RULES OF DECISION FOR ISSUES ARISING UNDER THE
ALIEN TORT STATUTE
Philip A. Scarborough
Since Filartiga v. Pena-Irala and the beginning of the modern line of
Alien Tort Statute (ATS) cases, courts have struggled to find the appropriate
source of law to apply to a variety of issues that such cases raise. This Note
argues that, for at least some questions of law presented by ATS cases, the
two-step approach established by Kimbell Foods for determining the appropriate
rule of decision in federal cases can be used:
After determining that
the issue is one that permits a federal rule of decision, federal courts should
ask whether the state rule should be adopted as the federal rule. As an example,
the Note examines the Ninth Circuit’s opinion in Doe
I v. Unocal
and
evaluates
whether state law could have been used in that case as the federal
rule
of decision for determining the appropriate standards to establish corporate
complicity liability for ATS
violations.
INTRODUCTION
Since Filartiga v. Pena-Irala and the beginning of the modern line of
Alien Tort Statute (ATS)
1
cases,
2
courts have struggled to find the appro-
1. 28 U.S.C. § 1350 (2000). In full, the statute provides: “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.” Id. It is currently mostly
used to bring civil suits against despotic political leaders or multinational corporations that
have allegedly been in league with oppressive governments in committing human rights
violations. See, e.g., Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute,
106 Colum. L. Rev. 830, 832–33 (2006) (“[T]he statute, in the past twenty-six years, has
become an iconic vehicle for international human rights litigation in U.S. federal courts.”).
The statute is also known as the Alien Tort Claims Act, though the difference in
nomenclature does not seem to be important. See Ralph G. Steinhardt, Laying One
Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human
Rights Litigation in U.S. Courts, 57 Vand. L. Rev. 2241, 2242 n.1 (2004) (“[N]othing of
substance turns on the manipulation of the popular name . . . .”). But see Adamu v. Pfizer,
Inc., 399 F. Supp. 2d 495, 497 n.2 (S.D.N.Y. 2005) (preferring term Alien Tort Statute over
Alien Tort Claims Act because § 1350 does not create independent right of action). In
referring to § 1350 as the Alien Tort Statute, this Note follows the lead of the United States
Supreme Court in Sosa v. Alvarez-Machain. See 542 U.S. 692, 697 (2004) (referring to
§ 1350 as “Alien Tort Statute”).
2. Filartiga v. Pena-Irala, 630 F.2d 876, 880–87 (2d Cir. 1980) (holding that ATS
permitted civil suit against former Paraguayan official for acts of torture and murder
committed in Paraguay). Since Filartiga, ATS cases have proliferated. See, e.g., Daniel
Diskin, Note, The Historical and Modern Foundations for Aiding and Abetting Liability
Under the Alien Tort Statute, 47 Ariz. L. Rev. 805, 806 (2005) (“[A]n expanding progeny
of cases followed [the decision in Filartiga].”). Though a comprehensive list of post Filartiga
ATS
cases is not necessary here, some examples of the wide range of plaintiffs
using
the ATS
include Bigio v. Coca-Cola Co., 239 F.3d 440, 444 (2d Cir. 2000) (suit by
Jewish
plaintiffs against corporation that purchased property that had been illegally seized
by
Egyptian government); Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C. 2005)
(suit
by prisoners abused by U.S. forces at Abu Ghraib against American contractors who
457
458 COLUMBIA LAW REVIEW [Vol. 107:457
priate source of law to apply to a variety of issues that such cases raise.
Indeed, some of the first battles over Filartiga’s application of the statute
asked whether the ATS provided a separate cause of action in addition to
the jurisdiction that it clearly conferred upon federal courts or whether
some other source of law was required to furnish the cause of action.
The Supreme Court settled that initial question, at least partially, in Sosa
v. Alvarez-Machain.
In Sosa, the Court held that, in addition to providing
jurisdiction and a common law cause of action “for the modest number
of international law violations with a potential for personal liability at the
time [the ATS was enacted],”
5
the ATS provided a cause of action for any
modern law of nations violation that was as clearly defined and as universally
condemned as those eighteenth-century violations.
6
But in many
ways, the history of ATS litigation—both leading up to Sosa and following
it—has revealed additional legal issues, in need of a defining body of law,
a problem that Sosa did not resolve.
8
7
provided interpreters and interrogators to American forces in Iraq); Villeda Aldana v.
Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1288 (S.D. Fla. 2003) (suit by
Guatemalan union leaders alleging corporate participation in torture designed to end
union leadership activities); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91
(D.D.C. 2003) (suit by representatives and families of victims of September 11 attacks
against organizations that provided funding to al Qaeda); see also James Boeving, Half
Full . . . or Completely Empty?: Environmental Alien Tort Claims Post Sosa v. AlvarezMachain,
18 Geo. Int’l Envtl. L. Rev. 109, 112–28
(2005) (discussing ATS
cases based on
environmental
claims).
3. Compare Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002) (applying
international law standards), en banc reh’g granted, 395 F.3d 978 (9th Cir. 2003), with
Filartiga, 630 F.2d at 889 n.25 (suggesting that foreign law should be chosen for remedial
stage of litigation).
4. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C. Cir. 1984)
(Bork, J., concurring) (arguing that § 1350 only provided jurisdiction and no causes of
action), with id. at 777 (Edwards, J., concurring) (disagreeing with Judge Bork on cause of
action analysis). For further discussion, see William R. Casto, The Federal Courts’
Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn.
L. Rev. 467, 478–80 (1986) (noting that “section 1350 clearly does not create a statutory
cause of action” but concluding that it may have created common law cause of action).
5. 542 U.S. 692 (2004).
6. Id. at 724.
7. Id. at 725 (“[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.”). Though it is not entirely certain what is included in this formulation,
it almost certainly includes violations of jus cogens, or international norms that are so
fundamental that they cannot be legitimately ignored by sovereign powers.
8. See, e.g., Unocal, 395 F.3d at 949–51 (looking to international law to determine
standards of aiding and abetting liability); Papa v. United States, 281 F.3d 1004, 1012–13
(9th Cir. 2002) (deciding statute of limitation issue under ATS by looking to Torture
Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28
U.S.C. § 1350 note (2000))); Filartiga v. Pena-Irala, 577 F. Supp. 860, 864–65 (E.D.N.Y.
1984) (looking first to law of Paraguay and, finding it inadequate, using international law
to determine whether punitive damages are available for victims of torture).
3
42007] ATS RULES OF DECISION 459
Doe I v. Unocal
presented a concrete example of such an issue.
Residents of villages in Myanmar alleged that the Myanmar military had
forced them to build an oil pipeline that was part of a Unocal joint venture.
10
9
Members of the Myanmar military committed rape, extrajudicial
killings, and other human rights violations during the course of the pipeline
construction.
The plaintiffs alleged that Unocal knew or reasonably
should have known that the military, whom Unocal had contracted to
provide
security for the building of the pipeline, would engage in such
practices,
and the plaintiffs sought to hold Unocal responsible through
the
ATS
under a theory of complicity liability.
11
12
Post-Sosa, no one would doubt that claims of extrajudicial killing,
state-sponsored rape, and forced labor would qualify under Sosa’s analysis
to create ATS liability for individual members of Myanmar’s military.
But the Unocal plaintiffs raised an issue that the ATS—and arguably even
international law
14
—does not directly address: Can a corporation be
held liable under the ATS for aiding and abetting a foreign state’s human
rights violations?
This and other questions are likely to continue to
arise as courts, litigators, and victims of human rights violations puzzle
through the implications of post-Sosa ATS claims, particularly as domestic
corporations increasingly become the targets of ATS litigation.
15
9. 395 F.3d at 947 (raising question of aiding and abetting liability under ATS for
corporation accused of complicity in human rights violations).
10. Id. at 937–42.
11. Id.
12. Id.
13. See, e.g., Abiola v. Abubakar, No. 02-C-6093, 2005 WL 3050607, at *2–*3 (N.D. Ill.
Nov. 8, 2005) (noting that “[t]orture and extrajudicial murder . . . are violations of jus
cogens norms, which are binding on nations even if they do not agree to them” and denying
defendant’s motion to dismiss ATS claims of torture and extrajudicial killings); In re Agent
Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 113 (E.D.N.Y. 2005) (“‘[A]cts of murder,
rape, torture, and arbitrary detention of civilians, committed in the course of hostilities’—
‘have long been recognized in international law as violations of the law of war.’” (quoting
Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995))).
14. See, e.g., Unocal, 395 F.3d at 965–66 (Reinhardt, J., concurring) (disagreeing that
international law clearly defines standard for corporate civil aiding and abetting liability).
15. Id. at 947 (majority opinion).
16. The use of the ATS to sue corporations for their activities overseas has been
advocated by a number of commentators. See, e.g., Marisa Anne Pagnattaro, Enforcing
International Labor Standards: The Potential of the Alien Tort Claims Act, 37 Vand. J.
Transnat’l L. 203, 205 (2004) (advocating use of ATS to enforce labor standards against
multinational American companies); Igor Fuks, Note, Sosa v. Alvarez-Machain and the
Future of ATCA Litigation: Examining Bonded Labor Claims and Corporate Liability, 106
Colum. L. Rev. 112, 112 (2006) (seeing claims for bonded labor as viable post-Sosa). It has
been called the “second wave” of ATS litigation. See Curtis A. Bradley, Customary
International Law and Private Rights of Action, 1 Chi. J. Int’l L. 421, 421 (2000)
[hereinafter Bradley, Customary International Law] (discussing “two waves of international
human rights litigation”). Of course, the trend has not been welcomed by all
commentators. See, e.g., Gary Clyde Hufbauer & Nicholas K. Mitrokostas, Awakening
Monster: The Alien Tort Statute of 1789, at 37–43 (2003) (describing possible damage to
trade and foreign direct investment caused by expansive reading of ATS).
16
13460 COLUMBIA LAW REVIEW [Vol. 107:457
The Unocal court ultimately looked to sources of international law in
deciding that corporate aiding and abetting liability was possible under
the ATS on the facts alleged in the complaint,
but only over the objection
of one concurring judge, who argued for application of federal common
law.
18
17
In contrast to the Unocal opinions, this Note argues that although
international law should inform judicial decisions as ATS
courts
define
the law for the issues that arise, it will not always provide a properly
developed
source of law.
Further, since domestic law—and in particular
state law
20
19
—often provides substantially complete answers to many of
the questions raised in ATS suits and since state law often serves as the
In addition to holding corporations responsible for human rights violations that they
directly or indirectly commit abroad, corporations are attractive ATS defendants because
there is a real possibility of financial recovery on any judgment (or settlement) that might
be obtained. Most individual ATS defendants are judgment proof—either as a matter of
law or as a matter of fact: Many individual ATS defendants are government officials of
some sort, see Unocal, 395 F.3d at 965 n.3 (Reinhardt, J., concurring) (“It is the rare Alien
Tort Claims Act case that does not involve a foreign state or official as a defendant. Most
international law norms apply only to states; a private party will ordinarily violate
international law . . . only if it transgresses a [jus cogens] legal norm . . . .”), and attempts
to sue them often run into jurisprudential obstacles such as sovereign immunity, the act of
state doctrine, or nonjusticiability rules. See, e.g., Cynthia R.L. Fairweather, Obstacles to
Enforcing International Human Rights Law in Domestic Courts, 4 U.C. Davis J. Int’l L. &
Pol’y 119, 120–22 (1998) (describing obstacles presented when suing foreign governments
for human rights violations). Even if a plaintiff is able to get past those hurdles, it is still
unlikely that any money will be recovered. For example, the Filartiga litigation ultimately
resulted in a $10.3 million default judgment against the Paraguayan official, see Filartiga v.
Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984) (describing elements of judgment
award), but by the time the judgment had been obtained and even before the appeal had
been decided, the official had been deported back to Paraguay. See Filartiga v. Pena-Irala,
630 F.2d 876, 880 (2d Cir. 1980).
17. Unocal, 395 F.3d at 947.
18. See id. at 963 (Reinhardt, J., concurring) (favoring application of federal
common law to resolve issue of aiding and abetting liability because principles of choice of
law and Supreme Court precedent favored that approach over using ill-defined
international law as rule of decision). Later commentators have also disagreed with the
majority approach. See, e.g., Recent Cases, Ninth Circuit Uses International Law to Decide
Applicable Substantive Law Under Alien Tort Claims Act, 116 Harv. L. Rev. 1525, 1525–26
(2003) (arguing that use of international law in ATS cases “distorts the role of [federal]
courts by forcing federal judges to act as surrogate tribunals for international claims”).
19. See Unocal, 395 F.3d at 969 (Reinhardt, J., concurring) (finding international law
underdeveloped).
20. The term “state law” can take two meanings when discussing international choice
of law principles from the United States’s perspective: It is either the law of a sovereign
nation or the law of an individual state in the United States. See James Paul George,
Choice of Law for International Human Rights Cases in United States Courts Under the
Alien Tort Statute 14 (Jan. 26, 1984) (unpublished L.L.M. thesis, Columbia University) (on
file with Arthur W. Diamond Law Library, Columbia Law School) (noting this distinction);
cf. Casto, supra note 4, at 473 (distinguishing American domestic law, international law,
and law of foreign states). This Note uses the term in the latter sense—the law of an
individual U.S. state—and the term “foreign law” to refer to the law of a sovereign nation.
ALIEN TORT STATUTE
Philip A. Scarborough
Since Filartiga v. Pena-Irala and the beginning of the modern line of
Alien Tort Statute (ATS) cases, courts have struggled to find the appropriate
source of law to apply to a variety of issues that such cases raise. This Note
argues that, for at least some questions of law presented by ATS cases, the
two-step approach established by Kimbell Foods for determining the appropriate
rule of decision in federal cases can be used:
After determining that
the issue is one that permits a federal rule of decision, federal courts should
ask whether the state rule should be adopted as the federal rule. As an example,
the Note examines the Ninth Circuit’s opinion in Doe
I v. Unocal
and
evaluates
whether state law could have been used in that case as the federal
rule
of decision for determining the appropriate standards to establish corporate
complicity liability for ATS
violations.
INTRODUCTION
Since Filartiga v. Pena-Irala and the beginning of the modern line of
Alien Tort Statute (ATS)
1
cases,
2
courts have struggled to find the appro-
1. 28 U.S.C. § 1350 (2000). In full, the statute provides: “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.” Id. It is currently mostly
used to bring civil suits against despotic political leaders or multinational corporations that
have allegedly been in league with oppressive governments in committing human rights
violations. See, e.g., Thomas H. Lee, The Safe-Conduct Theory of the Alien Tort Statute,
106 Colum. L. Rev. 830, 832–33 (2006) (“[T]he statute, in the past twenty-six years, has
become an iconic vehicle for international human rights litigation in U.S. federal courts.”).
The statute is also known as the Alien Tort Claims Act, though the difference in
nomenclature does not seem to be important. See Ralph G. Steinhardt, Laying One
Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human
Rights Litigation in U.S. Courts, 57 Vand. L. Rev. 2241, 2242 n.1 (2004) (“[N]othing of
substance turns on the manipulation of the popular name . . . .”). But see Adamu v. Pfizer,
Inc., 399 F. Supp. 2d 495, 497 n.2 (S.D.N.Y. 2005) (preferring term Alien Tort Statute over
Alien Tort Claims Act because § 1350 does not create independent right of action). In
referring to § 1350 as the Alien Tort Statute, this Note follows the lead of the United States
Supreme Court in Sosa v. Alvarez-Machain. See 542 U.S. 692, 697 (2004) (referring to
§ 1350 as “Alien Tort Statute”).
2. Filartiga v. Pena-Irala, 630 F.2d 876, 880–87 (2d Cir. 1980) (holding that ATS
permitted civil suit against former Paraguayan official for acts of torture and murder
committed in Paraguay). Since Filartiga, ATS cases have proliferated. See, e.g., Daniel
Diskin, Note, The Historical and Modern Foundations for Aiding and Abetting Liability
Under the Alien Tort Statute, 47 Ariz. L. Rev. 805, 806 (2005) (“[A]n expanding progeny
of cases followed [the decision in Filartiga].”). Though a comprehensive list of post Filartiga
ATS
cases is not necessary here, some examples of the wide range of plaintiffs
using
the ATS
include Bigio v. Coca-Cola Co., 239 F.3d 440, 444 (2d Cir. 2000) (suit by
Jewish
plaintiffs against corporation that purchased property that had been illegally seized
by
Egyptian government); Ibrahim v. Titan Corp., 391 F. Supp. 2d 10, 12 (D.D.C. 2005)
(suit
by prisoners abused by U.S. forces at Abu Ghraib against American contractors who
457
458 COLUMBIA LAW REVIEW [Vol. 107:457
priate source of law to apply to a variety of issues that such cases raise.
Indeed, some of the first battles over Filartiga’s application of the statute
asked whether the ATS provided a separate cause of action in addition to
the jurisdiction that it clearly conferred upon federal courts or whether
some other source of law was required to furnish the cause of action.
The Supreme Court settled that initial question, at least partially, in Sosa
v. Alvarez-Machain.
In Sosa, the Court held that, in addition to providing
jurisdiction and a common law cause of action “for the modest number
of international law violations with a potential for personal liability at the
time [the ATS was enacted],”
5
the ATS provided a cause of action for any
modern law of nations violation that was as clearly defined and as universally
condemned as those eighteenth-century violations.
6
But in many
ways, the history of ATS litigation—both leading up to Sosa and following
it—has revealed additional legal issues, in need of a defining body of law,
a problem that Sosa did not resolve.
8
7
provided interpreters and interrogators to American forces in Iraq); Villeda Aldana v.
Fresh Del Monte Produce, Inc., 305 F. Supp. 2d 1285, 1288 (S.D. Fla. 2003) (suit by
Guatemalan union leaders alleging corporate participation in torture designed to end
union leadership activities); Burnett v. Al Baraka Inv. & Dev. Corp., 274 F. Supp. 2d 86, 91
(D.D.C. 2003) (suit by representatives and families of victims of September 11 attacks
against organizations that provided funding to al Qaeda); see also James Boeving, Half
Full . . . or Completely Empty?: Environmental Alien Tort Claims Post Sosa v. AlvarezMachain,
18 Geo. Int’l Envtl. L. Rev. 109, 112–28
(2005) (discussing ATS
cases based on
environmental
claims).
3. Compare Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002) (applying
international law standards), en banc reh’g granted, 395 F.3d 978 (9th Cir. 2003), with
Filartiga, 630 F.2d at 889 n.25 (suggesting that foreign law should be chosen for remedial
stage of litigation).
4. Compare Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 799 (D.C. Cir. 1984)
(Bork, J., concurring) (arguing that § 1350 only provided jurisdiction and no causes of
action), with id. at 777 (Edwards, J., concurring) (disagreeing with Judge Bork on cause of
action analysis). For further discussion, see William R. Casto, The Federal Courts’
Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn.
L. Rev. 467, 478–80 (1986) (noting that “section 1350 clearly does not create a statutory
cause of action” but concluding that it may have created common law cause of action).
5. 542 U.S. 692 (2004).
6. Id. at 724.
7. Id. at 725 (“[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.”). Though it is not entirely certain what is included in this formulation,
it almost certainly includes violations of jus cogens, or international norms that are so
fundamental that they cannot be legitimately ignored by sovereign powers.
8. See, e.g., Unocal, 395 F.3d at 949–51 (looking to international law to determine
standards of aiding and abetting liability); Papa v. United States, 281 F.3d 1004, 1012–13
(9th Cir. 2002) (deciding statute of limitation issue under ATS by looking to Torture
Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28
U.S.C. § 1350 note (2000))); Filartiga v. Pena-Irala, 577 F. Supp. 860, 864–65 (E.D.N.Y.
1984) (looking first to law of Paraguay and, finding it inadequate, using international law
to determine whether punitive damages are available for victims of torture).
3
42007] ATS RULES OF DECISION 459
Doe I v. Unocal
presented a concrete example of such an issue.
Residents of villages in Myanmar alleged that the Myanmar military had
forced them to build an oil pipeline that was part of a Unocal joint venture.
10
9
Members of the Myanmar military committed rape, extrajudicial
killings, and other human rights violations during the course of the pipeline
construction.
The plaintiffs alleged that Unocal knew or reasonably
should have known that the military, whom Unocal had contracted to
provide
security for the building of the pipeline, would engage in such
practices,
and the plaintiffs sought to hold Unocal responsible through
the
ATS
under a theory of complicity liability.
11
12
Post-Sosa, no one would doubt that claims of extrajudicial killing,
state-sponsored rape, and forced labor would qualify under Sosa’s analysis
to create ATS liability for individual members of Myanmar’s military.
But the Unocal plaintiffs raised an issue that the ATS—and arguably even
international law
14
—does not directly address: Can a corporation be
held liable under the ATS for aiding and abetting a foreign state’s human
rights violations?
This and other questions are likely to continue to
arise as courts, litigators, and victims of human rights violations puzzle
through the implications of post-Sosa ATS claims, particularly as domestic
corporations increasingly become the targets of ATS litigation.
15
9. 395 F.3d at 947 (raising question of aiding and abetting liability under ATS for
corporation accused of complicity in human rights violations).
10. Id. at 937–42.
11. Id.
12. Id.
13. See, e.g., Abiola v. Abubakar, No. 02-C-6093, 2005 WL 3050607, at *2–*3 (N.D. Ill.
Nov. 8, 2005) (noting that “[t]orture and extrajudicial murder . . . are violations of jus
cogens norms, which are binding on nations even if they do not agree to them” and denying
defendant’s motion to dismiss ATS claims of torture and extrajudicial killings); In re Agent
Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 113 (E.D.N.Y. 2005) (“‘[A]cts of murder,
rape, torture, and arbitrary detention of civilians, committed in the course of hostilities’—
‘have long been recognized in international law as violations of the law of war.’” (quoting
Kadic v. Karadzic, 70 F.3d 232, 242 (2d Cir. 1995))).
14. See, e.g., Unocal, 395 F.3d at 965–66 (Reinhardt, J., concurring) (disagreeing that
international law clearly defines standard for corporate civil aiding and abetting liability).
15. Id. at 947 (majority opinion).
16. The use of the ATS to sue corporations for their activities overseas has been
advocated by a number of commentators. See, e.g., Marisa Anne Pagnattaro, Enforcing
International Labor Standards: The Potential of the Alien Tort Claims Act, 37 Vand. J.
Transnat’l L. 203, 205 (2004) (advocating use of ATS to enforce labor standards against
multinational American companies); Igor Fuks, Note, Sosa v. Alvarez-Machain and the
Future of ATCA Litigation: Examining Bonded Labor Claims and Corporate Liability, 106
Colum. L. Rev. 112, 112 (2006) (seeing claims for bonded labor as viable post-Sosa). It has
been called the “second wave” of ATS litigation. See Curtis A. Bradley, Customary
International Law and Private Rights of Action, 1 Chi. J. Int’l L. 421, 421 (2000)
[hereinafter Bradley, Customary International Law] (discussing “two waves of international
human rights litigation”). Of course, the trend has not been welcomed by all
commentators. See, e.g., Gary Clyde Hufbauer & Nicholas K. Mitrokostas, Awakening
Monster: The Alien Tort Statute of 1789, at 37–43 (2003) (describing possible damage to
trade and foreign direct investment caused by expansive reading of ATS).
16
13460 COLUMBIA LAW REVIEW [Vol. 107:457
The Unocal court ultimately looked to sources of international law in
deciding that corporate aiding and abetting liability was possible under
the ATS on the facts alleged in the complaint,
but only over the objection
of one concurring judge, who argued for application of federal common
law.
18
17
In contrast to the Unocal opinions, this Note argues that although
international law should inform judicial decisions as ATS
courts
define
the law for the issues that arise, it will not always provide a properly
developed
source of law.
Further, since domestic law—and in particular
state law
20
19
—often provides substantially complete answers to many of
the questions raised in ATS suits and since state law often serves as the
In addition to holding corporations responsible for human rights violations that they
directly or indirectly commit abroad, corporations are attractive ATS defendants because
there is a real possibility of financial recovery on any judgment (or settlement) that might
be obtained. Most individual ATS defendants are judgment proof—either as a matter of
law or as a matter of fact: Many individual ATS defendants are government officials of
some sort, see Unocal, 395 F.3d at 965 n.3 (Reinhardt, J., concurring) (“It is the rare Alien
Tort Claims Act case that does not involve a foreign state or official as a defendant. Most
international law norms apply only to states; a private party will ordinarily violate
international law . . . only if it transgresses a [jus cogens] legal norm . . . .”), and attempts
to sue them often run into jurisprudential obstacles such as sovereign immunity, the act of
state doctrine, or nonjusticiability rules. See, e.g., Cynthia R.L. Fairweather, Obstacles to
Enforcing International Human Rights Law in Domestic Courts, 4 U.C. Davis J. Int’l L. &
Pol’y 119, 120–22 (1998) (describing obstacles presented when suing foreign governments
for human rights violations). Even if a plaintiff is able to get past those hurdles, it is still
unlikely that any money will be recovered. For example, the Filartiga litigation ultimately
resulted in a $10.3 million default judgment against the Paraguayan official, see Filartiga v.
Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984) (describing elements of judgment
award), but by the time the judgment had been obtained and even before the appeal had
been decided, the official had been deported back to Paraguay. See Filartiga v. Pena-Irala,
630 F.2d 876, 880 (2d Cir. 1980).
17. Unocal, 395 F.3d at 947.
18. See id. at 963 (Reinhardt, J., concurring) (favoring application of federal
common law to resolve issue of aiding and abetting liability because principles of choice of
law and Supreme Court precedent favored that approach over using ill-defined
international law as rule of decision). Later commentators have also disagreed with the
majority approach. See, e.g., Recent Cases, Ninth Circuit Uses International Law to Decide
Applicable Substantive Law Under Alien Tort Claims Act, 116 Harv. L. Rev. 1525, 1525–26
(2003) (arguing that use of international law in ATS cases “distorts the role of [federal]
courts by forcing federal judges to act as surrogate tribunals for international claims”).
19. See Unocal, 395 F.3d at 969 (Reinhardt, J., concurring) (finding international law
underdeveloped).
20. The term “state law” can take two meanings when discussing international choice
of law principles from the United States’s perspective: It is either the law of a sovereign
nation or the law of an individual state in the United States. See James Paul George,
Choice of Law for International Human Rights Cases in United States Courts Under the
Alien Tort Statute 14 (Jan. 26, 1984) (unpublished L.L.M. thesis, Columbia University) (on
file with Arthur W. Diamond Law Library, Columbia Law School) (noting this distinction);
cf. Casto, supra note 4, at 473 (distinguishing American domestic law, international law,
and law of foreign states). This Note uses the term in the latter sense—the law of an
individual U.S. state—and the term “foreign law” to refer to the law of a sovereign nation.
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