Alien Tort Claims Act: A Feasible Means for Holding American Corporations Accountable for Their...

8/13/2019 Alien Tort Claims Act: A Feasible Means for Holding American Corporations Accountable for Their Overseas Internat

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Law 548NPublic International Law

Holden Agnew-Pople

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Al ien Tort Claims Act: A Feasible Means for Holding Ameri can Corporations

Accountable for Overseas I nternational Law Transgressions?

INTRODUCTION

Of the top 100 economies in the world, most are transnational corporations (TNCs), not

countries.1And of these TNCs, most are American.

2It follows, then, that American TNCs have a

profound influence on humankind, for influence is a concomitant of wealth.

The aforementioned information is by no means a revelation to anybody, including those

living in the far reaches of civilization.No matter where one is, except North Korea, McDonalds

golden arches, Ford trucks, Coca-Cola cans, and Apple devices are ubiquitous.

American TNCs, like all TNCs, have thrived as a result of the mid-twentieth-century

paradigmatic emergence of neoliberalism. Countries and intergovernmental organizations, such

as the World Trade Organization, have worked assiduously to attenuate the role of governments

in economic matters and facilitate the international movement of capital, goods, and services.

To the dismay of humanitarians, international law has not kept pace with the

revolutionary developments in the international marketplace. Criminal law and tort law matters

are, for all important purposes, exclusively in countries domains. In other words, there is not an

international agent that is capable of imposing liability and remedying damages for

transgressions of international law by international actors, such as American TNCs.

1ALICE DE JONGE,TRANSNATIONAL CORPORATIONS AND INTERNATIONAL LAW:ACCOUNTABILITY IN THE GLOBAL

BUSINESS ENVIRONMENT 1(2011).A transnational corporation is [a] commercial enterprise that operates

substantial facilities, does business in more than one country and does not consider any particular country its

national home. Transnational Company, BUSINESSDICTIONARY.COM,

http://www.businessdictionary.com/definition/transnational-company.html (last visited Nov. 11, 2013).2See Scott DeCarlo, The Worlds Biggest Companies, FORBES (Apr. 8, 2009),

http://www.forbes.com/2009/04/08/worlds-largest-companies-business-global-09-global_land.html.


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Sadly, many American TNCs take advantage of the limitations of international laws

jurisdictional shortcomings to wreak havoc in undeveloped and developing countries,3in which

most of Earths denizens live. Not long ago, Nike, for example, was exposed for using child

labor.4To use another example, Coca Cola, another ubiquitous American TNC, has been

accused of intimidating workers around the world, even hiring . . . paramilitaries to intimidate or

kill union leaders.5

The current windfall experienced by American TNCsthat is, having the privilege to do

business around the world, but not having accompanying responsibilities in many of themmust

end. After all, the United States is the worlds foremost advocate of individual dignity.

This begs the question, is it impossible for liability to be imposed on American TNCs for

their transgressions abroad? International legal organizations are paper tigers, and Congress is

the epitome of inaction (it can hardly pass a budget to support the governments activities!

Remember what happened in October!). Fortunately, a little-known section of the United States

Code almost as old as the United States itself may provide the solution: the Alien Tort Claims

Act (ATCA), 28 U.S.C. 1350. This ATCAprovides 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.6

3Anup Shah, Corporations and Workers Rights, GLOBAL ISSUES (May 28, 2006),

http://www.globalissues.org/article/57/corporations-and-workers-rights.4Id.

5Id.

6Alien Tort Claims Act, 28 U.S.C. 1350 (2012).


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Despite its seeming clarity, the ambit of the ATCA is unclear.7For example, it is unclear

whether the actions of American TNCs in foreign countries that transgress the international

human rights of foreign denizens create a cause of action.

In this essay, I shall analyze whether the ATCA provides a cause of action for foreign

denizens who have had their international human rights violated by American TNCs. My

conclusion is that it does.

I. BACKGROUND

The ATCA was enacted by Congress as far back as 1789.8

Despite this fact, however, it

remained virtually dormant until recently,9and it is for this reasonthat is, its lack of subjection

to litigationthat it is described as a kind of legal Lohengrin.10

For instance, the ATCA

does not specify the legal nature of jurisdiction granted to the federal courts.11

In the 1980s and 1990s, the federal circuit courts finally traversed through the uncharted

territory that was the ATCA and addressed its amorphousness by providing it with somewhat of

an ambit.

A. The Burgeoning of the ATCA:FilartigaandMarcos

In 1980, the Second Circuit was confronted with the issue of whether federal-court

jurisdiction existed under the ATCA where the plaintiffs immediate family member, a citizen of

Paraguay, was kidnapped and tortured to death in Paraguay by the Asuncion, Paraguay, Inspector

7See generally Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013); Sosa v. Alvarez-Machain, 124 S. Ct.

2739 (2004).8JERNEJ LETNAR CERNIC,HUMAN RIGHTS LAW AND BUSINESS:CORPORATE RESPONSIBILITY FOR FUNDAMENTAL

HUMAN RIGHTS 162(2010)9Id.

10Id. (quoting IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975)).

11CERNIC,supra note 8.


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General of Police, who later moved to New York.12

The torture was alleged to have been the

result of the deceaseds fathers opposition to Paraguayan President Alfredo Stroessners

government (like the deceased, the plaintiffs were also Paraguayan citizens).13

The plaintiffs brought this action in the United States for several reasons. First, they were

unable to bring any action to obtain any type of relief in Paraguay, the state in which the crimes

occurred. After the deceaseds father commenced a criminal action in the Paraguayan courts

against Pena (the Asuncion, Paraguay, Inspector General of Police) for kidnapping and torturing

the deceased, his attorney was arrested, tortured, threatened with death, and disbarred.14

Second,

one of the plaintiffs and the defendant both happened to move to the United States shortly after

the failed criminal prosecution attempt, each having been there on a temporary visitors visa.15

When the deceaseds sister, who was living in Washington, D.C., learned Pena was living

in Brooklyn, New York, she had him served with a summons to appear before the United States

District Court for the Eastern District of New York and a civil complaint, which stated, among

others, the following causes of action: the U.N. Charter, the Universal Declaration on Human

Rights, the U.N. Declaration Against Torture, the American Declaration of the Rights and Duties

of Man, customary international law of human rights, and international law.16

Jurisdiction was

claimed to exist under the Alien Tort Claims Act.17

12Filartiga v. Pena-Irala, 630 F.2d 876, 878-79 (2d Cir. 1980).

13Id.at 878.

14Id.

15Id.

16Id.at 878-79.

17Id.at 879.


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The District Court dismissed the complaint, having held jurisdiction was nonexistent.18

The Second Circuit reversed.19

The Second Circuit found that official torture is prohibited by international law and,

consequently, constitutes a cause of action under the ATCA.20

Its finding was supported by

several factors. First, it looked to the United Nations Charter, which provides in Article 55 that

the United Nations shall promote . . . universal respect for, and observance of, human rights

and fundamental freedoms for all.21

The United Nations Charter further provides in Article 56

that [a]ll members pledge themselves to take joint and separate action in cooperation with the

Organization for the achievement of the purposes set forth in Article 55.22Together, these two

articles make[] it clear that in this modern age a states treatment of its own citizens is a matter

of international concern.23

The Second Circuit noted that despite the fact there is no universal

agreement regarding the precise ambit of the human rights and fundamental freedoms

guaranteed by the Charter, no state presently dissents from the view that the phrases guarantees

are greater than the right to be free from torture.24

Therefore, it concluded that the right to be free

from torture is part of customary international law. The Second Circuit also looked to the

Universal Declaration of Human Rights, which states in Article 5 that no one shall be subjected

to torture.This prohibition was seen as important to the Second Circuit, because the General

Assembly has stated that the Charter precepts embodied in the Universal Declaration of Human

Rights constitute basic principles of international law.25

A third authority the Second Circuit

18Id.at 880.19Id.at 878.

20Id.at 880.

21Id.at 881 (quoting U.N. Charter art. 55).

22Filartiga,supra note 12, at 881 (quoting U.N. Charter art. 56).

23Filartiga,supranote 12, at 881.

24Id.at 882.

25Id.(quoting G.A. Res. 2625 (XXV) (Oct. 24, 1970)).


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looked to was the Declaration on the Protection of All Persons from Being Subjected to Torture,

a United Nations General Assembly resolution which expressly prohibits any state from

permitting torture.26

This Declaration, like the Universal Declaration of Human Rights, was

adopted without dissent by the United Nations General Assembly.27

In 1994, the Ninth Circuit followed the Second Circuits example byi) having held

federal-court jurisdiction existed to adjudicate Philippine citizens claims against former

Philippine President Ferdinand Marcos, who moved to the United States in 1986, for

international law violations in which he engaged28

and ii) having held the former had a cause of

action against the latter.29

During Ferdinand Marcoss presidency (1965-1986) in the Philippines, it is alleged that

he was responsible for the torture, summary execution, or disappearance of tens of thousands of

people.30

To attempt to avoid the repercussions of his actions, he and his family fled to Hawaii in

February 1986.31

To his dismay, one month after he moved to Hawaii, a large number of lawsuits

were filed against him in American federal courts by the people and families of people who were

negatively affected by his aforementioned ruthless actions.32

The Judicial Panel on Multi-District

Litigation consolidated all these cases in the United States District Court for the District of

Hawaii on September 5, 1990.33

26Filartiga,supranote 12, at 882-83.

27Id.at 883.

28In reEstate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1474 (9th Cir. 1994).

29Id.at 1476.

30Id.at 1469.

31Id.

32Id.

33Id.


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Marcoss Estate tried to have the lawsuits dismissed by arguing, among other things,

subject matter jurisdiction was lacking under the ATCA34

and a cause of action under the ATCA

was lacking.35

The Ninth Circuit disagreed with both theories.36

Regarding the former, the Ninth Circuit held that torture, summary execution, and

disappearance committed by a president and his military officials, all of which are prohibited by

international law, are within the jurisdictional grant of the ATCA.37

First, the Ninth Circuit

disagreed with the Estate that the ATCA is purely a jurisdictional statute,38

which is significant,

because a jurisdictional statute alone does not confer jurisdiction on the federal courts. Rather,

the rights of the parties must stand or fall on federal substantive law to pass constitutional

muster.39

The Ninth Circuit held the ATCA also provides for federal substantive law to govern

disputes under it, because international law, a violation of which the ATCA allows the federal

district courts to have original jurisdiction for related torts brought by an alien, is part of federal

common law.40

Second, the Ninth Circuit disagreed that the assertion of federal jurisdiction over

an action between aliens regarding injuries occurring in a foreign nation violates Article III of

the Constitution.41

The Ninth Circuit stated there is ample indication the Arising Under Clause

of Article III of the Constitution is meant to apply to all cases involving foreigners.42

Regarding the latter, the Ninth Circuit held that the ATCA creates a cause of action for

violations of specific, universal and obligatory international human rights standards which

34Id.at 1473.

35Id.at 1474.

36Id.at 1474-76.

37Id.at 1474.

38Id.at 1473.

39Id.

40Id.

41Id.at 1474.

42Id.


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confer [ ] fundamental rights upon all people vis--vis their own governments,43

and the

allegations before it satisfied the specific, universal and obligatory standard.44

The allegations of

torture meet this standard, because official torture violatesjus cogens.45

As to summary

execution and causing disappearance, the Ninth Circuit made the conclusory statement that the

prohibition against them is similarly universal, definable, and obligatory.46

What didFilartiga andMarcosteach us about the ATCAs scope? The holdings of these

cases stated that the ATCA is not merely a jurisdictional statute; it also provides a cause of

action for those wishing to file an action under it.Marcos, however, provided a narrower cause

of action thanFilartiga. WhileFilartiga appeared to hold that an alien plaintiff has a cause of

action under the ATCA as long as that alien has been affected by a violation of international law,

Marcosrequired that there be the violation of a specific, universal, and obligatory international

human right in order for an alien plaintiff to have a cause of action under the ATCA. The

holdings of these cases also provided that federal district courts have jurisdiction even where

both parties were foreigners. These cases, then, construed the ATCA has having a large ambit.

A decade afterMarcoswas decided, the United States Supreme Court affirmed the

Second and Ninth Circuits construal of the ATCAs ambit in Sosa.

B: An Affirmation ofFilartigaandMarcos: Sosa

The genesis of Sosa v. Alvarez-Machainwas a kidnapping that occurred in 1985.47

An

agent of the Drug Enforcement Administration (DEA) was on an assignment in Mexico, where

43Id.at 1475 (quotingFilartiga,supranote 12, at 884-85) (alteration in original)).

44Marcos,supranote 28, at 1475.

45Id.

46Id.

47Sosa,supra note 7, at 2746.


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he was captured, tortured, and murdered.48

DEA officials came to believe Humberto Alvarez-

Machain was responsible for those gruesome acts, which led to his having been indicted and the

United States District Court for the Central District of California having issued a warrant for his

arrest.49

To the chagrin of DEA officials, however, the Mexican government would not extradite

him.50

Consequently, the DEA hired Mexican nationals to abduct him and bring him by private

plane to the United States, where he was arrested.51

Alvarez-Machain ended up getting acquitted, and he returned to Mexico in 1993.52

There,

he filed a civil action against Jose Francisco Sosa, one of the Mexican nationals the DEA hired to

abduct him and bring him to the United States, and the DEA.53He alleged that his abduction by

Sosa was a violation of international law and, consequently, he was able to recover damages

under the ATCA.54

Both the district court and the Ninth Circuit agreed he was correct that he

was entitled to damages under the ATCA.55

The United States Supreme Court, which granted

certiorari to clarify the ambit of the ATCA, reversed.56

Unlike the Second and Ninth Circuits, the Court held the ATCA is a jurisdictional

statute.57

This is significant, because, as the Ninth Circuit acknowledged inMarcos,58

a

jurisdictional statute alone does not confer jurisdiction on the federal courts; federal substantive

law is needed to complement it. One reason the Court reached this holding is because the ATCA

48Id.

49Id.

50Id.

51Id.

52Id. at 2746-2747.

53Id.at 2747.

54Id.

55Id.

56Id.

57Id.at 2754.

58Marcos,supranote 28, at 1473.


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was placed in Section 9 of the Judiciary Act, which, the Court noted, is a statute concerning

federal-court jurisdiction.59

Another reason the Court reached this holding is because an

authority on the historical origins of the ATCA stated it does not create a statutory cause of

action.60

Despite the fact the Court held the ATCA is a jurisdictional statute, it held its enactment

nevertheless enabled federal courts to adjudicate claims resulting from a very limited category of

international law violations.61

Alvarez-Machains claim wasoutside the ambit of this very

limited category of international law violations federal courts have been enabled to adjudicate,

however,62which is why it reversed the Ninth Circuits judgment.

How is it that the federal courts are able to adjudicate any claims under the ATCA if it is

purely a jurisdictional statute? One line of the Courts reasoning is that federal courts were able

to adjudicate some international law claims brought by alien plaintiffs once the ATCA was

enacted because torts in violation of international law during the late eighteenth century would

have been recognized within the common law of that era.63

Therefore, substantive law was not

needed to complement it to provide causes of action under it. Another line of the Courts

reasoning is that Congress was anxious to provide the nations federal courts with the ability to

redress injuries to foreign dignitaries and interests performed on American soil, which it was

previously unable to do.64

A third line of the Courts reasoning is that General William Bradford,

the Attorney General of the United States in 1795, stated that Americans who took part in a


60Id.

61Id.at 2754.

62Id.

63Id.at 2755.

64Id.at 2758. For more information on this point, see infrapp. 11-12.


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French plunder of a British slave colony in Sierra Leone could be sued in federal court under the

ATCA.65

The question then necessarily became, what torts in violation of international law were

recognized within the common law during the late eighteenth century? The Court answered that

in the late eighteenth century, international law comprised three principal areas.66

The first

concerned how states are to interact with one another.67

The second concerned the rules

governing human conduct outside state boundaries.68

A prime example of a component within

this area of international law is admiralty law. The third was a hybrid of the former two, that is, i)

it controlled state and individual behavior and ii) was effectiveboth inside and outside states

boundaries.69

Specifically, it addressed violation of safe conducts, infringement of the rights of

ambassadors, and piracy.70

According to the Court, the drafters of the ATCA probably had in mind the third area of

international law when they enacted it.71

Congress was concerned, the Court stated, that without

a national remedy for violations of this area of international law an all-out war would be the

likely result of such an issue one day.72

In May 1784, for example, the French were indignant

after the Secretary of the French Legion was physically assaulted by a French adventurer but

nothing was done to redress him, because there was no legislation in place to address a tort

between two foreigners.73

Congress therefore responded, the Court deduced, by i) vesting the

65Id.at 2761.

66Id.at 2755-56.

67Id.at 2756.

68Id.

69Id.

70Id.

71Id.

72Id.

73See id.at 2757.


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Court with original jurisdiction over all cases involving ambassadors, other public ministers, and

consuls, and ii) enacting the Judiciary Act, which reinforced the Courts original jurisdiction

over suits brought by diplomats, created alienage jurisdiction, and the statute at issue, the

ATCA.74

Contentious issues involving foreign countries could finally be redressed in a

courtroom, which lessened the concern that the sword, so to speak, would be the solution.

Having reached the conclusion that the drafters of the ATCA probably had in mind the

third area of international lawviolation of safe conducts, infringement of the rights of

ambassadors, and piracywhen they enacted the ATCA, the Court was able to address the big

question: Precisely what claims are actionable under the ATCA? Its answer: [W]e think courts

should 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 18th

-century paradigms we have recognized.75

The Court articulated a series of reasons why only a restrictive group of causes of action

should be recognized under the ATCA. First, the prevailing conception of the common law,

through which international law has a degree of force within the United States,76

has been

modified in a manner that limits its reach regarding internationally-generated norms.77

It is no

longer seen as a transcendental body of law binding on all states unless a statute is passed that

states otherwise.78

Rather, it is seen as something that is created to address a specific problem

after much thought has been given to the issue and the repercussions have been considered.79

74Id.

75Id.at 2761-62.

76Id.at 2755.

77Id.at 2762.

78Id.

79See id.


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Second, in contrast to the early days of the United States, there is no longer a federal

general common law.80

That said, while the Court has assumed it has the ability to create

innovative authority over substantive law regarding particularly important foreign relations

issues, it is customary for the Court to seek congressional guidance prior to doing so.81

Third, the Court opined a decision to create a private right of action is one better left to

legislative judgment in most cases.82

This is because the creation of a private cause of action

often has collateral consequences.83

For example, the creation of a civil cause of action for a

trivial criminal matter would interfere with the check of prosecutorial discretion.

Fourth, the potential implications the ATCA could have for the United Statess foreign

relations support there being a high bar to new private causes of action for violating international

law under the statute.84

It is one thing for American courts to enforce constitutional limits on

our own State and Federal Governments power, but quite another to consider suits under rules

that would go so far as to claim a limit on the power of foreign governments over their own

citizens.85

The legislative branch, which is responsible for policy decisions and has adequate

resources to analyze the costs and benefits of such decisions, should therefore be left to deal with

these consequential decisions, the Court stated.86

Fifth, the Court has no congressional mandate to seek out and define new and debatable

violations of the law of nations.87

In light of the first four factors, this factor, the Court stated,

80Id.

81Id.

82Id.at 2762-63.

83Id.at 2763.

84Id.

85Id.

86Id.

87Id.


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militates in favor of judicial caution when considering the breadth of private rights claims that

may be brought under the ATCA.88

After reading the aforementioned five reasons the Court articulated to support its holding

that only a small number of international law violations in addition to violation of safe conducts,

infringement of the rights of ambassadors, and piracy should be actionable under the ATCA, one

wonders, why allow for any expansion? One reason, according to the Court, is that the United

States has recognized international law since it became a state.89

Second, international disputes

implicating the United Statess foreign relations is one of the select areas in which federal

common law still exists.90Taking these two factors into account, the Court noted that [i]t would

take some explaining to say now that federal courts must avert their gaze entirely from any

international norm intended to protect individuals.91

Third, the issue as to what international

norms are l[ies] at the intersection ofthejudicial and legislative powers.92

As mentioned earlier, Alvarez-Machains claimarbitrary detentiondid not meet the

Courts criteria for an actionable claim under the ATCA, as the international law violation he

claimed injured him is not defined with a specificity comparable to the features of the

eighteenth-century paradigms the drafters of the ATCA had in mind.93

Why? He could not

support his proposition using any sources of international law that have long been recognized by

the Court as authoritative: treaties; controlling executive/legislative/judicial decisions in the

United States; the customs and usages of civilized nations; and the works of jurists and

88Id.

89Id.at 2764.

90Id.

91Id.at 2764-65.

92Id.at 2765.

93See suprap. 10.


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commentators, which evidence the immediately-prior two.94

Instead, his proposed general

prohibition of arbitrary detentions would have had breathtaking implications, as

[h]is rule would support a cause of action in any federal court for any arrest,anywhere in the world, authorized by the law of the jurisdiction in which it took

place, and would create a cause of action for any seizure of an alien in violation of

the Fourth Amendment.95

Whoa! If he were to have been able to prevail on this claim, the Court would have compromised

the spirit of the reasons it articulated for not creating causes of action under the ATCA that lack

specificity comparable to international laws proscriptions of violating safe conducts, infringing

the rights of ambassadors, and piracy: to not go beyond residual federal common law discretion

and to not disaffect foreign states.

Sosais still good law, but it was significantly qualified byKiobel.

C. A Significant Qualification of Sosa:Kiobel

Kiobelprovided the Court with an opportunity to qualify federal courts jurisdiction over

ATCA claims. In contrast to Sosa, where the DEA, an American entity, was alleged to have

violated an international right belonging to the alien plaintiff, the defendants inKiobelwere not

American entities. They were Dutch, British, and Nigerian.96

The alien plaintiffs, a group of

Nigerian nationals who were residing in the United States, filed a civil action under the ATCA

against Dutch, British, and Nigerian corporationsspecifically, Royal Dutch Petroleum

Company, Shell Transport and Trading Company, and Shell Petroleum Development Company

of Nigeria, a joint subsidiary of the former two which was incorporated in Nigeriafor, they

alleged, aiding and abetting the Nigerian government commit violations of international law in

94Sosa,supra note 47, at 2766-67.

95Id.at 2768.

96Kiobel,supranote 7, at 1662.


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Nigeria against Nigerian citizens.97

The issue for the Court, then, was whether foreign

corporations could be sued for breaches of international law they committed in a foreign state.98

The Court began its analysis by explaining that there is a presumption against

extraterritorial application of American statutes.99

Pursuant to this canon of interpretation, if a

statute does not clearly indicate it may be applied extraterritorially, it cannot.100

The presumption

against extraterritoriality exists to prevent conflicts between American and foreign laws, which

would likely result in tension in the United Statess foreign relations.101

The principles underlying the presumption against extraterritorial application, the Court

held, constrain federal courts in their application of the ATCA.102

As the Court stressed in Sosa,

the ATCA could have severe collateral consequences, against which the presumption against

extraterritorial application is meant to guard.103

The Court disagreed with the alien plaintiffs that the presumption against extraterritorial

application could be rebutted by the ATCAs text, history, and purposes.104

To rebut the

presumption, the alien plaintiffs would have had to have demonstrated that the ATCA evinces a

clear indication of extraterritoriality.105

The Court found that the text did not evince any indication of extraterritoriality.106

Although the ATCA covers actions by aliens for violations of international law, that does not

97Id.

98Id.

99Id.at 1664.

100Id.

101Id.

102Id.

103Id.

104Id.at 1669.

105Id.at 1665.

106Id.


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imply extraterritorial reach, as international law violations affecting aliens can occur inside the

United States.107

Next, the Court found that the historical background against which the ATCA was

enacted is incapable of overcoming the presumption against extraterritorial application.108

First,

the Court reached this conclusion by having referenced its finding in Sosa that the three principle

international law violations the drafters of the ATCA had in mind were violation of safe

conducts, infringement of the rights of ambassadors, and piracy.109

The Court found the fact that

the drafters of the ATCA had those three international law violations in mind significant,

because the first two have no necessary extraterritorial application.110Indeed, Blackstone, an

international law scholar who wrote prolifically about these international law issues, described

them in terms of conduct occurring within the forum state.111

The Court also reached its conclusion that the historical background against which the

ATCA was enacted is incapable of overcoming the presumption against extraterritorial

application because the ATCA was passed shortly after two notorious events that involved the

violation of international law occurred in the United States.112

In 1784, a fellow Frenchman

verbally and physically assaulted the Secretary of the French Legion in Philadelphia.113

There

was no legislation in place at the time to redress the latters injuries, which led the French

Minister Plenipotentiary to formally protest this fact to Congress and threaten to leave the United

107Id.

108Id.

109Id.

110Id.

111Id.

112Id.

113Id.


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States.114

The other event occurred in 1787, when a New York constable entered the Dutch

ambassadors home to arrest one of his domestic servants.115

Once again, the aggrieved foreign

dignitary had no means of redress, which embarrassed American politicians.116

According to the

Court, those events provide no support for the argument Congress meant for the ACTA to have

extraterritorial application.117

As to the fact the drafters of the ATCA also had in mind piracy, the Court found that

applying American law to pirates does not typically impose the sovereign willof the United

States onto conduct occurring within the territorial jurisdiction of another sovereign, and

therefore carries less direct foreign policy consequences.118Continued the Court: Pirates were

fair game wherever found, by any nation, because they generally did not operate within any

jurisdiction.119

Finally, the Court held that the purposes of the ATCA do not evince a clear indication of

extraterritoriality.120

In the words of the Court, there is no indication that the [ATCA] was

passed to make the United States a uniquely hospitable forum for the enforcement of

international norms.121

The Court then went on to reiterate that [t]he United was, however,

embarrassed by its potential inability to provide judicial relief to foreign officials injured in the

114Id.

115Id.

116Id.at 1666-67.

117Id.at 1667.

118Id.

119Id.

120Id.at 1668.

121Id.


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United States.122

Consequently, the Court inferred that the main purpose of the ATCA was to

ensure that the United States could redress such incidents.123

Going back to the alien plaintiffs claim, it was denied.124

The Court found that all the

relevant conduct took place outside the United States.125

It was immaterial that Royal Dutch

Petroleum Company and Shell Transport and Trading Company have subsidiaries in the United

States, as even where claims touch and concern the territory of the United States, they must do

so with sufficient force to displace the presumption against extraterritorial application.126

The

fact that a corporation has a mere presence in a country does not constitute sufficient force,

because [c]orporationsare present in many countries, and it would reach too far to say that mere

corporate presence suffices.127

What Chief Justice Robertss majority opinion said, then, was, Hasta la vista,Filartiga

andMarcos! Recall that in each of those cases it was assumed the ATCA does apply to at least

certain international law violations that occur outside the United States.

Be Chief Justice Robertss opinion as it may,Kiobeldid not K.O.Filartiga andMarcos.

How is that? My answer: Justice Kennedys concurring opinion + Justice Breyersopinion

concurring in the judgment says so.

In Kennedys concurring opinion, he stated it was proper for Chief Justice Robertss

majority opinion to have left the door open, so to speak, for another day to define more precisely

what constitutes sufficient force to displace the presumption against extraterritorial

122Id.

123Id.

124Id.at 1669.

125Id.

126Id.

127Id.


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application.128

This is because, he stated, there may be future cases before the Court where the

conduct at issue occurred in a foreign country but where the conduct does have a sufficient force

to displace the presumption against extraterritorial application.129

As for Justice Breyers opinion, he concurred with Chief Justice Robertss majority

conclusion, but he disagreed with his reasoning.130

He was joined by Justices Ginsburg,

Sotomayor, and Kagan.131

He disagreed with Chief Justice Robertss majorityopinions

reasoning, because he does not believe the presumption against extraterritoriality should have

been invoked.132

Rather, he would find jurisdiction under the ATCA where i) the alleged tort

occurs within the United States, ii) the defendant is an American national, or iii) the defendants

conduct substantially and adversely affects an important American national interest, which

includes a direct interest in preventing the United States from becoming a safe harbor for a

torturer or other common enemy of mankind, and, in addition to one of those three requirements

being satisfied, the requirements that were set forth in Sosaare satisfied, that is, that the

international law violation consists of a violation of safe conducts, an infringement of the rights

of ambassadors, piracy, or a present-day international law violation that is based on a norm

accepted by the civilized world and defined with a specificity comparable to the features of one

of the former three.133

In other words, he opined that international law violations that occur

outside the United States may give rise to a cause of action under the ATCA so long as distinct

American interests are at issue.

128Id.(Kennedy, J., concurring).

129Id.

130Id.at 1670 (Breyer, J., concurring in judgment).

131Id.

132Id.at 1671.

133Id.


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Piracy in particular is an international law violation that Justice Breyer says is a cause of

action under the ATCA, regardless of where it occurs.134

Todays pirates, Justice Breyerwrote,

certainly include torturers and perpetrators of genocide, [a]nd today, like the pirates of old, they

are fair game where they are found.135

This is because, he explained, they are common

enemies of the world over and, consequently, all countries have an equal interest in their

apprehension and punishment.136

In the case at hand, however, as Justice Breyer explained, there were no distinct

American interests at issue.137

Neither of the parties were American, the conduct took place

abroad, and it is not alleged that the defendants themselves engaged in acts or torture, genocide,

or the equivalent.138

II.ARGUMENT

ATCA jurisprudence makes it clear that the following is required to successfully bring a

claim under the statute: i) the underlying action must have occurred within the United States or,

if not, must touch and concern the territory of the United States . . . with sufficient force to

displace the presumption against extraterritorial application, and ii) the claim must be based on

a violation of safe conduct, an infringement of the right of an ambassador, piracy, or a norm of



-century paradigms [the United States Supreme Court has] recognized.

Whether foreign denizens may avail themselves of the ATCA to redress harm that has resulted to

them from international law violations by American TNCs in their countries, then, will depend

134Id.

135Id.at 1672.

136Id.

137Id.at 1678.

138Id.


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on whether such a claim of this class is able to comply with the aforementioned ATCA

jurisprudence.

Part A: Does the ATCA Provide Jurisdiction for Foreign Denizens Against American TNCs that

Have Infringed Their Human Rights?

It is certainly uncontroversial to state that the release of the United States Supreme

Courts majority opinion inKiobelearlier this year was a blow to foreign denizens wishing to

avail themselves of the ATCA to redress harm that has resulted to them from international law

violations. This is because one was able to safely infer fromFilatiga,Marcos, and Sosathat the

ATCA may be applied extraterritorially. InFilartiga andMarcos, for example, neither the

parties nor the locale where the international law violations occurred were American, but that did

not preclude a favorable ruling for the alien plaintiffs inFilartigafrom the Second Circuit or the

Second Circuit to consider the merits of the alien plaintiffs claims inMarcos, and in Sosa,

where the locale at which the alleged international law violation was Mexico, the Supreme Court

did not hesitate to consider the merits of the claim.

Kiobel, however, got rid of the inference that the ATCA may be applied extraterritorially.

It did so by having held i) the presumption against extraterritoriality applies to claims brought

under the ATCA, ii) nothing in the statute rebuts that presumption.

To some, it looks likeKiobelput any hope of foreignersclaims against American TNCs

resulting from international law violations that occurred abroad down for the count, so to speak.

My perspective, however, is, to use another idiom, that Kiobels bark is a lot worse than its bite. I

say so for three reasons. First, I do not believe Chief Justice Robertssmajority opinions

reasoning inKiobelwould apply to a claim where a foreign denizen brings a claim against an

American TNC for the latter having harmed the former by having violated an international law


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abroad. Second, I believe that Justice Kennedys concurring opinion and Justice Breyers opinion

concurring in the judgment together would allow for a claim where a foreign denizen brings a

claim against an American TNC for the latter having harmed the former by having violated an

international law abroad. Third, I believe that there is a good argument that Chief Justice

Robertss majority opinion should be overruled.

1. ChiefJustice Robertss Majority Opinions Reasoning Would Not Apply

If a foreign denizen were to bring a claim under the ATCA against an American TNC for

the latter having harmed the former by having violated an international law abroad, I do not

believe Chief Justice Robertss majority opinions reasoning would apply. I hold this belief for

two reasons. First, the concerns Chief Justice Roberts had concerning the ATCA if it were

extraterritorial would be inexistent in such a situation. Second, Chief Justice Robertss opinion

provided a significant exception to the presumption that the ATCA is not extraterritorial, that is,

if a claim brought under the ATCA, despite the underlying action having occurred outside the

United States, touches and concerns the United States with sufficient force to displace the

presumption against extraterritoriality.

A judicial opinions literal holding is not as important as the reasoning behind it. That

said, it is not important when readingKiobelto know what the holding is. Rather, what is

important is to know why the presumption against extraterritorial application was applied by

Chief Justice Robertss opinion to the ATCA. As Chief Justice Roberts explained, the

presumption against extraterritoriality is meant to protect against unintended clashes between

our laws and those of other nations which could result in international discord.139

Therefore,

139Id.at 1664 (majority opinion).


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having held the danger of adverse foreign policy consequences is magnified under the ATCA

compared to other statutes, he applied it to the ATCA.140

While facts analogous to those inKiobel would certainly cause rifts between the United

States and other states if the Court were to allow such cases to be litigated, the same dangers

would not be present in a case where a foreign denizen brings a claim against an American TNC

for the latter having harmed the former by having violated an international law abroad. In fact,

the opposite would prove to be true, that is, if such a case were successfully litigated by a foreign

denizen, the relation between the United States and the formers country would be enhanced.

Go to the undeveloped world, such as an African country, and ask, Does the United

States consider your countrys interests? Theresponse will be overwhelmingly negative.141

This

is not surprising. One reason in particular is that, according to Nigerian journalist Sundoy Dare,

American TNCs are viewed as economic predators in Africa, violating Africans rights under

international law to maximize their gains.142

Moreover, African states are, for the most part,

incapable of defending their citizens against such international law violations.143

Why? Lacking

the technological capacity to harness massive reserves of fold, diamonds, and cobalt [African

leaders] grant licenses to foreign corporations to operate in their domain, and then appropriate

the resulting revenue to maintain themselves in power.144

Therefore, when an African state is

caught between protecting a vital source of revenue, and defending the rights and privileges of

140Id. at 1664-65.

141SeeAmericas Global Image Remains More Positive than Chinas, PEW RESEARCH CENTER (July 18, 2013),

http://www.pewglobal.org/2013/07/18/americas-global-image-remains-more-positive-than-chinas/.142

See Sundoy Dare,A Continent in Crisis, Africa and Globalization, THIRD WORLD TRAVELER ,

http://www.thirdworldtraveler.com/Africa/Continent_Crisis.html (last visited Dec. 15, 2013).143

Id.144

Id.


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its citizens, the state, in order to ensure an ongoing flow of revenue, sides with the TNCs

against the citizens.145

Another reason, in addition to enhancing the relation between the United States and other

countries, the dangers normally inherent in the extraterritorial application of an American statute

would not be present by extraterritorially applying the ATCA to American TNC international

law violations abroad affecting foreign denizens is that it is standard for states to exercise

jurisdiction over conduct committed by their nationals in foreign states.146

Indeed, the amicus

brief the European Commission submitted to the United States Supreme Court regardingKiobel

stated that, consistent with international law, it is uncontroversial that the United States may

exercise jurisdiction over ATCA claims involving conduct by its own nationals in foreign

states.147

Therefore, if the United States were to exercise jurisdiction over ATCA claims

involving international law violations by American TNCs harming foreign denizens in foreign

states, there would not be a resulting rift between the United States and other states: the United

States would simply be acting in accordance with an international custom.

The Restatement (Third) of the Foreign Relations Law of the United States, which

consists of . . . international law as it applied to the United States,148

supports my argument in

the above paragraph. Section 402 states that a state may apply its law, among other areas, to the

activities, interests, status, or relations of its nationals outside its territoryor to conduct

outside its territory that has or is intended to have substantial effect within its territory.149

Why

does this source matter? Because the Court treated it as an authority as to whether a principle of

145Id.

146Kiobel,supra note 7, at 1675 (Breyer, J., concurring in judgment)

147Id.at 1676.

148Restatement (Third) of Foreign Relations Law Intro. (1987).

149Id.at 402.


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international law rests on a norm of international character accepted by the civilized world and is

defined with a specificity comparable to the features of the eighteenth-century paradigms the

Court has recognized.150

In addition to the fact Chief Justice Robertss concerns regarding the extraterritorial

application of the ATCA would be inexistent if it were applied extraterritorially to redress the

harm to foreign denizens caused by international law violations by American TNCs abroad, his

majority opinions reading would also not apply to the aforementioned situation because his

opinion provided a significant exception to the presumption that the ATCA is not extraterritorial.

If a claim brought under the ATCA, despite the underlying action having occurred outside the

United States, touches and concerns the United States with sufficient force, the presumption

against extraterritoriality may be displaced.

Chief Justice Robertss majority opinion left open for another day the determination of

what conduct adequately touches and concerns the United States with sufficient force to displace

the presumption against extraterritoriality that applies to the ATCA. There is no case law that

gives meaning to that phrase, but it seems certain an American TNCs conduct in foreign

countries would satisfy this condition and, consequently, remove the presumption against

extraterritorial application as applied to this scenario.

Unlike the defendants inKiobel, which merely had a corporate presence in the United

States,

151

American TNCs are incorporated in the United States. Therefore, it is in the United

States where the policy decisions are made that affect, among others, those harmed in foreign

countries by international law violations. Because Americans are directly responsible for such

150Sosa,supra note 7, at 2768-69.

151Kiobel,supranote 7, at 1669 (majority opinion).


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actions, then, the underlying action of this class of ATCA claim touches and concerns the United

States with great force and likely displaces the presumption against extraterritorial application.

Additionally, American TNCs are subject to in personam jurisdiction in their respective

states of incorporation.152

This provides another strong argument why the underlying action of

ATCA claims brought against American TNCs for the harm foreign denizens from international

law violations committed by the former should be construed as touching and concerning the

territory of the United States with sufficient force to displace the presumption against

extraterritorial application. It is axiomatic that if a party is subject to in personam jurisdiction in

a state, it is neither unfair nor inconvenient to require it to defend an action there, including ones

that arise in foreign forums.

2.Justice Kennedys Concurring Opinion and Justice Breyers Opinion

Concurring in the Judgment Would Allow It

Both Justice Kennedys concurring opinion and Justice Breyers opinion concurring in

the judgmentin which Justices Ginsburg. Sotomayor, Kagan joinedimply it would be

permissible for a foreign denizen to bring a claim under the ATCA against an American TNC for

the latter having harmed the former by having violated an international law abroad. This is

important, because the two opinions added together consist of a majority of the Courts justices.

In his concurring opinion, Justice Kennedy stated Justice Robertss majority opinion

properly left open a number of significant questions regarding the reach and interpretation of

the [ATCA].153This is because there may be future cases not covered by Justice Robertss

majority opinion where the presumption against extraterritorial application may need to be made

152See generally International Shoe Co. v. Washington, 326 U.S. 310 (1945) (holding there are instances in which

the continuous corporate operations within a state are so substantial and of such a nature to justify actions against it

there for actions in which the defendant engaged elsewhere).153

Kiobel,supra note 7, at 1669 (Kennedy, J., concurring).


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inapplicable.154

What kinds of cases did he have in mind? [H]uman rights abuses committed

abroad.155

In his opinion concurring in the judgment, Justice Breyer stated he would not invoke the

presumption against extraterritoriality.156

Instead, he would find jurisdiction under the ATCA

where (1) the alleged tort occurs on American soil, (2) the defendant is anAmerican national, or (3) the defendants conduct substantially and adversely

affects an important American national interest, and that includes a distinct

interest in preventing the United States from becoming a harbor (free of civil as

well as criminal liability for a torturer or other common enemy of mankind.157

This is certainly inclusive of a situation where a foreign denizen brings a claim under the ATCA

against an American TNC for the latter having harmed the former by having violated an

international law abroad. If nothing else, the second category of Justice Breyers test would be

met, for the defendant, an American TNC, would be an American national.

Because Justice Breyers opinion is broader than Justice Kennedys opinion in that

Justice Breyer would not invoke the presumption against extraterritoriality, and Justice

Kennedys opinion would impliedly permit a foreign denizen to bring a claim under the ATCA

against an American TNC for the latter having harmed the former by having violated an

international law abroad, the two opinions, which together consist of a majority of the Courts

justices, would arguably allow just that to happen.

3.It is Arguable Kiobel Should be Overturned

154See id.

155Id.


157Id.


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I believe there are strong arguments thatKiobel should be overturned. One, there is a

strong argument that Chief Justice Robertss majority opinion is based on fallacious reasoning.

Second, the opinion is contrary to precedent.

Regarding the former, the statutory background against which the ATCA was enacted

does appear to rebut the presumption against extraterritoriality as it applies to it. This is because

at least one of the three kinds of activities that the Court held the framers of the ATCA had in

mind when they enacted it158

that is, piracynormally takes place abroad.

Chief Justice Robertss majority opinion emphasized that piracy occurs on the high

seas.159

But, as Justice Breyer noted, that does not mitigate the foreign nature of the crime.160

That is because the robbery and murder that make up piracy do not normally take place in the

water; they take place on a ship. And the ship is just like land, in that it falls within the

jurisdiction of the nation whose flag it flies.161

Indeed, in the early 19th century Chief Justice

Marshall describedpiracy as an offenc[e]against the nation under whose flag the vessel sails,

and within whose jurisdiction all on board the vessel are.162

Chief Justice Robertss majority opinion also attempted to downplay the foreign nature of

piracy by stating that [a]pplying U.S. law to pirates . . . does not typically impose the sovereign

will of the United States onto conduct occurring within the territorial jurisdiction of another

sovereign and therefore carries less foreign policy consequences.163

However, as Justice Breyer

noted, applying American law to pirates does typically involve applying American law to acts

158Sosa,supranote 7, at 2761.

159Kiobel,supra note 7, at 1667 (majority opinion).


161Id.

162Id.(quoting United States v. Palmer, 3 Wheat. 610, 632 (1818) (alteration in original)).

163Kiobel,supra note 7, at 1672 (Breyer, J., concurring in judgment).


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that take place in a foreign state.164

Chief Justice Robertss use of the words territorial

jurisdiction, Breyer persuasively argued, does not sensibly distinguish land from sea for

purposes of isolating adverse foreign policy risks, as the Barbary Pirates, the War of 1812, the

sinking of theLusitania, and the Lockerbie bombing all make all too clear.165

Taking into account the information that is contained in the above three paragraphs, Chief

Justice Robertss majority opinions reasoning does not support applying the presumption

against extraterritorial application. Rather, the opposite is true, that is, the fact that the framers of

the ATCA had, among other things, piracy in mind when they enacted it rebuts the presumption

against extraterritorial application.

In addition to Chief Justice John Robertss majority opinion being based on fallacious

reasoning, it is also contrary to precedent. InFilartigaandMarcos, the Ninth and Second

Circuits, respectively, applied the ATCA extraterritorially.166

In each case, the parties on both

sides were foreign denizens and the underlying actions took place in a foreign country.167

Nevertheless, jurisdiction was deemed proper in each case.168

The Court, in turn, referred to both

cases with approval in Sosa.169

Kiobel, then, is in contrast toFilartiga,Marcos, and Sosa.

Part B: Would American TNCsViolations of International Law that Harm Foreign Denizens Be

Actionable Under the ATCA?

An alien plaintiff only has a cause of action under the ATCA if it is based on a violation

of safe conduct, an infringement of the right of an ambassador, piracy, or a norm of


164Id.

165Id.

166See suprapp. 3-8.

167Id.

168Id.



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-century paradigms [the United States Supreme Court has]

recognized.170

The question, then, is necessarily, would an American TNCs violation of

international law that harms a foreign denizen constitute a violation of safe conduct, an

infringement of the right of an ambassador, piracy, or a norm of international character accepted

by the civilized world and defined with a specificity comparable to the features of the 18th

-

century paradigms [the United States Supreme Court has] recognized. The answer is, it

depends.

More satisfactory of an answer is that there are at least some international law violations

that could result in a proper ATCA action. I shall not articulate all of them here, as it is not the

purpose of this essay to adumbrate every conceivable situation for which an ATCA action would

be proper. Rather, as I explained in the introduction, the purpose is to determine whether it is

possible in any circumstance for an American TNCs violation of international law to be

actionable under the ATCA. Assuming the conduct occurred on U.S. territory or, more likely, the

conduct occurred in a foreign country and what I argued in Part A is truethat is, that the ATCA

applies extraterritorially if the defendant is an American TNCthe answer is affirmative. If an

American TNC were to commit torture abroad, for example, the victims could properly file an

action against it under the ATCA. This is because the global proscription of torture rests on a

norm of international character accepted by the civilized world and defined with specificity

comparable to the eighteenth-century paradigms that have been recognized.171

III.CONCLUSION

170Id.at 2761-62.

171See suprapp. 3-8.


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I believe that the ATCA is able to provide a cause of action for foreign denizens who

have had their international human rights violated by American TNCs. This is because I believe

it would properly be applied extraterritorially in such circumstances and there are at least some

international law violations that, if committed by an American TNC against a foreign denizen

abroad, could result in a proper ATCA action.

Whether a particular international law violation by an American TNC against a foreign

denizen abroad is actionable under the ATCA will depend on whether the violation at issue is

based on a violation of safe conduct, an infringement or the right of an ambassador, or a norm of


to the features of the aforementioned paradigms.

There is hope, then, that American TNCs can be held accountable for their particularly

egregious actions overseas.

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