Jessica Priselac, the Requirement of State Action in Alien Tort Statute Claims: Does Sosa Matter?

• Publication year: 2007

THE REQUIREMENT OF STATE ACTION IN ALIEN TORT STATUTE CLAIMS: DOES SOSA MATTER?

INTRODUCTION

In the spring of 1998, Chevron faced escalating problems in Nigeria. Throughout the country, local communities organized with the help of environmental activists and demanded that oil companies provide their villages with everything from electricity and schools to reparations for past environmental damage.¹Groups of disaffected young Nigerian men demanding a greater share of the country's oil revenues began targeting oil company employees for kidnapping.²These incidents placed an international media spotlight on the operations of multinational oil companies in Nigeria; criticism of these corporations grew both within Nigeria and abroad.³Dozens of oil platforms off the Nigerian coast had been seized by protestors and workers over the previous years,⁴so finding a way to handle the growing number of protests became a priority for Chevron and other multinational oil companies.⁵

On May 25, 1998, a group of approximately 100 protestors from villages close to Chevron's Parabe oil platform traveled to the site.⁶The group, led by Bola Oyinbo,⁷seized the Parabe oil platform and conveyed their grievances and demands to Chevron management in Nigeria.⁸According to plaintiff

Larry Bowoto and other witnesses,⁹the unarmed protestors were told they would soon be meeting with the managing director of Chevron's Nigerian subsidiary, Chevron Nigeria Limited (CNL), to negotiate an agreement.¹⁰

However, any attempt to negotiate a peaceful settlement came to an abrupt end when Nigerian military police arrived at the platform by helicopter.¹¹

According to Oyinbo, the group was ready to leave the oil platform to continue discussions on shore when Nigerian soldiers exited the helicopters and fired indiscriminately at the protestors.¹²Two protestors died, approximately thirty were wounded, and eleven were arrested.¹³Oyinbo was arrested and jailed; he alleges that he was tortured by the Nigerian police, who he claims hung him by his handcuffed arms on a ceiling fan.¹⁴

According to the complaint filed by Bowoto, Oyinbo, and other protestors in the Northern District of California in 1999, two days into the villagers' protest, Chevron contacted the Nigerian military¹⁵and requested intervention by one of the military's tactical units, locally known as the "kill-and-go."¹⁶

The Nigerian military agreed to assist the company and Chevron provided helicopters for the squad.¹⁷The plaintiffs further allege that Chevron's own security personnel flew with the Nigerian military unit to the platform.¹⁸

Those injured or killed at the Parabe platform seek to hold Chevron liable under the Alien Tort Statute ("ATS") for several violations of international law including summary execution, crimes against humanity, and torture.¹⁹

In 2001, Chevron moved to dismiss the complaint, asserting that the company could not be held liable for the actions of Nigeria's military under international law.²⁰The then-presiding judge denied the motion, finding that while the violations of international law at issue only applied to the official conduct of a state, the "plaintiffs had adequately alleged that Chevron acted under color of law, and that it could therefore be held liable for the violations."²¹

After the U.S. Supreme Court's decision in Sosa v. Alavarez-Machain²²in

2004, Chevron asked the district court to revisit its holding in light of Sosa.²³

The federal district court reconsidered Chevron's motion to dismiss.²⁴The court found that prior to Sosa, the growing general consensus among U.S. courts was "that color of law jurisprudence derived from 42 U.S.C. Sec. 1983 could be used to hold a private party liable under the ATS."²⁵However, post-

Sosa, the district court in Bowoto found that applying these principles to ATS cases was no longer appropriate:

Based on the Supreme Court's restrictive view of the ATS, defendants argue that it would be inappropriate to import "color of law" jurisprudence from Sec. 1983 to expand the statute's reach. The Court agrees. Sosa requires that an international law norm be definite and accepted before a court may recognize a cause of action under the ATS. Because an integral feature of international law is that it is only binding on specific defendants, allowing a private party to be held liable based upon notions of "color of law" developed in this country would blur the applicability of the obligations that international law imposes. Expanding the reach of the ATS in this way would be inconsistent with the Supreme Court's repeated calls for judicial restraint.²⁶

Accordingly, the court held that because "color of law" jurisprudence is not a developed international norm, Chevron could not be held liable under the ATS.²⁷

The court's reasoning in Bowoto is indicative of the confusion that persists in U.S. courts about the requirement of state action in ATS claims. The increasingly controversial question is whether a private actor can be held liable for violations of international law that have traditionally only applied to state actors.²⁸In ATS cases, U.S. courts have generally accepted that claims can be brought against private parties when the plaintiff's complaint involves violations of customary international law that apply to private parties, such as crimes against humanity, genocide, and piracy.²⁹When dealing with alleged violations of international law that are beyond the limited group of violations where individuals are the subjects of international law, U.S. courts have struggled to determine when individuals can be found liable under the ATS.³⁰

In these types of cases, the courts have attempted to develop standards for what constitutes "state action" or acts committed "under the color of law."³¹

This Comment will address when the actions of an individual or other private party can be imputed to a state under international law, and how these principles are (and in most cases, are not) applied to claims arising under the Alien Tort Statute. Part I of this Comment provides a brief background on the history of the ATS, as well as the Supreme Court's most recent case interpreting the statute, Sosa v. Alvarez-Machain.³²Part II examines how U.S. courts have interpreted the requirement of state action for violations of international law in ATS claims, both before and after Sosa. Part III discusses how the international law doctrine of state responsibility relates to violations of international law committed by both states and private parties. Part IV analyzes the ways in which the doctrine of state responsibility is both similar to and different from U.S. "color of law" jurisprudence, and how the application of the doctrine of state responsibility would affect ATS claims.³³This

Comment concludes with a discussion of the implications of applying the doctrine of state responsibility rather than U.S. color of law jurisprudence to future ATS claims involving private parties.

Given the complexities of ATS litigation, it is also important to note what this Comment will not address. Because ATS claims often involve private individuals or corporations accused of violations that can only be committed by states under international law, plaintiffs typically employ one of two strategies: 1) assert that the conduct of a private party can be attributed to a state and is therefore a violation of international law; or 2) advance a theory that a private party has violated international law by aiding and abetting a state that has committed an unlawful act.³⁴Theories of aiding and abetting in international law are based on principles separate and distinct from those of state responsibility;³⁵thus, this Comment will focus exclusively on the first approach.

I. THE ALIEN TORT STATUTE

The Alien Tort Statute, enacted in 1789 as part of the first Judiciary Act, gives aliens a federal cause of action for violations of international law.³⁶The statute reads, in its entirety, "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."³⁷The brevity of the statute and the lack of legislative history surrounding its passage makes it difficult to decipher the scope of the ATS.³⁸For example, prior to Sosa, commentators argued whether the statute was a purely jurisdictional grant or if it created a private cause of action.³⁹Furthermore, courts found it difficult to define what constituted "the law of nations" in ATS claims.⁴⁰

A. Filartiga and Tel-Oren

The ATS was rarely invoked by plaintiffs until 1980, when the Second Circuit decided Filartiga v. Pena-Irala.⁴¹In Filartiga, the court awarded damages to Paraguayan citizens whose family member had been tortured and murdered by a Paraguayan government official.⁴²The court found that the "law of nations" referred to in the ATS included the "international law of human rights," under which state-sponsored torture was prohibited.⁴³In doing so, the court held 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."⁴⁴

The defendant argued that even if torture violated modern international law, exercising federal jurisdiction was inconsistent with Article III of the Constitution.⁴⁵The court rejected this argument, noting that under the ATS Congress provided for federal jurisdiction "over suits by aliens where principles of international law are in issue. The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law."⁴⁶

Not all courts were willing to interpret the ATS as broadly as the Second Circuit. In Tel-Oren v. Libyan Arab Republic,⁴⁷a three-judge panel of the D.C. Circuit affirmed a lower court decision to dismiss an ATS case, with each judge writing a separate concurring opinion.⁴⁸In his concurrence, Judge Bork explicitly rejected the Second Circuit's broad...