CHAPTER 21 THE ALIEN TORT STATUTE: AN INTRODUCTION FOR MULTINATIONAL CORPORATIONS
| Jurisdiction | Derecho Internacional |
(Apr 2009)
THE ALIEN TORT STATUTE: AN INTRODUCTION FOR MULTINATIONAL CORPORATIONS
Baker Botts, LLP
Washington D.C.
Paul Enzinna, represents individuals and corporations in complex civil and criminal matters--both at trial and on appeal--in courts across the country, and in arbitrations around the world. He also conducts internal corporate investigations into allegations of violations of the Foreign Corrupt Practices Act and other laws governing the conduct of business in the United States and internationally. He has represented individuals and corporations in connection with international criminal investigations and extradition proceedings. Mr. Enzinna's civil practice includes all types of complex commercial litigation, including litigation under the Alien Tort Statute, securities violations, First Amendment and media issues, trademark infringement, government contracts and labor and employment litigation. Mr. Enzinna has represented several death penalty defendants, and as vice president and founding board member of the Mid-Atlantic Innocence Project, he obtained DNA testing that cleared a Virginia man of a 1982 rape, leading to the first full pardon granted under Virginia's post-conviction DNA testing statute. After graduating from law school, Mr. Enzinna served as a law clerk to the Honorable J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit. Mr. Enzinna has served as an instructor for the National Institute for Trial Advocacy, and in 2002, was awarded the R. Kenneth Mundy Lawyer of the Year Memorial Award by the National Association of Criminal Defense Lawyers, District of Columbia Chapter.
The Alien Tort Statute ("ATS") was enacted by the first United States Congress in 1789. The statute appears to have been intended to combat piracy and offenses against diplomats, but it is not, by its terms, so limited. Rather, it opens U.S. courts to "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." In the past several decades, plaintiffs have seized upon this tabula rasa to seek, in U.S. courts, damages from multinational corporations ("MNCs") for alleged human rights violations occurring outside the United States.
Because they often involve sensational allegations, made by extraordinarily sympathetic plaintiffs, suits under the ATS can result in large damage awards. For example, in 2006, three El Salvadoran plaintiffs were awarded a total of $54 million in compensatory and punitive damages in their ATS suit alleging torture by the El Salvador military. And in 2002, four Bosnian Muslim plaintiffs were awarded $35 million each in their ATS suit against Bosnian police.
Notably, no jury has awarded any damages against a multinational corporation under the ATS. Two such cases have proceeded to trial; each resulted in a defense verdict. Nevertheless, dozens of suits have been filed under the ATS against MNCs in recent years. This includes a Who's Who of the mining and oil and gas industries. For instance, suits have been filed against Chevron, Texaco, Unocal, Freeport-McMoRan, Drummond Company, Exxon-Mobil, Newmont Mining, Occidental Petroleum, Talisman Energy, Rio Tinto PLC, and Royal Dutch Petroleum, for events occurring in South America, Asia, Africa, and around the world. As noted, the two cases that have gone to trial, against Drummond and Chevron, resulted in defense verdicts. However, both companies were subjected to years of litigation-related uncertainty and expense. And in 2005, Unocal settled an ATS suit that had been brought against it in connection with the construction of a natural gas pipeline in Burma.
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While the Supreme Court examined the contours of the ATS in 2004, its decision did not provide a clear set of rules for determining whether and when such a suit may go forward. Thus, suits under the statute likely will continue to be a fact of life for multinational corporations. This paper explains what the statute forbids, and how to avoid liability under it.
I. Evolution of the Alien Tort Statute
The United States Supreme Court has noted that the first Congress intended the ATS to furnish jurisdiction for a "relatively modest set of actions," including piracy and offenses against diplomats. Unsurprisingly, the statute remained obscure and little-used for nearly two centuries.
However, in 1980, Dolly Filartiga and her father Joel, émigrés to the United States, brought suit under the ATS against Americo Peña-Irala, an Inspector General of Police under Paraguayan Dictator Alfredo Stroessner. The Filartigas located Peña-Irala in New York and sued there, claiming that he had tortured and killed 17-year old Joelito Filartiga in Asunción several years earlier.
The trial court dismissed the suit, holding that, as used in the ATS, the "law of nations" must be construed narrowly, to "exclud[e] that law which governs a state's treatment of its own citizens." The Court of Appeals for the Second Circuit reversed, however, reading the statute's "law of nations" language broadly, and holding that "courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." The court went on to find that:
In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.
In Filartiga, a U.S. court made clear for the first time that a (foreign) private party may seek damages under the ATS for tortious conduct committed overseas. But although Filartiga opened the door to ATS suits, the first "wave" of such suits was relatively modest-courts generally have held that what otherwise would be private tortious conduct may rise to the level of a "violation of the law of nations" only when committed by a state actor, and the first set of ATS suits to follow Filartiga alleged tortious
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conduct by foreign governments or heads of state, including Robert Mugabe of Zimbabwe, Li Peng of China, and Ferdinand Marcos of the Philippines.
The first "crack" in the ATS's "state action" limitation appeared when, in 1993, Croat and Muslim victims of ethnic cleansing during the Bosnian civil war brought suit under the ATS against Radovan Karadzic, the self-proclaimed President of the Republic of Srpska. Karadzic sought to dismiss the suit, claiming that because Srpska was not recognized by other nations, he was not a state actor, and his conduct could not be a "violation of the law of nations." The court rejected this argument, holding that:
We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals.
Kadic v. Karadzic, 70 F.3d 232, 239 (2d Cir. 1995)
After Kadic, plaintiffs began to use the ATS vigorously to pursue claims against U.S. corporations operating abroad. In the years immediately following Kadic, plaintiffs and interest groups expanded the reach of the ATS beyond heads of state and governmental actors, bringing suit against a host of MNCs, alleging complicity in, and seeking damages for, human rights violations around the globe. These suits included:
▪ Arias, et al. v. DynCorp, et al. (D.D.C. 2001): Plaintiffs alleged that, in connection with U.S. government contract to eradicate cocaine and heroin crops believed to be growing there, DynCorp sprayed toxic herbicides over area of Ecuador in which plaintiffs lived, causing a variety of medical problems, death, and loss of crops and livestock.
▪ Bauman et al. v DaimlerChrysler Corp. (N.D. Cal. 2003): Plaintiffs alleged that officials of Mercedes Benz conspired with security forces of the Argentinean junta to kidnap, and in some cases torture and kill, labor protesters and union leaders between 1976 and 1983.
▪ Beanal, et al. v. Freeport-McMoRan, Inc., et al. (5th Cir. 1999): Indonesian citizen alleged that the defendants' mining operations harmed the surrounding environment and habitat, and that the defendants' private security force acted with the Indonesian government to violate human rights.
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▪ Bigio, et al. v. Coca-Cola Co., et al. (2d Cir. 2001): Plaintiffs claimed that, in 1962, the Egyptian government improperly seized their property in Egypt because they were Jewish, and that in 1993 Coca-Cola purchased or leased the property with knowledge that it had been nationalized by the Egyptian government.
▪ Bowoto, et al. v. Chevron Texaco Corp., et al. (N.D. Cal. 2004): Plaintiffs alleged that Chevron provided assistance to the Nigerian military and participated in two raids in which human rights abuses occurred.
▪ Doe I, et al. v. Unocal Corp., et al. (9th Cir. 2003): Burmese citizens alleged that Unocal was liable for human rights abuses allegedly committed by the Burmese military in connection with the construction of a gas pipeline, including forced relocation of villages and knowing use of forced labor.
▪ Romero, et al. v. Drummond Company, Inc., et al. (N.D. Ala. 2007): Plaintiffs alleged that defendant companies hired paramilitary security forces to silence leaders of union representing workers at defendants' facilities by means of violence, murder, torture and unlawful detention.
▪ Flores v. Southern Peru Copper Corp. (2d Cir. 2003): Peruvian residents claimed that pollution from mining company's operations caused severe lung disease.
...▪ John Doe I, et al. v.
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