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University of New Hampshire Law Review

Abstract

[Excerpt] "On September 18, 2002, the Ninth Circuit Court of Appeals ruled that a United States based corporation can be held civilly liable for “aiding and abetting” the internationally recognized human rights violation of forced labor. This case, Doe v. Unocal Corp.1 (Doe II), is significant for its ramifications to human rights litigation in United States courts as well as to future liability for multinational corporations conducting commerce in foreign states. The uniqueness of this case is found in its precedent. No prior federal court has held a corporation liable for human rights violations under the Alien Tort Claims Act. In 1789, Congress enacted the First Judiciary Act.2 This act included a jurisdictional provision for district courts that granted foreign persons or entities the right to sue under tort law for violations committed under the law of nations.3 This jurisdictional law was named the Alien Tort Claims Act (ATCA).4 From 1789 until 1984, the ATCA underwent three minor alterations5 culminating in its present form that states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”6 For almost two centuries, little use was made of the ATCA,7 and certainly none of it for allegations of human rights violations based on international norms.8 However, in 1979 the Second Circuit Court of Appeals, in Filartiga v. Pena-Irala,9 changed the dormant nature of the ATCA.10 This case originally involved a New York District Court lawsuit between Paraguayan litigants for human rights violations that occurred in Paraguay. 11 The United States had no actual nexus to the violations.12 Yet, the Second Circuit found that United States courts had jurisdiction to hear cases involving human rights violations, wherever these violations occur.13 As a result of Filartiga, several lawsuits occurred that cited human rights violations. The majority of these cases involved lawsuits against foreign government and former foreign government officials. Another result of Filartiga was legislative, rather than judicial. In 1992, Congress enacted the Torture Victim Protection Act (TVPA) which created a cause of action for two violations of international law: torture and summary execution.14 The TVPA also bolstered the ATCA by providing the right to sue United States citizens.15 Since 1979, ATCA cases have emerged in three general categories. The first of these categories involves suits by alien (foreign) plaintiffs against current foreign heads of state and government. 16 The second category deals with suits by foreign plaintiffs against former foreign heads of state and government officials.17 The third category of ATCA suits involves civil action by foreign plaintiffs against multinational corporations conducting foreign commercial activity in conjunction with foreign governments.18 This article concerns the third category, in particular, an analysis of Doe II. This article analyzes Doe II under a multi-tiered rubric. The first tier involves analyzing whether the Ninth Circuit was correct in its jurisdictional interpretation. The second tier studies the extent to which the Ninth Circuit’s use of international law expanded previously accepted usage by United States courts. For example, after reading Doe II, a question arises as to whether the Ninth Circuit created a “complete” universal jurisdiction for torts under the ATCA. The final tier, involves analyzing foreseen legal consequences. That is, does Doe II expand causes of action for foreign human rights violations because the decision reduces possible defenses to tort claims under the ATCA? Within this multi-dimensional rubric, Doe II must be understood from its beginnings. Section II discusses the history of Doe II, primarily through two prior district court decisions. However, in order to analyze Doe II, a meaningful background to the ATCA must be determined. Section III of this paper provides this background. Particular attention is paid to the Filartiga decision and its progeny because Doe II relied, in large-part, on principles established in Filartiga. Section IV provides context for the suit, namely, the nature of human rights violations occurring in Myanmar where the plaintiffs allege the violations occurred. Section V analyzes the Ninth Circuit’s unique application of International Law. Section VI analyzes foreseeable consequences to defenses against ATCA suits. In particular, defenses under the act of state doctrine, dismissal under the indispensable parties rule, and forum non conveniens are addressed. This article concludes with the final assessment that while Doe II is rooted in fundamentally correct interpretations of the law, it both expands the parameters of corporate liability and it fundamentally alters the ability to defend against ATCA suits."

Repository Citation

Joshua E. Kastenberg, Enforcing Internationally Recognized Human Rights Violations under the Alien Tort Claims Act: An Analysis of the Ninth Circuit’s Decision in Doe v. Unocal Corp., 1 PIERCE L. REV. 133 (2003). Available at http://scholars.unh.edu/unh_lr/vol1/iss3/4

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