From aiding pirates to aiding human rights abusers: translating the eighteenth-century paradigm of the law of nations for the Alien Tort Statute.

• Author: Lovejoy, Martha

The Alien Tort Statute [ATS], alternately hailed as a "potent weapon for human rights" and a threat to developing nations and American corporate interests alike, was secured a second act by the Supreme Court's 2004 decision in Sosa v. Alvarez-Machain. The Sosa decision confirmed the A TS as actionable, but restricted its application to offenses "comparable to the features of the eighteenth-century paradigms, offenses against ambassadors, violations of safe conduct and piracy, that Congress had in mind when it enacted the ATS." Whether aiding and abetting liability is available under the ATS remains a live issue. This Note analyzes Sosa's historical paradigm, examining whether aiding and abetting liability was available for the archetypical violation of the law of nations: piracy. It concludes that aiding and abetting liability for piracy was available and common in English and American law from the sixteenth century to the eighteenth century. The Note outlines the theories of aiding and abetting piracy and applies those theories to contemporary human rights problems.

INTRODUCTION

In the Papua New Guinean civil war, the government bombed human targets, burned villages, raped women, and shot civilians to support the security of the largest economic entity in the country, mining company Rio Tinto. (1) Could Rio Tinto be held liable for aiding and abetting human rights abuses in American courts under the Alien Tort Statute [ATS]? (2) During South Africa's apartheid, companies provided banking services for the government; their oil fueled the military trucks; the cars they produced drove the South African police officers who shot demonstrators on the streets. Companies housed South African government weapons and provided security for high-risk areas. (3) Is that support sufficient to constitute aiding and abetting violations of the law of nations under the ATS?

Human rights litigators hope so, building ATS cases to bring human rights to the attention of United States-based companies operating in foreign countries. (4) Yet whether plaintiffs can sustain such actions depends on a historical framework set forth by the Supreme Court in 2004. In Sosa v. Alvarez-Machain, the Court instructed lower courts to "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 eighteenth-century paradigms we have recognized." (5) Since Sosa, courts and scholars have grappled with the boundaries and content of these "paradigms." (6) The Court intended this restriction to serve a "doorkeeping" (7) function, urging cautious use of the statute. In Sosa, the Court measured the defendant's conduct against the seriousness of piracy, the archetypical Blackstonian international crime. (8)

This Note analyzes the "eighteenth-century paradigm" of the law of nations as prescribed by the Court for the purposes of refining one of the most contested issues in international law today: corporate aiding and abetting liability for human rights abuses. It seeks to accomplish two goals. First, by taking a close look at the historical prosecution of piracy, the Note confirms that aiding and abetting violations fit firmly into the eighteenth-century paradigm of the law of nations. Second, the Note uses the framework of the piracy liability to provide guidance into the type of aid that was considered triable in the Founders' era, and the concepts that were at the foundation of liability. Individuals who aided pirates were held liable for three basic types of aid: counsel and procurement of piracy, material aid to pirates, and deriving material benefit from business with pirates. Extent of involvement, duty and profit were all considered relevant to the determination of liability. The Note translates the historical paradigm, using it as a benchmark, as the Sosa court did, to measure the viability of contemporary corporate aiding and abetting liability under the ATS. It argues that the historical filter functions appropriately as a gatekeeping test to let only the strongest aiding and abetting cases proceed.

This Note fills in a gap in the ATS literature by exploring the historical context in greater depth than other articles have, considering English and American cases, proclamations, and statutes from rare book libraries to provide a more complete picture of how the framers viewed aiding and abetting piracy. (9) The Note builds beyond the set of cases and materials generally presented within ATS case law, such as Attorney General William Bradford's opinion and the case Talbot v. Janson (10), to analyze the history in greater detail.

The argument proceeds as follows. Part I lays out the jurisprudential background of the ATS and the shift to cases involving corporate liability. This Part will briefly survey the debates over whether corporate aiding and abetting liability is acceptable normatively and legally. It will also show the continuing relevance of the history of aiding and abetting to the current legal debate. Part II describes the history of aiding and abetting applied to violations of the law of nations. It follows the changing jurisdiction over piracy trials from the sixteenth century to the nineteenth century, focusing on the treatment of aiding and abetting. This Part uses early-modern scholarly texts, both from common law sources and international sources to elucidate the concepts of duty, assistance, and profit that were dominant in the eighteenth century. Wherever possible, the history will focus on what sorts of aid were recognized to be aiding and abetting, as well as mens rea and knowledge requirements developed through the doctrines, to provide a view into not just whether aiding and abetting liability existed, but what it meant. Part III interprets the piracy jurisprudence for the purposes of the ATS. It applies the framework elucidated through the history to the Sarei v. Rio Tinto (11) and Khulumani v. Barclay National Bank Ltd. (12) cases, involving corporate collusion in the blockade of Papua New Guinea and business in South Africa respectively, and evaluates whether their claims would stand after the historical test.

1. BACKGROUND TO CORPORATE LIABILITY AND THE ALIEN TORT STATUTE

   1. Early Jurisprudence of the Alien Tort Statute: From Attacks on Ambassadors to Corporate Liability

      One of the first laws in America, the ATS was enacted by Congress as a method of reassuring foreign countries of American law enforcement capacities at a time when the country was young and anxious about its status as a nation engaged in foreign affairs. (13) It was passed shortly after a political embarrassment in which the United States found itself without sufficient legal remedies after an attack on a French diplomat. (14) According to the generally accepted history of the ATS, the United States looked to the Blackstonian definition for individual liability for violations of the law of nations to find a remedy: "The principal offenses ... are of three kinds: 1. Violations of safe-conducts; 2. Infringement of the rights of ambassadors; and 3. Piracy." (15) The ATS was raised in court only a few recorded times in the years immediately following its passage; these disputes concerned whether courts had jurisdiction to hear a case about the return of a seized ship, (16) or a suit for the return of slaves seized from a ship. (17) The Attorney General William Bradford also wrote an opinion that applied the ATS to a case in which American citizens aided a French ship in plundering British property in Sierra Leone. (18)

      After falling into disuse, the ATS reappeared in courts in the 1980 case Filartiga v. Pena-Irala. In that case, the sister of a boy tortured to death in Paraguay sued the Paraguayan torturer in the Eastern District of New York. (19) Since Filartiga, the ATS has served mostly as a human rights statute, granting subject matter jurisdiction to federal courts for the most serious crimes committed against aliens in foreign lands. (20) ATS litigators have attempted to use the statute against defendants as diverse as the French train operators who collaborated with Nazi forces to carry prisoners to their death (21) and the Yahoo! Internet service provider for releasing dissidents' private emails to the Chinese authorities, enabling arrests and torture. (22)

      In its landmark 2004 case, Sosa v. Alvarez-Machain, (23) the Supreme Court changed the framework of the debate entirely. In deciding whether the kidnapping and detention inflicted on Alvarez-Machain was sufficient to constitute a violation of the law of nations and establish jurisdiction in the United States District Court, the Court focused squarely on the historical window in which the ATS was passed. Justice Souter, writing for the Court, cited early case law on the definition of the "law of nations" and relied on Emerich de Vattel and William Blackstone to draw the contours of its scope. (24) Basing the definition on Blackstone's writing, the Court held that one element of the law of nations was "regulating the conduct of individuals situated outside domestic boundaries and consequently carrying an international savor." (25) Primarily, the opinion looked at English criminal offenses against the law of nations: violation of safe conducts, infringement on the rights of

      ambassadors, and piracy, saying that "[i]t was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort." (26) The Court then used "Blackstone's three common law offenses"-piracy, offenses against ambassadors, and violations of safe passage-as the benchmark against which to judge the outrageousness of Alvarez-Machain's detention. It held that the detention did not rise to the level of suggesting...