Alien Tort Claims Act Research Articles

Acts of State, State Immunity, and Judicial Review in the United States

Abstract The doctrine of the Act of State and State Immunity has its foundation in common law frameworks. It is settled law that there is no cause of action that will make a foreign state liable in the domestic court of another country. In the United States there has been acceptance that certain cases involve “political questions” that are non-justiciable, as they are not a “case or controversy” as required by Article III of the U.S. Constitution. The courts have only intervened either where the federal statutes have applied extraterritorially, such as under the Civil Rights Act 1964 where a U.S. citizen is employed abroad by a company registered in the United States, or under the Alien Tort Claims Act (ATCA) 1789, which protects foreign parties who are designated sufficiently “alien” for the sole purpose of invoking jurisdiction after a civil wrong has been committed against them. There needs to be an evaluation of the U.S. Supreme Court precedents that have asserted judicial oversight in respect of wrongs committed extra-territorially, and their present rationale for retaining the doctrine. This paper also discusses the scope of the Federal State Immunity Act (FSIA) and the Justice Against Sponsors of Terrorism Act (JASTA) that narrow the concept of state immunity when dealing with terrorism by another state or its agents. A comparative analysis with the state immunity doctrine in Canada and the framework for litigation under the merits-based approach by the courts is provided. The common law courts have developed the doctrine of the Act of State and it has become a principle of customary international law. The argument of this paper is that there needs to be a greater focus on the civil injuries that are caused in other jurisdictions that should allow the claimants to litigate in the forum court and for judicial review to be available.

Los mercaderes de la muerte en Colombia: multinacionales y derechos humanos

Durante casi ocho décadas varias regiones del país han sufrido graves violaciones a los derechos humanos e infracciones al DIH. Miles de campesinos, líderes sindicales y dirigentes políticos han sido asesinados, desaparecidos, desplazados, obligados a exiliarse, etc., pero ¿quiénes son los causantes de esas violaciones?, ¿en el actual mundo globalizado los actores del conflicto siguen siendo los mismos de otros tiempos?, ¿el crimen ha evolucionado y avanzado a otras esferas?, ¿qué factores hacen que quienes cometen tales violaciones sean susceptibles de ser declarados responsables?<br />Los anteriores cuestionamientos tratan de abordarse en el presente artículo, el cual intenta hacer una lectura de la realidad colombiana, a partir de fuentes teóricas sobre los principios y funcionamiento de los mercados, especialmente, el actuar de algunas empresas multinacionales, en este caso: Chiquita Brands, Dole, Del Monte y Drummond, con presencia en Colombia, desde hace más de ochenta años, como es el caso de Chiquita Brands. Con ello, se trata de demostrar que estas empresas, según confesiones de los más altos jefes paramilitares de Colombia, no han tenido ningún reparo en pagar a estos grupos armados ilegales para aumentar su lucro y acabar con la voz de los trabajadores y de las comunidades y así ampliar de manera descomunal sus márgenes de ganancia.<br />En tal sentido, millones de colombianos pertenecientes a los grupos más vulnerables de la sociedad, mueren, desaparecen, son torturados, desplazados, exiliados, etc., como consecuencia de algunas acciones de las multinacionales instaladas en el país que no sólo aprovechan nuestros recursos y nuestra mano de obra a muy bajo precio, sino que financian a grupos ilegales para cometer las más graves violaciones de derechos humanos, con el objetivo de expandirse y aumentar sus ganancias. Intento mostrar la magnitud de las consecuencias humanitarias, sociales y políticas causadas por las multinacionales en nuestro territorio y otros posibles escenarios para ir en búsqueda de justicia ante tales vulneraciones. De esa forma, ante la falta de celeridad y eficacia de la justicia colombiana frente a las acciones de estas multinacionales en nuestro país, se hace referencia a otro mecanismo del que han tenido que usar las víctimas: los estrados estadounidenses fundamentados en la “Clausula Alien Tort Claim Act” – ATCA - responsabilidad extracontractual extranjera, en violación a la ley de las naciones, estatuto que prohíbe y castiga las graves violaciones de derechos humanos de nacionales estadounidenses en el extranjero o de extranjeros en el territorio estadounidense.<br />Este es el único camino que en el campo específico de las violaciones a los derechos humanos del que pueden hacer uso las víctimas de delitos causados por estas empresas en territorio colombiano, ya que Estados Unidos se ha caracterizado por ser un país reservado en cuanto a la ratificación de diversos instrumentos de derechos humanos y derecho internacional humanitario, como el Estatuto de Roma.<br />Sin embargo, a falta de normatividad interna con relación a violaciones de derechos humanos como ya se mencionó, diversas decisiones judiciales se han basado en la Ley de Responsabilidad por Daños a Extranjeros (Alien Tort Claims Act o Alien Tort Statute-ATCA).

Corporate Accountability and Indigenous Peoples: Prospects and Limitations of the US Alien Tort Claims Act

Indigenous peoples are often the victims of human rights violations at the hands of multinational corporations (MNCs). Since there are few avenues to ensure accountability for such violations, the US Alien Tort Claim Act (ATCA) has become one of the principal vehicles to ensure such liability. With varying degrees of success, ATCA has proven to be an attractive statute for ensuring accountability of MNCs. In recent years several cases have been lodged by indigenous peoples, including pioneering cases against corporations such as Texaco, Shell, Chevron and Rio Tinto. This article aims at analysing the prospects but also the limitations of such a national tort act to provide remedies for human rights violations to indigenous communities. In doing so the article provides a practical analysis on the strengths and weaknesses of using ATCA as a tool for human rights litigation against MNCs.

The Khulumani Litigation: Complementing the Work of the South African Truth and Reconciliation Commission

The Khulumani case, a case brought under the 1789 Alien Tort Claims Act (ATCA) by victims of Apartheid represents one of the most ambitious attempts by victims to obtain reparations. The victims in this case are charging a number of multinational companies with aiding and abetting the Apartheid government. This article will consider the nature of the Khulumani case and its prospects for success. The article focuses specifically on the 'aiding and abetting' aspect of the Khulumani case. The various approaches in the Khulumani litigation as to whether the defendants' conduct constitutes aiding and abetting in international law will be discussed. The relevance and influence of the 'political question' doctrine will also be discussed. It will be argued that it is fitting and correct for aiding and abetting in international law to be applied to corporations. It will further be argued that the Second Circuit case and the subsequent District Court Decision by Judge Scheindlin represent a development in the approach to the political question doctrine in the United States. Thereafter, the article will consider whether the Khulumani case its into the concept of a mass claims procedure. The author argues that the Khulumani litigation continues the work of the Truth and Reconciliation Commission and complements it. The payment of reparations has been described as the 'unfinished legacy' of the Truth and Reconciliation Commission. To the extent that ATCA can facilitate the payment of reparations, it can be considered a mechanism of transitional justice.

ATCA as an avenue of overseas environmental protection and its implication to China’s overseas investors

The U.S. federal courts have civil jurisdiction over some torts claims with respect to the violations of law of nations or treaties concluded by the U.S. under the Alien Tort Claims Act (ATCA). Although the applicable scope of ATCA is very narrow from a historical perspective, it has extended much broader nowadays. Seeking remedy for environmental damage under ATCA is difficult, but ATCA is playing an important role in indirectly protecting overseas environment. Under the circumstances, China’s overseas investors who are causing serious environmental problems in developing countries and have direct investment or operation in the U.S. could be subject to the U.S. courts’ jurisdiction.

The Paradoxical Feminist Quest for Remedy: A Case Study of Jane Doe v. Islamic Salvation Front and Anouar Haddam

AbstractThis article analyses Jane Doe v. Islamic Salvation Front et al., an Alien Tort Claims Act (ATCA) case brought in the United States by the late Rhonda Copelon, a leading feminist international lawyer. Bennoune explores the experiences of the Jane Doe plaintiffs, exposing the limited legal avenues that were available to them at the time. She finds that Copelon's creative ATCA litigation strategy embodied a symbolic, feminist act in the paradoxical quest for justice, armed with the knowledge that it would likely become a losing battle. The article ultimately shows that the ACTA litigation, even if unsuccessful in the end, recognised that non-state actors can harm human rights, and provided a powerful avenue for expressing plaintiffs' grievances when no other court would hear them.

Core Crimes Inc.: Panel Discussion Reports from the Conference on 'Transnational Business and International Criminal Law', held at Humboldt University Berlin, 15-16 May 2009

The first session offered an external, i.e. a non-‘international criminal law’ perspective on the Conference topic. Its purpose was to consider whether non-international criminal law mechanisms at either the international or the national level could provide some guidance on how to address corporate involvement in international crimes. The first paper, presented by Anita Ramasastry,1 provided an overview of the involvement of corporations in international crimes. Larissa van den Herik2 then outlined the accountability mechanisms for corporate violations of human rights under international law, and Katherine Gallagher3 presented a paper on the Alien Tort Claims Act (ATCA) litigation in the United States and its possible relevance for international criminal law. Finally, Roland Hefendehl4 elaborated on a domestic, i.e. the German criminal law approach to white-collar crime. The panel was chaired by George P. Fletcher.5 After the presentation of the papers, the general discussion focused on the ATCA and its possible interrelation with international criminal law. In a reply to a question on whether there is opposition to the ATCA, Katherine Gallagher explained that corporations take ATCA cases seriously due in large part to fear of damage to their reputations. Such cases are vigorously litigated, with defendants invoking various legal and policy arguments for why these cases should be dismissed. She referred in particular to the damages cases against companies who allegedly aided and abetted serious human rights violations through their operations in Apartheid South Africa, which are currently being heard by a US court.6 According to Gallagher, there has been a small but measurable impact of ATCA cases on corporate behaviour. Moreover, ATCA cases were of tremendous importance for the victims in providing a forum in which the claims could be raised and having courts consider — and in a growing number of cases affirm — that what had happened to the victims constituted a legal wrongdoing and a violation of international law. Nevertheless, Gallagher considers that the record remains mixed, when cases are judged in the traditional sense. She explained that only a few cases have reached the trial phase, due to dismissals on jurisdictional grounds or because of settlements during the pre-trial stage, by which companies mitigate the damage that a public trial would have on the public’s perception of the corporation. In relation to the question of whether and to what extent public attention is able to influence corporate behaviour, Andrew Clapham7 raised the example of Royal Dutch Shell and Sudan: in 2001, Shell announced that it would no longer supply jet fuel to the region after concentrated media attention on the situation in Darfur, Sudan.

The Wiwa Cases

The Wiwa cases are important in how they relate to the US Alien Tort Claims Act (ATCA) and have been considered landmark cases by some scholars because the plaintiffs received compensation through a settlement reached with the defendants out of court. However, the question remains as to whether the plaintiffs can accept compensation or receive favourable judgments in a lawsuit for which the cause of action is that the environment has been destroyed and that environmental rights have been violated under the US ATCA. In my view, the possible judgments would not be satisfactory under the circumstances that environmental rights are still not regarded as a kind of human right and that environmental crime has been confined to wartime environmental destruction until now. Therefore, the role played by extraterritorial jurisdiction of the US Court under the ATCA concerning overseas environmental protection would still be limited.

The US Alien Tort Claims Act of 1789, the US Torture Victims Protection Act of 1992, and the Gongadze Case: A Right without Adequate Remedy?

The US 1992 Torture Victims Protection Act (TVPA) strengthens the reach of the 1789 Alien Tort Claims Act (ATCA) to US citizens alleging claims of torture and/or extrajudicial killings that occur abroad, but only if the plaintiffs were US citizens at the time of the criminal acts. Should the later-in-time statute, which gives effect to the United Nations Convention against Torture and extends remedies under the ATCA, be amended to apply to those given political asylum in this country from the moment of their entry? Is not the limbo status of victims given haven in the USA but not automatic citizenship, victims who rightly need resolution of brutal facts which occasioned rupture with their country of origin, a situation that cries for more precise remedy? This note explores this issue as raised by the case of Myroslava Gongadze, the widow of slain political journalist Georghy Gongadze in the Ukraine in September 2000. Only three of the perpetrators, policemen who say they followed orders, were put on trial in 2007–2008. Those who allegedly gave the orders for the killing continue to evade justice.

Yahoo? Reining in the Wild West with the Alien Tort Claims Act

In the wake of globalisation, we have witnessed the rise of the transnational corporation—powerful, new players in an international human rights system ill-equipped to handle the challenge. Despite the best efforts of the United Nations, international treaties and human rights lawyers the world over, there is simply no mandatory international code of corporate conduct targeting human rights practices. Enter the Alien Tort Claims Act (ATCA), a once-obscure U.S. statute that provides a private cause of action for violations of international human rights law committed by governmental and non-governmental actors. This paper will examine recent ATCA jurisprudence, the landmark Unocal settlement, and the ATCA’s role in reining in Yahoo! Inc. for supplying evidence used to convict Chinese dissidents Wang Xiaoning and Shi Tao.

Human Rights in US Courts: Alien Tort Claims Act Litigation after Sosa v. Alvarez-Machain

In Filartiga v. Pena-Irala (1980), the Second Circuit Court of Appeals ruled that victims of human rights violations could sue their oppressors civilly in US courts under an eighteenth century law now called the Alien Tort Claims Act (ATCA). Controversy raged over the Filartiga decision and the proper interpretation of the ATCA for 24 years. Then in Sosa v. Alvarez-Machain (2004), the Supreme Court issued its first ATCA decision. This essay analyzes the effect of the Sosa decision on the development of human rights law in US courts. I find that while the federal judiciary is responding to some of the Supreme Court’s directives, lower courts still retain a great deal of discretion in handling ATCA cases.

Justice Without Borders: Human Rights Cases in U.S. Courts

In 1980 the Second Circuit Court of Appeals broke with years of legal tradition and ruled that human rights victims could sue their oppressors in federal court—even if the alleged violations occurred outside the country. This court based the extension of its authority on a provision of the 1789 Judiciary Act now referred to as the Alien Tort Claims Act (ATCA). ATCA cases present a unique opportunity to study judicial behavior in the face of separation of powers interests, traditions of judicial restraint, sovereign immunity defenses, and an active internationalist movement to extend human rights guarantees worldwide. Combining legal analysis with quantitative methodology, I find that U.S. federal courts are slowly accepting an internationalist approach to human rights, and that interest groups are largely driving this transformation. Sovereignty concerns and judicial ideology are not conditioning case outcomes, but party resources and separation of powers issues are.

Access to U.S. Federal Courts as a Forum for Human Rights Disputes: Pluralism and the Alien Tort Claims Act

Courts hearing cases under the Alien Tort Claims Act (ATCA) are asked to consider and evaluate the content of Customary International Law (CIL). These acts of incorporating non-U.S. sources of law can be framed as acts of legal pluralism. This article describes the contributions the ATCA has made toward increasing both civic and legal pluralism and argues that the robust history and tradition of instances of legal pluralism allow the introduction of CIL into the decision making process of U.S. courts without undue difficulty. It also posits that such inclusion has the desirable effect of increasing routes toward civic participation available to victims of human rights abuses.

AfterPinochet: Foreign Sovereign Immunity in Respect of Serious Human Rights Violations - The Decision of the European Court of Human Rights in theAl-AdsaniCase

For want of an effective and accessible universal system for redress of international human rights abuses, victims of human rights violations increasingly seek reparations in domestic civil courts. In the United States in particular, the federal courts, since the 1980Filártigadecision of the U.S. Court of Appeals for the Second Circuit, have already decided on a remarkable number of civil suits alleging human rights violations committed abroad, the most recent example of this trend being a class action of members and supporters of opposition political groups in Zimbabwe who invoke the so-called Alien Tort Claims Act (ATCA) against President and Foreign Minister Robert Mugabe with respect to alleged acts of torture. According to the proponents of such lawsuits, international human rights litigation in domestic civil courts can serve as an important tool in the worldwide effort to enforce international norms concerned with the protection of the individual which may complement criminal prosecutions of the offenders. As stated by Professor Stevens, who has litigated many of the international human rights cases in the U.S. federal courts, \\\“civil lawsuits for human rights violations […] serve a role similar to tort litigation in a domestic forum: to offer victims of violence a legal remedy which they control and which may satisfy needs not met by the criminal law system.\\\”

Environmental Rights of Indigenous Peoples under the Alien Tort Claims Act, the Public Trust Doctrine and Corporate Ethics, and Environmental Dispute Resolution

1. INTRODUCTION. GLOBALIZATION AND EMERGING ETHICAL PRINCIPLES OF MULTINATIONAL ENERGY PROJECTS AND Indigenous have become the subject of significant attention within the environmental movement. This article will discuss the emerging notion of environmental human rights of populations. This article will develop the thesis that international law now recognizes environmental human rights as a norm for all and, as such, multinational corporations should include as legitimate stakeholders in negotiations over the utilization of natural resources in developing countries. There are many virtues in globalization. Globalization promises to increase the flow of ideas and technology, raise standards of economic opportunities, raise the level of consumer welfare and dissipate hostilities across borders by joining nations together in a spirit of cooperation over common goals. Globalization requires U.S. multinational corporations to establish comprehensive approaches to global ethics. One of the common criticisms of globalization is the hegemony imposed by multinational corporations in the exploitation of natural resources of developing countries. Globalization can induce firms to go abroad to evade their own norms, thus undercutting fundamental principles that form their own nation's economy. For instance, when Wal-Mart makes deals in China, it may avoid U.S. taxes, evade costs of a cleaner environment, hire sweatshop child labor to make clothing, and so on. (1) Some think globalization, if unchecked, will result in social disintegration and political instability. (2) There is an emerging view that globalization involves much more than trade and commerce, ushering in a new category of human rights which extends to issues such as individual identity, sympathies and aspirations. (3) Globalization involves a need to understand and absorb the perspectives and experiences of people from distinctly different cultures and to avoid parochialism, the tendency to see all issues and evaluate all norms through the lens of one's own culture. The energy problems of the world are of a large magnitude and create deep concern. The oil industry is facing challenges in an effort to find new deposits to satisfy a world dependent on oil and to pursue overseas projects that are marketed as environmentally friendly. Recent oil industry publications advise its members to be more community-conscious by entering into contracts to benefit the local population and not just the host government. (4) The availability of tort claims under the Alien Tort Claims Act (ATCA) (5) is a drastic but increasingly available remedy to adjudicate environmental damages claimed by foreigners for multinational projects conducted abroad. Protracted disputes and litigation are the inevitable result when a multinational company seeks to exploit foreign resources without seeking the consensus of whose lives and cultures would be impacted--as illustrated in a case study of the U'wa of Colombia, as well as with still-pending litigation involving of Ecuador and Peru in Maria Aguinda, et al., v. Texaco. (6) An emerging sense of ethical norms as discussed in this article suggests that multinational companies may want to adopt the model discussed in this article for resolution of environmental disputes with prior to implementation of projects. This can be an enlightened means to reconcile the economic interests of multinational companies with the cultural interests of both the and the foreign governments that are seeking to utilize their natural resources. 2. DEFINITION OF INDIGENOUS PEOPLES No agreed-upon definition of the term indigenous peoples exists. The term indigenous peoples usually refers to those people and groups descended from original populations of a given country. …

Cradle to Border: U.S. Hazardous Waste Export Regulations and International Law

This paper explores current U.S. law regulating the transboundary shipment and export of hazardous waste, under both the Resource Conservation and Recovery Act (RCRA) and applicable treaties. The paper attempts to untangle the overlapping strands of domestic law, including statutes, common law and ratified treaties, in the context of current international agreements. In addition, the paper examines the legal remedies provided by the Alien Tort Claims Act (ATCA) and its potential use by alien plaintiffs harmed by hazardous waste exported in violation of U.S. law or applicable treaties. The central insight of the paper is that the exemptions provided by RCRA, that were designed to encourage recycling and reuse of certain wastes, have created a loophole that allows many types of toxic waste to be exported without any regulation, data collection, or monitoring. Further, these exempt are exported without any assurance that the wastes will be recycled or reused, or alternatively, disposed of in environmentally responsible manner. Examples of the kinds of wastes that slip through this loophole include: car batteries that contain corrosive acids and lead; and K061 waste from steel manufacturing that may contain high levels of toxic heavy metals and may be exported for use in fertilizer without regulation. In essence, the current regulatory structure provided by RCRA does not ensure that all domestically generated hazardous waste is recycled, reused or disposed of in an environmentally responsible manner once it crosses the border. The paper next looks at the role of the Organization for Economic Cooperation and Development (OECD) and the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal (Basel). The U.S. is a member of OECD but has not ratified Basel despite the fact that over 120 other counties are parties to the Convention, including Canada, Mexico, and the countries of the European Union. Because current U.S. export practices and regulations are not in compliance with Basel, and OECD rules are less stringent, it is becoming increasingly difficult for those U.S. trading partners who are parties to Basel to comply with the Convention.