The Alien Tort Claims Act & Doe v. Unocal: a Paquete Habana approach to the rescue.

• Author: Haberstroh, John

The requirement that a rule command the "general assent of civilized nations" to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law. (1)

The exalted power of administering judicially the law of nations.... What a beautiful and magnificent prospect of government is now opened.... The sluices of discord, devastation, and war are shut: those of harmony, improvement, and happiness are opened. (2)

1. INTRODUCTION

   Twenty years ago Judge Edwards made his now well-known plea for the Supreme Court to clarify the "Alien Tort Claims Act" (ATCA) (3) and the law of nations. (4) His plea echoes through a series of recent Ninth Circuit alien tort claim decisions here labeled Unocal I, II, and III. (5) The litigation concerns Unocal's alleged complicity in Burmese security forces' use of forced labor to construct oil and gas pipeline facilities. Unocal III is a vacated appellate court decision, recently reheard en banc. (6) A final Ninth Circuit decision was expected in the Fall of 2003, but a decision had not yet been issued by the following spring. (7)

   A rehearing decision that largely affirms the appellate court may compel Supreme Court review, and then we may have the long overdue update of judicial rules for determining customary international law). (8) This in turn would clarify which international human rights violations, and which behavior in complicity with those violations, fall within the scope of ATCA. (9)

   The Ninth Circuit an bane oral arguments took place on June 17, 2003. As expected, the judges' main interest was whether the appellate court was correct in submitting Unocal's actions to an aiding-and-abetting standard derived from ad hoc international criminal tribunal decisions. (10) The judges indicated they were considering the Unocal III concurrence, which had suggested instead applying a federal civil common law standard to the aid-and-abet claims. (11)

   However, by presenting itself with only those two choices, the appellate court displayed the unpalatable alternatives U.S. courts normally provide themselves with in making customary international law determinations. A third and better alternative is to institute a judicial practice--in a substantive international law matter such as the applicable aiding-and-abetting standard--of freshly determining such standards from the consensus among the world's domestic legal systems. This might be called a "Paquete Habana" approach, though it is a natural extension of Habana in line with the increased scope and domestic penetration of international law. Critically, such an approach would continue to recognize the consensual nature of customary international law: that it must derive from settled practice among the nations of the world. As applied to Unocal's aiding and abetting conduct--which would not generate civil or criminal liability in the vast majority of the world's legal systems--the approach would not find the corporation's misbehavior a law of nations tort, and would compel dismissal of the action because ATCA subsumes only torts in violation of customary international law.

   ATCA itself may receive a fresh review if the Supreme Court considers Unocal III. Concerned by a statute unbound by a "new" customary international law, the Court may seek to dim the statute's usefulness in international human rights litigation. (12) The Court may even align itself with the scholarship of Judge Robert Bork and others who have long advocated limiting ATCA to law of nations torts actionable in the 1790s or to torts taking place in the United States. (13) Instead, with a modernized Paquete Habana, the Court should resist Bork's historically inaccurate position but at the same time reject the new, non-consensual, non-positivist customary international law.

   After briefly describing the human rights violations in Burma that gave rise to litigation against Unocal, this paper begins to connect ATCA with those wrongs by examining the early history of the alien tort statute, particularly its original purpose. The paper finds that early history generally in harmony with the statute's revival in modern international human rights litigation, which includes the Unocal litigation. The paper begins discussion of the modern era with Filartiga v. Pena-Irala, an offspring of the birth of modern international human rights law in the Nuremberg Tribunal. The discussion of ATCA concludes by reviewing the controversy surrounding Judge Bork's opinion in the Tel-Oren decision, and finds the Filartiga human rights litigation tradition more compatible with an originalist understanding of ATCA than Judge Bork's ATCA scholarship.

   Finally, the paper examines the Unocal litigation, particularly the Unocal III decision, which employed a notion of customary international law that appears to escape the boundaries of the Filartiga tradition, deriving its legal standards inappropriately from Nuremberg-style ad hoe criminal tribunals. Such a practice inaccurately suggests that the tribunals have established a customary international law independent of the practice of sovereign states and their legal systems. A common-sense examination of choice of law principles suggests the Paquete Habana methodology be applied not merely to primary violations of customary international law, such as the forced labor allegations against the Myanmar military government, but also to substantive legal issues ancillary to the primary ones, in this instance the third-party complicity standard to be applied to Unocal's behavior.

2. HUMAN RIGHTS VIOLATIONS IN BURMA

   The Unocal decisions concern a class action suit brought by farmers from the Tenasserim region of Burma, also internationally recognized as Myanmar, against, among others, Unocal Corp. ("Unocal"), Total S.A. ("Total"), and Burma's military government). (14) The farmers alleged that the Burmese military had committed international human rights violations through a state-owned oil and gas company in furtherance of a Unocal, Total, and Burmese military joint venture, the Yadana gas pipeline project. (15) The Burmese military and security forces allegedly used the farmers as slave labor for the pipeline project, and raped, tortured and murdered those who refused to participate. (16) Plaintiffs alleged that Unocal and Total, by using the services of the Burmese security forces with some awareness of their practices, had used the Burmese farmers as slave labor for the pipeline project. (17) Successive Burma regimes have a "long and well-known history of imposing forced labor on their citizens." (18)

   The Unocal litigation originated with a Burmese trade union leader, U Maung Maung, and his serendipitous contact with a Georgetown law school student, Douglas Steele. (19) U Maung Maung, an exile in Thailand, was dismayed by the flood of refugees escaping from Burma who told him of forced labor and associated rape, torture and murder on the Unocal-Total pipeline project. (20) He wondered aloud to Steele whether any action could be brought against Unocal in U.S. courts, and Steele investigated. (21) Steele ultimately contacted the International Labor Rights Fund in Washington, D.C., (22) which then filed a claim against Unocal in September 1996. (23) The claim was the first ATCA-based international human rights action against a U.S. corporation. (24)

3. THE ALIEN TORT CLAIMS ACT, FROM INTENT TO REVIVAL

   1. Original Intent and Early History

      A legal understanding of the case brought against Unocal must begin with an understanding of ATCA, but based on more than the statute's reasonably clear wording. ATCA, adopted in 1789 and codified at 28 U.S.C. [section] 1350, declares that the federal district courts have "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (25) The statute, from its wording, allows a civil action to be brought in federal courts (1) by an alien (2) for a tort (3) committed in violation of international law. Who can be sued is not limited, and therefore might include aliens as well as U.S. citizens. (26)

      However, the statute's rare use before its human rights litigation revival--only twenty-one cases had invoked jurisdiction under ATCA before 1980 (27)--made courts and scholars anxious that revived usage accord with the statute's original meaning and purpose. (28) Thus, courts have strived to interpret ATCA in light of Judge Learned Hand's counsel that "statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." (29)

      Yet the statute was once famously declared "a kind of legal Lohengrin," (30) and a complete account of its purpose and object may not be possible. For example, there is no record of discussions in Congress leading up to ATCA's enactment. (31) Nonetheless, many windows into Congressional thinking are available, and the origins and general purposes of ATCA turn out to be reasonably clear. (32) First of all, and broadly, it is evident the statute was a product of an effort by a militarily weak nation reliant on international commerce to gain control over its voice in foreign relations. (33) One element of that voice was treatment of tort actions by foreigners for international law violations. (34)

      Scholarly disagreement arises when discussion moves from general to more specific purposes for the statute. Scholars pose two specific purposes (both will be discussed in detail shortly). First, many see a "defensive" purpose: ATCA was conceived as a defensive measure to remove a potential cause for international conflict with the U.S. from the diplomatic arsenal of aggressive mercantile powers. (35) A second viewpoint is that the statute has an "assertive" purpose: ATCA was a by-product and expression of a struggle by neutrals...