[thunderous_funker]

Big topic so I'll try to bring focus to key points on a few levels of the issue.

First is the news that the DoJ has filed amicus curiae on behalf of Unocal in a civil case in which Burmese villagers are suing the energy giant for their finanical support of a pipeline project in which the Burmese military provided security and is accussed of rape, murder, slave labor and several other human rights abuses.

The case is filed under the Alien Tort Claims Act, which is a bit of a legal relic.

Background on ATCA:

ATCA, which was enacted by the first U.S. Congress as a tool for piracy on the high seas, permits non-citizens to sue foreign and domestic individuals or companies in the United States for abuses ''committed in violation of the law of nations or a treaty of the United States''. Since 1980, the Act has been used successfully by victims of abuses committed by foreign governments and militaries overseas against individual defendants who were served with notice while living or visiting in the United States. The first case was brought by the father and sister of Joel Filartiga, a 17-year-old Paraguayan who was kidnapped and tortured to death by a Paraguayan police officer who subsequently came to the United States. In that case, another appeals court ruled that ATCA permitted victims to pursue claims based on violations of international human rights law. Subsequent cases have been brought against national leaders, such as former Philippine President Ferdinand Marcos, and senior army officers from Guatemala, Indonesia, Argentina, Ethiopia and El Salvador, among other countries. While damages have been awarded in almost all those cases, they have rarely been collected, primarily because defendants fled the United States once they received legal notice.

Attorneys began bringing cases against U.S. and foreign corporations - usually involving, as in the Unocal case, alleged abuses committed by foreign armies or police that provided security for the companies - under ATCA in 1993. About 25 such cases have since been filed, although most of them have been dismissed by the courts. The most successful have been brought by survivors of the Nazi Holocaust against foreign companies and banks, which rejected their efforts at recovering their money or insurance claims after World War Two. While the case was never fully tried, it helped induce Swiss banks to negotiate settlements worth more than one billion dollars.

Strangely, the DoJ didn't argue to defend Unocal or anything specific to the case. It's brief basically called for the courts to redefine ATCA to prevent these kinds of lawsuits in US courts.

The brief said that ATCA could not be used as a basis to file civil cases and that victims should sue under other laws; that the ''law of nations'' covered by the Act did not include international human rights treaties; and that abuses committed outside the United States should not be covered by the law. ''Although (ATCA) is somewhat of a historical relic today, that is no basis for transforming it into an un-tethered grant of authority to the courts to establish and enforce (through money damage actions) precepts of international law regarding disputes arising in foreign countries,'' the brief said. Moreover, it warned, the use of the Act ''bears serious implications for our current war against terrorism, and permits (ATCA) claims to be easily asserted against our allies in that war''. In that respect, it ''raises significant potential for serious interference with important foreign policy interests''.

But human rights activists pointed out that if U.S. foreign policy interests were at risk, the State Department always has the option of intervening in an ATCA case - as it did last summer when it asked a judge to dismiss a case brought by plaintiffs from Aceh, Indonesia, against oil giant ExxonMobil. Indeed, the State Department was explicitly asked to comment on the foreign-policy implications of the Burma case and reportedly prepared a letter that said it had no problems with the action proceeding. But the Justice Department, which represents the rest of the government, failed to deliver the letter and instead filed its own brief, which makes no reference to a State Department position.

So, issues raised by this:

1) Should multinationals be held accountable for the human rights violations of governments working on their behalf-e.g. the Burmese/Unocal case?

2) Should the US DOJ interfere if the State Dept. offers no credible argument for why the case could be sensative to foreign policy considerations?

3) Is the ATCA a good way of dealing with such issues? Should US courts be a means of enforcing International Law in the absence of other legal avenues? What sort of Treaty or body should be used instead?

4) Considering their attack on ATCA and ICC, does this mean the idealouges in the Bush administration are against the concept that anyone outside of the Executive Branch of the US government should be in the business of enforcingor interpreting International Law?

[SimeyTheLimey]

Originally posted by thunderous_funker:
3) Is the ATCA a good way of dealing with such issues? Should US courts be a means of enforcing International Law in the absence of other legal avenues? What sort of Treaty or body should be used instead?

It's an interesting subject. The problem with the ATCA is that it is a very old statute that basically says that the US reserves the right to judge anyone in the world regardless of their connection (or lack thereof) to the US. It isn't limited to suing US corporations, you could use it to sue any private party anywhere in the world, for any reason. As long as you can convince a US federal judge, you get to be the world's cop.

Here is the dilemma for the human rights crowd. If they champion suits like this one, then it might be tactically good for them, but it would be tantamout to also championing US hegemony. On the other hand, they can constrain US extraterritorial power only at the expense of losing laws like the ATCA. It must be a bit of a dilemma. Really the best thing would be for Congress to simply repeal the ATCA. At least then the US criticism of Belgium for its universal jurisdiction law would be consistent.

On your point 2, the issue of whether this case has foreign policy interests, that probably isn't why the Administration is urging the court to curtail the ATCA here. What they are probably worried about is the next case, and the one after that, and so on. Your snipped article notes that the ATCA was almost unused until 1980. What it doesn't say is that it is only in the last few years that it has been used frequently, The law has a way of snowballing. What I imagine DOJ wants to do is melt that snowball a bit before it rolls over something they consider important.

BTW, the case of the Paraguayan teenager (who I believe was actually 16) was made into a rather harrowing movie. Even the legal opinion isn't fun to read.

[thunderous_funker]

I would agree that the ATCA is pretty blunt tool that could be abused, even if up till now it's been pretty positive.

I found a great article on the legal points by the Harvard Law Review.

Interestingly, they endorse the idea of NOT expanding the court's interpretation of "law of nations" for the kinds of things we see happening, but they still don't reject the idea that the law could be used for positive ends. They just think it's too limited and a strong indicator that some other International arrangement must be made for dealing with multinationals and human rights cases.

Their conclusion:

Corporate violations of human rights are a significant problem facing the international community. Although the ATCA provides remedies to a limited group of victims, it is by no means an adequate response. The requirements of subject matter and personal jurisdiction leave many corporations safe in their impunity and many victims without redress. The answer is not to expand the scope of subject matter jurisdiction by interpreting the law of nations more liberally; doing so may violate international principles of jurisdiction and may lead to international discord. Rather, a multilateral approach is [*2048] needed to address the problem of corporate violations of human rights. An effective solution requires international agreement not only on the human rights obligations of corporations, but also on an effective enforcement mechanism. The international community should view the recent ATCA cases against corporations as a call to collective action.