State action and corporate human rights liability.

• Author: Bradley, Curtis A.
• Position: Re-Examining Customary International Law and the Federal Courts

This Essay considers the requirement of state action in suits brought against private corporations under the Alien Tort Statute (ATS). It argues that, in addressing this requirement, courts have erred in applying the state action jurisprudence developed under the domestic civil rights statute, 42 U.S.C. [section] 1983. It also argues that, even if it were appropriate to borrow in this manner from the [section] 1983 cases, such borrowing would not support the allowance of aiding and abetting liability against corporations, and that this liability is also problematic on a number of other grounds. The Essay assumes for the sake of argument that corporations are not categorically excluded as defendants under the ATS, although this is currently a matter of some controversy. (1)

1. BACKGROUND

   Enacted in 1789 as part of the First Judiciary Act, the ATS provides that "[t]he 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." (2) By its terms, the ATS covers only cases involving an alleged violation of international law. For a variety of reasons, the alleged international law violation in ATS cases is almost always a violation of the "law of nations," also known today as "customary international law," rather than a violation of a treaty. As with violations of most provisions of U.S. constitutional law, violations of international law, whether customary or treaty-based, generally require state action. (3) This is true even for violations of many international human rights norms, such as the prohibition on torture. (4)

   The use of the ATS for international human rights litigation can be traced to the Second Circuit's 1980 decision in Filartiga v. Pena-Irala, (5) in which two Paraguayan citizens sued a former Paraguayan police official for torturing and murdering a member of their family. (6) The court in Filartiga held that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties," and that, as a result, "whenever an alleged torturer is found and served with process by an alien within our borders, [the ATS] provides federal jurisdiction." (7) In this and similar cases brought against foreign government officials, the defendant is alleged to have perpetrated the abuse, and to have acted under color of state law in doing so, so there is usually little difficulty in these cases in meeting the state action requirement. (8)

   In recent years, however, a large number of ATS cases have been brought against private corporations, relating to their involvement with abusive regimes. For a variety of reasons, corporate defendants are attractive targets for ATS suits: corporations are not thought to benefit from the sovereign immunity doctrines that apply to governmental defendants; (9) most large corporations have a presence in the United States, making it easy to obtain personal jurisdiction over them in this country; they typically have substantial assets that can be reached by U.S. courts; and they have an incentive to settle cases in order to avoid bad publicity.

   The Supreme Court considered the scope of the ATS in its 2004 decision, Sosa v. Alvarez-Machain. (10) That case, like the corporate cases, involved a suit against a private actor. A Mexican national who had been abducted from Mexico at the behest of the United States was suing a private Mexican citizen for his role in the abduction. After reviewing the history of the ATS, the Court concluded that although the statute was "a jurisdictional statute creating no new causes of action," (11) it served to "underwrite litigation of a narrow set of common law actions derived from the law of nations." (12) The Court also held that claims could not be brought today under the ATS "for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted," (13) and the Court identified these paradigms as the norms against violation of safe conducts, infringement of the rights of ambassadors, and piracy. (14) The Court explained 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." (15)

   In articulating this standard for ATS cases, the Court in Sosa noted that "the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." (16) Of particular relevance to this Essay, the Court attached a footnote to this sentence containing a reference to corporations. The much discussed "footnote 20" states that, in determining whether a norm is sufficiently specific to support a claim under the ATS, "[a] related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual." (17) The implications of this footnote will be explored below.

2. STATE ACTION AND SECTION 1983

   The state action requirement under international law is a potential obstacle to ATS suits against private corporations. In considering this requirement, it is useful to divide the corporate ATS cases into three categories: (1) cases in which the corporate defendant is alleged to have violated one of the few international law norms applicable to private actors; (2) cases in which the corporate defendant is alleged to have violated a norm that requires state action and to have qualified as a state actor when doing so; and (3) cases in which the corporate defendant is alleged to have "aided and abetted" an international law violation by a state actor.

   With respect to the first category, there are a few international norms, such as the prohibitions on genocide, war crimes, and crimes against humanity, that are thought to apply to private actors, at least for the purpose of criminal prosecution of individuals before international tribunals. (18) It is uncertain whether these norms are sufficient to support civil corporate liability in a domestic court, but, even if they are, corporations are rarely alleged to have committed a breach of one of these norms. A possible exception would be for situations involving private security contractors, and, in fact, ATS cases have been brought against such contractors, although these cases encountered other legal obstacles. (19)

   It is more common to see cases in the second category, in which the corporation is alleged to have violated an international law norm that requires state action and to have qualified as a state actor when doing so. In considering these suits, some courts have analogized to the state action jurisprudence that has been developed under the domestic civil rights statute, 42 U.S.C. [section] 1983.

   The [section] 1983 analogy has its genesis in a Second Circuit decision from the mid-1990s, Kadic v. Karadzic, (20) the facts of which are far removed from the context of corporate liability. In that case, Croat and Muslim citizens of Bosnia-Herzegovina sued Radovan Karadzic, the leader of a breakaway Bosnian-Serb republic, for allegedly directing and overseeing the commission of human rights abuses by military forces under his command. The Second Circuit first noted that the violation of some norms of international law, such as the prohibitions on genocide and war crimes, do not require state action. (21) As for the violations that do require state action, the court reasoned that the breakaway republic might properly be considered a state for these purposes. (22) Even if it was not a state, however, the court concluded that Karadzic's actions could still be considered state action for purposes of liability under the ATS if he had "acted in concert" with the Yugoslav government. The court derived this proposition from the Supreme Court's [section] 1983 decisions, stating without explanation that "[t]he 'color of law' jurisprudence of 42 U.S.C. [section] 1983 is a relevant guide to whether a defendant has engaged in official action for purposes of jurisdiction under the [ATS]." (23) Courts have continued to recite this reference to [section] 1983 without further analysis. (24)

   Relying on [section] 1983 state action jurisprudence to determine the requisite state action under the ATS is problematic for several reasons. First, it is in tension with the approach outlined in Sosa. The Court there made clear that only a "narrow set" of claims could be brought under the ATS and that these claims had to be based on international law norms that were both widely accepted and specifically defined. (25) The Court also repeatedly emphasized the need for 'judicial caution" in allowing clams under the ATS in light of the foreign relations, separation of powers, and other considerations implicated by ATS litigation. (26) In addition, the Court observed that its "general practice has been to look for legislative guidance before exercising innovative authority over substantive law" and that "[i]t would be remarkable to take a more aggressive role in exercising a jurisdiction that remained largely in shadow for much of the prior two centuries." (27) Using domestic civil rights concepts to extend international law liability to private actors beyond what is widely accepted under international law is difficult to reconcile with these mandates. (28)

   In addition, there are important differences between [section] 1983 and the ATS. Section 1983 expressly provides a cause of action, whereas the ATS is simply a...