Skip to main content

Advertisement

SpringerLink
Log in

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

  • Published:
Human Rights Review Aims and scope Submit manuscript

Abstract

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.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. See Jason F. Hellwig, “The Retreat of the State? The Massachusetts Burma Law and Local Empowerment in the Context of Globalization(s)” (2000) 18 Wis. Int’l L. J. 485.

  2. Trevor Farrow, “Globalization, International Human Rights, and Civil Procedure” (2003) 41 Alta. L. Rev. 673.

  3. Kofi Annan, “A Compact for the New Century” United Nations (1 February 1999), available at http://www.un.org/News/Press/docs/1999/19990201.sgsm6881.html.

  4. 28 U.S.C. § 1350 (1789).

  5. A.H. Robertson and J.G. Merrills, Human Rights in the World: An Introduction to the Study of the International Protection of Human Rights, 4th ed. (Manchester: Manchester University Press, 1996) 1.

  6. Brad Kieserman, “Profits and Principles: Promoting Multinational Corporate Responsibility by Amending the Alien Tort Claims Act” (1999) 48 Catholic University Law Review 881.

  7. Eileen Rice, “Doe v. Unocal Corporation: Corporate Liability for International Human Rights Violations” (1998) 33 University of San Francisco Law Review 153.

  8. Rome Statue of the International Criminal Court, Article 5(1), available at http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_210704-EN.pdf.

  9. In Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947), the US Supreme Court ruled that “[A] district court advised to determine first whether the proposed alternative forum is ‘adequate’...Then the district court should consider relevant public and private interest factors...in order to determine whether dismissal is favored.” Great deference is given to the plaintiff’s choice of forum if the forum chose is the home of the plaintiff, but a foreign plaintiff’s choice is given less deference, making it a popular defence to the adjudication of foreign human rights abuses on US soil. See also K. L. Boyd, “The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation” (1998) 39 Va. J. Int’l L. 41.

  10. See Barbara A. Frey, “The Legal and Ethical Responsibilities of Transnational Corporations in the Protection of International Human Rights” (1997) 6 Minn. J. Global Trade 159.

  11. Ironically, human rights protections have been extended to corporations, although human rights obligations have not. For example, cases have been heard by the European Court of Human Rights involving alleged violations of the First Protocol of the European Convention on Human Rights like the right to property (Article 1), to free speech (Article 10), to a fair trial (Article 6) and to privacy (Article 8). See Michael Addo, “The corporation as a victim of human rights violations”, in M.K. Addo ed., Human rights standards and the responsibility of corporations (The Hague: The Hague Kluwer, 1999) at 187.

  12. Peter T. Muchlinski, “Human Rights and Multinationals: Is There a Problem?” (2001) 77 International Affairs 31.

  13. 28 U.S.C. §§ 1330, 1602–1611 (1976). In the U.S., the federal government has sovereign immunity and may not be sued unless it has waived its immunity or consented to suit. Foreign governments are protected from being sued in the U.S. through the FSIA, unless the plaintiff can prove that one of the Act’s exceptions to immunity apply (i.e. commercial acts, expropriation, terrorism, torture or other torts committed in the U.S.). See, generally, Joseph Dellapenna, “Refining the Foreign Sovereign Immunities Act” (2001) 9 Willamette J. Int’l L. & Dis. Res. 57.

  14. Alien Tort Claims Act, 28 U.S.C. § 1350 (1789).

  15. Sosa v. Alvarez-Machain, 124 S.Ct. 2739 (2004) [Sosa].

  16. Forti v. Suarez-Mason, 694 F. Supp. 707, 709 (N.D. Cal. 1988) [Forti].

  17. Supra note 7 at 890.

  18. Ibid.

  19. Ibid.

  20. Ibid. at 893.

  21. See Anne-Marie Burley, “The Alien Tort Statute and the Judiciary Act if 1789: A Badge of Honor” (1989) 83 Am. J. Int’l L. 461, as cited in Kieserman, supra note 7 at 893.

  22. Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) [Filartiga].

  23. Ibid. at 889.

  24. Supra note 23 at 881.

  25. Ibid. at 884.

  26. Ibid. at 888.

  27. Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995).

  28. Ibid. at 245. See also Rice, supra note 8 at 156–157.

  29. John Doe I v. Unocal Corp., 963 F. Supp. 880, 892 (C.D. Cal. 1997) [Unocal].

  30. Ibid. at 883.

  31. Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602–1611 (1976). Section 1605(a)(2) of the Act provides exceptions for (1) commercial activity carried on in the United States by a foreign state, (2) acts performed in the United States connected to the foreign state’s commercial activity elsewhere or (3) commercial activity of a foreign state occurring overseas but having a “direct effect” in the United States.

  32. Doe I v. Unocal Corp, 110 F. Supp. 2d 1294.

  33. Since Unocal paid SLORC to provide labour and security for the pipeline, accepted the benefit and approved the use of forced labour, the court considered the forced labour allegations to be acts of slave trading.

  34. Rachel Chambers, “The Unocal Settlement: Implications for the Developing Law on Corporate Complicity in Human Rights Abuses” Global Policy Forum (2005), available at http://www.globalpolicy.org/intljustice/atca/2005/09unocal.pdf.

  35. The Court left open the “knew or should have known” standard argued by the plaintiffs and did not clearly state how much involvement by the corporation is necessary. However, the case expanded the liability from direct involvement or intent to abuses that it knew about or substantially assisted through practical encouragement or support.

  36. Aron Ketchel, “Deriving Lessons for ATCA from FSIA” (2007) 32 Yale J. Int’l L. 191 at 199.

  37. See, e.g. Sarei, 221 F. Supp. 2d at 1118; Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005); Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005), cert. denied, 126 S.Ct. 1418 (2006), as cited in Ketchel supra note 36 at 199.

  38. Presbyterian Church of Sudan v. Talisman Energy, 374 F. Supp. 2d 331 (S.D.N.Y. 2005). Following an appeal of this decision, on 12 September 2006, the United States District Court for the Southern District of New York granted the defendant’s motion for summary judgment, finding that the plaintiffs failed to present sufficient admissible evidence of violations of international law. The plaintiffs had alleged that Talisman conspired with, or aided, Sudanese authorities in committing genocide, war crimes and crimes against humanity.

  39. See Khulumani v. Barclays National Bank Ltd., No. 02-cv-5952 (S.D.N.Y. 2002). Khulumani, a South African NGO, brought an ATCA claim alleging that Barclays Bank, Citigroup and mining companies like Rio Tinto had supported and profited from the apartheid regime. The defendants were approximately 50 international corporations and banks, and the damages sought were estimated at approximately $400 billion. The court dismissed the case, ruling that judgments from the Nuremburg tribunals and International Criminal Tribunals in the former Yugoslavia and Rwanda were not binding sources of international law, although they had been used in the Talisman and Unocal litigation to underpin liability for aiding and abetting. The claims that the defendants supplied goods to the South African military used in human rights abuses under apartheid were deemed “merely beneficial or indirectly complicity in the state’s wrongdoing” which did not satisfy the test for corporate complicity.

  40. Khulumani v. Barclays National Bank Ltd., Ntsebeza v. Daimler Chrysler Corp., Nos. 05-cv-2141 and 05-cv-2326 (2d Cir. 2007). The decision to dismiss was reversed on appeal, allowing both suits to be heard by a district court.

  41. Anthony J. Sebok, “The Second Circuit’s Stunning Reversal, in Two Suits Involving the Alien Tort Claims Act” FindLaw (23 October 2007), available at http://writ.news.findlaw.com/sebok/20071023.html.

  42. Rome Statute of the International Criminal Court, Art. 25(3)(c), available at http://www.un.org/law/icc/statute/romefra.htm.

  43. Supra note 41.

  44. See Wiwa v. Royal Dutch Petroleum, 392 F.3d 812 (5th Circ. 2004) [Wiwa].

  45. “Wiwa v. Royal Dutch Petroleum” Centre for Constitutional Rights, available at http://ccrjustice.org/ourcases/current-cases/wiwa-v.-royal-dutch-petroleum%2C-wiwa-v.-anderson-and-wiwa-v.-shell-petroleum-d.

  46. Anthony J. Sebok, “Is the Alien Tort Claims Act a powerful human rights tool?” Findlaw (12 July 2004), available at http://writ.news.findlaw.com/sebok/20040712.html. According to Sebok, Sosa cannot be seen as a victory for the human rights community but rather an “operational pause” in a long, hard battle to come.

  47. See Filartiga, supra note 23 at 881.

  48. See In re Estate of Ferdinand Marcos, 25 F.3d 1467, 1475 (9th Cir. 1994).

  49. See Kadic v. Karadzic, 70 F.3d 232, 241–242 (2d Cir. 1995).

  50. Ibid. at 242–243.

  51. See Forti, supra note 17.

  52. See Xuncax v. Gramajo, 886 F. Supp. 187–189 (D. Mass. 1995). Note that in the Sosa decision, illegal detention of less than 1 day did not qualify as “prolonged arbitrary detention”.

  53. See John Doe I v. Unocal Corp., 963 F. Supp. 880, 892 (C.D. Cal. 1997).

  54. See Xuncax, supra note 52.

  55. See Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668, 669–671 (S.D.N.Y. 1991).

  56. See Hamid v. Price Waterhouse, 51 F 3d 1411, 1418 (9th Cir. 1995).

  57. See Unocal, supra note 30.

  58. See Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208–209 (D.C. Cir. 1985).

  59. See Sosa, supra note 16 at 2742.

  60. Ibid. at 2745.

  61. See Khedivial Line, S.A.E. v. Seafarers’ Int’l Union, 278 F.2d 49, 51–52 (2d Cir. 1960). The Court held that picketing did not violate the law of nations.

  62. No. 07-cv-2151 (N.D. Cal.).

  63. See “Censored Lives: Shi Tao’s Mother, Wang Xiaoning’s Wife” Radio Free Asia (13 November 2007), available at http://www.rfa.org/english/features/women/2007/11/13/witow_dissidents/.

  64. Ibid.

  65. Shi Tao was accused of sending an e-mail summarizing an internal Communist Party directive to a foreign source. The Communist Party directive had warned Chinese journalists of possible social unrest during the anniversary of the June 4 Movement (in memory of the Tiananmen crackdown) and directed them not to fuel it via media reports. See Amnesty International, “Shi Tao, 10 Years in Prison for Sending an Email” available at http://www.amnestyusa.org/Prisoners_of_Conscience/Shi_Tao/page.do?id=1101243&n1=3&n2=34&n3=53. See also Human Rights Watch, “Race to the Bottom: Corporate Complicity in Chinese Internet Censorship” available at http://www.hrw.org/reports/2006/china0806/11.htm.

  66. Catherine Rempell “Yahoo Settles with Chinese Families” Washington Post (14 November 2007), available at http://www.washingtonpost.com/wp-dyn/content/article/2007/11/13/AR2007111300885.html.

  67. Supra note 23 at 881–888.

  68. Supra note 52.

  69. See Anthony J. Sebok, “Unocal Announces it will Settle a Human Rights Suit: What is the Real Story Behind its Decision” FindLaw (10 January 2005), available at http://writ.news.findlaw.com/sebok/20050110.html. Sebok attributes the divergent approaches to the ATCA to the differing political persuasions of judges hearing the cases: Judge Pregerson accepted jurisdiction in the Unocal case has a reputation for being liberal while Judge Sprizzo who dismissed the Khulumani case (which was reversed on appeal) is considered to be more conservative.

  70. Kofi Annan, “An Appeal to World Business,” Boston Globe (1 February 1999), available at http://www.boston.com/dailyglobe2/032/oped/An_appeal_to_world_business+.shtml.

  71. See Kieserman, supra note 6. This would be similar to the enactment of the Torture Victim Protection Act, codified at 28 U.S.C. 1350 (1994), following the Filartiga decision, which defined specific causes of action for torture and extra-judicial killing in recognition of the United States’ international obligations.

Author information

Authors and Affiliations

  1. 211, 563 Johnson Street, Victoria, BC, Canada, V8W 1M2

    Alex Fielding

Authors
  1. Alex Fielding
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Alex Fielding.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Fielding, A. Yahoo? Reining in the Wild West with the Alien Tort Claims Act. Hum Rights Rev 9, 513–523 (2008). https://doi.org/10.1007/s12142-008-0067-1

Download citation

  • Received:

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s12142-008-0067-1

Keywords

Search

Navigation