. 1988); Xuncax, 886 F. Supp. at 162; Estate of Cabello, 157 F. Supp. 2d
at 1345; In re Estate of Marcos, 978 F.2d at 493.

91. See, e.g., Filartiga, 630 F.2d at 876; Kadic, 70 F.3d at 232; Xuncax, 886 F. Supp. at
162; Tachiona v. Mugabe, 234 F. Supp. 2d 401 (S.D. N.Y. 2002); In re Estate of Marcos, 978
F.2d at 493; Forti, 672 F. Supp. at 1531; Unocal, 176 F.R.D. at 329, aff'd by, John Doe I v.
Unocal Corp., 2002 WL 31063976 (9th Cir. 2002), reh'g granted, No. CV 96-06959-R5WL,
2003 WL 359787 (9th Cir. 2003); Abebe-Jira, 72 F.3d at 844.

92. See, e.g., Forti, 672 F. Supp. at 1531 (holding that the universally recognized tort of
"disappearance" has two essential elements: (1) abduction by a state official or by persons
acting under state approval or authority; and (2) refusal by the state to acknowledge the
abduction and detention). See also Xuncax, 886 F. Supp. at 162.

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CORPORATE CAMPAIGN AGAINST THE ATCA

arbitrary detention,93 cruel, inhuman, or degrading treatment, 94 kidnapping,"
slavery,96 war crimes,97 forced labor,9 8 rape,99 denial of right of association, °°

and genocide.101
Although the number of actionable claims under the ATCA has

increased since Filartiga was first decided, there are safeguards to prevent the
ATCA from providing a cause of action for garden-variety personal injury
claims. The limiting principles set forth in Filartiga, namely that the violation
must be universally condemned and readily definable, have allowed judges to
dismiss claims that failed to meet this high standard.'0 2 For example, in
Flores 3 the court concluded that the "plaintiffs [had] not demonstrated that
high levels of environmental pollution, causing harm to human life, health, and
sustainable development within a nation's borders, violate any well-
established rules of customary international law," because there existed no
"general consensus among nations" that environmental pollution that causes
harm to human health is "universally unacceptable."' ' Although causes of
action involving environmental harms may one day be actionable under the
ATCA, courts will only permit this if the twin principles of Filartiga are met.
Thus, corporations should not be worried about their liability under the ATCA
unless they engage in one of the limited, yet expanding, types of torts currently
recognized as a violation of the "law of nations."

93. See, e.g., Forti, 672 F. Supp. at 1531; Kodak Co. v. Kavlin, 978 F. Supp. 1078 (S.D.
Fla. 1997); Xuncax, 886 F. Supp. at 162.

94. Unless the harm rises to the level of torture or other universally recognized violation
of the law of nations, cruel, inhuman, or degrading treatment may not by itself be treated as a
violation of the law of nations. There is little guidance as to what exactly constitutes cruel,
inhuman, or degrading treatment, so the violation is not easily definable. The Xuncax court,
decided after the ratification of the Convention Against Torture, defined cruel, inhuman, or
degrading treatment as an actionable violation under the ATCA but only as defined by the
standards applied in the Fifth, Eighth, and Fourteenth Amendments of the United States
Constitution, rather than as defined by international law. See Xuncax, 886 F. Supp. at 186. See
also, Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999); Hilao v. Estate of Marcos,
103 F.3d 767 (9th Cir. 1996); Forti, 672 F Supp. 1531 (determining that cruel, inhuman, and
degrading treatment was not definable and did not have universal consensus).

95. See, e.g., Jaffe v. Boyles, 616 F. Supp. 1371 (W.D. N.Y. 1985); Nguyen Da Yen v.
Kissinger, 528 F.2d 1194 (9th Cir. 1975) (stating that the illegal seizure, removal, and detention
of an alien against his will in a foreign country may be in violation of the law of nations).

96. See, e.g., Iwanowa, 67 F. Supp. 2d at 424; Unocal Corp., 2002 WL 31063976
(recognizing forced labor as a modem form of slavery).

97. Kadic, 70 F.3d at 232.
98. John Doe I v. Unocal Corp., No. 00-56603, 2002 WL 31063976 (9th Cir. Dec. 3,

2000).
99. Id.

100. Estate of Rodriquez, 256 F. Supp. 2d at 1250.
101. Kadic, 70 F.3d at 241-42.
102. Filartiga, 630 F.2d at 876.
103. Flores, 253 F. Supp. 2d at 510.
104. Id. at 519. See also Nickles et al., supra note 27, at 8.

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ii. Some claims have a state action requirement

Even if universally condemned and definable, some offenses may still
not be actionable under the ATCA unless the plaintiff can provide evidence to
satisfy the state action requirement. Although the only subjects of inter-
national law have traditionally been states, the Karadzic court held that private
parties could also be held liable under the ATCA for certain violations of
international law. 5 Currently, only the following four violations of the law
of nations are actionable against private parties under the ATCA without a
showing of state action: 1) genocide,"re 2) war crimes, 0 7 3) forced labor or
slavery,' and 4) crimes against humanity. 9 Other violations, such as torture,
rape, summary execution, political persecution, causing disappearance,
systematic racial discrimination, and arbitrary detention, can also be actionable
under the ATCA without a showing of state action, but only when such actions
are perpetrated in the context of either genocide, war crimes, forced labor or
slavery, and maybe crimes against humanity."0

If a plaintiff alleges a violation that is universally condemned and
definable, and the allegation requires a showing of state action, the judge must
then decide whether the plaintiff has presented sufficient evidence to satisfy
this requirement. In order to do so, a judge can look at the jurisprudence of
civil rights actions under 28 U.S.C. § 1983."' In Kadic, for example, the court
looked to the definition of what constitutes an act "under color of state law"
as defined by section 1983 to determine whether the state action requirement
was satisfied. Although courts have used various tests under section 1983
jurisprudence to determine this issue," 2 the tests that have been the most

105. Kadic, 70 F.3d at 239.
106. Id. at 232. See also Beanal, 969 F. Supp. at 370.
107. Kadic, 70 F.3d at 232.
108. John Doe I v. Unocal Corp., No. 00-56603, 2002 WL 3106976 (9th Cir. Sept. 18

2002).
109. Kadic, 70 F.3d at 232. See also Wiwa, 226 F.3d at 92.
110. The analysis in Kadic regarding the state action requirement for claims of crimes

against humanity is unclear. In Wiwa, the Southern District of NY discussed when state action
would be necessary for claims of crimes against humanity, and found that Kadic did not
foreclose the possibility that other violations, when committed within the context of crimes
against humanity, do not require state action. Wiwa, 226 F.3d at 88. Further, according to the
Rome Statute of the International Criminal Court, certain violations could constitute crimes
against humanity, thus eliminating the state action requirement, if committed "as part of a
widespread or systematic attack directed against any civilian population, with knowledge of the
attack." Rome Statute of the International Criminal Court, Art. 7, § 1, available at
http://www.un.org/lawficc/statute/romefra.htm (last visited Sept. 26, 2003).

111. Kadic, 70 F.3d at 243 ("'Color of law' jurisprudence of 42 U.S.C. § 1983 is a relevant
guide to whether a defendant has engaged in official action for purposes of jurisdiction under
the Alien Tort Act.").

112. The United States Supreme Court has described four alternative tests for establishing
the state action requirement: (1) the public function test; (2) the symbiotic relationship test; (3)
the nexus test; and (4) the joint action test. See, e.g., Dennis v. Sparks, 449 U.S. 24, 27 (1980)
(applying joint action test); Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974) (applying

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relevant to corporate ATCA cases are the joint action test and the symbiotic
relationship test." 3 Under the joint action test, a plaintiff must show that a
state actor was a willful participant acting jointly or in concert with the actors
of the particular deprivation of rights. Applying this test, the Wiwa court noted
that "where there is a substantial degree of cooperative action between the
state and private actors in effecting the deprivation of rights, state action is
present."" 4 Under this test, state acquiescence or approval of the deprivation
of rights is probably not enough to establish the state actor requirement. The
state actor must have participated, influenced or played an integral part in the
conduct.

Therefore, in order for a plaintiff to sue a corporation for torture under
the ATCA, the plaintiff first needs to demonstrate that torture is a universally
condemned violation that is easily definable. Furthermore, if the alleged
torture occurred outside the context of genocide, war crimes, forced labor or
slavery, or crimes against humanity, then the plaintiff would have to
demonstrate that a state actor played an integral part in the alleged torture.
Both of these safeguards minimize concerns about frivolous lawsuits making
it to trial.

iii. Plaintiffs must show evidence sufficient to satisfy standards
of third-party liability.

Once the plaintiff has satisfied the state action requirement by showing
the necessary link between the state and the particular violation, the plaintiff
must then show the necessary link between the corporation and the state or
third party in connection with the alleged violation.' '5 Although Unocal is not
the first time a court has addressed the issue of third-party liability in ATCA

public function and nexus tests); Burton v. Wilmington Parking Auth., 365 U.S. 715,725 (1961)
(applying symbiotic relationship test).

113. See Presbyterian Church of Sudan, 244 F. Supp. 2d at 289 (application ofjoint action
test). See also Estate of Rodriquez, 256 F. Supp. 2d at 1250; Sinaltrainal,256 F. Supp. 2d at
1345 (application of symbiotic relationship test). See Beanal, 969 F. Supp. at 370, for
discussion of the various tests.

114. Wiwa v. Royal Dutch Petroleum Co., No. 96 Civ. 8386, 2002 WL 319887 at *13
(S.D.N.Y. Feb. 28, 2002) (quoting John Doe I, 963 F. Supp. at 891).

115. It is important to distinguish the difference between the analysis for state action
requirement and the analysis for establishing the legal culpability or responsibility of the
corporation being sued. Both analyses are similar, but third party liability analysis is not the
same as state action analysis. The tests described under section 1983 jurisprudence might be
relevant to establish third-party liability in ATCA cases, but the liability of third-parties is
subject to a separate standard. Beanal, for example, addresses the state action analysis, but not
the third-party liability analysis. That is, a plaintiff may be able to prove that a state actor
played an integral part in the alleged violation, but that does not necessarily mean that the
plaintiff has proven that a third-party, in these cases corporations, should be held liable for that
act.

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IND. INT'L & COMP. L. REV.

cases," 1 6 and even though the decision has been vacated and the case is being
reviewed en banc by the Ninth Circuit, the latest Unocal decision probably
has the best discussion of third-party liability in a corporate ATCA case thus
far.

The court in Unocal looked at international criminal law jurisprudence
in order to determine the standard required to establish third-party liability in
ATCA cases. Specifically, the court looked to the aiding and abetting standard
described in decisions of the international criminal tribunals of Rwanda and
Yugoslavia." 7 Under this standard, a third-party can be liable for the acts of
others when the third-party knowingly provides practical encouragement or
assistance that has a substantial effect on the perpetration of the offense." 8

This standard has created some controversy and confusion about the size
of the net this standard casts. Although the actus reus described by the
international tribunals includes actions of "moral support," "9 the majority in
Unocal decided to take this language out of their decision. As for the mens rea
element in the international standard, which was also adopted by the majority,
it is sufficient that the accomplice, in this case the corporation, know or
reasonably should know that its actions would assist the perpetrator in the
commission of the crime. Opponents to the ATCA suggest that a standard of
liability based on whether a company knowingly provided moral support to a
regime is just too broad. In the concurring opinion in Unocal, Judge Reinhardt
agreed to a certain extent with this analysis. Judge Reinhardt rejected the
majority's application of international criminal law standards of third-party
liability and urged application of federal common law principles, such as
agency, joint venture, and recklessness liability, instead. 20

In response to Judge Renhardt's concerns, the majority opinion sug-
gested that "the standard for aiding and abetting in international criminal law
is similar to the standard for aiding and abetting in domestic tort law, making
the choice between international and domestic law even less crucial.' ' 2'

Similarly, the majority attempted to minimize the distinction between presum-
ably broader international criminal law standards and presumably narrower

116. District courts in the Eleventh Circuit have also relied on decisions by the
International Criminal Tribunal for the former Yugoslavia and Rwanda to determine the
standard to be used in determining third party liability for tort claims under the ATCA. See,
e.g., Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322, 1356 (N.D.Ga. 2002); Cabello Barrueto v.
Fernandez Larios, 205 F. Supp. 2d 1325 (S.D.Fla 2002).

117. See, e.g., Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Trial Chamber
II, Dec. 19, 1998), reprinted in 38 I.L.M. (1999); Prosecutor v. Tadic (Case No. ICTY-94-1),
Opinion and Judgment, May 7, 1997, ati 691-92; Prosecutor v. Delalic (Case No. IT-96-21-
T), Judgment, Nov. 16, 1998, at 326.

118. John Doe I v. Unocal Corp., No. 00-56603, 2002 WL 31063976 at *9-10 (9th Cir.
Dec. 3, 2002).

119. Prosecutor v. Furundzija, Case No. IT-95-17/1 at 235.
120. Unocal Corp., 2002 WL 31063976, at *26-35 (Reinhardt, J., concurring). See also

Note, 116 HARv. L.REv. 1525 (2003) (supporting Judge Reinhardt's position).
121. Unocal Corp., 2002 WL 31063976 at *11 n.23.

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domestic standards of third party liability by suggesting that "there may be no
difference between encouragement and moral support"'122

The majority may be right. The comment to Section 876 of the Restate-
ment (Second) of Torts states that "encouragement to act operates as a moral
support." Therefore, the choice of law in this particular area may ultimately
be irrelevant. The type of evidence plaintiffs would have to show under either
a domestic or an international standard would presumably be practically the
same. Further, if the moral support standard is shown to be a well-established
principle of customary international law, then it is likely that Judge Reinhardt
might accept it as being part of federal common law. 23  And even if the
international moral support standard is simply a statement by a few judges in
two international tribunals and therefore fails to reach the level of a customary
norm of international law necessary for the incorporation of the standard into
federal common law, existing U.S. standards for third-party liability seem to
be equally broad. 124

Although the precise standard for third-party liability in corporate ATCA
cases remains unclear, it is sufficient to say that 1) under theories of third-party
liability corporations can be held liable in ATCA cases for harms caused by
others, and that 2) despite repeated suggestion to the contrary by the business
community, investing alone in a foreign country would not satisfy any of the
proposed standards for third-party liability. At the very least, according to a
Senate report on the TVPA, a third-party must have "ordered, abetted, or
assisted" in the violation in order to be held liable. 125 If a plaintiff can show
sufficient evidence that a corporation aided and abetted in the violation, then
the corporation may be held liable under a theory of third-party liability to be
clarified in future cases. 126

Therefore, opponents of the ATCA like Daniel O'Flaherty, vice
president of the National Foreign Trade Council, are right when they say that
"[t]he issue is vicarious liability."'127 What is not supported in ATCA juris-
prudence is the assumption that the standard for liability is broad enough to

122. Unocal Corp., 2002 WL 31063976 at *13 n.28 (citing RESTATEMENT (SECOND) OF
TORTS § 876 (1979)).

123. Unocal Corp., 2002 WL 31063976, at *29 n. 8, (Reinhardt, J., concurring) (citing
Filartiga). Judge Reinhardt states that "all international legal principles do not automatically
become a part of the federal common law; only those that achieve the status of customary
international law or are included in international treaties are incorporated as part of federal
common law." Id.

124. Unocal Corp., 2002 WL 31063976, at *30-35 (Reinhardt, J., concurring) (analyzing
the scope of liability under federal common law standards).

125. See Mehinovic, 198 F. Supp. 2d at 1355 (citing S.Rep. No. 249-102, at 8-9 and n. 16).
126. The District Court for the Southern District of New York has also recently tackled this

issue. See Presbyterian Church of Sudan, 244 F. Supp. 2d at 289 (holding that courts should
look at international law standards of third-party liability to determine whether a corporation
can conspire to commit, or aid and abet the commission of certain violations of the law of
nations, such as genocide or war crimes).

127. Carter, supra note 5.

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potentially hold liable corporations who are simply present in, pay taxes to, or
invest in countries with questionable human rights records. Thus, the concern
about "the proliferation of lawsuits against U.S. companies for behavior over
which they have no control," seems unreasonably exaggerated and unsup-
ported by precedent. 28 In fact, no court has ever held that a multinational
corporation can be liable under the ATCA for simply doing business overseas.
Presence or investment alone, without knowingly assisting or encouraging in
the alleged violation, or without some other complicity in the violation, does
not open up multinationals to ATCA liability.

d. Money Is Not the Goal ofATCA Litigation

Proponents of the ATCA also challenge the accusations that the ATCA
is a tool used by trial attorneys who are pursuing frivolous claims against big
multinational companies in order to cash-in large damages awards or settle-
ments in favor of sympathetic victims. The National Foreign Trade Council
has called plaintiffs' attorneys in ATCA cases "a new breed of lawyers, uncon-
cerned about the rights of victims and more interested in gouging giant settle-
ments out of U.S. companies with deep pockets."'129

This Machiavellian perspective may or may not be shared by some trial
attorneys, but as a broad generalization, such accusations do not represent an
accurate depiction of ATCA plaintiffs' attorneys. For the most part, attorneys
representing plaintiffs in ATCA litigation work on a pro-bono basis or for non-
profit NGOs. Although some ATCA cases have resulted in rather large
judgments, most of them have never been executed, and no U.S. corporation
has had to pay any judgments in an ATCA case thus far. All the same, most
ATCA advocates would say that money is not the goal of ATCA litigation.
Nevertheless, monetary compensation would undoubtedly provide some form
of relief for the plaintiffs. Similarly, plaintiffs in ATCA litigation are not
suing corporations because they have "deep pockets." They are suing these
corporations because their basic human rights have been violated. 3 ° For these
victims, and for the lawyers that represent them, the real issue is account-
ability, not money.

CONCLUSION

Rather than attack a law that is sometimes the only remedy available for
many victims of gross human rights violations, corporations should take a
better look at their own conduct abroad and they should stop being economical
with the truth in their statements about the ATCA. Proponents of the ATCA

128. Id.
129. Id.
130. Sometimes ATCA plaintiffs must even hide their identity and file their complaints

under Jane or John Doe for fear of repercussions in their home countries.

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should nevertheless engage in a constructive dialogue with the business
community and emphasize that 1) the goals of these ATCA cases are con-
sonant with corporate and U.S. interests in foreign relations, including the
support for accountability and human rights as an integral part of the war
against terrorism; 2) unless corporations agree on more effective means of
accountability for their violations of the law of nations, the ATCA or the
TVPA will be the only viable alternatives to redress their victims; and that 3)
the judicial branch is very capable of, and has been given the authority by
Congress to, adjudicate human rights cases involving foreign policy
considerations, including dismissing cases that fail to meet the requirements
of the ATCA or the TVPA. U.S. courts have done a remarkable job in dis-
missing ATCA lawsuits where plaintiffs fail to satisfy the multiple high
standards necessary to establish ATCA liability. Corporations should feel
confident that frivolous claims against them, or actions involving claims not
actionable under the ATCA, will continue to be dismissed at the pre-trial stage.
By the same token, the victims should also have their day in court if their cases
are legitimate.

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