The Alien Tort Statute, What will Sosa Bring?
November 2006
I. INTRODUCTION
Litigation under the Alien Tort Statute, 28 U.S.C. §1350, is now in its third phase. From the date of its enactment in 1789 until 1980, almost 200 years, the Alien Tort Statute was rarely used. Then in 1980, the Second Circuit decided Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) and held that the Alien Tort Statute allows an alien to sue in the United States federal courts and seek damages for torture perpetrated in the foreign country by an official of the foreign state. This caused a new wave of litigation under the Alien Tort Statute. After another Second Circuit decision, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), held that private actors could be liable for some torts perpetrated in the foreign country, multinational corporations became targets of Alien Tort Statute litigation. During this second phase of litigation, some saw the Alien Tort Statute as a vehicle for remedying human rights violations around the world, while others saw it as an obstacle and a deterrent to much needed investment in developing countries by multinational corporations.
Although Unocal, the first multinational corporation to be sued under the Alien Tort Statute, settled the claims against it for close to $30 million, no claim against a multinational corporation has been successfully adjudicated and no judgment has been entered against any multinational corporation based upon a claim asserted under the Alien Tort Statute. The likelihood that any judgment will be entered against a multinational corporation for a claim under the Alien Tort Statute has decreased dramatically since the Supreme Court decided Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). A corporation was not named as a defendant in that case, and the Supreme Court had no occasion to address under what circumstances a corporation may be found liable. But the post-Sosa cases, which mark the third phase of litigation under the Alien Tort Statute, make it clear that corporations will rarely be found liable under that statute.
This article describes the origins of the Alien Tort Statute, the history of litigation under that statute, and the Supreme Court’s decision in Sosa. The article then addresses how courts post-Sosa are dealing with three issues that have not been fully resolved by the Supreme Court:
What conduct violates an actionable international norm?
Under what circumstances can private actors, including corporations, be liable for violations of international norms?
When is a claim under the Alien Tort Statute so intertwined with a foreign policy issue that the courts will refuse to adjudicate it?
II. THE ORIGINS OF THE ALIEN TORT STATUTE
The first Congress passed the Alien Tort Statute (ATS) as part of the Judiciary Act of 1789. Only minor modifications have been made over the years to its original language, and it now provides as follows:
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.
28 U.S.C. § 1350. Although the language is simple, as the Supreme Court noted in Sosa, “despite considerable scholarly attention, it is fair to say that a consensus understanding of what Congress intended has proven elusive.” 542 U.S. at 718-19.
The historical context suggests that the ATS was enacted to ensure that the United States would be perceived as a good global citizen. Several situations occurred prior to its enactment that had the potential for damaging the United States’ diplomatic harmony with other nations. For example, after the war of 1776 with Britain, many state courts refused to enforce debts owed to British creditors although part of the treaty ending the Revolutionary War specified that British creditors were entitled to collect their debts. Also, in 1784, a French Consul General was assaulted and threatened in Pennsylvania. And in 1788, a New York police officer entered the home of a Dutch ambassador, arresting one of the ambassadors’ servants. Events such as these awakened the federal government to the need to be able to redress violations of international law and of the crucial importance of having a uniform forum to do so.
Based upon this historical context, some have argued that the ATS was never intended to provide a forum for international law violations generally, but rather was enacted to protect the person and property of aliens from acts committed by or within the United States:
In a nutshell, the statute was enacted to police sovereign obligations on the part of the United States prospectively to prevent, and retrospectively to provide damages for, injuries to the persons or property of aliens. It was not enacted for the redress of international law violations per se, or for such injuries to aliens absent a U.S. sovereign obligation to protect and redress. The ultimate aims of the enactment were national security and commerce; the specific foreign policy of concern was injury to British creditors and merchants within the United States.
Part of the difficulty in determining the intent of the statute is that only about 21 cases were brought under the ATS before 1980, and in only two did the courts recognize a claim under the ATS.
III. THE SECOND CIRCUIT OPENS THE DOOR TO NEW LITIGATION
In 1980, the Second Circuit in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), recognized jurisdiction under the ATS over a claim brought by a father and daughter, both citizens of Paraguay, against a former Paraguayan police official. The plaintiffs accused the defendant of torturing and killing their son and brother, in Paraguay, in retaliation for the father’s resistance to the dictatorship of Alfredo Stroessner. The claim had no connection with the United States, other than that the plaintiffs were able to serve the defendant while he was living in New York on an expired visa. But the claim satisfied the elements of the ATS: (1) the plaintiffs were aliens, (2) suing in tort, (3) for a violation of international law (torture and extrajudicial killing). The Second Circuit had no difficulty finding that torture and extrajudicial killing violated accepted norms: “[D]eliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties.” Id. at 878. The Second Circuit also found that the ATS provided for jurisdiction over the claim: “[W]henever an alleged torturer is found and served with process by an alien within our borders, §1350 provides federal jurisdiction.” Id. Finally, the Court found the exercise of jurisdiction to be constitutional, reasoning that international law is part of the federal common law and therefore the claim was one “arising under” federal law. Id. at 885-87. Filartiga set the stage for the modern era of ATS litigation.
The scope of litigation under the ATS was expanded by another Second Circuit decision, Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), in which the court held that private actors could also be liable for violations of international norms. In Kadic, the Second Circuit held that individuals could be held liable for genocide and war crimes without any showing of state action. But the court held that “torture and summary execution—when not perpetrated in the course of genocide or war crimes—are proscribed by international law only when committed by the state officials or under color of law.” Id. at 243-44. To determine whether a private actor acts under color of law in the context of a claim under the ATS, the Court looked to the standards developed under 28 U.S.C. §1983. “A private individual acts under color of law within the meaning of section 1983 when he acts together with state officials or with significant state aid.” Id. at 245.
After Kadic, multinational corporations began to be sued under the ATS. The first corporation to be sued was Unocal. In Doe I v. Unocal, 963 F. Supp. 880, 883 (C.D. Cal. 1997), the plaintiffs claimed that Unocal committed human rights violations in Myanmar. The plaintiffs alleged that Unocal contracted with a French oil company, Total, and entities of the Myanmar government, the Myanmar Oil and Gas Enterprise, and the State Law and Order Restoration Council (“SLORC”) to build a pipeline to carry oil from the Andaman Sea through the Tenasserim area of Burma into Thailand. The SLORC was charged with protecting the pipeline project and clearing the forage for construction. During the pipeline project, the SLORC allegedly committed gross violations of human rights not limited to torture, rape, forced labor, murder, and assault. Id. at 885.
The plaintiffs contended that Unocal aided and abetted the human rights violations committed by SLORC. According to the plaintiffs, Unocal subsidized the SLORC’s activities by providing funds for the project, making decisions regarding personnel and technology, monitoring and determining the activities of the project, and making decisions regarding labor. The lynchpin, as advocated by the plaintiffs, was that Unocal knew or should have known of the human rights atrocities being committed by the SLORC because the organization had a history of violence. Id.
Factual circumstances and allegations similar to those in Unocal have been the basis for a number of claims against multinational corporations. See Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir. 2005) (alleging that Del Monte subsidiary hired a security force in Guatemala that engaged in death threats, arbitrary detention, and assault); Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164 (C.D. Cal. 2005) (alleging that Occidental retained a security force to protect construction of a pipeline against attacks from left-wing insurgents and the security force contracted with Columbian Air Force which committed human rights violations by killing 17 civilians and wounding 25 others); Wiwa v. Royal Dutch Petrol. Co., 226 F.3d 88, 92 (2d Cir. 2000) (alleging that oil and gas companies recruited Nigerian police to suppress resistance to development activity and provided money and weapons to Nigerian military to support repression of villagers); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 163 (5th Cir. 1999) (alleging that mining company participated in human rights violations by Indonesian government).
None of these claims, however, has ever resulted in a judgment against a multinational corporation. And, in light of the Supreme Court’s decision in Sosa, it will be a rare case in which plaintiffs will be able to obtain such a judgment against a corporation.
IV. SOSA SAYS THE DOOR IS ONLY SLIGHTLY OPEN
In Sosa, Alvarez-Machain, a Mexican national, was arrested and brought to the United States by another Mexican national, appellant Sosa, to face charges of murder and torture of a Drug Enforcement Agency (“DEA”) agent. 542 U.S. at 728-29. Alvarez was acquitted on the charge, but later sued the United States under the Federal Tort Claims Act (“FTCA”) for damages for false arrest. He also sued Sosa and other individuals (hereinafter referred to as “Sosa”) for false arrest in violation of the ATS. Id. After a series of appeals transpired in the lower federal courts regarding the applicability and scope of the ATS and FTCA to Alvarez’s claims, the Supreme Court granted certiorari to clarify the issues. Id. at 698-99
With respect to the ATS, Alvarez (and the United States) argued that the ATS does no more than vest federal courts with jurisdiction over tort claims brought by aliens and does not create nor authorize the courts to recognize any particular right of action. After reviewing the history of the statute and the historical context, the Supreme Court held that “Congress intended the ATS to furnish jurisdiction for a relatively modest set of actions alleging violations of the law of nations.” Id. at 720. Relying on Blackstone’s Commentaries, the Supreme Court found that as originally enacted, the ATS was intended to address only three torts: (1) offenses against ambassadors; (2) violations of safe conduct; and (3) piracy. Id.
The Supreme Court did not limit the ATS to just these three violations of international law, however, but held that federal courts may recognize claims based on the present day understanding of international law. “[O]ther considerations persuade us that the judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today.” Id. at 729. That narrow class of international norms included norms 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.” Id. at 725.
The Supreme Court also explained the reasons for this judicial caution. First, our understanding of the common law has changed since 1789, such that judges now recognize that the law is not so much found or discovered as it is either made or created. Id. at 698-99. Second, courts should look to legislative guidance prior to exercising innovative authority over substantive law. Id. at 726. Third, decisions creating private rights of action are better left to legislative judgment in most instances. Id. at 727. Fourth, creating new rights of private causes of action for violations of international law could impact foreign relations, and thus, courts should be wary of the impact of their judgment upon the Legislative and Executive branches. Id. at 727-28. Fifth, Congress has not mandated or encouraged the federal courts to seek out and define new violations of international law. Id. at 728.
The Supreme Court then turned to Alvarez’s claim for false arrest and arbitrary detention and held: “[A] single illegal detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy.” Id. at 738.
In reaching this conclusion, the Supreme Court looked at various potential sources of international law and found no authority for the proposition that a temporary, illegal detention violated an international norm. The Supreme Court began its analysis by reference to The Paquete Habana, 175 U.S. 677 (1900):
[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.
The Court also examined two well-known international agreements: the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948) and the International Covenant on Civil and Political Rights, Dec. 19, 1996, 999 U.N.T.S. 171. The Supreme Court found that these did not establish international norms having the necessary specificity. The Supreme Court found that the Declaration did not impose obligations as a matter of international law. Rather it was aspirational, and set forth a statement of principles. The Covenant does bind the United States as a matter of international law, but the United States ratified the Covenant on the express understanding that it was not self-executing and did not create obligations enforceable in the federal courts.
The Supreme Court also considered the Restatement (Third) of Foreign Relations Law of the United States (1986) which provides that a “state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . prolonged arbitrary detention.” The Supreme Court used this statement as support for its conclusion that temporary, illegal detention did not violate international norms. But the Court also made clear that the Restatement was not specific enough to establish that all prolonged detentions violate international norms: “Even the Restatement’s limits are only the beginning of the enquiry, because although it is easy to say that some policies of prolonged arbitrary detentions are so bad that those who enforce them become enemies of the human race, it may be harder to say which policies cross that line with the certainty afforded by Blackstone’s three common law offenses.” Id. at 737. In the Supreme Court’s judgment, the temporary detention suffered by Alvarez did not cross that line.
Sosa did not involve a multinational corporation. Nonetheless, the Supreme Court delineated a narrow interpretation of the ATS that increased the difficulty for aliens to successfully employ the ATS against corporations for human rights violations. In summary, Sosa says that the ATS provides for actions: (1) by an alien; (2) based in tort; and (3) in violation of a treaty of the United States or the law of nations, and the actionable violations of international law are extremely limited.
V. POST-SOSA DECISIONS ATTEMPT TO DEFINE ACTIONABLE INTERNATIONAL NORMS
Since the Supreme Court’s decision in Sosa, the federal courts have attempted to determine which torts will satisfy the Supreme Court’s standard for “actionable international norms.” To satisfy the Supreme Court’s standard, any claim based on the present-day law of nations must meet two requirements: the claim must (1) “rest on a norm of international character accepted by the civilized world” and (2) be “defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” (“We are persuaded that federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when § 1350 was enacted.” 542 U.S. at 732. Stated another way, the actionable claims are those based upon “definable” (or “specific”), “universal” and “obligatory” norms. Id.
These two characteristics—general acceptance and specificity—are not immutable and objective. The Supreme Court recognizes that consensus may build over time such that there may be insufficient consensus about whether certain conduct violates international law at one time and sufficient consensus on the subject at a later date. Id. at 732, n.20. The Supreme Court also recognizes that whether a norm is specific enough to support a cause of action must involve “an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at 732-33.
Although there is substantial uncertainty about exactly what conduct will satisfy this test, the Supreme Court provided some specific answers in Sosa. Obviously the three torts recognized by Blackstone are actionable under § 1350: (1) violations of safe conduct; (2) crimes against ambassadors; and (3) piracy. In addition, an arbitrary detention of less than one day does not violate a well-accepted international norm.
The cases before and after Sosa have recognized or refused to recognize the following conduct as a violation of international norms:
A. Torture
International law prohibits torture. Mujica, 381 F. Supp. 2d 1164, 1178 (C.D. Cal. 2005); Aldana, 416 F.3d 1242 (11th Cir. 2005); Doe I v. Unocal Corp., 395 F.3d 932, 945 (9th Cir. 2002); Filartiga, 630 F.2d 876, 884 (2d Cir. 1980); In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 716 (9th Cir. 1992); In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7 (E.D.N.Y. 2005); Doe v. Saravia, 348 F. Supp. 2d 1112, 1148-49 (E.D. Cal. 2004).
One of the sources for this international norm is The Torture Victim Protection Act, which was passed in 1992 and is found in the historical and statutory notes section of 28 U.S.C. 1350. The Torture Victim Protection Act (TVPA) provides victims with a remedy for state-sponsored torture, and unlike the ATS, the victims who may seek relief under this Act are not limited to aliens, but include any individual. Currently, a split of authority exists within the circuit courts regarding whether the TVPA occupies the field and displaces the ATS as a remedy for torture (and extrajudicial killing) claims. The Eleventh Circuit, in Aldana, held that plaintiffs can raise separate claims for state-sponsored torture under the ATS and also under the TVPA. 416 F.3d at 1250. See also Wima v. Royal Dutch Petroleum Company, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. 2002) (“The TVPA simply provides an additional basis for assertion of claims for torture and extrajudicial killing.”); Saravia, 348 F. Supp. 2d at 1145 (same). The Seventh Circuit, in a 2-1 decision, Enahoro v. Abubakar, 408 F.3d 877 (7th Cir. 2005), held that the sole remedy for torture and extrajudicial killing claims is under the TVPA.
There are other differences between the laws, besides who can be a plaintiff, but the class of people who can sue under each statute is by far the most significant difference:
- First, the TVPA includes an express requirement that “adequate and available remedies” in the place in which the conduct occurred be exhausted before relief can be pursued under the TVPA. See Abiola v. Abubakar, No. 02 C 6093, 2006 U.S. Dist. LEXIS 44900 (N.D. Ill. June 27, 2006) (holding that exhaustion requirement was satisfied; Nigerian plaintiffs alleging torture at the hands of General Abdusalami Abubakar did not have an adequate forum for their lawsuit in Nigeria); Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005) (exhaustion excused because Indonesian plaintiffs risk very real possibility of reprisals, including death, if they pursued their claims in their home country). No similar requirement is set forth in the ATS, and so far the courts have declined to impose an exhaustion requirement by judicial discretion. See Sarei v. Rio Tinto PLC, 456 F.3d 1069, 1099 (9th Cir. 2006) (divided panel affirmed the district court’s conclusion not to read an exhaustion requirement into the ATS). But forum non conveniens is an available defense under the ATS, and the defendant must show that an adequate alternative forum exists. If this showing is made, then the court considers various public and private interest factors. If an adequate forum exists in the country where the violation occurred, dismissal may be appropriate. See Abdullahi v. Pfizer, Inc., 01 Civ. 8118 (WHP), 2005 U.S. Dist. LEXIS 16126 (S.D.N.Y. Aug. 9, 2005) (dismissing Nigerian citizens’ claims that Pfizer engaged in non-consensual medical experimentation of its Trovan drug on forum non conveniens grounds, finding that Nigeria is an available alternative forum for the litigation); Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002) (finding that Ecuador would provide an adequate forum for the plaintiffs’ environmental claims); but see Bigio v. Coca-Cola, 448 F.3d 176 (2d Cir. 2006) (reversing a dismissal on forum non conveniens grounds because the district court did not give sufficient weight to plaintiff’s choice of forum where there were legitimate reasons for that choice).
- Second, the TVPA contains a 10-year statute of limitations, whereas the ATS is silent on the subject of when an action must be commenced. Nevertheless, several courts have applied a 10-year period of limitations, by “borrowing” the TVPA’s 10-year period. Jean v. Dorelien, 431 F.3d 776 (11th Cir. 2005); Papa v. United States, 281 F.3d 1004, 1012 (9th Cir. 2002); Doe v. Islamic Salvation Front, C.A. No. 96-2792 (JR), 257 F. Supp. 2d 115, 119 (D.D.C. 2003); Wiwa, 2002 U.S. Dist. LEXIS 3293 (S.D.N.Y. Feb. 28, 2002); The Hereros v. Deutsche Afrika-Linien GMBLT & Co., 2006 U.S. Dist. LEXIS 2761 (D.N.J. Jan. 24, 2006) (dismissing claims that accrued 90 years earlier not only on limitations grounds, but also on the general grounds that the ATS should not be used to attempt to redress circumstances occurring such a long time ago); Hawa Abdi Jama v. United States Immigration and Naturalization Service, 343 F. Supp. 2d 338 (D.N.J. 2004) (applying the TVPA 10-year statute of limitations to claims under the ATCA); but see In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d 7 (E.D.N.Y. 2005) (the court adopted the position that there are no statutes of limitations for violations of international law, although it also dismissed all of the plaintiffs’ international law claims on other grounds). This 10-year statute of limitations has been subject to the doctrine of equitable tolling, Arce v. Garcia, 434 F.3d 1254 (11th Cir. 2006) (after a jury awarded $54.6 million in damages to individuals tortured by the Salvadorean military, the circuit court found that the trial court’s decision to toll the statute of limitations was not erroneous); Jean, 431 F.3d at 779 (although torture, detention, and cruel, inhuman treatment began in 1992 and case was not commenced until 2004, claim not barred by the statute of limitations because defendant was in power until 1994 and also not physically present in the United States until then); Cabello v. Fernadez-Larios, 402 F.3d 1148, 1154 (11th Cir. 2005) (because of deliberate concealment by Chilean authorities of the events surrounding death which occurred in 1973, claim brought 26 years later was not barred by the statute of limitations).
- Third, although there is a split of authority, most courts have held that corporations cannot be liable under the TVPA, because the act uses the word “individual” to describe both the victims and the perpetrators. Since only natural persons can be victims (only natural persons can be killed or tortured, or feel pain and suffering), most courts have assumed that only natural persons could be perpetrators, and that a corporation cannot be either a victim or a perpetrator. See Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 28 (D.D.C. 2005); Corrie v. Caterpillar, Inc., 403 F. Supp. 2d 1019, 1026 (W.D. Wash. 2005); Mujica, 381 F. Supp. 2d 1164; In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d at 123-24; Arndt v. UBS AG, 342 F. Supp. 2d 132, (E.D.N.Y. 2004); Friedman v. Bayer Corp., 1999 WL 33457825, at *2 (E.D.N.Y. Dec. 15, 1999); Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 381-82 (E.D. La. 1997); but see Estate of Rodriquez v. Drummond Co., Inc., 256 F. Supp. 2d 1250, 1266-67 (N.D. Ala. 2003) and Sinaltrainal v. Coca-Cola Co, 256 F. Supp. 2d 1345, 1358-59 (corporations are “individuals” for the purpose of the TVPA).
- Fourth, the TVPA contains an explicit requirement that to be held liable the individual must have acted “under actual or apparent authority, or color of law, of any foreign nation.” See Arar v. Ashcroft, 414 F. Supp. 2d 250 (E.D.N.Y. 2006) (native of Syria alleging a violation of the TVPA by United States officials and unnamed Jordian and Syrian officials, failed to demonstrate that the officials were acting under “color of law, of any foreign nation.”). The ATS, as discussed below, has been defined by case law to permit liability against state actors, persons acting under color of law, and, in some circumstances, private actors.
- Fifth, the definition of torture is slightly different under each act. The TVPA defines torture. The ATS does not, but the definition adopted by the courts is very similar to the definition found in the TVPA.
B. Extrajudicial Killing
The TVPA also recognizes that extrajudicial killing, no matter where it takes place, is prohibited. This act confirms that there is a binding customary international law norm against extrajudicial killing. Mujica, 381 F. Supp. 2d at 1179; Saravia, 348 F. Supp. 2d at 1153-54; Doe I v. Unocal Corp., 395 F.3d at 945 (recognizing murder as a jus cogens violation and therefore a violation of international law); In re Estate of Marcos Human Rights Litigation, 25 F.3d at 1475 (describing the “prohibition against summary execution” as a “similarly universal, definable, and obligatory” norm); Zuncax v. Gramajo, 886 F. Supp. 162, 184 (D. Mass. 1995) (finding summary execution to be a violation of international law).
C. Crimes Against Humanity
Crimes against humanity violate international law norms. Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d at 25; Doe v. Saravia, 348 F. Supp. 2d 1112, 1156 (E.D. Cal. 2004) (and cases cited therein). Although there is some ambiguity about what conduct constitutes a crime against humanity, generally speaking, crimes against humanity refer to specific acts of violence against persons whether in times of war or times of peace, and the acts are the product of persecution against an identifiable group of persons. See In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d at 135-36 (reviewing literature defining crimes against humanity). Genocide is a crime against humanity and has been defined as “acts calculated to bring about the physical destruction, in whole or in part, of a national ethnic, racial, or religious group.” Tel-Oren v. Libyan Arab Repub., 726 F.2d 774, 806 (D.C. Cir. 1984); Flores v. S. Peru Copper Corp., 343 F. 3d 140, 150 n.18 (2d Cir. 2003) (“Customary international law rules proscribing crimes against humanity, including genocide, and war crimes, have been enforceable against individuals since World War II.”). But crimes against humanity also include systematic attacks on certain segments of a population, not just acts intended to destroy a group of people in whole or in part. Presbyterian Church of Sudan v. Talisman Energy, Inc., 226 F.R.D. 456, 479-80 (S.D.N.Y. 2005). In Mujica, 381. F. Supp. 2d at 1179-80, the plaintiffs alleged a crime against humanity by claiming that the defendants engaged in bombing to protect Defendant Occidental’s oil pipeline from attacks by left-wing insurgents, which resulted in the destruction of homes, the death of 17 civilians and injuries to 25 others (none of which were left-wing insurgents). See also Aldana, 416 F.3d 1242 (although no such allegations were made, the court recognized “widespread or systematic attack” against civilian populations as a crime against humanity). A single act of violence could qualify as a crime against humanity, as long as it is part of a widespread or systematic attack against a civilian population. Saravia, 348 F. Supp. 2d at 1156 (“The assassination of Archbishop Romero meets the elements for establishing a crime against humanity.”).
In Mujica, 381 F. Supp. 2d at 1179-80, and Saravia, 348 F. Supp. 2d at 1154, the courts found the Nuremberg Charter to be the primary source for the recognition, as violations of internal norms, of crimes against humanity. Both courts found additional sources for this international norm, including the international criminal tribunals for the former Yugoslavia and Rwanda. In reaching this conclusion, the courts disagreed with the court in In re Apartheid, 346 F. Supp. 2d at 549-60, which found that the international criminal tribunals were not binding sources of international law.
D. Cruel, Inhuman, and Degrading Treatment
In Aldana, the court refused to recognize the plaintiffs’ claim for cruel, inhuman, degrading treatment and punishment. The Aldana plaintiffs were seven Guatemalan citizens who were officers in a national trade union of plantation workers. They represented workers on a banana plantation operated by a wholly-owned subsidiary of Del Monte. The union was negotiating a new collective bargaining agreement and while those negotiations were ongoing, the Del Monte subsidiary terminated 918 workers. The subsidiary also retained a private, armed security force which allegedly took some of the plaintiffs hostage, threatened to kill them, and shoved them with guns. The plaintiffs were also forced, at gun point, to go to a radio station, announce that the labor dispute was over and that they were resigning. The security force also threatened to kill all of the plaintiffs if they did not leave Guatemala.
To support their argument that cruel, inhuman and degrading treatment violates international norms, the plaintiffs relied upon the International Covenant on Civil and Political Rights as the source of international law for this claim, but given the Supreme Court’s conclusion in Sosa that this Covenant did not create obligations enforceable in the federal courts, the claim was dismissed.
The Mujica court, on the other hand, found a customary international law norm against cruel, inhuman, and degrading treatment based upon the international criminal tribunals for the former Yugoslavia and Rwanda. Nevertheless, the court refused to recognize the claim because of the lack of specificity to the claim: “the broad swaths of conduct that could result in extreme fear and anguish counsel against recognizing such a claim.” A majority of courts, and certainly more recent decisions in light of Sosa find that claims of cruel, inhuman, and degrading treatment are not sufficiently defined to be recognized. See Xuncax, 886 F. Supp. at 186 (finding that “it is evident that the prohibition against [cruel, inhuman, and degrading treatment] poses more complex problems of definition than are presented by norms forbidding torture, summary execution, disappearance or arbitrary detention”); Forti v. Suarez-Mason, 694 F. Supp. 707, 711-12 (N.D. Cal. 1988) (holding that there is no cognizable claim for cruel, inhuman, and degrading treatment due to the lack of precise definition).
However, in Hawa Abdi Jama v. INS, 343 F.Supp. 2d 338 (D.N.J. 2004), a decision that came after Sosa, the court denied a motion for summary judgment brought by Esmor and its officers, which operated a facility under contract with the INS from August 1994 to July 1995. This facility held foreigners, not charged with crimes, who were awaiting disposition of their asylum claims. The plaintiffs claimed that they had been subject to inhumane treatment that violated international law. The sources of international law cited by the plaintiffs included the Universal Declaration of Human Rights and two treaties ratified by the United States—the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. Even though the Supreme Court in Sosa found two of these sources inadequate to establish international law norms, the Jama court denied the motions for summary judgment. 343 F. Supp. 2d at 361.
E. War Crimes
Attacks against civilians violate customary international law norms, according to several courts. See Mujica, 381 F. Supp. 2d 1181; In re Agent Orange, 373 F. Supp. 2d 7; Kadic, 70 F.3d at 242-43 (recognizing an ATS claim for war crimes); Sarei, 221 F. Supp. 2d at 1139-40 (“Courts have held that a violation of the law of war may serve as a basis for a claim under the ATCA.”). The Mujica court found the Geneva Conventions and their incorporation into the War Crimes Act of 1996 to be evidence of such an international norm.
Other courts, however, do not find the Geneva Conventions to be a source of international law. Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 439 n.16 (D.N.J. 1999) (“Courts have unanimously held that neither the Hague nor Geneva Conventions are self-executing); Corrie, 403 F. Supp. 2d 1019 (dismissing claims against the supplier of bulldozers to Israel, which allegedly knew or should have known that its bulldozers would be used to demolish homes and commit other alleged human rights violations, because, among other reasons, the Geneva Convention “does not expressly or impliedly create a private claim for relief”).
In In re Agent Orange Product Liability Litigation, the plaintiffs alleged war crimes, genocide, crimes against humanity and torture, for the use of agent orange in Vietnam. The court concluded that international law did not prohibit the use of herbicides in Vietnam before April 1975.
F. Labor Rights
Slave trading violates international law.
Filartiga, 630 F.2d at 890
. Forced labor is a modern variant of slavery and violates international norms.
Doe I v. Unocal Corp., 395 F.3d 932, 946. The right to associate and organize into unions was found to be a norm of international law in
Rodriguez, 256 F. Supp. 2d 1250, 1263, but the Supreme Court’s
Sosa decision makes this holding questionable. Among the sources of international law relied on by the
Rodriguez court were ILO Conventions No. 87 and No. 98, protecting the right to organize and engage in collective bargaining, which the United States has not ratified. The
Rodriguez court also relied on the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights, both sources specifically discussed by
Sosa and rejected as sources of actionable international law.
G. Environmental Claims
General allegations of environmental harm do not state a claim under the law of nations because the practices that constitute environmental abuses are not sufficiently defined. A violation of the United Nations Convention On The Law Of The Sea (UNCLOS), however, can support a claim under the ATS because the UNCLOS reflects customary international law. See Sarei v. Rio Tinto Pic., 221 F. Supp. 2d 1116, 1155-62 (C.D. Cal. 2002), aff’d on this ground 456 F.3d 1069, 1078 (9th Cir. 2006).
H. Other Torts
Cases both before and after Sosa, hold that “garden variety commercial claims,” such as fraud, unjust enrichment, conversion, and misrepresentation are not claims involving violations of international law. See Arndt v. UBS AG, 342 F. Supp. 2d 132, 139 (E.D.N.Y. 2004) (where the plaintiffs alleged that a German company had failed to turn over assets that rightfully belonged to Holocaust victims); Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir. 1973), cert. denied, 414 U.S. 866 (1974) (Nigerian citizens alleged that they had been mislead by an oil company, believing that they were coming to the United States to be trained as executives only to discover that they were to be trained as service station operators.). Similarly, defamation is a tort under American law and the domestic law of many other nations, but it is not a subject of international law. Maugein v. Newmont Mining Corp., 298 F. Supp. 2d 1124, 1130 (D. Colo. 2004). Theft may be proscribed by the one of the Ten Commandments, but that does not make it part of international law. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975). “[A] violation of the ‘law of nations’ arises only when there has been a violation by one or more individuals of those standards, rules, or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealings inter se.” Id.
In addition, the court in Abdullahi v. Pfizer, Inc., 01 Civ. 8118 (WHP) 2005 U.S. Dist. LEXIS 16126 (S.D.N.Y. Aug. 9, 2005), refused to recognize non-consensual medical experimentation as an actionable international norm even though many states prohibit such conduct because actionable international law addresses those wrongs that are of mutual, and not merely several concerns, to States. The Court rejected the many sources of international law proposed by the plaintiffs. The court found that the Nuremberg Code and the Declaration of Helsinki of the World Medical Association and the CIOMS Guidelines did not give rise to a private right of action. Relying on Sosa, it also found that the Universal Declaration of Human Rights did not of its own force impose any obligations, and that the International Covenant of Civil and Political Rights was adopted by the United States on the express understanding that it was not self-executing.
VI. WHEN CAN PRIVATE ACTORS, INCLUDING CORPORATIONS, BE LIABLE?
In Sosa, the Supreme Court did not address whether private actors, including corporations, could be liable for international law violations, and did not address indirect liability, either under an aider and abettor theory or conspiracy. Nevertheless, since Sosa, some courts have held that corporations cannot violate international law and cannot be indirectly liable for the violations committed by others, contrary to decisions rendered before Sosa.
Before Sosa, the federal courts had held that (1) states, (2) persons acting under color of the state’s law, and (3) private actors could be liable for violations of international norms. In Kadic v. Karadzic, 70 F.3d 232, 241, the Second Circuit court held that individuals could be held liable for genocide and war crimes without any showing of state action. But the court held that “torture and summary execution—when not perpetrated in the course of genocide or war crimes—are proscribed by international law only when committed by the state officials or under color of law.” Id. at 243. To determine whether a private actor acts under color of law in the context of a claim under the ATS and the TVPA, the Court must look to the standards developed under 28 U.S.C. §1983. “A private individual acts under color of law within the meaning of section 1983 when he acts together with state officials or with significant state aid.” Id. at 242. See also Doe I v. Unocal Corporation, 395 F.3d at 946 (agreeing with the Second Circuit’s view in Kadic, that “even crimes like rape, torture, and summary execution, which by themselves require state action for ATCA liability to attach, do not require state action when committed in furtherance of other crimes like slave trading, genocide or war crimes, which by themselves do not require state action for ATCA liability to attach.”).
Both before and after Sosa, federal courts have also held that corporations can be liable as accomplices under an aiding and abetting theory or as co-conspirators. See In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d at 52-54 (citing numerous cases); Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1078 (9th Cir. 2006) (noting that courts applying the ATS draw on federal common law, and “there are well-settled theories of vicarious liability under federal common law.”). The “well-settled” theories referenced by the Ninth Circuit in Sarei, however, have been subject to debate. The Ninth Circuit, in Doe I v. Unocal Corporation, held that corporations could be liable for aiding and abetting international law violations, but the panel did not reach consensus on the elements of aiding and abetting. Two of the justices held that the standard for aiding and abetting under the ATS is “knowing practical assistance or encouragement that has a substantial effect on the perpetration of the crime.” 395 F.3d at 947. The third justice would have allowed the plaintiffs to pursue any of three federal common law theories: joint venture liability, agency liability, and recklessness. Id. at 970-76.
In Cabello v. Fernadez-Larios, 402 F.3d 1148 (11th Cir. 2005), the court affirmed a jury verdict of $3 million in compensatory damages and $1 million in punitive damages for an act of extrajudicial killing in Chili. The court also approved of the trial court’s jury instructions on the issue of indirect liability. The district court instructed the jury that to find the defendant liable for aiding and abetting it needed to find “active participation.” The court defined active participation as (1) the defendant substantially assisted another who committed a violation of international law and (2) the defendant knew that his actions would assist in the illegal or wrongful activity at the time he provided the assistance. 402 F.3d at 1158.
With respect to conspiracy, the jury was instructed that to hold the defendant liable they would need to find that (1) two or more persons agreed to commit a wrongful act; (2) the defendant joined the conspiracy knowing of at least one of the goals of the conspiracy and intending to help accomplish it; and (3) one or more of the violations was committed by someone who was a member of the conspiracy and acted in furtherance of the conspiracy. 402 F.3d at 1159.
Also, in 2003, before Sosa, Judge Schwartz of the Southern District of New York held that corporations may be held liable for certain violations of international law and that international law recognizes theories of accomplice liability such as conspiracy and aiding and abetting. Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003). Following the decision in Sosa, this conclusion was re-analyzed by a different district court judge, Judge Cote, who reached the same conclusion as Judge Schwartz. Presbyterian Church of Sudan v. Talisman Energy, 374 F. Supp. 2d 331 (S.D.N.Y. 2005). Also post-Sosa, in the Eastern District of New York, in In re Agent Orange Product Liability Litigation, Judge Weinstein concluded that “a corporation is not immune from civil legal action based on international law” and that liability may be established under an aiding and abetting theory. 373 F. Supp. 2d at 52, 131.
However, in In re South African Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004), Judge Sprizzo, following the vigilant doorkeeping suggested in Sosa, held that an aiding and abetting theory may not be used under the ATS to hold corporations liable for international law violations. Id. at 550. (“[T]he ATCA presently does not provide for aider and abettor liability, and this Court will not write it into the statute.”) The court, following Second Circuit precedent such as Kadic, acknowledged that private individuals could be liable under the ATA, but only if they acted under color of law, meaning that they act together with state officials or with significant state aid. Id. at 448. Judge Sprizzo did not find the defendants in In re South African Apartheid Litigation to be acting under color of law. “At most, by engaging in business with the South African regime, defendants benefited from the unlawful state action of the apartheid government.” 346 F. Supp. 2d at 549.
In the D.C. Circuit (according to the district court judges that have spoken so far) the question about whether corporations can be liable under the ATS is answered by an unequivocal “no.” In Ibrahim v. Titan Corporation, 391 F. Supp. 2d 10 (D.D.C. 2005), the plaintiffs, Iraqi nationals, brought claims against American corporations doing contract work for the U.S. military at Abu Ghraib prison in Baghdad for relief from the alleged acts of torture and other mistreatment that the plaintiffs experienced at the hands of interpreters and interrogators employed by the contractors. The plaintiffs specifically alleged that the government contractors and their employees were not acting under color of U.S. law because they wanted to avoid the defense of sovereign immunity. But by alleging that the defendants were private actors, the court found no basis for a claim under the ATS. The plaintiffs later amended their complaint to allege that the defendants aided and abetted official action or conspired with military personnel, but the Court still found no middle ground. The contractors were either government actors, for which they had sovereign immunity, or they were private actors, for which no remedy existed under the ATS. Saleh v. Titan Corp., 436 F.Supp.2d 55 (D.D.C. 2006).
The District of Columbia district court has also held that defendants cannot be held liable for violations of international law based on a theory that the defendants aided and abetted the state in violating international law. Doe I, 393 F. Supp. 2d at 24. The district court based its decision on the rationale set forth in In re South Africa Apartheid Litig., 346 F. Supp. 2d 538, 549-51 (S.D.N.Y. 2004). In addition, the D.C. district court held that corporations may not be held liable under the ATS for acting “under color of law.” Doe I, 393 F. Supp. 2d at 26. As the court explained: “It is also highly unfair to corporations operating in states with potentially problematic human rights records which under the color of law rule may (or may not) be subject to liability for doing business there and benefiting from the state’s infrastructure.” Id.
VII. EXPRESSIONS OF JUDICIAL CAUTION POST-SOSA
The Supreme Court in Sosa specifically cautioned the federal courts when being asked to recognize a claim under the ATS to consider the implications on foreign policy. 542 U.S. at 727. When a foreign government is a defendant, the Foreign Sovereign Immunity Act may be implicated and when the United States or an agent is a defendant, the Federal Torts Claim Act may be in play. Both of those acts are beyond the scope of this article. But even when these particular statutes are not directly involved, there are two doctrines—the act of state doctrine and the political question doctrine—that often arise in actions under the ATS.
A. Act of State Doctrine
The Act of State Doctrine in its traditional formulation precludes the federal courts from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory. Banco National de Cuba v. Sabbatino, 376 U.S. 398, 401 (1964). This is a doctrine that dates back over 100 years. See Underhill v. Hernandez, 168 U.S. 250, 252 (1897) (“Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.”). The doctrine today is a flexible one, requiring the balancing of interests and the exercise of common sense. If resolution of the case will not likely impact on international relations or embarrass or hinder the executive in the realm of foreign relations, then the court need not abstain from adjudicating the case. Bigio, 239 F.3d. 440, 452 (declining to dismiss ATS claim involving commercial interests allegedly wrongfully taken from Jewish family in Egypt); Liu v. Republic of China, 892 F. 2d 1419, 1432 (9th Cir. 1989); Doe I, 395 F.3d at 959.
This doctrine was used to dismiss the plaintiffs’ claims in Corrie, 403 F. Supp. 2d 1019, 1032, because, as the court noted, “to order Caterpillar to cease supplying products to Israel would certainly invade the foreign policy prerogatives of the political branches of government.” In Doe I, the court stated: “by definition these claims require adjudication on whether the Indonesian military was engaged in a plan allegedly to eliminate segments of the population; assessing whether Exxon is liable for these international law violations would be an impermissible intrusion in Indonesian’s internal affairs.” Similarly, in Doe v. Qi, 349 F. Supp. 2d 1258 (N.D. Cal. 2004), the court refused to adjudicate claims of genocide and crimes against humanity because those claims required the court to evaluate the policy or practice of the foreign state. But see Abiola v. Abubakar, No. 02 C 6093, 2005 U.S. Dist. LEXIS 27831 (N.D. Ill. 2005) ([A]ct of state doctrine did not bar claims against Nigerian general because torture and extrajudicial killing have long been condemned by the international law, and because military regime had been removed from power.).
B. The Political Question Doctrine
A claim may not be justiciable because it involves primarily a political question. The political question doctrine calls for a careful and delicate analysis into whether a “matter has been committed by the Constitution to another branch of government or whether the action of that branch exceeds whatever authority has been committed.” Baker v. Carr, 369 U.S. 186, 211 (1962). At least one of the following must be “inextricable from the case at bar” to implicate the doctrine:
1. a textually demonstrable constitutional commitment of the issue to a coordinate political department; or
2. a lack of judicially discoverable and manageable standards for resolving it; or
3. the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or
4. the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or
5. an unusual need for unquestioning adherence to a political decision already made; or
6. the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Id. at 217. Each case requires “a discriminating analysis of the particular question posed, in terms of the history of its management by the political branches, of its susceptibility to judicial handling in the light of its nature and posture in the specific case, and of the possible consequences of judicial action. Id. at 211-12.
The contours of the political question doctrine have been described as “murky and unsettled.” Tel-Oren, 726 F.2d 774, 803 n.8. Often the alleged violations of the international norms are committed while carrying out a foreign policy decision and the court essentially makes a determination whether the acts are so intertwined with the policy decision itself that the case is not reviewable. For example:
Claims against the United States and Dr. Kissinger for measures taken to place Pinochet in power in Chili were deemed to be nonjusticiable because they were actions taken to further a foreign policy. Schneider v. Kissinger, 412 F.3d 190 (D.C. Cir. 2005); but see Omar v. Harvey, 2007 WL 420137 (D.C. Cir. Feb. 9, 2007) (contrasting the Schneider court’s focus on foreign policy and the war in Iraq; noting that Omar relates to “constitutional issues that courts can resolve without making any judgments about foreign policy or the war in Iraq”).
Claims against the United States and Dr. Kissinger for actions taken to keep Pinochet in power were also nonjusticiable, even though the plaintiffs alleged that Dr. Kissinger was acting ultra vires and was responsible for acts of torture, false imprisonment, and wrongful death. Gonzalez-Vera v. Kissinger, 449 F.3d 1260 (D.C. Cir. 2006). Although the court recognized that “a rogue agent” may commit an act so removed from his official duties that it cannot fairly be said to represent the policy of the United States, the court summarily concluded: “this is not such a case.” Id. at 1264.
Beginning in 1965, the United States established a military base in the Chagos Archipelago in the Indian Ocean. The Chagossians claimed that food supplies to the islands were cut off, forcing them to leave; that they were threatened with death if they did not leave; and ultimately they were forced onto ships and removed. The plaintiffs agreed that the decision to establish a military base on the archipelago was not reviewable, and the court found that the “specific tactical measures allegedly taken to depopulate the Chagos Archipelago . . . are inextricably intertwined with the underlying strategy of establishing a regional military presence.” Bancoult v. McNamara, 445 F.3d 427, 436 (D.C. Cir. 2006); but see Omar v. Harvey, 2007 WL 420137 (D.C. Cir. Feb. 9, 2007) (again contrasting other decisions’ focus on foreign policy; noting that Omar relates to “constitutional issues that courts can resolve without making any judgments about foreign policy or the war in Iraq”).
The political question doctrine did not prevent the claims in Ibrahim involving allegations of torture at the Abu Ghraib prison by American contractors (although only common law claims survived a motion to dismiss; the claims under the ATS were dismissed on other grounds).
The doctrine did prevent the adjudication of the plaintiffs’ claims in Hwang Geum Joo v. Japan, 413 F.3d 45 (D.C. Cir. 2005), where the plaintiffs, Asian women, sued Japan seeking money damages for having been subjected to sexual slavery and torture before and during World War II. The court found that the ultimate question, namely, whether the governments of the plaintiffs’ countries resolved their claims in negotiating peace treaties with Japan, was a political question and therefore nonjusticiable. Id. at 53; but see Gross v. German Found. Indus. Initiative, 456 F.3d 363, 389-90 (3d Cir. 2006) (contrasting Joo; noting that the United States Executive took no position or expression of interest on the merits of Gross, where there was no ongoing diplomacy to which the court should defer).
In Mujica, the court found two of the Baker factors were implicated—lack of respect for coordinate branches and adherence to a policy question—and therefore dismissed the ATS claims involving the bombing of a Columbian town for the purpose of protecting the construction of an oil pipeline from attacks by left-wing insurgents.
The political question doctrine did not prevent the court from adjudicating the ATS claims involving the use of Agent Orange in Vietnam. In re Agent Orange Product Liability Litigation, 373 F. Supp. 2d at 75 (rejecting the defendants’ characterization of the case as a reparations case).
In Sarei v. Rio Tinto PLC, the Ninth Circuit reversed the district court’s decision on the political question doctrine, and despite the State Department’s statement of interest found no reason why resolution of the plaintiffs’ claims would infringe on the prerogatives of the Executive Branch. 456 F.3d at 1082. The plaintiffs, residents of Papua New Guinea, alleged that they were the victims of violations of international law as a result of mining operations and a civil conflict that followed an uprising at the mine.
These two defenses—the act of state doctrine and the political question doctrine—are often supported by a Statement of Interest that the defendants have asked the court to solicit from the United States Department of State.
VIII. CONCLUSION
Litigation under the ATS has entered its third phase. For nearly 200 years, the ATS was a nearly-forgotten statute. Then, beginning in 1980, the ATS was perceived, depending on one’s point of view, as either a significant weapon in the campaign to remedy violations of human rights worldwide or a threat to investment in developing countries. A third phase to the litigation begins with the Supreme Court’s decision in Sosa, which limits the reach of the ATS substantially and which will make a judgment against a multinational corporation for violations of international law even more difficult to obtain.
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