A. Update on Cases in First Supplement.

1. Unocal litigation.

The First Supplement discussed the September 18, 2002, panel decision of the Ninth Circuit upholding a complaint under ACTA against Unocal for its actions in Myanmar (Burma) and the prior history of that case. (Doe v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2002).)

On February 14, 2003, the Ninth Circuit granted the motion for rehearing en banc and ordered that the panel decision could not be cited as precedent within the Circuit. (Doe v. Unocal Corp., Nos. 00-56603, 00-57197 (9th Cir. Feb. 14, 2003); Girion, U.S. Court Will Rehear Case Against Unocal, L.A. Times, Feb. 15, 2003; Tam, Appeals Court Will Revisit Ruling in Suit Against Unocal, W.S.J., Feb. 14, 2003.)

On June 17, 2003, the Ninth Circuit, en banc, heard this case. The focus of the judges' questions was on how Unocal should be judged: by standards drawn from federal case law (as urged by Reinhardt in a concurrence to the panel's decision) or from international law, and if from international, whether from civil law or criminal law, including jurisprudence of the Nuremberg, Yugoslav and Rwanda tribunals. Unocal took up the position advocated by the Justice Department in its amicus brief that the Alien Tort Claims Act (ATCA) does not create a cause of action. None of the judges, however, asked questions on this point, seeming to agree that they would not revisit their 6-5 decision to uphold the ATCA cause of action in Alvarez Machain. Nonetheless, Judge Rymer, who was in the dissent in Alvarez, and was silent at the hearing, or Judge Kozinski, could well pen a dissent with an eye to the Supreme Court. (See, e.g., O’Donnell, Capitalism vs. Conscience—Companies abuse human rights and the feds don’t care, L.A. Times, June 9, 2003, http://www.latimes.com/news/printedition/opinion/la-oe-odonnell9jun09,1,3136915.story; Wa, Court Is Villagers' Only Hope--The Justice Department and Unocal oppose a suit brought by alleged victims of abuse in Burma, L.A. Times, June 9, 2003, http://www.latimes.com/news/printedition/opinion/la-oe-wa9jun09,1,7077069.story; Girion, Pipeline to Justice? A U.S. appeals court offers hope to Myanmar farmers who accuse Unocal of complicity in human rights abuses, L.A. Times, June 15, 2003, http://www.latimes.com/la-fi-unocal15jun15,1,4154758.story; Girion, 1789 Law Acquires Human Rights Role--Alien Tort Claims Act is the basis of a suit against Unocal over abuses in Myanmar, L.A. Times, June 16, 2003; Girion, Unocal Case Focuses on Liability Standards, L. A. Times, June 18, 2003,
http://www.latimes.com/business/la-fi-unocal18jun18230417,1,5539385.story; Reuters, Citing Nazis, Lawyers Say Unocal Should Be Tried, N. Y. Times, June 17, 2003; Tam, Court to Review Whether Unocal Can Be Sued for Alleged Brutality, June 6, 2003.) (2)

As of November 4, 2003, the case was awaiting the en banc decision of the court.

2. Exxon Mobil litigation.

The First Supplement discussed another case against an oil company (Exxon Mobil Corp.) for alleged participation in human rights abuses in Indonesia. As of November 4, 2003, the dismissal motion was still pending. (See Docket Sheets, Doe v. ExxonMobil Corp., No. 01-CV-1357 (D.C.D.C.).)

3. Ford v. Garcia.

The First Supplement discussed the Eleventh Circuit’s affirmance of the jury verdict in favor of the defendant Salvadoran generals in a suit brought by the relatives of the four American churchwomen murdered in December 1980 in El Salvador. (Ford v. Garcia, 289 F.3d 1283 (11th Cir. 2002).) On January 13, 2003, the Supreme Court denied certiorari. (Ford v. Garcia, 537 U.S. 1147 (2003).)

4. Arce v. Garcia.

The First Supplement discussed the jury verdict in favor of the plaintiffs in another case against the same two Salvadoran generals. (Arce v. Garcia, Civil Action No. 99-8364 (S.D. Fl.), on appeal, No. 02-14427-F (11th Cir.).) As of November 4, 2003, the appeal was still pending.

5. Barrueto v. Larios.

The First Supplement discussed the district court’s denial of the motion to dismiss the complaint for failure to state a claim upon which relief could be granted. (Barrueto v. Larios, 205 F. Supp. 3d 1325 (S.D. Fla. 2002).)

On October 17, 2003, a Miami federal jury awarded $ 4 million in compensatory and punitive damages to the Cabello family for the torture and murder of their brother, Chilean economist Winston Cabello, on October 17, 1973 – almost 30 years ago to the day. The jury found Armando Fernandez Larios liable for all torts alleged: crimes against humanity, extra-judicial killing, torture, and cruel, inhuman or degrading treatment or punishment. Larios was a member of the “Caravan of Death� – a military squad acting under orders of Chilean dictator Augusto Pinochet.

The verdict coincides with the fifth anniversary of the arrest of Pinochet in London on October 17. Pinochet was arrested for having ordered the deaths that took place during the Caravan of Death. While Pinochet was never brought to justice, the Cabello trial exposed and documented in detail who was responsible for the crimes committed in the northern Chilean town of Copiapo, and the verdict establishes that the crimes committed by the Caravan amounted to a crime against humanity.

This case marks the first time that any Chilean has been tried in the United States for Pinochet-era crimes committed in Chile, as well as the first jury verdict in the U.S. holding a defendant liable for crimes against humanity.

See, e.g., Wilson, Jury Orders Ex-Officer To Pay Restitution, Guardian, Oct. 15, 2003, http://www.guardian.co.uk/uslatest/story/0,1282,-3267207,00.html; Center for Justice & Accountability, Press Release, Bay Area Family Wins Historic Verdict in Trial Against Pinochet Operative for Role in 1973 Killing During “Caravan of Death,� Oct. 15, 2003, http://www.cja.org/cases/cabello.shtml/

5. Schneider v. Kissinger.

The First Supplement discussed this lawsuit against former Secretary of State Kissinger over the assassination 31 years ago of a Chilean military commander in Chile. As of November 4, 2003, defendants’ dismissal motion was still pending.

B. New Cases.

1. Alvarez-Machain v. Berellez.

The Coursebook referred to the district court in Alvarez-Machain dismissing a TVPA claim on the ground that the conduct occurred before the effective date of the statute and that the statute was not retroactive, and the Textbook referred to a pending appeal in the Ninth Circuit. (Textbook at 821.)

In 2001, the Ninth Circuit reversed this decision, but in 2002 that panel decision was vacated when the petition for rehearing en banc was granted. (Alvarez-Machain v. United States, 266 F.3d 1045 (9th Cir. 2001), vacated & rehg en banc granted, 284 F.3d 1039 (9th Cir. 2002).)

On June 3, 2003, the appellate court en banc, 9 to 2, decided that a Mexican abducted in Mexico and turned over to U.S. authorities did not have standing to assert any claims for alleged breach of Mexican sovereignty, but that he did have a claim under the ATCA for breach of the “clear and universally recognized norm prohibiting arbitrary arrest and detention,� which had happened here. (Alvarez-Machain v. United States (9th Cir. June 3, 2003), http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C740557C88F27A1888256D3A00540B8C/$file/9956762.pdf?openelement.).

2. Flores v. Southern Peru Copper Corp.

On August 29, 2003, the Second Circuit affirmed the dismissal of a complaint under the ATCA by Peruvian residents against a U.S. mining company for pollution at its mine in Peru that allegedly caused severe lung disease. (Flores v. Southern Peru Copper Corp., 343 F.3d 140 (2d Cir. 2003).) In so doing, the court adhered to its decision in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), the leading ACTA case that is discussed in the Textbook (pp. 764-67).

The Second Circuit in Flores stated that “the law of nations� in the ATCA refers to customary international law, i.e., those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern. (Id. at 153-56.) The primary source of same is the formal lawmaking and official actions of States, as Article 38 of the Statute of the International Court of Justice prescribes. Excluded are treaties that set forth broad principles without specific rules. Only secondarily will the courts look to the works of scholars. (Id. at 156-58.)

Applying these guidelines to the specific issues in the case, the court in Flores held that the rights to life and health in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Political and Civil Rights, the U.N. Convention on the Rights of the Child, the American Convention on Human Rights, the American Declaration of the Rights and Duties of Man and UN General Assembly resolutions did not set forth specific rules. Moreover, some of these instruments were not treaties, some were treaties not ratified by the U.S. and others were not self-executing treaties of the U.S. Therefore, they were not a legitimate source of customary international law. (Id. at 162-69.) Nor did decisions by the International Court of Justice and the European Court of Human Rights provide such rules. (Id. at 169-70.) (3)

Finally the Second Circuit noted that its Filartiga decision had been followed by two other circuits (the Ninth and Eleventh), but apparently rejected by the D.C. Circuit. This apparent conflict in the circuits had not yet been resolved by the Supreme Court or Congress although the Senate Report on the TVPA had made positive comments about Filartiga that the Second Circuit had taken as ratifying that decision at least insofar as it involved torture. (Id. at 148-53.)

3. Doe v. Saravia.

On September 16, 2003, the San Francisco-based Center for Justice & Accountability filed this lawsuit in the U.S. District Court for the Middle District of California. The complaint alleges that a California resident, Alvaro Rafael Saravia, played a key role in organizing the March 1980 assassination of revered Salvadoran Archbishop Oscar Romero, an outspoken critic of human rights abuses committed by the Salvadoran military. Saravia was a captain in the Salvadoran air force until he became a top aide of Salvadoran death squad leader Roberto D’Aubuisson. (See, e.g., Center for Justice & Accountability, Key Conspirator in Assassination of Salvadoran Archbishop Romero Faces Lawsuit in U.S. Court, Sept. 16, 2003, http://www.cja.org/cases/romero.shtml; Chang, Modesto man accused in '80 slaying of bisho, San Fran. Chronicle, Sept. 17, 2003; Brannigan, Suit Filed in '80 Death Of Salvadoran Bishop, Washington Post, Sept. 17, 2003.)

Plaintiff’s counsel also has announced an intent to sue others implicated in Romero’s murder. (El Diario de Hoy, San Salvador, 9/26/03)

C. Debate about Scope of ATCA.

Recently the Bush Administration and its supporters have been arguing against any application of the Alien Tort Claims Act and provoking lively counterarguments. (See, e.g., Liptak, U.S. Courts' Role in Foreign Feuds Comes Under Fire, N. Y. Times, Aug. 3, 2003; Markels, Showdown for a Tool in Human Rights Lawsuits, N. Y. Times, June 15, 2003.)

Here are their essential points of this attack on use of the ATCA in private lawsuits:

ï?± The ATCA is only a jurisdictional provision and does not create an implied private right of action.

ï?± Congress has never passed a law directly authorizing lawsuits such as the one against Unocal.

ï?± Congress in the TCPA in 1992 did not ratify Filartiga and its progeny.

ï?± Treaties that are not ratified by the U.S. or that are not self-executing are not a legitimate basis for an implied private right of action.

ï?± Bringing such lawsuits instead under the ATCA creates grave problems of democratic accountability. International human rights law did not exist when the law was passed; it was probably intended to deal with far more limited issues, such as piracy and attacks on ambassadors.

ï?± ATCA remained largely dormant until 1980, when federal courts began reading it to authorize lawsuits for human rights abuses worldwide. This reading, in addition to being ahistorical, caused the courts to assume responsibility for wrongs they had no practical power to redress. This is not what the courts are for.

� As Robert Bork said, “Yet it is clear not only that Filartiga is wrong but that it is a serious incursion by courts into the domain of Congress, involving, as it does, the enactment of world-wide law by an unholy alliance of imperialistic judges and a leftish cadre of international law professors.�

ï?± The first Congress that enacted the ATCA in 1789 contemplated the law of nations as it stood and could not have foreseen the explosive growth of "customary international law" in the 20th and 21st centuries. If customary international law is to be applied at all by U.S. courts, the Constitution provides guidance. Article I, section 8, clause 10 gives Congress the power to "define and punish . . . Offenses against the Law of Nations." This provision, according to Judge Raymond Randolph of the D.C. Circuit this year in Al Odah v. United States, "makes it abundantly clear that Congress -- not the Judiciary -- is to determine, through legislation, what international law is and what violations of it ought to be cognizable in the courts. Yet under Filartiga, it is the courts, not Congress who decide both questions."

ï?± Customary international law is formulated by international law professors and thus is inherently antidemocratic.

ï?± Cases under the ATCA risk interference with important foreign policy considerations by judges who are not equipped to deal with such issues.

(See, e.g., Brief of U.S., Amicus Curiae, Doe v. Unocal Corp., No. 00-56603, 00-56628 (9th Cir. May 8, 2003); Robert Bork, The Soul of the Law, W.S.J., Jan. 20, 2003; Robert Bork, Judicial Imperialism, W.S.J., June 17, 2003; Editorial, Policing Human Rights, Washington Post, Aug. 14, 2003; Eggen & Lane, White House Seeks to Curb Rights Cases From Abroad, Washington Post, May 30, 2003, p. A1.)

Others have stated that ATCA does and should apply to claims against corporations. Their points are the following:

ï?± In Filartiga, the 1980 case that started use of the ATCA for human rights abuses, the Department of Justice submitted a legal brief stating that refusing to recognize a private cause of action under the law "might seriously damage the credibility of our nation's commitment to the protection of human rights." The department stated that when the stringent conditions of the law are satisfied, "there is little danger that judicial enforcement will impair our foreign policy efforts." Since that time, the Justice Department has supported or remained neutral in human rights litigation brought under this law. (4)

ï?± The federal courts have upheld claims against corporations only for the most egregious human rights abuses, claims such as genocide, slavery, torture and crimes against humanity.

ï?± The only case to date that has detailed the appropriate standard of liability in corporate human rights cases, Doe v Unocal Corp, (9th Cir September 18 2002, now under review), held that a corporate defendant can be held liable only for its own actions, where the corporation provides "knowing practical assistance or encouragement" that has a "substantial effect" on the perpetration of egregious human rights abuses.

� Such cases do not reflect an "arrogance of American power,� but instead apply internationally accepted norms in a manner increasingly accepted by nations around the world. Under the US constitution, it is the specific role of the courts to adjudicate legal claims such as violations of the law of nations.

ï?± Many alleged foreign human rights abusers now live in the U.S., and the U.S. may be the only place where they are subject to suit. In addition, several hundred more alleged abusers visit the U.S. every year. For the more than 500,000 refugees living in the United States who were victims of torture in their home countries, it is terrifying to consider that their tormentors may live or visit here.

ï?± Victims of human rights abuses often have no judicial remedies in their home countries due to amnesty laws, immunizing the perpetrators from lawsuits.

ï?± In many countries where widespread human rights abuses have occurred, those who try to bring the human rights abusers to justice are themselves killed or persecuted.

ï?± Gaps in U.S. law make it difficult for the immigration service to deport foreign torturers.

ï?± The United States lacks the laws necessary to criminally prosecute people who come to this country after having committed war crimes, crimes against humanity or unauthorized killings.

(See, e.g., Green & Stephens, Corporate rights decisions do not reflect US arrogance, Fin. Times, March 25, 2003; Editorial, A Needed Human Rights Law, N. Y. Times, June 2, 2003; Coliver, Centuries-old law is critical for torture survivors, San Fran. Chronicle, June 11, 2003; Editorial, An Important Human Rights Tool, N. Y. Times, Aug. 8, 2003; Senator Arlen Specter, The Court of Last Resort, N. Y. Times, Aug. 7, 2003.) (5)

D. Mujica v. Occidental Petroleum.

On April 25, 2003, Luis Mujica and Luis Galvas sued Occidental and its private security contractor, Airscan, under the ATCA and the TVPA and other laws in the federal court in Los Angeles. The event that gave rise to the suit was a December 13, 1998, U.S. air raid in Colombia that caused 19 civilian deaths. The suit charges that both Occidental and Airscan helped conduct the attack, providing key strategic information, as well as ground and air support to the Colombian military in the bombing raid on the town. Airscan's "Skymaster" plane--which provides aerial surveillance for Occidental’s Caño Limon oil pipeline--accompanied the Colombian air force during the bombing, and used its infrared and video equipment to pinpoint targets on the ground. While allegedly targeting suspected rebels, no rebels were in the area. (See, e.g., Girion, Occidental Sued in Human Rights Case, L.A. Times, Apr. 25, 2003.)

As of October 6, 2003, defendants by court order had not responded to the complaint, and on that date plaintiffs filed their First Amended Complaint. As of November 4, 2003, defendants had still not responded to the Complaint or the First Amended Complaint. Instead the parties were filing briefs on defendants’ motion for the court to solicit the views of the U.S. Department of State regarding potential foreign policy implications of this lawsuit. (Docket Sheets, Mujica v. Occidental Pet., No. 03-CV-2860 (Nov. 4, 2003).

____________________________

1. This supplement was prepared by Duane W. Krohnke, Adjunct Professor of Law, University of Minnesota Law School.

2. The First Supplement also discussed developments in the related California state case. That court has determined that California state law shall be the governing substantive law for the claims against Unocal. (See Girion, California Law to Govern Unocal Human Rights Case, Judge Rule, Aug. 1, 2003; Assoc. Press, Judge Rules California Law Will Apply in Unocal Cas, W.S.J., Aug. 1, 2003.)

3. The Second Circuit in Flores had special criticism of the plaintiffs’ affidavits from international law scholars. Said the court, these “affidavits serve essentially as supplemental briefs, providing arguments and citations which for the most part [are duplicative of the parties’ briefs].� (Id. at 170-71.)

4. The author has not verified this quotation of an apparent amicus brief in Filartiga. It would be interesting to do so and compare that brief with the more recent briefs by the U.S. Government arguing against the use of the ATCA.

5. Senator Specter in his recent article stated that in 1992 Congress and President G.H.W. Bush considered and rejected an argument by the Justice Department that ATCA should not be used for suits against corporations. (Id) This is an apparent reference to Congress’ 1992 adoption of the Torture Victims Protection Act. (See text at 818-22.)