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The Alien Tort Claims Act and the Enforcement of Human Rights Law

Aug 1, 2011 by     No Comments    Posted under: Volume I, Issue 1

By Hannah Woerner, New College of Florida

This paper examines the United States Alien Tort Claims Act (ATCA) as a possible domestic enforcement mechanism for international human rights law. The use of the Act in the adjudication of several major human rights cases is analyzed. Advantages and limitations of the ATCA in comparison to other legal instruments and forums are discussed. The ATCA’s problematic role in the development of universal civil jurisdiction ultimately leads to the conclusion that the Act is not the most appropriate instrument for securing justice for human rights violations, as it does not significantly improve upon the existing framework of universal criminal jurisdiction.

The Alien Tort Claims Act and the Enforcement of International Human Rights Law

Until a few decades ago, the Alien Tort Claims Act (ATCA) was a little-known piece of legislation that had only been invoked successfully in a handful of cases since its promulgation as part of the Judiciary Act in 1789 (Shaw, 2002). The statute reads: “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” (Shaw, 2002, p. 1364). Revived use of the statute in the 1980s to bring suit against human rights violators led to controversy over the original intent of the framers in the drafting of the law and the appropriateness of its current application. There are many theories as to the “framer’s intent” in regard to the use of the ATCA, but just as in constitutional interpretation, attempting to divine the framers’ intentions is largely a pointless exercise and many question if abiding by two-hundred year-old intentions is even desirable in deciding current issues.

One of the theories is that the creation of the ATCA was a response to national security concerns over the possible consequences of denying foreigners a judicial forum (Shaw, 2002). One such view posits that the chief purpose of the law was to provide foreign ambassadors with such a forum (Shaw, 2002). Denying foreigners a judicial forum could also have discouraged settlement and investment in the United States by foreigners (Shaw, 2002).

Much of the ambiguity surrounding the original purpose of the ATCA is due to the fact that it was only invoked successfully five times in its first two-hundred years (Shaw, 2002), and thus no historical precedent for the use of the law exists. When the ATCA was dusted off in the 1980s by international human rights lawyers and activists, they were looking for a tool to give teeth to the rather weak body of international law addressing human rights violations. Since the ATCA allows only aliens to make claims for torts suffered against any “violation of the law of nations,” at first glance the ATCA may seem to be a sort of panacea for correcting wrongs committed in states without a strong rule of law tradition or with weak institutional infrastructure not suited to pursuing civil or criminal action against human rights violators. However, while the phrase “law of nations” has largely been interpreted as customary international law (CIL), U.S. district courts have limited violations to mean only egregious violations of customary international law or U.S. treaties, greatly reducing the number of claims that can be brought under the ATCA. Nevertheless, alien plaintiffs aided by international organizations have filed suits in U.S. courts against both individuals and transnational corporations for human rights violations under the ATCA.

The groundbreaking human rights case that brought the ATCA into the spotlight was Filartiga v. Peña-Irala. In this case, the defendant Peña, a police officer, was accused of torturing Joelito Filartiga to death while he was detained in a Paraguayan prison (Filartiga v. Pena-Irala, 1981). All parties were Paraguayan nationals but Peña-Irala had left the country and was located living in New York (Hermer & Day, 2004) when the plaintiffs, the father and sister of the deceased, brought suit against him in the U.S. District Court for the Eastern District of New York (Filartiga v. Pena-Irala, 1981). The plaintiffs based their claim for jurisdiction on the ATCA. While the district court dismissed the case for lack of jurisdiction, on appeal the circuit court reversed the ruling, stating that acts of torture violate “established norms of the international law of human rights, and hence the law of nations” and were thus actionable under the ATCA (Filartiga v. Pena-Irala, 1981, p. 150). The court ruled against Peña-Irala, who was later deported, and awarded the Filartigas $10 million in damages, although they were never able to collect it (Hermer & Day, 2004).

The original intent of the ATCA was not an issue in this case, as one of the justices observed that “the courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today” (Filartiga v. Pena-Irala, 1981, p. 150). The court’s analysis of contemporary international law was supported by the United States government, which issued a memorandum as an amicus curiae (Filartiga v. Pena-Irala, 1981). The memorandum argued that protection from torture constitutes a fundamental human right, and that all parties to the United Nations Charter have an obligation to uphold such rights (Filartiga v. Pena-Irala, 1981).

The ATCA thus creates a link between U.S. federal district courts and jurisdiction over matters of international law. By using the ATCA to create a claim of jurisdiction, U.S. courts can serve as a forum in which to try alleged human rights violators who would never stand trial otherwise. Used as an instrument to enforce international law, the ATCA significantly bolsters the otherwise weak normative framework currently governing international human rights law.

U.S. domestic law mirroring and strengthening international norms is an example of Harold Hongju Koh’s transnational legal process at work (Koh, 1999). The transnational legal process involves vertical, rather than horizontal, mutual enforcement methods of international law. The use of the ATCA in U.S. district courts is a vertical method of enforcing international law with domestic law, and in some cases it can be more effective than the horizontal government-to-government approach to international law and foreign policy. In this vertical process of norm enforcement, international human rights norms are internalized in the domestic legal structure (Koh, 1999). The vertical nature of the process is demonstrated in the following way: International human rights norms against torture (such as the Convention against Torture) “trickle down” and are internalized legally through judicial interpretation (in this case, a U.S. domestic court incorporating the norm against torture through the ATCA) and then eventually this internalization “bubbles back up” in the form of a new international law or a new domestic law espousing international norms (such as when in the early 1990s Congress enacted the Torture Victim Protection Act, or TVPA) (Koh, 1999, p. 1415).

Transnational advocacy networks also operate vertically to represent and sponsor non-American plaintiffs who do not have legal recourse within their own state by circumventing blockage at the national level and resorting directly to domestic laws such as the ATCA (Hathaway & Koh, 2005). The ATCA thus functions not only as a link between U.S. domestic law and international norms, but as a self-enforcement mechanism for U.S. federal law. As treaties signed by the United States take on the force of federal law, statutes such as the ATCA and the TVPA ensure that the United States will abide by its international commitments by virtue of its obligation to uphold acts passed by the U.S. Congress.

Utilizing the ATCA as a legal tool to enforce human rights law is especially important in light of the fact that there are no “competitive market forces” that press for a state’s compliance with international human rights law (Hathaway & Koh, 2005, p. 206), unlike the rather clear economic incentives to be gained from complying with international trade laws. While states will exert tremendous amounts of pressure on one another to comply with trade laws, the same cannot be said for horizontal pressure between state governments for human rights violations. This is true for individual human rights violators such as Peña-Irala as well as for multinational corporations (MNC). However, in the case of corporations it is even less likely that a host country to an MNC will retaliate against it for human rights violations, as many of these countries rely heavily on foreign direct investment and can’t afford to enforce regulations and develop a reputation as a less-profitable environment for corporations to base their subsidiaries abroad.

With host countries to MNCs unwilling to allow civil or criminal suits against them for human rights violations, enforcements must come from a separate forum. Although many corporations now claim to follow ethical guidelines embodied by the concept of Corporate Social Responsibility (CSR), the extent to which these social responsibility standards measure substance rather than merely procedure implementation is questionable. Despite the possible positive changes in corporate management engendered by CSR, it is undeniable that the concept is also a clever marketing trick meant to polish the corporation’s image and thus raise its stock value. Oxfam International stated that at times CSR can be no better than a “public relations exercise” (Shamir, 2004, p. 648).

While it is possible that norm-internalization can account for voluntary corporate accountability and create the “norm cascades” enumerated by Lutz and Sikkink (Goldstein et al., 2001, p. 271), it may also be nothing more than a surface impression of compliance. The “collection of norm affirming events” (Goldstein et al., 2001, p. 271) that partly constitute norm cascades can disguise an utter disregard for human rights law, as discursive events such as verbal or written statements asserting compliance with a norm do not necessarily mean such compliance is actually taking place. Using the ATCA as a tool to enhance corporate accountability instates external oversight mechanisms to enforce the law when corporations fail to meet their own voluntary codes.

It is interesting to note that the U.S. administration’s support for the ATCA changed drastically once the focus of the legislation’s use was shifted to suing American-based MNCs for violations of human rights abroad. The U.S. government’s memorandum to the Filartiga case likened support for the ATCA to a state’s obligation to support the aims of institutions such as the International Court of Justice and the United Nations (Filartiga v. Pena-Irala, 1981), yet now both the U.S. Departments of State and Justice have lobbied against the current application of the ATCA (Kurlantzick, 2005; Shamir, 2004). The reason for this policy reversal is quite simple- targeting multinational corporations for their conduct abroad damages U.S. business interests and foreign policy objectives. MNCs and international business organizations have reacted by forming coalitions to lobby Washington “to curb the misuse” of the ATCA (Shamir, 2004, p. 651). The International Chamber of Commerce (ICC) described the use of the ATCA as “an unacceptable extraterritorial extension of U.S. jurisdiction” and a coalition of hundreds of MNCs operating under the name USA-Engage has led campaigns to bring about the complete repeal of the ATCA (Shamir, 2004, p. 651).

Once MNCs are brought to trial under the ATCA, their easiest line of defense is the acts of state doctrine. The act of state doctrine “reflects the prudential concern that the courts, if they question the validity of sovereign acts taken by foreign states, may be interfering with the conduct of American foreign policy by the Executive and Congress” (Shamir, 2004, p. 642).

The most publicized case involving a TNC being brought to trial for alleged human rights violations under the ATCA is the Unocal case. Doe v. Unocal Corp. involved Burmese plaintiffs bringing suit against a number of multinational oil companies all contained under the umbrella of Total, S.A., the French multinational parent corporation with subsidiaries based around the world (Blumberg, 2002). These MNCs were charged with participating with the Burmese government in the exploitation of forced labor in the construction of an oil pipeline (Blumberg, 2002). The claims against the French parent of the Total Group were dismissed by the Court of Appeals for the Ninth Circuit, as its subsidiaries were its only link to the Burmese Unocal case. Under conventional entity law, each subsidiary or constituent corporation is considered a separate juridical person and thus the parent corporation is legally insulated from liability for the actions of its subsidiaries (Blumberg, 2002). The court found that the existence of a relationship between the parent and the subsidiary is not enough to establish jurisdiction. However, claims brought against the U.S.-based subsidiary Unocal were allowed.

Suit was filed against the California-based Unocal Corporation in 1996 for their alleged involvement in the forced labor and forced relocation of Burmese villagers by the Burmese military, who were hired to secure the construction of a gas pipeline (Shamir, 2004). The ATCA provides federal subject matter jurisdiction in instances of violation of the law of nations, and unpaid forced labor has been held to be the equivalent of the slave trade (Blumberg, 2002), a practice long condemned by customary international law. While the torts that constitute violations of the law of nations under the ATCA must be egregious in nature, forced labor is included along with torture, genocide, war crimes, and disappearance (Blumberg, 2002).

Since it was technically the Burmese military which had committed the violations, the plaintiffs had to prove that the military was acting under the auspices of the Unocal Corporation. Legal action against Burmese military units was not possible, as they are an extension of the state and the Foreign Sovereign Immunities Act (FSIA) prohibits legal action against sovereign heads of state. Unocal’s motion to dismiss was granted in part by the court, which dismissed only the claims against the Myanmar Military Government and the state-owned oil company under the FSIA (“Civil procedure. Choice of law. Ninth Circuit uses international law to decide applicable substantive law under Alien Tort Claims Act. John Doe I v. Unocal Corp.”, 2003).

Since jurisdiction over Unocal’s actions abroad could be established under the ATCA, the plaintiffs then had to prove that Unocal was the proximate cause of the violations. When the state or its agents commit a violation, a private party is the proximate cause of the violation when it exercises control over the decision to commit the violation (Shaw, 2002). Unocal did provide the military with the materials and finances necessary to secure the pipeline, and thus proximate cause could be satisfied due to the actions of the Burmese military being a reasonably foreseeable consequence (Shaw, 2002). However, the plaintiffs could not sufficiently prove proximate causation of the violations and thus the case was dismissed.

Following subsequent appeals, Unocal agreed to settle out of court for monetary damages, on the condition that the amount of the payment be kept confidential (Eviatar, 2005). The fact that Unocal later sued its primary insurers and its re-insurers, which would only reimburse claims beyond an initial loss of $15 million, imply that Unocal’s losses were significant (Eviatar, 2005). Due to the fact that the Unocal case was settled out of court, this case did not set a legal precedent for using the ATCA against TNCs for human rights violations, yet the ability of the Burmese plaintiffs to collect on the damages signals that the ATCA can be effectively used to compensate victims, if only monetarily, for their suffering.

Other cases where the ATCA was used to sue TNCs reflect the same procedural problems as Unocal. Many cases are unable to satisfy the requirement for subject matter jurisdiction under the ATCA, and if they do they still may be thrown out due to the defendant arguing to dismiss the case for reasons offorum non conveniens (FNC). The doctrine of FNC states that a court may defer the exercise of its jurisdiction because another forum is more appropriate (Blumberg, 2002). This is a frequent problem when the plaintiffs are foreign, as courts with already overcrowded dockets will gladly dismiss a case on the grounds that the host country to the MNC and the plaintiff’s state of origin would be a more appropriate forum. In Jota v. Texaco, Inc., representatives for the indigenous tribes of Ecuador brought suit under the ATCA for environmental and personal injuries allegedly resulting from Texaco’s oil operations (Blumberg, 2002). The case was dismissed under FNC, and on appeal the action was once again dismissed under FNC (Blumberg, 2002).

However, the case Wiwa v. Royal Dutch Petroleum Co. did establish the use of the ATCA as a precedent in fighting human rights violations, but ironically the role that the Trafficking Victims Protection Act (TVPA) played in the ruling actually may limit the scope of the ATCA in the future. In this case Royal Dutch Petroleum/Shell was accused of participating with the Nigerian government in alleged human rights violations in Nigeria involving forced labor and torture (Blumberg, 2002). The plaintiffs also alleged that the Nigerian military, with the knowledge and cooperation of the defendants, arrested and convicted nine members of a Nigerian environmental movement (Shamir, 2004). The campaign against the environmental movement led to the conviction and execution of Ken Sero-Wiwa, a Nobel Prize winner and a leader of the movement (Shamir, 2004). The second district court dismissed the case under FNC, but the court of appeals reversed the ruling, drawing upon the TVPA and stating that in its enactment, “Congress has expressed a policy of U.S. law favoring the adjudication of such suits in U.S. courts” (Blumberg, 2002, p. 521). The heavy emphasis on the TVPA in this decision strengthens the ATCA but in only one respect—if the case brought under the ATCA involves torture. The TVPA can only create a right of action for torts involving torture and extrajudicial killing (Shamir, 2004) and thus would have been of no use in the Unocal case.

In fact the greatest problem faced by plaintiffs when attempting to sue TNCs for damages under the ATCA is that the ATCA can be used to establish subject matter jurisdiction far easier than it can be used to establish a cause of action. In the Wiwa case, the ATCA was used to establish jurisdiction but the TVPA was needed to provide for a cause of action. Other cases that do not involve allegations of torture are thus left in a weaker position. In a case involving the privately owned Birmingham-based mining company Drummond, the corporation was accused of aiding right-wing paramilitary in the assassination of three union members in 2001 (Jackson, 2007). Drummond refused to settle and on July 26, 2007 a jury found in favor of Drummond, as the judge reportedly instructed the jury that in order for the plaintiffs to be successful, they must prove that Drummond knowingly aided the killers and thus committed a war crime in Colombia (Allens Arthur Robinson, 2007). For many of these cases, the corporation’s knowledge of the military’s actions against civilians is not sufficient to prove guilt, as mere knowledge does not provide for proximate cause.

Even when the MNC’s involvement can be easily proven, the use of the ATCA against corporations is difficult. Yahoo was accused of providing the personal information of dissident Chinese journalists using Yahoo email accounts to post anonymous writings to an Internet mailing list to the Chinese government (Cha & Diaz, 2007). Yahoo’s actions later caused the subsequent arrests and torture of the dissident journalists (Cha & Diaz, 2007). Yahoo maintains that it was complying with Chinese law when it turned over the emails and denies any responsibility and the case was settled out of court in early November 2007 (Associated Press, 2007). Neither side disclosed the terms of the settlement other than that Yahoo agreed to pay the attorney’s fees of the two journalists and the attorney member who sued (Associated Press, 2007).

Despite the Yahoo case and a case brought against Coca-Cola for the murder and torture of union workers by paramilitaries at one of its bottling plants in Colombia (Shamir, 2004), cases brought against TNCs under the ATCA almost always deal with corporations involved in extractive industries such as mining and oil drilling. Resources sought by multinational energy companies are usually found in less-developed countries and resource extraction usually entails the construction of infrastructure that necessitates hard labor (Shaw, 2002). If a TNC relies upon the host state to provide that labor, situations in which the state government or military engages in forced labor practices in connection with the TNC’s activities are likely. TNCs also frequently deal in “militarized commerce,” which is the contracting of the host country’s military forces for security (Shaw, 2002, p. 1360).

Yet arguing that multinational energy companies are especially at risk of having to operate in these sorts of circumstances and are therefore placed in unfair situations ignores the fact that knowledge of the likelihood of such violations occurring should make the TNCs even more responsible for allowing them to occur. Ronen Shamir (2004, p. 637) defines corporations as “global private authorities approximating the powers of national governments.” The correlation between corporate power and governmental power lies in the fact that MNCs possess considerable leverage over the distribution and access to a broad range of human rights in many of these host countries (Shamir, 2004) and therefore cannot plead a passive victim status when government agents perpetrate human rights violations. Yet corporations are not recognized as having the equivalent of state actor status and conventional entity law often effectively shields overseas subsidiaries and affiliates of MNC groups from U.S. jurisdiction (Blumberg, 2002).

Just as International Non-Governmental Organizations (INGOs) can monitor the actions of state governments and help provide redress to private citizens in the case of malfeasance, INGOs can also use the ATCA to provide a course of action for individuals harmed by the wrongful conduct of MNCs. Many ATCA plaintiffs are indigenous poor or oppressed people who would be unable to advance a claim unless represented and funded by third-party actors. In the Unocal case, the Burmese villagers were represented by lawyers of EarthRights International, the New York-based Center for Constitutional Rights, and two commercial law firms specializing in civil rights cases and class action suits (Shamir, 2004). The plaintiffs in Jota v. Texaco were aided by a coalition of diverse actors including an Ecuadorian lawyer working in the United States, a group of law professors from Boston, the Massachusetts Environmental Law Society, Earth Justice International, and Amazon Watch (Shamir, 2004). In the case against Shell’s wrongful actions in Nigeria, the family members of Ken Sero-Wiwa were represented by the Center for Constitutional Rights and aided financially by EarthRights International (Shamir, 2004). The plaintiffs in the Yahoo case were represented by The World Organization for Human Rights in Washington, D.C. (Associated Press, 2007).

In light of the attention that the ATCA has received from human rights INGOs, international business organizations, and state governments, it seems that the act has real promise for becoming an effective tool in defending victims of human rights violations. Yet should the ATCA be used in this manner? The U.S. Supreme Court ruling on the ATCA in the 2004 Sosa case provides a very cautious interpretation of the act’s provisions. The court ruled that at the time of its enactment in 1789, the ATCA provided redress for only three types of actionable causes: violation of safe conduct, infringement of the rights of ambassadors, and piracy (Shamir, 2004). The Supreme Court went on to establish the principled power of the courts to recognize a new cause of action, but severely advised against liberal interpretations (Shamir, 2004). The fact that the current application of the ATCA may be overstepping the bounds of the U.S.’s rightful jurisdiction and creating a situation of “U.S. legal imperialism” (Shamir, 2004, p. 643), underscores the connection between the ATCA’s current use and the practice of universal jurisdiction.

International law generally recognizes that a state has jurisdiction based on territory, nationality, or when neither of these apply, out of a need to protect the state’s national or security interests (Donovan & Roberts, 2006). Universal jurisdiction evolved out of a need to prosecute actions lying outside traditional bases of jurisdiction, such as acts of piracy that occurred beyond state borders (Donovan & Roberts, 2006). Donovan and Roberts (2006) outline how universal jurisdiction is a permissive customary principle, meaning that states are permitted but not required to exercise universal jurisdiction.

Decentralized universal criminal jurisdiction, characterized by domestic courts trying individuals for war crimes or other heinous acts regardless of their territorial jurisdiction or nationality, is the form of universal jurisdiction that has gained recognition in international law through such cases as the Pinochet case and the Eichmann case. The use of the ATCA to try alleged human rights violators when neither party has any connection to the United States, such as in Kadic v. Karadzic in 1993, when Muslim and Croat victims of the atrocities committed by Serb forces in Bosnia-Herzegovina filed suit against Bosnian Serb leader Radovan Karadzic (“Award of damages against Bosnian Serb leader Radovan Karadzic,” 2001), is distinguished by the fact that the ATCA may only be used for violations of torts. The growing use of the ATCA is thus ushering in a new form of universal jurisdiction, that of decentralized universal civil jurisdiction.

The advent of universal civil jurisdiction through the ATCA has received mixed responses from the international community. No other states have as yet enacted equivalents to the ATCA or the TVPA, although case law and commentary on universal civil jurisdiction are starting to emerge outside the U.S.(Donovan & Roberts, 2006).  Australia, Switzerland, and the United Kingdom, acting jointly, and the European Commission submitted amicus briefs to the U.S. Supreme Court for the case Sosa v. Alvarez-Machain. Prior to this case, Mexican nationals acting on behalf of the U.S. Drug Enforcement Administration (DEA) abducted Mexican national Humberto Alvarez-Machain for his alleged involvement in the murder of a DEA agent in Mexico (“Supreme Court interpretation of Alien Tort Claims Act,” 2004).

When the charges against Machain were later thrown out due to lack of evidence, Machain brought civil suit against the United States and a number of individual defendants under the ATCA, arguing that his abduction was a tort violating the “law of nations” (“Supreme Court interpretation of Alien Tort Claims Act,” 2004, p. 845). The Supreme Court found in favor of Machain, ruling that while forcible abduction is not a violation of CIL, “the unilateral, nonconsensual extraterritorial arrest and detention of Alvarez were arbitrary and in violation of the law of nations under the ATCA” (“Supreme Court interpretation of Alien Tort Claims Act,” 2004, p. 846). While the court did not base its decision on CIL, it did rely upon the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights to determine whether forcible abduction constituted a violation of the law of nations (“Supreme Court interpretation of Alien Tort Claims Act,” 2004).

The joint response of Australia, Switzerland, and the United Kingdom in the amicus brief argued that the ATCA should be restricted to cases with a traditional jurisdictional link to the United States so that the statute may not be used to infringe upon the sovereignty of other states (Donovan & Roberts, 2006). The European Commission argued that while the existence and the scope of universal civil jurisdiction was not well established under international law, in the event of its application it should be applied to a narrow range of cases that would already be subject to universal criminal jurisdiction (Donovan & Roberts, 2006). This principle has been followed by lower courts to a degree to establish whether a case has jurisdiction under the ATCA, and only egregious violations of human rights such as torture and extrajudicial killing have been successful in court thus far. However, according to the guidelines put forth by the European Commission’s amicus brief, the Unocal case would no longer qualify under the ATCA, as forced labor is not included in the list of currently accepted human rights violations on equal footing with war crimes. While the lower courts have at times attempted to follow the guidelines recommended by the European Commission, the Machain decision by the Supreme Court to include forced abduction as a violation of the law of nations will undoubtedly loosen the restrictions for jurisdiction under the ATCA to be established in the lower courts.

This is ironic, as the Supreme Court also stated in the opinion for Sosa that courts should take utmost caution in establishing new causes of action under the ATCA. The dissenting opinion presented by Justices Scalia and Thomas and Chief Justice Rehnquist criticized the majority opinion for admonishing the lower courts “and then-repeating the same formula the ambitious lower courts themselves would have used- invites them to try again” (“Supreme Court interpretation of Alien Tort Claims Act,” 2004, p. 848).

The European Commission also stated that the ATCA should only be used when the claimant would be denied justice due to the inability to bring a case in a court with a jurisdictional link or before an international tribunal (Donovan & Roberts, 2006). The International Criminal Tribunal for the Former Yugoslavia made a brief reference to “extraterritorial civil remedies” in observing that a victim could bring a civil suit for damages in a foreign court(Donovan & Roberts, 2006, p. 149). This implies that the ATCA could be used to fill in the gaps of universal criminal jurisdiction. The difficulty of establishing an international tribunal and the fact that the International Criminal Court (ICC) is still a young, inexperienced institution provides room for the ATCA to secure justice for victims of human rights violations. The ICC has also rejected investigating MNCs for international human rights violations on the grounds that the court’s jurisdiction does not cover “legal persons” (Shamir, 2004, p. 661), making the ATCA the only tool currently available for bringing suit against corporations.

Yet the use of the ATCA in this manner shares the greater problems of extraterritorial jurisdiction and, to an even greater degree, of decentralized universal criminal jurisdiction. Decentralized universal jurisdiction creates ample technical problems, such as the tendency of plaintiffs to go “jurisdiction shopping” for a sympathetic forum and the sometimes illegal practices that are involved in bringing a case before a domestic court. An example of this latter problem is the Adolf Eichmann case, for which agents of the Israeli government abducted Eichmann from his home in Argentina and brought him forcibly before an Israeli court (Baade, 1961). In addition to the fact that the Israelis violated international law by abducting Eichmann from Argentina, the rights of due process and a fair trial were hardly guaranteed, and the trial could rightly be thought of as an instance of victor’s justice.

In addition to these technical difficulties, the possible consequences of decentralized universal jurisdiction are disturbing to say the least. The ability of any and every state to exert jurisdiction over aliens, especially states with weak or corrupt judiciaries where due process is not guaranteed, could lead to a breakdown in order and standards of justice. In attempting to secure fora for victims of human rights violations, the civil rights of the defendants are relatively ignored. Kissinger outlines the inequities inherent in domestic litigation of international violations, stating that trials in a legal system unfamiliar to the defendant and the fact that the defendant would have to bring evidence and witnesses from other states considerably disadvantages him or her (Kissinger, 2001). National courts can also selectively apply universal jurisdiction, which also fails to create just and predictable standards (Roth, 2001).

The possibility that jurisdiction of this kind could also be used as a political tool is problematic. Use of the ATCA and decentralized universal jurisdiction in general for political ends would obscure any initial intent on the part of human rights activists and supporters to secure justice for victims of human rights violations. However, use of the ATCA is more likely to be blocked for political purposes than it is to be used to further a political agenda. The State Department’s support for ExxonMobil in a case alleging the oil company’s involvement in human rights abuses in Indonesia demonstrates how U.S. foreign policy and interests work against the current application of the ATCA (Shamir, 2004). The State Department argued that adjudication of the lawsuit would adversely impact efforts against international terrorism and prejudice Indonesian government and business against U.S. firms (Shamir, 2004). The frequent use of the acts of state doctrine to frustrate human rights litigation under the ATCA is to be expected, as humanitarian issues are usually brushed to the side when political or economic interests might be hampered.

Another reason for the U.S. government’s staunch disapproval of the ATCA and their disinterest in advocating human rights law globally is that a logical extension of the use of the ATCA would be to next indict U.S. government officials for human rights violations. The current administration is particularly interested in preventing this extension from taking place, in light of the grave human rights violations at Abu Ghraib and Guantanamo Bay. The U.S. condemnation of the ATCA can be likened to its refusal to support the Rome Statute of the ICC—the U.S. government resists out of a fear of U.S. nationals being investigated and possibly indicted.

Yet other mechanisms can be used to indict U.S. government officials so that domestic use of the ATCA is not a compelling argument for the continuation of its current application. The abuse of decentralized universal jurisdiction in any form is so probable because there are no rules and no forthcoming consensus about how and when universal jurisdiction for international crimes or violations of torts should occur. Many question if criminal jurisdiction alone would not be better to enforce human rights law. The ATCA may only be used in civil suits for the violations of torts and its recognition of what constitutes violations of international law is similar to that of ad hoc war crimes tribunals. Thus, the ATCA’s limited scope does not provide that much more of an improvement over decentralized universal criminal jurisdiction. The ATCA cannot be used to compensate for environmental degradation nor are infringements upon economic, social, or cultural rights actionable under the ATCA (Shamir, 2004). Also, since the ATCA must be used in civil suits, justice is meted out in the form of monetary damages, which may not always be a satisfying solution to the victims or the international community.

Some new tool or institution is seriously required to buttress and enforce the body of international human rights law. With so many U.S. foreign policy initiatives and international organizations with a strong U.S. presence packaging policies and initiatives with human rights goals, the concept of enforcing human rights law may have become hollow. Many MNCs suspected of participation in grave human rights violations abroad also participate heavily in charity and programs to improve their corporate image and market value, while the reality of their actions is glossed over.

The ATCA, however, is not the appropriate instrument to secure justice. The current use of the ATCA is at times even erroneous, as due to its limited scope it targets not the true culprits, such as foreign military governments, but the closest entity within jurisdictional reach. Resorting to diplomacy is always an option, and although this is not in any way a reliable system for attaining justice, sometimes pure politics can be more beneficial for solidifying international norms than trying to bind them in a precise and obligatory document. Pursuing justice for victims of human rights violations through war crimes tribunals and introducing measures to pursue MNCs into other standardized fora such as the ICC will avoid the inequalities and counterproductive harms to the defendant’s civil rights that occur through the use of the ATCA in decentralized universal jurisdiction.

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