Joan Fitzpatrick & Frank Newman, International Human Rights—Law,
Policy, and Process (3d ed. 2001).
Third Supplement to Chapter 14: U.S. Adjudicative Remedies for Violations Occurring Outside the U.S. (March 29, 2005) (with thanks to Professor Stephanie Farrior).
David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human
Rights—Law, Policy, and Process (3d ed. 2001)
Third Supplement to Chapter 14: U.S. Adjudicative Remedies for Violations Occurring Outside the U.S. (March 29, 2005) (with thanks to Professor Stephanie Farrior)
Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004)
Justice SOUTER delivered the opinion of the Court.
. . .
Although we agree the statute is in terms only jurisdictional, we think that at the time of enactment the jurisdiction enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law. We do not believe, however, that the limited, implicit sanction to entertain the handful of international law cum common law claims understood in 1789 should be taken as authority to recognize the right of action asserted by Alvarez here.
. . .
In sum, although the ATS is a jurisdictional statute creating no new causes
of action, the reasonable inference from the historical materials is that the
statute was intended to have practical effect the moment it became law. The
jurisdictional grant is best read as having been enacted on the understanding
that the common law would provide a cause of action for the modest number of
international law violations with a potential for personal liability at the
. . .
We assume, too, that no development in the two centuries from the enactment of Sec. 1350 to the birth of the modern line of cases beginning with Filartiga v. Pena-Irala, 630 F.2d 876 (C.A.2 1980), has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law. . .
Accordingly, we 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.
. . .
We must still, however, derive a standard or set of standards for assessing the particular claim Alvarez raises . . . . [W]e are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted. And the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.
. . .
It is enough to hold that a single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.
* * * * *
December 16, 2004
Unocal Alien Tort Claims Act Case Settlement Boosts Corporate Accountability
by William Baue
Some interpret the settlement between the energy company and Burmese villagers as setting a practical precedent for holding companies responsible for indirect human rights abuses.
SocialFunds.com -- Earlier this week, the plaintiffs and defendant in a precedent-setting Alien Tort Claims Act (ATCA) case jointly announced a "settlement in principle" on the day the US 9th Circuit Court of Appeals was to hear arguments by the US government to dismiss the case. The plaintiffs, 15 Burmese villagers who remain anonymous to protect their safety, used the 1789 law to allege that the defendant, Unocal (ticker: UCL), commissioned Burmese soldiers to protect its Yadana gas pipeline knowing they committed murder, rape, and forced labor.
"Although the terms are confidential, the settlement in principle will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care, and education and protect the rights of people from the pipeline region," the statement says.
Plaintiffs' counsel, EarthRights International (ERI), expressed that it was "thrilled" and "ecstatic" at the settlement, sentiments echoed by other human rights advocates active in ATCA litigation.
"The settlement agreement announced by Unocal and the plaintiffs' representatives is undeniably a triumph for human rights," said Sandra Coliver, executive director of the Center for Justice & Accountability (CJA). "The settlement suggests acceptance by Unocal and its corporate lawyers of the strength of the case against it, both factually and legally."
"It suggests acceptance of the fundamental premise of the lawsuit, namely that corporations can be held liable as aiders and abettors if they provided practical assistance to a foreign state actor--such as the military--knowing that that assistance would likely be used to commit human rights violations," Ms. Coliver told SocialFunds.com.
Daniel Petrocelli, a partner at O'Melveny & Myers and head of the Unocal defense team, did not respond to SocialFunds.com's requests for his commentary.
Sanford Lewis, an attorney with Strategic Counsel on Corporate Accountability who is pressing Dow Chemical (DOW) to take responsibility for the 1984 Bhopal chemical disaster, suggests that the settlement may help resolve an issue left unanswered by the Sosa v. Alvarez-Machain ATCA case decided in June 2004 by the US Supreme Court.
"The US Supreme Court has never specified whether corporations could be held liable for an indirect role in the human rights abuses of a nation," Mr. Sanford told SocialFunds.com. "In settling this case, Unocal must have concluded that there was a high risk that any appeals would ultimately decide in favor of the potential for corporate liability--the Supreme Court had mentioned this potential in a footnote in the June case."
"So now any corporation that collaborates in a nation's human rights abuses may be at risk of suit," added Mr. Sanford.
On the settlement day, the US government was set to argue before the 9th Circuit Court that holding Unocal liable for aiding and abetting would discourage foreign investment and interfere with US use of economic engagement as a foreign policy tool, according to Ms. Coliver.
"That argument is outrageous," Ms. Coliver said. "The US government has a wide range of methods it can use to promote its foreign policy but there are some things it may not do: it may not tell the courts to tolerate bribery or other forms of corruption, and equally, it may not tell the courts to tolerate assistance by corporations for human rights atrocities."
"In other court cases, the US government has argued that those who aid and abet terrorists can be held liable for terrorism," she added. "The government cannot have it both ways--the question should not be whether aiders and abettors can be held liable, but rather, what is the standard for determining when assistance crosses the legal line."
Although the settlement sets a precedent in practice, it does not set legal precedent because the case did not reach a decision in court. However, earlier decisions in the case do advance legal precedents on specific aspects, for example liability for "knowing assistance" in substantially supporting human rights violations by foreign state actors such as governments or militaries
"What remains for other courts to decide is, first, whether the precedent
will be recognized in jurisdictions outside of the 9th Circuit, and second,
what factual circumstances constitute 'knowing assistance,'" Ms. Coliver
* * * * *
Since there are many ATCA cases, users of the coursebook may wish to consult the websites of those organizations that handle or keep track of the majority of those cases:
Center for Constitutional Rights
Center for Justice and Accountability
Center for Justice & Democracy
Human Rights First
(Lawyers Committee for Human Rights)
New York, Washington DC, Oakland
International Labor Rights Fund
Website of articles & information
regarding the ATCA