On July 26, 2007, a jury absolved the Drummond Company of liability for the deaths of three Colombian union leaders. 1 The importance of this case, however, lies not in the verdict but rather in the fact that a trial occurred at all. The Drummond case marked the first time that an action against a corporation under the Alien Tort Claims Act ("ATCA") reached trial.2 More importantly for this Note, it was also the first time a federal court held that the "rights to associate and organize" can support a claim under the ATCA.3
The ATCA states: "The district courts shall 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."4 The ATCA therefore allows an alien to bring a claim in U.S. court against any defendant based on events that occurred in any country,5 so long as a judge determines that the claim is actionable under the ATCA.
The ATCA is unique within international law.6 Largely unused for nearly 200 years, the ATCA was revived in 1980, and since that time, plaintiffs have invoked it in a wide variety of claims for violations of international law. While plaintiffs initially used it against states and their agents, plaintiffs have recently brought ATCA claims against U.S. Page 1384 corrpoations. This extraordinary statute now has the potential to expose corporations to massive amounts of litigation due to their operations outside of the United States.
In Drummond, relatives of murdered Colombian trade-union representatives brought suit against the Drummond Company, an Alabama corporation, in U.S. district court. 7 The plaintiffs alleged that the men were killed by Colombian paramilitaries acting as agents for Drummond. 8 In addition to claims for extrajudicial killing, the plaintiffs asserted that Drummond violated international law through its "denial of the fundamental rights to associate and organize."9 The court found that the rights to associate and organize were contained in a number of international declarations and treaties and that its job was to "evaluate the status of international law at the time th[e] lawsuit was brought."10 The court then determined that "the rights to associate and organize are generally recognized as principles of international law sufficient to defeat defendants' motion to dismiss." 11
Drummond's holding-that the rights to associate and organize are sufficiently recognized to form the basis of an ATCA claim-is unique within ATCA jurisprudence and represents a dramatic broadening of the scope of ATCA claims. While most ATCA claims involve violent and universally condemned crimes-such as genocide, torture, and extrajudicial killing12- claims against corporations based on their foreign labor practices involve routine corporate policies that implicate outsourcing and comparative advantage. The ATCA actionability of violations of the rights to associate and organize threatens to incite a veritable explosion of ATCA litigation against U.S. corporations, leading one court to observe that "it is hard to imagine what claims of violations of the fundamental right to associate and organize would not be heard" if such claims were allowed to proceed.13 Similarly, one scholar has noted that the ATCA "has the potential to be a new weapon in the international movement for labor rights."14 Indeed, over 140 Colombian plaintiffs recently filed a suit against Chiquita Brands International, alleging, Page 1385 among other things, that the company violated their murdered relatives' "fundamental rights to associate and organize."15
Drummond's dramatic expansion of the ATCA's scope to include labor-rights claims raises the specter of foreign claimants flooding into U.S. courts, perhaps alleging that corporations did not give them room to hold union meetings in Nicaragua or did not allow them to collectively bargain in Bhutan. Beyond a glut of cases in the U.S. judicial system, however, courts' allowance of such labor claims could also have substantial ramifications for U.S. trade and foreign investment.16 Many of the competitive advantages that prompt U.S. corporations to develop multinational operations and outsource labor-intensive work would be fundamentally altered. Broad-based corporate liability for labor conditions in foreign countries could depress foreign investment, cause divestment from developing countries, and dampen international commerce. 17
However, such a scenario is unlikely to occur. This Note asserts that despite the court's reasoning in Drummond, violations of the rights to associate and organize are not properly actionable under the ATCA. Part II provides background on the ATCA, tracing the development of corporate liability under the ATCA.18 Part III examines the conclusions and reasoning of the Drummond court.19 Part IV analyzes common threshold requirements for ATCA jurisdiction and applies those to labor-rights claims, concluding that such claims would likely satisfy these threshold requirements.20 Part V, however, examines customary international law under the ATCA and concludes that the rights to associate and organize likely do not satisfy the requirements for ATCA actionability.21 Part VI argues that even if courts were to determine that labor rights technically qualify for ATCA jurisdiction, practical and policy considerations would militate against allowing these labor-rights claims.22 Finally, Part VII issues several caveats, noting the constantly evolving nature of international law and the possibility that the Page 1386 rights to associate and organize could blossom into ATCA actionability in the future.23
The language of the modern Alien Tort Claims Act has survived largely unchanged from the Judiciary Act of 1789 ("Judiciary Act").24 The Judiciary Act stated that the district courts "shall . . . have cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States."25 This section of the Judiciary Act is without any significant legislative history, and thus the precise meaning and purpose intended by the legislature is unclear.26
There are clues, however, indicating legislative intent. In 1784, a high-profile confrontation occurred in Philadelphia between Frenchman Charles Julian de Longchamps and Francis Barbe Marbois, who was a French diplomat. 27 Although a state court eventually found de Longchamps guilty- and in so doing stated that the "crime . . . [was] an infraction of the law of nations" 28-its decision came after government frustration regarding the perceived "inability of the Continental Congress to enforce the law of nations" within the United States.29 Some courts have interpreted the ATCA section of the Judiciary Act to mean that such diplomatic incidents would be fully justiciable in U.S. federal courts and, therefore, that a potential foreign-affairs controversy could be avoided in the future.30 However, the de Longchamps incident, at most, merely demonstrates that Congress wished to assure some form of judicial recourse for foreign diplomats and other aliens when they were harmed; the incident does little to shed light on what kind of offenses Congress intended to be actionable under the ATCA. Page 1387
After its passage in 1789 and over the course of the next two centuries, the ATCA went largely unused and unnoticed.31 A study by Professor Kenneth C. Randall could not locate a single case that utilized the ATCA in the nineteenth century and found that only three cases did so prior to 1958.32 Potential litigants likely overlooked the ATCA because of Congress's narrow, diplomatic purpose in passing the statute. A Second Circuit case in 1975 noted that the ATCA "is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, no one seems to know whence it came."33
In 1980, the Second Circuit decided Filartiga v. Pena-Irala34-a breakthrough for ATCA usage that would irrevocably shape the statute's legal future. Filartiga involved a Paraguayan plaintiff whose son had been kidnapped, tortured, and killed in Paraguay by the Stroessner regime.35 The defendant, living in the United States under a visitor's visa, was formerly an Inspector General of Police in Paraguay.36 The court accepted the plaintiff's ATCA claim, holding that "deliberate torture...