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O'Rourke, Anne; Nyland, Chris --- "The Recent History of the Alien Tort Claims Act: Australia's Role in its (attempted) Downfall" [2006] AUYrBkIntLaw 6; (2006) 25 Australian Year Book of International Law 139

The Recent History of the Alien Tort Claims Act: Australia’s Role in its (attempted) Downfall

Anne O’Rourke[∗] and Chris Nyland[∗∗]

Abstract

Over the past 25 years human rights activists in the United States have utilised a 200-year-old statute titled the Alien Tort Claims Act (ATCA) to bring perpetrators of human rights abuses before the courts. The initial cases involved torture and facilitated the enactment of the Torture Victims Prevention Act by the United States Congress in 1991. The second stream of cases involved Holocaust reparations claims against Swiss and Austrian banks and German companies for alleged actions during the Second World War. The third stream of cases, and the most recent, concern alleged violations of human rights by multinational companies. This last category of cases has resulted in a concerted campaign by the administration of President George W Bush and the corporate sector who want the United States Supreme Court to limit the scope of the statute. Little known to Australian lawyers is the involvement of the Australian government in opposing the use of the ATCA by human rights lawyers.[1] In the case of Jose Francisco Sosa v Humberto Alvarez-Machain et al,[2] which came before the United States Supreme Court in 2004, the Australian government, along with the Swiss and the United Kingdom governments, submitted a joint amicus curiae brief in support of the Bush administration’s position that the Court should eliminate tort liability under the ATCA. In this article we examine the brief of the governments of Australia, the Swiss Confederation and the United Kingdom and critically analyse the submission’s interpretation of the law and reasons for limiting the jurisdiction of the ATCA.

I. Introduction

Consistent with its general opposition to the linking of trade and investment with human rights, the Howard coalition government has joined with other states in opposing attempts by human rights lawyers to sue corporations by utilising the United States ATCA, which is part of the Judiciary Act of 1789.[3] This Act states that ‘[t]he 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.’ This one-sentence statute has caused much controversy because human rights lawyers have used the ATCA to bring actions against corporations that have allegedly engaged in human rights violations. These cases have included proceedings against the Unocal Corporation in Burma for use of forced labour, rape and murder. Cases still pending include actions against Royal Dutch Petroleum and Chevron Corporation for alleged human rights abuses in Nigeria, and Exxon Mobil Corporation for alleged human rights violations in Aceh.[4] This type of litigation has elicited a negative response from corporations and conservative politicians.

In April 2004, as part of an ongoing campaign against the ATCA, the National Foreign Trade Council (NFTC), a corporate lobby group, ran a full-page advertisement in The New York Times titled ‘The Business of Human Rights: Suppose a foreign country engages in human rights abuses against its own people. Should corporations that happen to do business there be held liable?’ The advertisement argued that the United States Supreme Court in the case of Sosa v Alvarez-Machain[5] should take the opportunity to rein in the use of the so-called Alien Tort Statute. The National Foreign Trade Council asserted that this provision interfered with foreign relations, discouraged investment, permitted suits against bystander companies, was being misapplied, and permitted United States courts inappropriately to make decisions under international law.[6] The National Foreign Trade Council’s claims were supported by the Bush administration, and the Australian, Swiss and British governments (hereafter ASGB submission) which wanted the United States Supreme Court to eliminate tort liability under the Act.[7]

In this article we examine Sosa v Alvarez-Machain (Sosa) and the submission to the court by the Australian and other governments. The Australian government’s involvement in the Bush administration’s campaign to restrict the jurisdiction of the ATCA received no coverage in the Australian media. Even within the legal community the government’s role in this matter is largely unknown. Our aim in this article is to bring the issues to the notice of the broader human rights community and the legal community, to detail the nature of the ASGB submission, and to test the veracity of the submission.

We begin in section II by outlining the history of the ATCA and by examining the 1980 decision of the Second Circuit Court of Appeals in Filártiga v Peña-Irala.[8] Filártiga is a landmark case in United States human rights litigation as it was the first case to address the issue of whether damages could be obtained from perpetrators of gross human rights violations; it ultimately produced a judgment of $US10,385,364 against the defendant.[9]

Section III turns specifically to the ASGB submission and critically analyses the submission’s interpretation of the law and reasons given for limiting the jurisdiction of the Act.

Section IV begins with an examination of the Sosa decision and then discusses the impact that the decision has had on subsequent cases involving jurisdiction under the ATCA. We bring this section to a close by looking at emerging trends in the use of tort law against multinational corporations alleged to be engaging in human rights violations and the continued assault on human rights generally by executive governments and the corporate sector.

We conclude in Section V, by reference to Australia’s voting record while Chair of the United Nations Commission on Human Rights, on the rather pessimistic note that this assault is unlikely to be reversed in the near future. However, non-governmental organisations, such as human rights, environmental, union, lawyer, consumer and church groups are subjecting corporate behaviour to increasing scrutiny and have been successful in drawing public attention to human rights violations by multinational corporations. In some cases this has resulted in changed behaviour and facilitated the development of the corporate social responsibility movement.

The principle that non-state actors can be accountable for gross violations of human rights was established during the Nuremberg trials against major industrialists who profited under the Nazi regime. However, the ‘Achilles’ heel’ of the international system with the lack of a binding enforcement mechanism; there is no effective enforcement of international human rights norms.[10] In the absence of enforceable international mechanisms the ATCA plays a vitally important part in bringing perpetrators of human rights violations before the courts. We need to be aware of the Australian government’s role in attempting to undermine this mechanism.

II. The Alien Tort Claims Act

According to Dodge, following the landmark decision in Filártiga, the ATCA has become ‘one of the most widely discussed provisions in modern international law’.[11] The Filártiga decision established the precedent that United States federal courts can ‘adjudicate allegations of gross human rights violations, even when the abuses take place in a foreign country’.[12] The origin of the provision and the reasons for its inclusion in the Judiciary Act of 1789 (US) have engendered much debate concerning the intentions and motives of the drafters. So intense has the debate become that Burley has described it as ‘giving rise to a new paper chase through the legislative history of the First Judiciary Act, the constitutional debates, the Founders’ papers and the proceedings of the Continental Congress’.[13] She argues that though definitive proof of the intended purpose and scope of the ATCA is unattainable, investigation has provided the general context in which the ATCA was passed and knowledge about the Framers’ understanding of the law of nations and the obligations it imposed.[14] Randall states that in relation to the domain of foreign relations, delegates to the Constitutional Convention of 1787 were ‘concerned with establishing and distributing authority in the federal government, rather than the states’, and created the Judiciary Act with the ATCA provision to ensure that actions involving aliens were located in the federal branches of government and in the federal judiciary.[15] In addition, concerns relating to national security, the danger that the United States might be ‘drawn into foreign entanglements by the actions of its citizens’, privateering and compliance with international law contributed to the development of the provision.[16]

In the context of the treaties to which the United States was a party and the international relations issues at the time, McGinley argues that it is not unreasonable to assume that when the ATCA was being written it was intended to provide jurisdiction to encompass ‘the depredations of alien privateers in United States waters and actions by American privateers on the high seas, as well as the existing United States treaty undertakings’.[17] The significance of the role of international law at the time of drafting is also highlighted by Casto, who points to a draft opinion by Paterson J, one of the principal drafters of the Judiciary Act, explaining the relationship between the law of nations and domestic law, and specifically ‘that domestic common law incorporated the law of nations and provided domestic remedies for violations of the law of nations’.[18] According to Blackstone, the principal offences against the law of nations at the time of the Constitutional Convention consisted of three kinds: violations of safe-conducts; infringement of the rights of ambassadors; and piracy.[19]

Thus, as the main areas of law discussed in the historical literature, these wrongs are the only breaches of international law that the provision covers, according to present-day opponents of the ATCA. Understanding the historical context in which the provision was drafted is of fundamental importance for the current debate, as those in favour of limiting the ATCA jurisdiction rely on the ‘Originalist’ thesis, namely ‘that the First Congress’ understanding is the key to its correct interpretation’.[20][21] The first and second arguments formed part of the reasoning in the ASGB submission, and will be discussed in detail in section III of this article.

(a) Filártiga v Peña-Irala

After its inclusion in the Judiciary Act, the ATCA fell into relative obscurity, the source of negligible litigation during its first 150 years, until the important decision in Filártiga, which drew enormous attention to the provision’s potential for litigation in cases involving serious breaches of human rights.[22] In Filártiga, an alien residing in the United States brought a suit against a former official of Paraguay then visiting the United States, the complaint alleging torture of the plaintiff’s brother leading to his death. The Court of Appeals held that ‘deliberate torture perpetrated by a person invested with official authority was a violation of customary law supporting the jurisdiction of the district courts over a civil action by an alien for a tort only, committed in violation of the law of nations’.[23] The Court further stated that ‘indeed, for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind’,[24] and in relation to jurisdiction, ‘whenever an alleged torturer is found and served with process by an alien within our borders, § 1350 provides federal jurisdiction’.[25]

The cause of action was stated as arising under:

the U.N. Charter; the Universal Declaration on [sic] Human Rights, the U.N. Declaration Against Torture, the American Declaration of the Rights and Duties of Man; and other pertinent declarations, documents and practices constituting the customary international law of human rights and the law of nations, … Jurisdiction [was] claimed … under the Alien Tort Statute, 28 USC § 1350.[26]

The Court stated that the threshold question on jurisdiction is whether the conduct alleged violates the law of nations. Referring to Supreme Court enumerations and an earlier case, The Paquete Habana,[27] the Court said that where no treaty exists,

or 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.[28]

Citing a number of legal scholars on the obligations of member states under the United Nations Charter, the Court stated that ‘[s]ince their adoption, “(m)embers can no longer contend that they do not know what human rights they promised in the Charter to promote”’.[29] The Court noted further that it has been observed that the Universal Declaration of Human Rights[30] ‘no longer fits into the dichotomy of “binding treaty” against “non-binding pronouncement”, but is rather an authoritative statement of the international community’,[31] and ‘a Declaration creates an expectation of adherence’, and ‘insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon states’.[32] After reviewing the legal scholarship, the Court found no difficulty discerning the universal renunciation of torture in the modern usage and practice of nations, and concluded that ‘official torture is now prohibited by the law of nations. The prohibition is clear and unambiguous, and admits of no distinction between treatment of aliens and citizens’.[33]

The Court then turned to the Defendant-Appellee’s submission that even if the ‘tort alleged is a violation of modern international law federal jurisdiction may not be exercised consistent with the dictates of Article III of the Constitution’.[34] The Court found that the claim was without merit. The Court pointed to the first Judiciary Act,[35] stating that Congress specifically provided ‘for federal jurisdiction over suits by aliens where principles of international law are in issue. The Constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law.’[36] The Court further added that ‘[t]he law of nations forms an integral part of common law, and a review of the history surrounding the adoption of the Constitution demonstrates that it became a part of the common law of the United States upon adoption of the Constitution. Therefore, the enactment of the Alien Tort Statute was authorized by Article III.’[37] In concluding, the Court made the following statement, which is a timely reminder of the importance of international human rights instruments:

In the twentieth century the international community has come to recognize the common danger posed by flagrant disregard of basic human rights and particularly the right to be free of torture. Spurred by the Great War, and then the Second, civilized nations have banded together to prescribe acceptable norms of international behaviour. From the ashes of the Second World War arose the United Nations Organization, amid hopes that an era of peace and cooperation had at last begun. Though many of these aspirations remained elusive goals, that circumstance cannot diminish the true progress that has been made. In the modern age, humanitarian and practical considerations have combined to lead nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest. Among the rights universally proclaimed by all nations, as we have noted, is the right to be free of physical torture. Indeed, for purposes of civil liability, the torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfilment of the ageless dream to free all people from brutal violence.[38]

The Carter administration strongly supported jurisdiction under the ATCA, an approach reversed under the Reagan administration, which filed an amicus brief in Trajano v Marcos,[39] arguing for a much narrower interpretation, ‘one that would exclude cases between aliens for human rights violations committed outside the United States’.[40] George H W Bush, though not overly supportive of ATCA litigation, raising concerns about the possibility that ‘US courts might become engaged in “sensitive disputes” involving other countries’,[41] affirmed the Filártiga decision by signing into law the Torture Victim Protection Act.[42] The Torture Victim Protection Act creates a federal cause of action for crimes such as torture and extrajudicial killing, committed by an individual ‘under actual or apparent authority, or color of law, of any foreign nation’. The Act also allows Americans as well as aliens to bring an action.[43]

The Clinton administration also supported the Filártiga doctrine [44] and weighed in strongly on the side of human rights during the lawsuit against Bosnian Serb leader Radovan Karadzic. [45] Stephens points out that in some instances, the Clinton administration ‘opposed the use of the ATCA to challenge the actions of the government and its employees’.[46] In the case of Alvarez-Machain v United States[47] before the Ninth Circuit Court of Appeals, the Clinton administration argued that the government and its agents were immune from suit ‘and that the treatment of Alvarez-Machain did not violate international law’ but it did not ‘challenge [the] ATCA in itself’.[48] By contrast, the administration of President George W Bush ‘has aggressively fought for dismissal of cases’ brought under the ATCA, ‘lending its support to politically powerful defendants targeted by the recent lawsuits’, such as the corporate sector in cases against multinational companies.[49]

The decision in Filártiga ‘opened up a new role for the ATCA’ and resulted in a widespread use of the statute to assert human rights claims.[50] Cases have been brought covering a wide range of human rights abuses. These include cases arising from the Holocaust, such as actions against Swiss banks concerning unjust enrichment during the Second World War era; [51] cases against German and Austrian banks during the same period;[52] and slave-labour litigation against German companies during the Second World War.[53] More recently, cases have been brought against multinational corporations alleging, for example, human rights, genocide and environmental abuses;[54] against Coca-Cola in Colombia alleging that Coca-Cola and its affiliates are liable for human rights abuses including murder, extrajudicial killing, kidnapping, unlawful detention and torture;[55] and against Unocal where the plaintiffs, Burmese citizens, allege that Unocal was jointly and severally liable for human rights abuses by the Burmese military during the construction of a gas pipeline.[56]

It was during the latter case, Doe v Unocal, that the Bush administration launched its attack on the ATCA. In its amicus brief to the Court, the administration strongly criticised the Filártiga decision for its expansive construction of the statute, arguing that the ATCA was merely a jurisdictional provision and ‘does not provide a cause of action and does not permit a court to infer a cause of action to enforce international law norms discerned by the courts from documents such as unratified and non-self-executing treaties, and non-binding resolutions’.[57] It further stated that the Court’s approach to the ATCA ‘bears serious implications for our current war against terrorism, and permits … [ATCA] claims to be easily asserted against our allies in that war. Indeed, such claims have already been brought against the United States itself in connection with its efforts to combat terrorism.’[58] In concluding its brief, the administration stated that the Court’s prior ATCA ‘precedents should be overruled, and this case [Unocal] should be remanded for application of a more limited construction of the statute’. The administration of President George W Bush, with support from the Australian government, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland, repeated its argument for limitation of the jurisdiction of the ATCA in the Sosa Case.

(b) Jose Francisco Sosa v Humberto Alvarez-Machain

In 1985 an agent of the United States Drug Enforcement Administration (DEA) was captured on assignment in Mexico. He was tortured over the course of a two-day interrogation then killed. The DEA believed that Humberto Alvarez-Machain, a physician, was present and acted to prolong the agent’s life in order to extend the interrogation and torture. In 1990, a federal jury indicted Alvarez for torture and murder, and a warrant was issued for his arrest. The DEA requested assistance from the Mexican government for extradition of Alvarez, but such assistance was not forthcoming. The DEA then approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States. After being captured and brought to the United States, Alvarez moved to dismiss the indictment on the grounds that his abduction was illegal, a claim rejected by the United States Supreme Court. The case went to court in 1992, and the District Court granted Alvarez’s motion for a judgment of acquittal.

In 1993, after returning to Mexico, Alvarez filed a civil suit in the United States federal court against those involved in his abduction: these defendants were Sosa, a Mexican citizen, a DEA operative Antonio Grate-Bustamante, five unnamed Mexican officials, the United States and four DEA agents. Alvarez sought damages from the United States under the Federal Tort Claims Act (FTCA) for false arrest, and from Sosa under the ATCA for violation of the ‘law of nations’.[59] The District Court granted the government’s motion to dismiss the FTCA claim but awarded $25,000 in damages pursuant to the ATCA claim. A Court of Appeals of the Ninth Circuit panel then affirmed the ATCA judgment and reversed the dismissal of the FTCA claim. On a review en banc, the full Ninth Circuit Court of Appeals was divided but affirmed the panel’s decision. The case then went to the Supreme Court where the United States government sought reversal of the judgment of liability under both the FTCA and the ATCA. This article will only address the matter in relation to the ATCA claim.

Sosa was the first case in which the United States Supreme Court fully considered the scope of the ATCA.[60] Sosa received much publicity in the United States, as the case was viewed by many, particularly those in the legal and human rights community, as a combined government and business-sector assault aimed at overturning ‘a longstanding judicial precedent that has been very important in the protection of human rights’.[61] Amicus briefs were submitted by both supporters and opponents of the ATCA. Briefs in support of the Filártiga decision and in affirmance of the ATCA included the following: Brief of Amici Curiae National and Foreign Scholars (over 80 signatories); Brief of Amici Curiae Corporate Social Responsibility; Brief of Amicus Curiae Surviving Family Members of the Victims of the September 11, 2001 Terrorist Attacks; Brief of Amici Curiae Career Foreign Service Diplomats; Brief Amici Curiae of Professors of Federal Jurisdiction and Legal History; and Brief of Amicus Curiae International Jurists in Support of Affirmance.[62] Those against included: briefs from peak business organisations such as the Brief for National Association of Manufacturers and the Brief for the National Foreign Trade Council, and others, though Sosa was not a corporate case and was not addressing business liability under the ATCA. Other briefs came from government and non-governmental organisations (NGOs): Brief of Washington Legal Foundation et al; Brief for the United States; Brief of the European Union in Support of Neither Party; and Brief of the Governments of the Commonwealth of Australia, the Swiss Confederation and United Kingdom of Great Britain and Northern Ireland. It is to the last brief that we now turn.

III. The Howard Government’s Intervention

In the ASGB submission[63] five main arguments[64] were submitted against Filártiga and subsequent cases that had followed the Filártiga interpretation of the ATCA and international law. First, United States law must be construed to be consistent with international law and to minimise conflicts of jurisdiction. Second, the courts of appeals had erred in finding that Congress had created an implied federal cause of action that would allow aliens to sue other aliens for foreign conduct that had no effect in the United States because the ‘law of nations’ had been allegedly infringed. Third, the ATCA should be read in the context of its origins. Fourth, the United States would be at odds with the legal systems of other nations if it were to allow civil suits for alleged violations of the ‘law of nations’ without any nexus to the United States. Fifth, principles of comity and forum non conveniens should in any event be applied to extraterritorial disputes among foreign nationals.

(a) Argument 1

The first argument addresses two issues: territoriality and universal jurisdiction. The submission states that the ‘primary basis for jurisdiction under international law is territorial: each state may regulate activity that occurs in its own territory (the “territorial principle”) and may extend the application of their laws to their citizens, wherever located (the “nationality principle”)’.[65] Accordingly, ‘the territoriality base of jurisdiction is universally recognised’, and is ‘the most pervasive and basic principle underlying the exercise by nations of prescriptive regulatory power’.[66] It is recognised in the submission, however, that the ‘sometimes controversial “effects doctrine” [relating to antitrust law] may allow a state to assert prescriptive jurisdiction over events that have a clear effect in its territory’ and universal criminal jurisdiction is also recognised in cases of certain heinous crimes.[67] By contrast, it was argued that international law does not recognise ‘universal civil jurisdiction for any category of cases at all, unless the relevant states have consented to it in a treaty or it has been accepted in customary international law’.[68] Referring to established practice in the Supreme Court, it was further pointed out that the Court ‘often invoked the long-standing principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States’, thus it protected against potential conflicts and clashes between sovereign states ‘which could result in international discord’.[69] Finally, the submission argued that the Ninth Circuit’s interpretation of the ATCA created a number of risks in the international sphere, including that it may violate international law or treaty obligations, may offend the sovereignty of other nations and that a ‘broad claim of jurisdiction will disrupt trade and investment in the global economy’.[70]

Turning to universal jurisdiction, the ASGB argues that international law recognises universal criminal jurisdiction in cases involving heinous crimes or piracy but there is no basis in international law for the creation of an explicit United States civil action involving suits against aliens that have no effects within the United States. The ASGB submission supported the Bush administration’s position urging the court to graft a territorial requirement onto the ATCA and to restrict its application.

The position of the AGSB submission and the Bush administration has been contested by legal scholars, federal courts, and the United States Justice Department under the earlier Carter, Bush Snr, and Clinton administrations. The amicus brief submitted by National and Foreign Legal Scholars (scholars) states that the historical record does not support the territorial approach to the ATCA. They point to the fact that since its enactment there has never been a locus requirement as a necessary condition for ATCA litigation.[71] As support, they refer to Attorney-General Bradford, who in 1795, stated that British citizens injured in a French raid on a British colony have a remedy by civil suits in the courts of the United States, ‘jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the law of nations, or a treaty of the United States’.[72] According to the scholars the ‘basic error in calling for a locus requirement is that it fails to recognise the transitory nature of torts’.[73] They argue that the early framers as well as the courts understood that the ‘tortfeasor’s wrongful act created an obligation that could follow him or her across national boundaries’.[74] This view is supported by Burley, who states that the ATCA was a natural ‘response to what the Founders understood to be the nation’s duty to propagate and enforce those international law rules that directly regulated individual conduct’.[75] The United States Justice Department in its Filártiga submission also interpreted the ATCA as ‘indicating a desire to give matters of international significance to the jurisdiction of federal institutions’; they did not view the ATCA as limited to acts within United States territorial borders.[76]

The amicus brief of Professors of Federal Jurisdiction and Legal History (professors) is also highly critical of the locus requirement approach. They argue that the history and text of the ATCA established three basic propositions:

(1) the First Congress intended to provide a federal forum for alien tort suits; (2) the First Congress understood such suits to be cognizable at common law without the need for further congressional action; and (3) the First Congress intended the district courts to have jurisdiction over “all” such torts, not just those that occurred within the territory of the United States or those that were recognized in 1789.[77]

In respect of universal jurisdiction, the professors stated that the ATCA does not contain any geographical limitation; this stands in sharp contrast to the first clause of section 9, which gave the district courts jurisdiction ‘over all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas …’, and that in ‘the late-18th Century, tort actions were considered to be transitory and could be brought wherever the tortfeasor was found’.[78] Regarding crimes such as torture and slavery McConville explains that:

The fact that international law itself does not make torture and slavery civil wrongs need not make universal jurisdiction inapplicable to transnational human rights torts cases. The prohibitions against torture and slavery qualify as jus cogens and erga omnes norms in international law and, therefore, they are qualitatively distinct from common tortious conduct. Erga omnes obligations refer to certain obligations that flow to all states from general principles of international law and international instruments of universal or quasi-universal character, … Jus cogens norms are peremptory norms accepted and recognised by the international community as a whole. No derogation from jus cogens norms is permitted. They can derive from basic considerations of human dignity, and, thus, include the most fundamental human rights such as protection from torture and slavery.[79]

The United States is not the only country that allows civil suits against aliens for extraterritorial acts. There are a number of European states that allow suits to be brought against a person from another country for crimes committed in a third country as part of criminal proceedings for specific offences such as genocide, torture and crimes against humanity. While many countries have nexus or presence requirements for criminal prosecutions (and thus for associated civil proceedings) such that either the victim or the perpetrator must be a national or be present in the country, others such as Finland can exercise universal jurisdiction without such requirements.[80] Germany also allows for universal jurisdiction over crimes against humanity, genocide, and war crimes; the jurisdiction applies even if the acts bear no relation to Germany.[81] Denmark requires that the defendant be present during the trial phase, Luxembourg requires that the defendant either be found in its territory, found in an enemy country or be extradited, and the Netherlands requires the presence of the accused as a pre-condition for prosecution.[82] This applies to both criminal and civil actions, as all three jurisdictions allow civil claims for compensation to be brought within criminal proceedings. Further, where universal jurisdiction is exercised it is not restricted to criminal matters as asserted by the ASGB submission. Most European countries allow civil claims for compensation either in separate proceedings or as part of the criminal proceedings. For example, in France, under article 3 of the Criminal Procedure Code, ‘civil compensation can be obtained in the context of criminal proceedings, as the criminal judge addresses both the criminal and civil damage’.[83] In the Netherlands the victim can bring civil claims for compensation within the criminal proceedings or ‘through separate civil proceedings under tort law’ though the ‘nexus requirements limit the circumstances in which proceedings can take place’.[84] Likewise, section 991 of the Danish Administration of Justice Act also provides for ‘civil claims to be brought within criminal proceedings or as separate civil actions’.[85] While many of these countries have nexus or presence requirements, sovereign immunity provisions or a statute of limitations on the time in which claims can be brought, it is nonetheless misleading to present the ATCA as somehow anomalous because it allows individuals to bring civil suits in relation to extraterritorial acts.

Further, Australian courts can also exercise extensive civil jurisdiction over foreign events, as confirmed in the 2002 decision by the High Court of Australia in Regie National Des Usines Renault SA v Zhang.[86] There were two issues before the court. The first addressed which choice of law rules govern the issue and second, concerned forum non conveniens, whether a trial in New South Wales would be oppressive, prejudicial or damaging or not conducive to achieving justice. The Court found that the appropriate choice of law will be the law at the place where the tort occurred and that the fact that the cause of action took place outside Australia and that an Australian court would need to apply foreign law did not make it an inappropriate forum. The decision means that, notwithstanding that the tort occurred in a foreign jurisdiction and that foreign law may govern the case, Australian courts may nevertheless be an appropriate forum to hear such cases.

(b) Argument 2

The second argument put forth by ASGB is divided into three sub-headings. The first concerns the debate as to whether the ATCA is merely jurisdictional or provides a cause of action. The second is about the possible broad ramifications of the Second, Ninth, and Eleventh Circuits’ interpretation of the scope of the ATCA. The third addresses the unfairness and litigation difficulties that private defendants, such as corporations, experience when foreign governments are immune from prosecution. In respect of the first, ASGB state that the Court of Appeals erred in finding that the statute creates a cause of action. The submission argues that the ‘Ninth Circuit committed a fundamental error in determining that the [ATCA] creates a federal cause of action to settle foreign tort claims under US law where the parties are foreign and there is no conduct or effect from the conduct within the United States’.[87]

The argument that the ATCA does not provide a cause of action has been rebutted by legal scholars, courts and officials of previous United States administrations in their amicus briefs in cases prior to Sosa. That a cause of action was not stated explicitly in the ATCA does not mean that it did not provide a right of action. As Dodge and other legal scholars have highlighted, the First Congress would not have seen the necessity to create a statutory cause of action as the ‘requirement of a cause of action did not enter American law until 1848’.[88] The courts’ solution to this predicament ‘has been to construe section 1350 as providing both jurisdictional authority and a private right of action’.[89] Furthermore, the courts’ approach over the last 25 years has been put beyond doubt by the enactment of the Torture Victims Prevention Act in 1991, which establishes an ‘unambiguous and modern basis for a cause of action’ as well as supporting the Filártiga decision.[90] The position put forth by the ASGB submission is not supported by a significant proportion of the legal scholarship in the area nor is it supported by majority judicial interpretation. It appears to be an anomalous interpretation, with little precedential support, proffered by Bork J in Tel-Oren v Libyan Arab Republic,[91] and adopted by these governments.

Under the second sub-heading the ASGB criticise ‘expansive appellate readings’ by the Second, Ninth and Eleventh Circuits. They argue that United States lawyers ‘have been assembling foreign plaintiffs to make class actions claims concerning “human rights violations” in foreign countries’, often implicating the activities of governments in their domestic jurisdictions, which can ‘involve difficult political, diplomatic and legal issues’.[92] This is followed by a list of the human rights violations in cases brought under the ATCA acts, apartheid wrongs, environmental violations and related personal injury claims, wartime reparations claims, child labour violations and forced labour, expropriation and misappropriation of property, cultural genocide, murder and denial of rights to organise union activity, imprisonment and torture, racial discrimination, degrading treatment, and the loss of enjoyment of political rights. ASGB argue that the solution to state wrongdoing is best resolved by ‘multilateral co-operation or bilateral diplomatic action, rather than a national judicial process’.[93]

The assertion that solutions to human rights violations should be left to non-binding multilateral forums or diplomatic measures is disingenuous. Governments have not opposed international or bilateral economic agreements that contain provisions that allow multinational corporations to sue host governments. For example, many free trade agreements, such as the North American Free Trade Agreement (NAFTA), contain expropriation provisions that allow investors/corporations to sue host governments. As at March 2003, approximately 28 cases had been filed by corporations against the United States, Canadian and Mexican governments under NAFTA’s Chapter 11: Investor-State Dispute provisions, nine cases against Canada with damages claimed totalling $11,556 billion, nine cases against the United States damages claimed totalling $16,198 billion, and against Mexico $501.1 million.[94] Many of these claims may be unsuccessful, but that is not the point. The point is that there has been no equivalent assault or chorus of disapproval by governments on the investor-state dispute system and the damages claimed by corporations as there has been against those seeking redress against human rights violations under the ATCA.

Turley highlights a similar contradictory approach in an examination of the presumption of extraterritoriality (discussed under argument 1 above), judicial construction and the type of statute involved in the dispute in United States courts. He states that courts ‘consistently grant extraterritorial relief under “market statutes”, like the antitrust and securities laws that are primarily intended to protect market interests … [i]n contrast, “nonmarket statutes” providing employment or environmental protection are consistently denied extraterritorial applications’.[95] The acceptance of such a ‘distorted paradigm’ that limits the tools of human rights activists to ‘reporting atrocities and debating new standards that can be the subject of yet more reports’, while at the same time signing trade and investment agreements where capital is able to enforce its rights and seek damages, demonstrates, as Collingsworth says, ‘a cynical detachment from reality’.[96]

Finally under sub-heading three, they observe that ‘states are the primary objects of public international law’ and that because of sovereign immunity ‘the main targets of modern [ATCA] actions are necessarily individuals or enterprises which allegedly executed, assisted, conspired, or supported alleged governmental violations of the law of nations’. This they view as ‘teeming with practical problems and potential unfairness to the defendants … who are left defending themselves against an alleged “violation of the law of nations” by an exempt and absent government’.[97]

The ‘cynical detachment’ referred to above, is also present in this argument where the defendants are characterised as ‘left defending themselves against an alleged “violation of the law of nations” by an exempt and absent government’.[98] Though submissions regarding corporations were not strictly relevant to the Sosa Case, other cases under the ATCA involving corporations have not been brought against small impecunious non-state actors but rather against huge multinationals such as the Unocal Corporation, Royal Dutch Petroleum Co, Exxon Mobil Corp, Coca-Cola Co, Citigroup Inc, Pfizer, Rio Tinto, Ford Motor Company and Union Carbide Corp. It is argued by ASGB that such enterprises or non-state actors are not the objects of public international law and thus should not be subject to claims of human rights violations under international law. This view is historically correct as international law has almost exclusively been concerned with the conduct of states, but legal precedents concerning the accountability of private actors do exist and are being utilised by human rights activists in ATCA claims. As highlighted by Ramasastry, there is case law support for imposing liability on non-state actors for violations of human rights despite historical reluctance to do so.

She points to the trials of the Nazi-era industrialists as an example of the prosecution of non-state actors.[99] Collingsworth also refers to the Nuremberg Tribunals, specifically United States v Friedrich Flick and United States v Carl Krauch, as early examples where non-state actors were found guilty of slavery and crimes against humanity.[100] Flick was held to be ‘legally responsible for profiting from the Nazi slave labor program although he did not exert any influence or [take] any part in the information, administration or furtherance of the slave labor program’.[101] Likewise the Tribunal stated that

Krauch was neither a moving party or an important participant in the initial enslavement of workers … [but] in view of what he clearly must have known about the procurement of forced labor and the part he voluntarily played in its distribution and allocation, his activities … impel us to hold that he was a willing participant in the crime of enslavement.[102]

The US Military Tribunal involved in the Nazi prosecutions said that:

It is asserted that international law is a matter wholly outside the work, interest and knowledge of private individuals. The distinction is unsound. International law, as such, binds every citizen just as does ordinary municipal law. Acts adjudged to be criminal when done by an officer of the Government are criminal also when done by a private individual. … The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona.[103]

More recent cases have also recognised that non-state actors can be accountable for human rights abuses. The United States Court of Appeals for the Second Circuit in Kadic v Karadzic held that subject-matter jurisdiction exists over, and that Karadzic could be found civilly liable for genocide, war crimes, and crimes against humanity in his private capacity and for violations in his capacity as a state actor.[104] In this case, counsel for Karadzic contended that the appellants had not alleged violations of the norms of international law because such norms bind only states and persons acting under colour of a state’s law, not private individuals. The Second Circuit disagreed, stating that:

We do not agree that the law of nations, as understood in the modern era, confines its reach to state action. Instead, we hold that certain forms of conduct violate the law of nations whether undertaken by those acting under the auspices of a state or only as private individuals. An early example of the application of the law of nations to the acts of private individuals is the prohibition against piracy.[105]

The Second Circuit made reference to an early case in 1844, The Brig Malek Adhel, where the Supreme Court said that ‘pirates were “hostis humani generis” (enemy of all mankind)’ in part because they acted ‘without … any pretense of public authority’.[106] The Second Circuit provides additional examples where private actors have been held accountable for breaches of the law of nations and also points to Restatement of the Law (Third), Foreign Relations Law of the United States,[107] which proclaims ‘[i]ndividuals may be held liable for offenses against international law, such as piracy, war crimes and genocide.’[108]

The distinction between state and non-state actors in respect of international law is also questioned by legal academics. Paust, in an examination of the text of international human rights instruments such as the Universal Declaration of Human Rights (UDHR),[109] argues that ‘provisions in various instruments explicitly affirm, or at least imply, that individuals can owe duties’.[110] He points to the preamble of the UDHR, which proclaims, ‘a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society shall strive to secure respect for and observance of the standards therein set forth [emphasis added]’, and article 30, which states that nothing in the UDHR ‘may be interpreted as implying for any state, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein’.[111] Article 30 does not strictly impose duties on non-state actors, but rather dictates that states should not implement their duties so as to allow non-state actors to destroy other people’s rights. Paust suggests that courts and governments that have limited the scope of the application of the instruments have improperly inserted terms such as ‘state-action’ that the treaty-makers themselves did not insert into the text.[112] Despite the assertions of the ASGB that only state action is subject to international law, it is clear that there are historical legal precedents to the contrary, and that in this present era of internationalisation and globalisation, international law, whether human rights or economic, is evolving and will continue to do so.

(c) Argument 3

The third argument by ASGB states that the ATCA should be read in the context of its origins and as such would not violate international law. First, they submit that it should be seen as purely jurisdictional and not as creating a right of action and second, if there is a right of action, to limit it to any implied cause of action that the First Congress would have assumed in 1789.[113] Quoting Bork J in Tel-Oren, the brief states that:

[i]t is important to remember that in 1789 there was no concept of international human rights; neither was there, under the traditional version of customary international law, any recognition of the right of private parties to recover.[114]

The jurisdictional issue has been addressed in this article and will not be repeated here. We will address the argument that only the conduct recognised for a cause of action in 1789 should be recognised today, that conduct being piracy, actions involving foreign diplomats and violations of safe conduct.

In their amicus brief, the professors argue that limiting jurisdiction to the torts at the time would be contrary to the intent of the First Congress and their understanding of the law of nations.[115] Referring to contemporary writings, including some by George Washington and Thomas Jefferson, they also cite Story J in United States v The La Jeune Eugenie[116] who said:

It does not follow … that because a principle cannot be found settled by the consent or practice of nations at one time, it is to be concluded, that at no subsequent period the principle can be considered as incorporated into the public code of nations.[117]

Furthermore, the professors maintain that there was no indication that the First Congress wanted to limit the actions to existing violations, as they abstain from enumerating them as Blackstone had done in his writings.[118] The Second Circuit in Filártiga refuted ‘the frozen in time’ thesis, observing that ‘a standard that began as one of comity only, had ripened over the preceding century into a “settled rule of international law” by “the general assent of civilized nations” … it is clear that 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’.[119] This interpretation was reaffirmed in Kadic v Karadzic.[120]

(d) Argument 4

The fourth argument states that the United States would be in conflict with other jurisdictions if it allowed civil suits for alleged violations of the law of nations without requiring any nexus to the United States.[121] It is argued that ‘violations of international law do not give individuals the right to bring civil claims in respect of those violations’ and that allowing such a broad jurisdiction may lead other nations to adopt a similar approach to the detriment of the United States and international law.[122]

First, it should be noted that this argument overlaps considerably with argument 1 and some parts of argument 2.

Second, this argument contradicts the earlier assertion that the ATCA should be confined to the implied causes of action recognised by the First Congress. If one accepts that argument then one must recognise that those actions, – piracy, assaults on ambassadors and violation of the right of safe conduct – are in fact civil suits against the law of nations as it was in 1789. Thus, by proffering the ‘Originalist’ thesis in parts of their brief, ASGB effectively undermine their argument in other parts of the submission. However, one may note that amici (and parties) commonly argue in the alternative.

Third, Koh offers an interesting perspective on the development of transnational public litigation, which in effect connects the emerging civil litigation in human rights with the rise over the past 20 years in transnational commercial litigation, the latter having the full support of many governments in the current phase of economic globalisation. He argues that:

This growing faith in the capacity of the courts to engage in domestic public law litigation coincided with a second trend: the explosion of transnational commercial litigation in the United States courts. As nations increasingly entered the market place, and the United States adopted the doctrine of restrictive sovereign immunity by statute, federal courts became increasingly obliged to adjudicate commercial suits brought by individuals and private entities against foreign governments. This plethora of transnational suits not only returned domestic courts to the business of adjudicating international law, … but also stimulated a reawakening of the bench’s and bar’s interest in the black-letter doctrine of international and foreign relations law.[123]

Furthermore, this resurgence in transnational private law then led to a re-evaluation of the ‘incompetence rationales’ regarding adjudication in public international law cases giving rise to questions such as:

If contracts, why not torture? If American courts could subject the commercial conduct of foreign sovereigns to legal scrutiny without offending comity, why should comity immunize that same sovereign from judicial examination of its egregious public conduct? … If a court could hold a foreign sovereign defendant in violation of a commercial contract without usurping the executive function, why couldn’t it hold the same defendant in violation of a human rights treaty, or a clearly defined jus cogens norm against torture?[124]

Transnational commercial litigation is viewed as distinguishable from public international law, as the former is based upon contracts voluntarily entered into between transnational partners while the latter consists of transcendental-type norms that represent the ‘law of nations’. However, Koh’s point is that this distinction is somewhat false and reflects political beliefs and priorities rather than legal competencies or recognition of the growing codification and accessibility of international law rules though statutes, unratified treaties and scholarly treatises.[125] He focuses on the processes of law rather than on how different types of international instruments are entered into and questions the belief that domestic courts are competent to adjudicate international economic matters and incompetent to hear cases based upon international human rights norms. He argues that:

If private litigants could conduct massive overseas discovery and adduce probative facts regarding a foreign state’s commercial conduct, what rendered them incompetent to do the same with regard to a foreign state’s heinous treatment of its own citizens? If a court could evaluate the ‘reasonableness’ of extraterritorial assertion of American regulatory laws or find a foreigner’s minimum contacts with a forum sufficient to find ‘due process’, why couldn’t the same court construe far less ambiguous terms in a human rights treaty?[126]

In effect, modern transnational public litigation and commercial litigation has been evolving since the 1946 war crimes trials at Nuremberg and Tokyo,[127] and since the establishment of the Bretton Woods institutions, the General Agreement on Tariffs and Trade[128] and the creation of the World Trade Organisation in 1995. Transnational civil suits against companies have been initiated in a number of countries, not just in the United States. Suits have been filed in England against the Rossing Uranium Mine in Namibia, a subsidiary of Rio Tinto; three thousand South African citizens suffering from asbestosis and mesothelioma filed against Cape plc, an England-based company; and in Australia; people living around Ok Tedi River in Papua New Guinea, where the company operated a copper mine, filed suits against Broken Hill Proprietary Company Limited.[129] As pointed out earlier, the Australian government has been a strong supporter of the development of binding international commercial/trade/investment instruments. The real issue is not international civil suits per se, or comity, separation of powers doctrines, or foreign relations, but international human rights civil suits, which are viewed as an impediment to transnational business and investment activity.

As to the nexus requirement, in the case of multinational corporations this is already one of the legal requirements. Personal jurisdiction in ATCA cases against corporations requires that a plaintiff establish that a court in one of the states of the United States has personal jurisdiction over the corporate defendant. If personal jurisdiction cannot be shown, then the plaintiff cannot sue the corporation under the ATCA.[130]

(e) Argument 5

The fifth argument asserts that the principles of comity and forum non conveniens should be applied to extraterritorial disputes among foreign nationals. Pointing to the differences in rules defining torts in common law and civil law systems, it is argued that each sovereign state should be allowed to make its own legislative and judicial decisions in respect to tort remedies for its nationals and others within its jurisdiction.[131] The Ninth Circuit in Sosa was accused of failing to show sensitivity to such issues and putting aside ‘the normal conflict of laws rules because it concluded that only the punitive damages available under US law would be an adequate remedy against a violation of the law of nations’.[132] After criticising the litigious plaintiff-friendly United States system, ASGB urged that should the court find an implied right of action, that it make it ‘very clear that comity and forum non conveniens principles apply’.[133]

In response, as highlighted above, there has been a discernible decline in deference to foreign sovereignty and comity,[134] which has not been accomplished primarily by human rights litigation but by ever-expanding transnational commercial litigation, international private economic law and international arbitration, and the growth of investment mechanisms that allow multinational private actors to sue host governments. In Hilton v Guyot the United States Supreme Court defined comity as:

‘Comity’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial actors of another nation, having regard both to international duty and convenience, and to the rights of its own citizens.[135]

In response to the argument that the principle of comity should apply to the ATCA cases Blum and Steinhardt state that as a matter of international law the argument for comity is weak for three reasons:

It attempts first to derive from the abstract principle of comity a prohibition which has never existed as an obligatory rule in international law. Second, insofar as comity has been applied as a persuasive factor for domestic courts to decline jurisdiction, it has operated only in criminal cases and in civil cases where an authoritative judgement has been pronounced by another state’s courts. Third, the existence of international human rights norms since 1945 renders largely obsolete the earlier generalizations about comity even for criminal cases. The argument is derived from the practice of states prior to 1945, but exaggerates the legal consequences derivable from that practice. … Comity was thus never a full-scale prohibitory norm.[136]

The comity objection was also refuted in Filártiga. The Court said that the torturer has become like the pirate and slave trader before him, an enemy of all mankind. According to Koh, by making this statement, the Second Circuit ‘reaffirmed the Nuremberg ideal: that torture (like genocide) is never a legitimate interest of state power’:[137]

Thus, official torturers may not invoke comity or cloak themselves in state sovereignty to avoid individual responsibility to their victims before a court of law.

The forum non conveniens doctrine assists the court in determining which forum is the most suitable to hear the trial. It provides the courts with a guide ‘as they assign significance to and weigh factors militating for and against transferring the case from the US to another country’.[138] Forum non conveniens in the context of ATCA cases was extensively discussed in Wiwa v Royal Dutch Petroleum Company.[139] In Wiwa the United States District Court for the Southern District of New York dismissed on grounds of forum non conveniens a suit brought under the ATCA against the corporation in Nigeria. The Second Circuit reversed that decision holding that the ‘district court erred in dismissing on forum non conveniens grounds, in failing to give proper consideration to the choice of US forum by US resident plaintiffs and to the interests of the United States in providing a forum for the adjudication of claims alleging international human rights abuses’.[140]

In its reasoning, the Court said that in these cases, ‘forum non conveniens is a discretionary device “permitting a court in rare instances to dismiss a claim even if the court is a permissible venue with proper jurisdiction over the claim”’.[141] In assessing the applicability of forum non conveniens the court set out a two-step approach. The first step is to establish whether an adequate alternative forum exists. If so, the court must then look at a series of factors involving the private interests of the parties, and relevant competing public interests. The defendant has the burden of establishing that an adequate alternative forum exists and then showing that the pertinent factors strongly favour the alternative forum.[142] Citing precedent, the court stated that the ‘plaintiff’s choice of forum should rarely be disturbed’.[143]

The Court then enunciated other reasons that posed difficulties for the application of forum non conveniens in these types of human rights cases:

One of the difficulties that confront victims of torture under color of a nation’s law is the enormous difficulty of bringing suits to vindicate such abuses. Most likely, the victims cannot sue in the place where the torture occurred. Indeed, in many instances, the victim would be endangered merely by returning to that place. It is not easy to bring such suits in the courts of another nation. Courts are often inhospitable. Such suits are generally time consuming, burdensome, and difficult to administer. In addition, because, they assert outrageous conduct on the part of another nation, such suits may embarrass the government of the nation in whose courts they may be brought. Finally, because characteristically neither the plaintiffs nor the defendants are ostensibly either protected or governed by domestic law of the forum nation courts often regard such suits as ‘not our business’.[144]

In considering whether the litigation should occur in an alternate forum the Court must weigh the ‘convenience factors pertaining to the parties as private interests and those relating to the forum as public interests’.[145] The private interests of the parties include: ‘the ease of availability of witnesses and evidence’;[146] the ‘cost of obtaining willing witnesses’; whether ‘the litigation will result in oppressiveness and vexation to a defendant … out of all proportion to the plaintiff’s convenience’; possibility of viewing physical premises if relevant; and ‘all other practical problems that make trial of a case easy, expeditious and inexpensive to the parties’.[147] Factors of public interest include: ‘administrative difficulties’ resulting from ‘over congested courts’; imposing jury duty on the people of a community that has no relation to the litigation; avoiding unnecessary issues regarding conflict of laws or in the application of foreign laws; and the local interest in having localised issues decided in the home jurisdiction.[148] Essentially, the public interest analysis requires the courts to ‘consider which forum is most fit to apply the appropriate laws, which is best suited to resolve the case, and which is most invested in the case’.[149]

The significance of the Wiwa decision regarding forum non conveniens is that it ‘shifted the traditional balance imposed by most federal courts in ATCA and Torture Victim Prevention Act cases’[150] by adding another factor to the public interest analysis. As explained by Fellmeth, the Wiwa Court held that

when a federal court is confronted with litigation involving foreign parties over human rights violations occurring in a forum country, the court must carefully weigh “the interests of the United States in furnishing a forum to litigate claims of violations of the international standards of the law of human rights” among the factors involved in a determination of forum non conveniens.[151]

Fellmeth argues that in so holding, the court created two innovations in the Second Circuit jurisdiction:

First, the court raised the status of international human rights law in federal jurisprudence by emphasizing the interests of the United States in vindicating human rights in foreign countries. Second, the court altered the balance of forum non conveniens to make it easier for a claimant to assert a claim based on a foreign human rights violation against a foreign defendant in spite of the availability of an alternative forum.[152]

The discussion by the Second Circuit in Wiwa makes it clear that the principle of forum non conveniens should not be applied as a broad general rule in cases brought under the ATCA. The ATCA and the Torture Victims Prevention Act are unique statutes, providing the only binding mechanisms by which human rights cases can be brought before a court. As such, forum non conveniens must only be applied in a judicious fashion and on a case-by-case basis.

In concluding their brief, the ASGB, observed that should the United States create a federal cause of action under the ATCA it ‘would interfere fundamentally with other nations’ sovereignty’.[153] Furthermore, as they believe human rights are more likely to be protected by building stronger democratic and legal institutions, they claim that the availability of tort actions under the ATCA is ‘likely to undermine political efforts to foster development of the rule of law and good governance’.[154] Finally the brief closes with the following:

As global trading and investing nations, Australia, Switzerland and the United Kingdom are concerned not only about interference with their own domestic dispute-resolution choices, but also that their enterprises and individuals are likely to be threatened with large damage claims because they have carried on normal business activities in a country that a US court believes has engaged in violations of the court’s version of the “law of nations”.[155]

This statement implies that the federal Courts of Appeals have gone on a frolic interpreting international law in an imprudent fashion. The test developed from Filártiga and adopted in subsequent cases is quite restrictive and restrained, and it requires that an international tort must be ‘definable, obligatory (rather than hortatory) and universally condemned’.[156] According to Joseph, this ‘test does not emanate from international law’ but ‘[r]ather, it is a product of domestic ATCA jurisprudence’ and though on the surface appears stricter than customary international law standards is consistent with international law.[157] As such, courts in ATCA cases have held only gross violations of human rights as violations of the law of nations: summary execution; torture; cruel, inhuman, or degrading treatment, prolonged arbitrary detention, genocide; war crimes and forced labour.[158] In addition, claims have not been brought against corporations for normal business activities; this is a misleading assertion. The claims against corporations allege serious human rights violations such as forced labour, extrajudicial killing, murder, imprisonment and torture, claims that deserve to be tested before a court; normal business activity is not threatened by litigation under the ATCA.

Finally, it is implicit in the government submissions that human rights cases brought under the ATCA are frivolous and junk law suits brought by greedy trial lawyers reflecting a litigious society rather than genuine cases requiring redress. In response, one may note that the business/corporate sector file approximately four times as many law suits as individuals and are far more likely than individual tort plaintiffs to be sanctioned for frivolous litigation.[159] In October 2004, Public Citizen, a United States public-interest non-governmental organisation, in response to a longstanding corporate campaign attacking the civil justice system and demanding tort reform litigation released a report countering the inaccurate stereotypes perpetrated by corporate lobbyists. Examining statistics from four jurisdictions: Philadelphia, Pennsylvania; Cook County, Illinois; and the states of Mississippi and Arkansas, Public Citizen found that in Philadelphia, the number of business lawsuits filed in 2001 totalled 64,698 as against 19,751 for individuals.[160] In Arkansas, business lawsuits filed came to 20,868 while those filed by individuals totalled 4,786, Cook County business totalled 137,890 while the tally for individuals totalled 26,938. Clearly, business out-stripped individuals in tort lawsuits.[161] Indeed Vice-President Cheney, one of the Bush administration’s most vociferous critics of ‘greedy trial lawyers’, filed over 150 lawsuits during his five-year tenure as Chief Executive Officer of the Halliburton Corporation.[162]

(f) Conclusion

In concluding this section we note that the ASGB submission is underpinned by inadequate scholarship and is in conflict with the bulk of both legal academic opinion and judicial precedent in this area. We further find it reprehensible that democratic governments that profess to abide by the rule of law and that are quite forthright in their criticisms of other governments’ lacklustre human rights records should seek to have this statute undermined. We applaud the Second and Ninth Circuits’ consistency in affirming the jurisdiction of the ATCA in human rights cases and their willingness to view such cases as ‘our business’ despite the continued assault on the courts’ interpretation of the ATCA by the Bush administration and like-minded governments. We will now turn to the decision in Sosa.

IV. Sosa v Alvarez-Machain et al

The Supreme Court in Sosa held that Alvarez-Machain was not entitled to recover damages from Sosa under the ATCA. The Court found that ‘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’.[163]

The majority decision, delivered by Souter J, rejected the view that the ATCA was simply a jurisdictional convenience awaiting a future Congress to authorise the creation of causes of action.[164] The court examined the different historical interpretations of the provision offered by the amicus briefs, as well as case law, historical practice and commentaries written contemporaneous with the ATCA. Noting that the statute was placed in ‘§ 9 of the Judiciary Act, a statute otherwise exclusively concerned with federal-court jurisdiction, is itself support for its jurisdictional nature’, the Court thought it ‘unsurprising’ that there were differing opinions as to whether the statute was merely jurisdictional or creates a statutory cause of action.[165] According to the Court, holding the ATCA as merely jurisdictional was problematic as it would mean that the statute ‘was stillborn because there could be no claim for relief without a further statute expressly authorizing adoption of causes of action’.[166] The Court then referred to the amici professors, who argued ‘that federal courts could entertain claims once the jurisdictional grant was on the books, because torts in violation of the law of nations would have been recognized within the common law of the time’, stating that the ‘history and practice give edge to this latter position’.[167] The Court said that although the ATCA is a ‘jurisdictional statute creating no new causes of action, the inference to be drawn from the historical materials is that the statute was intended to have practical effect from the moment it became law’.[168] Therefore, the Court concluded that:

The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for a modest number of international law violations with a potential for personal liability.[169]

The Court then turned to the issue of private rights of actions and what the First Congress understood these to be. Stating that there was no basis to suspect that the First Congress had any examples beyond those torts corresponding to Blackstone’s three offences,[170] the Court also noted that no development over the past two centuries precluded federal courts from extending breaches of the law of nations beyond those recognised in 1789.[171] However, the Court reasoned that judicial caution should be exercised in considering new causes of action, and that ‘any claim based on the present-day law of nations should rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms we have recognized’.[172] As such, a ‘restrained conception of the discretion a federal court’ can exercise should guide the consideration of any new cause of action.[173]

Consequently, in considering whether a norm is sufficient to support a cause of action in the federal courts, the Court said that any such determination ‘must be gauged against the current state of international law, looking to those sources [which the courts] have long, albeit cautiously, recognized’.[174] Joseph argues that in so finding, Souter J ‘implicitly endorses the Filártiga equation of ‘the law of nations’ with ‘customary international law’, insofar as those norms are adequately ‘definable’, that is ‘specific’, ‘obligatory’ and ‘universal’.[175] Other factors to be considered include being mindful of the changes in the common law since the enactment of the ATCA in 1789;[176] being wary of creating a private right of action from international norms because of the collateral consequences such a decision could have in terms of potential implications for foreign relations;[177] and being aware that although a clear mandate appears in the Torture Victim Protection Act specific to torture, the courts have ‘no congressional mandate to seek out and define new and debatable violations of the law of nations’.[178]

In a minority opinion, Scalia J concurred with the Court that Alvarez’s claim did not give rise to a cause of action under the ATCA. He agreed with the Court’s ‘detailed exegesis’ that establishes that the ATCA is a ‘jurisdictional statute creating no new causes of action’, but is critical of the way the Court then leaves the door open for the construction of a cause of action by framing the issue as one of ‘discretion’.[179] According to Scalia J, creating a federal common law ‘out of “international norms”’ and then ‘constructing a cause of action to enforce that command through the purely jurisdictional grant of the [ATCA] is nonsense upon stilts’.[180] In contrast to the majority’s view regarding developments over the past two centuries, Scalia J argues that by framing the issue as one of discretion, the Court neglected the lesson of Erie R Co v Tompkins,[181] that grants of jurisdiction alone are not themselves grants of law-making authority.[182] He stated that:

Post-Erie federal common lawmaking … is so far removed from the general-common-law adjudication which applied the ‘law of nations’ that it would be anachronistic to find authorization to do the former in a statutory grant of jurisdiction that was thought to enable the latter. Yet this is precisely what the discretion-only analysis … suggests.[183]

As discussed above, the court rejected the minority opinion of Scalia J stating that ‘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’.[184]

The decision, while leaving the door ajar, suggests that future ATCA cases will have to meet an historical test where the characteristics of the modern international law rules relied on will need to have characteristics similar to those shown by the norms recognised in the eighteenth century. This may pose some difficulty for future human rights litigation under the ATCA. Indeed, cases subsequent to Sosa suggest that the courts are heedful of the Supreme Court’s counsel that they exercise judicial caution in ATCA cases. We now turn to discuss post-Sosa cases.

(a) Post-Sosa Alien Tort Claims Act Cases

In a footnote in the Sosa decision,[185] the Court referred to the South African Apartheid Litigation, [186] and expressed the view that given the South African government’s objection to the litigation and its preference to follow a truth and reconciliation approach avoiding a ‘victors’ justice approach, there was a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.[187] On 30 November 2004, in Re South African Apartheid Litigation, the United States District Court for the Southern District of New York, dismissed claims against Citigroup, IBM and other companies brought under the ATCA.[188] The court, influenced by the Sosa decision, found that the complaints did not sufficiently establish that the defendants had violated international law, and that the court lacked subject-matter jurisdiction under the ATCA. In arriving at its decision, the Court discussed the factors set down by the Sosa court to determine whether the conduct in the case before the Court, should be found to be encompassed by the ATCA. The Court also made reference to the footnote in the Sosa decision stating that:

[C]ourts must consider the foreign relations consequences of finding that conduct is encompassed by the ATCA, since entertaining such suits can impinge on the discretion of the legislative and executive branches of this country as well as those of other nations.[189]

In considering these factors, the Court concluded that it was clear that the plaintiff’s causes of action under ATCA must be dismissed.

Another decision is the ‘Agent Orange’ Product Liability Litigation, delivered on 10 March 2005 by the United States District Court for the Eastern District of New York.[190] The case was brought against a number of United States companies that manufactured the herbicide Agent Orange and involved an allegation of corporate liability. Influenced by the Sosa decision and the emphasis on judicial caution when considering claims, the Court dismissed the case saying that the use of Agent Orange did not violate international law. However, in reference to corporate liability the decision is a quiet victory for those litigating cases involving alleged corporate abuse of human rights. The Court examined the issue as to whether it is possible to sue corporations for violations of international law, and referring to the Nuremberg and post-Nuremberg trials, said that:

Limiting civil liability to individuals while exonerating the corporation directing the individual’s action through its complex operations and changing personnel makes little sense in today’s world.[191]

The Court further stated that even under an aiding and abetting theory, civil liability in regard to corporations may be established under international law.[192] The Court disagreed with the defendants’ submission that corporations cannot be liable under international law. The Court said that despite the strength of authority supporting the defendants’ position, given the Nuremberg and post-Nuremberg trials the plaintiffs would have overcome the conceptual burden had international law prohibited the use of herbicides in Vietnam at the time they were used by the United States.[193] The Court focused on the law in the pre-1975 period, at which time the use of a defoliant was not considered a violation of any rule of international law. The Court also examined the position held by the President and Congress stating that there was no United States executive or legislative action or belief at that time that the ‘manufacture or sale of those herbicides could or should give rise to liability under international norms applicable to the United States.[194] However, the Court did acknowledge the plaintiff’s argument, stating that although there was no consensus around the use of pesticides in the pre-1975 period, ‘a consensus among nations may gradually solidify into recognized international law provided that such consensus is reflected in state practice accompanied by opinio juris’.[195] Given the centrality of the law ‘at that time’ to the Court’s finding, it could be argued, echoing Sosa, that the door is slightly ajar, leaving the possibility for arguments that the use of herbicides in war would be a breach if perpetrated today.

A second interesting feature about the case is that it espouses a slightly different view on the need for a Congressional mandate than that of the Sosa and Apartheid courts. Judge Weinstein, in Agent Orange, said that the law of nations, later referred to as international law, was considered to be incorporated into the law of the United States without the need for any action by Congress or the President.[196] He also criticised the United States Department of Justice for their ‘inflated understanding of the political question doctrine’.[197] Quoting Kadic v Karadzic,[198] Weinstein J states that it is well established that:

[S]uits of this nature can present difficulties that implicate sensitive matters of diplomacy historically reserved to the jurisdiction of the political branches. …
… Although we too recognize the potentially detrimental effects of judicial action in cases of this nature, we do not embrace the rather categorical views as to the inappropriateness of judicial action urged by [some other jurists]. Not every case “touching foreign relations” is nonjusticiable, and judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights. …
This will permit the judiciary to act where appropriate in light of the express legislative mandate of the Congress in section 1350.

Joseph speculates that the Sosa decision ‘may herald more conservative decision-making’ by ‘tempering the enthusiasm with which some courts have been willing to classify alleged violations as breaches of the law of nations’.[199] This assessment is evident in South African Apartheid Litigation. By contrast, the dicta in Agent Orange suggest that some courts may continue to apply a more expansive interpretation of the ATCA notwithstanding the Sosa decision. This will ensure that the debate regarding the scope of the ATCA continues though some caution is required as both cases involved a single judge in the district courts of New York. This means that the precedential value of the decisions is low as they only apply within their own circuits.

(b) The continuing assault on human rights litigation

According to Newell, the turn to tort remedies for violations of human rights and environmental destruction is a response ‘to a perceived “governance deficit”, in that the global power of TNCs [transnational corporations] is not adequately matched by existing regulatory instruments’.[200] Thus, ‘it is often the absence or breakdown of effective regulation that makes litigation necessary for communities blighted by industrial hazards’[201] or human rights abuses by multinational corporations. According to Baker, ‘Multinational Enterprises (MNEs) have become this generation’s surrogate of a dominant world power, and because of the advent of economic globalization through trade, information technology, and the like, their potential strength is nothing short of awesome’.[202] More than half of the world’s top 100 economies are corporations, the top 25 are richer than 170 countries, multinational enterprise wealth serves as a bargaining chip enabling the domination of not just economic ‘but also political structures of individual nations and transnational organizations’.[203] In the current era of globalisation and the quest for foreign investment, Wells and Elias argue that ‘states are more likely to attempt to attract international capital rather than try and regulate it’, the result being a diminishing regulatory role by the state ‘accompanied by the rise of Multinationals as rival sources of power and influence in the world’.[204] This in turn enables corporate strategists to take advantage of:

[G]lobal disparities in income, of vast differences in workplace health and safety standards, of lower environmental standards, and of the differences in the degree of respect for human rights and democratic rights. Many TNCs and their shareholders derive direct and substantial financial benefits from operating in countries where democratic rights are repressed and where human rights are not respected.[205]

The numerous examples of corporate violations highlighted by organisations such as Human Rights Watch, Human Rights First, the International Labor Rights Fund, and Slavery International, demonstrate an alarming corporate indifference to extracting gain from oppressive working conditions, forced labour or from partnerships with tyrannical regimes. To combat this problem, non-governmental organisations, the international union movement, human rights organisations, and church groups, have been demanding that the international trading and investment regime be required to respect human/labour rights, and indeed, make an explicit link between the two by including enforceable human rights in trade agreements. This demand has been met with vehement opposition by a majority of governments from both developed and developing countries and the corporate sector, and even political parties that were generated from the union movement have been reluctant to support the inclusion of fundamental labour standards in trade agreements.[206] Indeed, the trend in the United States since the election of the Bush administration in 2000, is an ‘executive-corporate collusion’ whereby the executive branch of government intervenes on behalf of corporate defendants in cases alleging human rights abuses.[207] O’Donnell describes these executive interventions as unprecedented, making ‘for a litigation climate that is uniquely pernicious to human rights plaintiffs’.[208]

One month after the Sosa decision the Bush administration intervened for a second time in Doe v Unocal Corporation.[209] The Bush administration’s amicus brief essentially repeated the arguments contained in the Sosa brief with additional arguments derived from the Sosa decision.[210]

Interestingly, in 1997 during the first parallel state case, Unocal petitioned the trial judge to seek the State Department’s view on the lawsuit’s foreign policy implications.[211] The Department (operating under the Clinton administration) issued an opinion saying the ‘adjudication of the claims based on allegations of torture and slavery would not prejudice or impede the conduct of US foreign relations with the current government’ of Myanmar.[212] The 1997 State Department opinion stands in stark contrast to the views articulated under the present administration.

However, the Ninth Circuit will not get a chance to address the Bush government’s interventions in Doe v Unocal. On 13 December 2004, the parties in Unocal announced that they had reached a tentative settlement. Final settlement was concluded on 21 March 2005, and the following joint statement was issued by the plaintiffs and Unocal:

The parties to several lawsuits related to Unocal’s energy investment in the Yadana gas pipeline project in Myanmar/Burma announced today that they have settled their suits. Although the terms are confidential, the settlement will compensate plaintiffs and provide funds enabling plaintiffs and their representatives to develop programs to improve living conditions, health care and education and protect the rights of people from the pipeline region. These initiatives will provide substantial assistance to people who may have suffered hardships in the region. Unocal reaffirms its principle that the company respects human rights in all of its activities and commits to enhance its educational programs to further this principle. Plaintiffs and their representatives reaffirm their commitment to protecting human rights.[213]

The Australian government chose not to intervene in Doe v Unocal, but along with the Bush administration it continues to undermine human rights.

In 2004, Australia assumed the Chair of the United Nations Commission on Human Rights, and as Zifcak illustrates, its record as reflected in its voting pattern at a recent meeting of the UN’s Economic and Social Council has been dismal from a human rights point of view.[214] Zifcak cites the following example:

• Australia voted against a resolution to strengthen the Office of the UN High Commissioner for Human Rights. Fifty-two nations voted in favour. Australia was in a minority of two.

• Australia opposed a resolution that sought to put further work into framing a right to food. Fifty-two nations adopted it, with Australia in a minority of one.

• Australia abstained from a resolution designed to advance the formulation of a right to development. Fifty-one nations were supportive. Only two others took the Australian position.

• Australia abstained from a vote that supported the realisation of economic rights in all countries and that proposed a detailed study of the problems developing countries face in their efforts to achieve decent standards of living. Forty-nine countries voted in favour.

• Australia was the only country to vote against consideration of a resolution expressing concern about the impact of economic globalisation on the full enjoyment of international human rights.[215]

• In April 2005, Australia voted against a resolution on human rights and transnational corporations and other business enterprises. Forty-nine countries voted in favour with three against, Australia, the United States, and South Africa.[216]

In all the above votes in which Australia was not the sole vote against a resolution, Australia was joined in the minority by the United States; where Australia has been a minority of one, the United States abstained.[217] In respect of the last matter, South Africa opposed the resolution on corporations and human rights because they viewed it as too weak in terms of advancing towards international standards for corporate human rights accountability.[218] By contrast, the United States opposed the resolution as it viewed it as part of the UN’s ‘anti-business agenda’,[219] and asked the co-sponsors of the resolution that two changes be made to the document. The first required removing ‘any negative implications about the nature of normal business impact on human rights’.[220] Second, the United States argued that as human rights obligations apply to states not to private actors, it was the role of states to implement national laws applying to multinationals thus the resolution should make clear that it was ‘not intended to further the cause of norms or a code of conduct for TNCs’.[221] Australia did not give an explanation for its position. However, given its voting record in the UN, its support for the Bush administration in the Sosa Case, particularly on the issue on the impact of ATCA litigation on international trade and investment, it is reasonable to assume that the Australian government wished to align itself with the United States on this matter. With the re-election of the Howard government in Canberra in 2004, this shameful picture is unlikely to change in the near future.

V. Conclusion

The ATCA is a unique statute. Human rights activists need to ensure that such mechanisms survive the executive-corporate assault on the ATCA. The Australian government’s involvement in this case, – combined with its voting record at the United Nations – strongly indicates that Australians need to be more vigilant in monitoring its actions.


[∗] BA(Hons) (Melbourne), LLB (La Trobe), Research Fellow (Monash).

[∗∗] BA(Hons) PhD (Adelaide), Professor of International Business (Monash).

[1] The Australian government’s role in this assault received no coverage in the Australian media. The authors were made aware of this fact by an article in the British newspaper, The Guardian. We then contacted a number of American non-governmental organisations (NGOs), the Center for Constitutional Rights, the International Labor Rights Fund and Earthrights International, to obtain information. These three NGOs are jointly involved in bringing cases against multinational corporations under the ATCA. They provided us with all the amicus briefs and kept us regularly informed as to what was happening in the Sosa Case. We contacted the Attorney-General’s Department in Canberra to obtain a copy of the joint submission by the Australian, Swiss and United Kingdom governments but received no response to our enquiries.

[2] [2004] USSC 2852; 542 US 692 (2004).

[3] Judiciary Act 1789, 28 USC § 1350.

[4] Doe, et al v Unocal Corporation, et al, Case Nos 00-56603; 00-56628 (9th Cir 2002); Wiwa v Royal Dutch Petroleum Co., et al, Case No 96 CIV 8386 (KMW) (SDNY 2002); Bowoto, et al v Chevron, et al, Case No C99-2506 (ND Cal 2000); John Doe I, et al v Exxon Mobil Corp, et al Case No 01CV01357 (DDC 2001) – case summaries can be found at <http://www.laborrights.org/projects/corporate/ATCA%20summaries.html> .

[5] Above n 2.

[6] National Foreign Trade Council, ‘The Business of Human Rights: Suppose a foreign country engages in human rights abuses against its own people. Should corporations that happen to do business there be held liable?’ New York Times (5 April 2004); for rebuttal see EarthRights International, Big Business Attacks ATCA in New York Times; ERI’s Rebuttal, <http://www.earthrights.org/news/NFTCOp-AdRebuttal.shtml> .

[7] M Coyle, ‘Justices Weigh Alien Tort Act’ The National Law Journal (2004) <http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1080334938936> .

[8] [1980] USCA2 576; 630 F. 2d 876 (2nd Cir, 1980); the case was brought by the Centre for Constitutional Rights (CCR) on behalf of Dolly Filártiga; CCR also filed suit against Unocal alleging that it was aware of and supported slave labour, murder, rape and forced relocation of villagers by the Burmese military during the construction of an oil pipeline from Burma to Thailand.

[9] R B Lillich, ‘Damages for Gross Violations of International Human Rights Awarded by US Courts’ in R G Steinhardt and A D’Amato (eds), The Alien Tort Claims Act: An Analytical Anthology (1999) 291.

[10] B Stephens, ‘The Amorality of Profit: Transnational Corporations and Human Rights’ (2002) 20 Berkeley Journal of International Law 45, 48; see also B Stephens, ‘Book Review and Note: Remedies in International Human Rights Law, by Dinah Shelton’ (2001) 95 American Journal of International Law 257.

[11] W S Dodge, ‘The Historical Origins of the Alien Tort Statute: A Response to the “Originalists”’ (1996) 19 Hastings International and Comparative Law Review 221, 221.

[12] B Stephens, ‘Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations’ (2002) 27 Yale Journal of International Law 1, 2.

[13] A M Burley, ‘The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor’ in Steinhardt and D’Amato (eds), above n 9, 259.

[14] Ibid.

[15] K C Randall, ‘Federal Jurisdiction over International Law Claims: Inquiries into the Alien Tort Statute’ in Steinhardt and D’Amato (eds), above n 9, 180-81.

[16] G P McGinley, ‘Of Pirates and Privateers – The Historical Background of the Alien Tort Claims Act with Some Suggestions for its Future Use’ (1992) 21 Anglo-American Law Review 138, 141.

[17] Ibid 147.

[18] W R Casto, ‘The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations’ in Steinhardt and D’Amato (eds), above n 9, 129.

[19] Ibid 137, as quoted by Blackstone.

[20] Dodge, above n 11, 237.

[21] Ibid. Prize law deals with the legality of seizure and disposal of private property by naval forces belonging to an enemy national or nationals of neutral countries, see AustLII, ‘Prize Law, Jurisdiction and Procedure’, <http://www.austlii.edu.au/au/other/alrc/publications/reports/48/chap8.pdf> .

[22] S H Cleveland, ‘Global Labor Rights and the Alien Tort Claims Act’ (1998) 76 Texas Law Review 1533, 1533.

[23] Filártiga, above n 8, 1.

[24] Ibid 890.

[25] Ibid 880.

[26] Ibid 879.

[27] 175 US 667 (1990).

[28] Filártiga, above n 8, 880-81.

[29] Ibid 883, citing L B Sohn, ‘A Short History of United Nations Documents on Human Rights’ in The United Nations and Human Rights, 18th Report of the Commission (Commission to Study the Organisation of Peace) (1968) 5.

[30] Universal Declaration of Human Rights, GA Res 217A (10 December 1948).

[31] Filártiga above n 8, 883, citing E Schwelb, Human Rights and the International Community (1964) 5.

[32] Ibid citing 34 UN ESCOR, Supp (No 8) 15, UN Doc E/CN.4/1/610 (1962).

[33] Ibid 884.

[34] Ibid 885. Art III of the United States Constitution states: ‘Section 1. The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.’

‘Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; – to all Cases affecting Ambassadors, other public Ministers and Consuls; – to all Cases of admiralty and maritime Jurisdiction; – to Controversies to which the United States shall be a Party; – to Controversies between two or more States; – between a State and Citizens of another State [Modified by Amendment XI]; – between Citizens of different States; – between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.’

‘In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.’

[35] § 9(b), 1 Stat 73, 77 (1789).

[36] Filártiga, above n 8, 885.

[37] Ibid 886.

[38] Ibid 890.

[39] No 86-0207 (D Haw 18 July [1989] USCA9 534; 1986); 878 F.2d 1439 (9th Cir [1992] USCA9 3140; 1989); 978 F.2d 493 (9th Cir 1992).

[40] Burley, above n 13, 259.

[41] E R Biel, Denying Justice to Victims of Human Rights Abuse, Human Rights First, (2004) <http://www.humanrightsfirst.org/international_justice/atca_beil_doc.pdf> .

[42] Torture Victim Protection Act of 1991, 106 Stat 73 (1992) (codified as amended at 28 USC § 1350 (1992).

[43] B Stephens, ‘Conceptualizing Violence under International Law: Do Tort Remedies Fit the Crime?’ (1997) 60 Albany Law Review 579, 596; J C Anderson, ‘Respecting Human Rights: Multinational Corporations Strike Out’ (2000) 2 University of Pennsylvania Journal of Labor and Employment Law 463, 495.

[44] Stephens, above n 10, 169.

[45] Biel, above n 41.

[46] Stephens, above n 10, 181.

[47] [2003] USCA9 327; 331 F 3d 604 (9th Cir, 3 June 2003).

[48] Stephens, above n 10, 181.

[49] Ibid 178.

[50] Survivors’ Rights International, Alien Tort Claims Act Alert (2004) <http://www.survivorsrightsinternational.org/alerts/alert_ATCA.mv> .

[51] Consolidated Swiss Bank Claims, In re Holocaust Victim Assets No CV-96-4849 (EDNY consolidated April 1997).

[52] Consolidated German and Austrian Bank Claims, In re Austrian and German Bank Holocaust Litigation No 98 Civ 3938 (SDNY consolidated 15 March 1999).

[53] Twenty slave-labour cases were filed; for an account of all holocaust-related cases see M J Bazyler, ‘Nuremberg in America: Litigating the Holocaust in United States Courts’ (2001) 34 University of Richmond Law Review 1.

[54] Beanal, et al v Freeport-McMoran, Inc, et al[1999] USCA5 1266; , 197 F 3d 161 (5th Cir 1999).

[55] Sinaltrainal, et al v Coca-Cola Co, et al, 02-CV-20260 (SD Fla 2003).

[56] Doe, et al v Unocal Corporation, et al, 110 F Supp 2d 1294 (CD Cal 2000), aff’d in part, rev’d in part, Doe v Unocal, [2002] USCA9 708; 395 F 3d 932 (9th Cir 2002) rehearing en banc granted, vacated by Doe v Unocal, [2003] USCA9 100; 395 F 3d 978 (9th Cir 2003). After a series of hearings before the Californian courts, the case was settled in 2005, with Unocal agreeing to compensate the plaintiffs: see <http://earthrights.org/unocal/index.shtml> . For a full summary of recent cases (2000-2003) under ATCA see USA ENGAGE, The Alien Tort Provision: Correcting the Abuse of an Early Federalist Statute (2003) <http://www.usaengage.org/legislative/2003/alientort/alientorttpcases.htm> , also International Labor Rights Fund, Summary of ATCA Cases Involving Multinational Corporations <http://www.laborrights.org/projects/corporate/ATCA%20summaries.htm> .

[57] Brief for the United States of America as Amicus Curiae, John Doe I, et al v Unocal Corporation, et al, In the United States Court of Appeals for the Ninth Circuit on Appeal from the United States District Court for the Central District of California, Nos 00-56603, 00-56628 (2004) 5 <http://www.uscib.org/docs/unocal_us_amicus.pdf> .

[58] Ibid 3. Here the Administration was referring to claims asserted by aliens detained at Guantánamo Bay. In one of these, Rasul v Bush, petitioner Shafiq Rasul, in used the ATCA as a ground for jurisdiction in the District Court of Columbia, and subsequently the Court of Appeals for the District Court of Columbia Circuit. However, when the matter came before the United States Supreme Court, it was repudiated as a basis for jurisdiction by all petitioners, Rasul v Bush, 124 SCt 2692 (2004). This repudiation was due to a ruling in Johnston v Eisentrager, [1950] USSC 60; 339 US 763 (1950), which had held that ‘the privilege of litigation does not extend to aliens in military custody who have no presence in any territory over which the United States is sovereign’, Khaled A F Al Odah v United States of America, [2003] USCADC 56; 321 F 3d 1134 23 (DC Cir 2003) . In Odah, the Court said that the holding in Eisentrager dooms causes of action such as those asserted under the ATCA. The Rasul Case proceeded on the basis of a habeas challenge under 28 USC §2241, which authorises district courts to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States.

[59] Sosa Case[2004] USSC 2852; , 542 US 692 (2004), 2742.

[60] The ATCA was addressed in an earlier Supreme Court case on the narrow issue of whether the Foreign Sovereign Immunities Act of 1976 bars an action under the ATCA against a foreign state. The court held that the express provision in the Foreign Sovereign Immunities Act, stating that ‘a foreign state shall be immune from jurisdiction’ of the United States, except where provided by the statutory exemptions, precluded a construction of the ATCA allowing the action to go ahead, Argentine Republic v Amerada Hess Shipping Corp [1989] USSC 11; 488 US 428, 438 (1989).

[61] Human Rights Watch, Ashcroft Attacks Human Rights Law: Justice Department Undermining Key Precedent, Press Release, (2003) <http://www.hrw.org/press/2003/05/us051503.htm> see also Coyle, above n 7, Biel, above n 41, A J Sebok, ‘The Supreme Courts Confronts the Alien Tort Claims Act: Should the Court Gut the Law, as the Administration Suggests?’ in Findlaw’s Writ Legal Commentary (2004) <http://writ.news.findlaw.com/sebok/20040322.html> Earthrights International, Defending the Alien Tort Claims Act (2004) <http://www.earthrights.org/atca/index.shtml> and K Bruno, ‘De-Globalizing Justice: The Corporate Campaign to Strip Foreign Victims of Corporate-Induced Human Rights Violations of the Right to Sue in US Courts’ in Multinational Monitor (2003) <http://multinationalmonitor.org/mm2003/03march/march03corp2.html> .

[62] All Sosa Case briefs can be found at <www.bepress.com/ilj/case1>.

[63] Brief of the governments of the Commonwealth of Australia, The Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of Petitioner (hereafter ASGB) <www.ccr-ny.org/v2/legal/docs/sva19.pdf>.

[64] Ibid (outlined in sub-heading form in table of contents (iii) and (iv)).

[65] Ibid 4.

[66] Ibid 5.

[67] Ibid 5 and 6.

[68] Ibid 6.

[69] Ibid 7.

[70] Ibid 10.

[71] Brief of Amici Curiae National and Foreign Legal Scholars in Support of Respondents [Scholars] 21 <http://www.earthrights.org?alverazbriefs/index.shtml> .

[72] Attorney-General Bradford quoted in ibid.

[73] Ibid.

[74] Ibid.

[75] Ibid 22 and Burley, above n 13.

[76] Scholars above n 71, 22.

[77] Brief of Professors of Federal Jurisdiction and Legal History as Amici Curiae in Support of Respondent, Earthrights International 2 <http://www.earthrights.org/alvarezbriefs/professors.pdf> .

[78] Ibid 23.

[79] Anne C McConville, ‘Talking Jurisdiction in Transnational Human Rights Litigation: Universality Jurisdiction’s Relationship to Ex Juris Service, Forum Non Conveniens and the Presumption of Territoriality’, in C Scott (ed), Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation (2001) 173; see also Sarah Joseph, Corporations and Transnational Human Rights Litigation (2004) 23.

[80] Redress and the International Federation of Human Rights, Universal Jurisdiction in the European Union (2003): ch 1 s 7 of the Penal Code, though under some provisions the application of universal jurisdiction is conditioned on the perpetrator being apprehended in Finland, 10 <http://www.redress.org/conferences/country%20studies.pdf> <http://www.law.kuleuven.ac.be/jura/37/n2/lemaitre.htm> .

[81] S 1, Code of Crimes against International Law, passed 30 June 2002, ibid 16 and 17.

[82] Ibid 8, 24, 26.

[83] Ibid 12.

[84] Ibid 26.

[85] Ibid 7.

[86] Regie National Des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491.

[87] ASGB, above n 63, 11.

[88] W S Dodge, ‘The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context’ (2001-2002) 42 Virginia Journal of International Law 687, 690; see also Dodge, above n 11; S Jay, ‘The Status of the Law of Nations in Early American Law’ (1989) 42 Vanderbilt Law Review 819; C A Bradley, ‘The Alien Tort Statute and Article III’ (2001-2002) 42 Virginia Journal of International Law 587; and M G Collins, ‘The Diversity Theory of the Alien Tort Statute’ (2001-2002) 42 Vanderbilt Journal of International Law 649; Brief of Professors of Federal Jurisdiction and Legal History as Amici Curiae in Support of Respondent, above n 77; R A Conn Jr, ‘The Alien Tort Statute; International Law as the Rule of Decision’ (1981) 49 Fordham Law Review 874; G L Neuman, ‘Sense and Nonsense About Customary International Law: A Response to Professors Bradley and Goldsmith’ (1997) 66 Fordham Law Review 371; H H Koh, ‘Is International Law Really State Law? (1998) 111 Harvard Law Review 1826; and J J Paust, ‘Customary International Law and Human Rights Treaties Are Law of the United States’ (1999) 20 Michigan Journal of International Law 301.

[89] M D Pettyjohn, ‘Bring Me Your Tired, Your Poor, Your Egregious Torts Yearning to See Green: The Alien Tort Statute’ (2003) 10 Tulsa Journal of Comparative and International Law 513, 522.

[90] Ibid 523; see also R Goodman and D P Jinks (1997-1998) 66 Fordham Law Review 466, 513.

[91] Tel-Oren v Libyan Arab Republic, [1984] USCADC 53; 726 F 2d 774 (DC Cir 1984): In Tel-Oren survivors and representatives of persons killed in an armed attack in Israel brought suit against defendants for compensatory and punitive damages for alleged multiple tortious acts in violation of the law of nations, treaties of the US, and other US law. In this case, Bork J rejected the Filártiga construction of ATCA on the grounds that it did not create a private cause of action. That it violated the separation of powers principle or the political question doctrine, which cautions courts to avoid potential interference with the political branches’ conduct of foreign relations; on the original intentions of the First Congress thesis. Turning to Blackstone, Bork J argues that ATCA was only intended to cover violation of safe conducts, infringement of the rights of ambassadors, and piracy, though acknowledges that these ‘thoughts as to the possible original intention underlying [ATCA] are admittedly speculative. Ibid 815.

[92] ASGB, above n 63, 12.

[93] Ibid 13.

[94] Canadian Centre for Policy Alternatives, NAFTA Chapter 11 Investor-State Disputes (2003) <http://www.policyalternatives.ca> .

[95] J Turley, ‘“When in Rome”: Multinational Misconduct and the Presumption Against Extraterritoriality’ (1990) 84 Northwestern University Law Review 598, 601.

[96] T Collingsworth, ‘The Key Human Rights Challenge: Developing Enforcement Mechanisms’ (2002) 15 Harvard Human Rights Journal 183, 185.

[97] ASGB, above n 63, 14 and 15.

[98] Ibid 15.

[99] A Ramasastry, ‘Corporate Complicity: From Nuremberg to Rangoon, an Examination of Forced Labor Cases and Their Impact on the Liability of Multinational Corporations’ (2002) 20 Berkeley Journal of International Law 91, 104.

[100] T Collingsworth, Brief of Amici Curiae Corporate Social Responsibility Amici in Support of Respondent, above n 62, 11 and 12 see also D F Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Law Journal 2537.

[101] Nuremberg Tribunal quoted in T Collingsworth, above n 100, 12.

[102] Ibid 12.

[103] US Military Tribunal, quoted in R Lord, ‘The Liability of Non-State Actors for Torture in Violation of International Humanitarian Law: An Assessment of the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (2003) 4 Melbourne Journal of International Law 112, 131.

[104] Kadic v Karadzic[1996] USCA2 16; , 70 F 3d 232 (2nd Cir 1995). This meant that in relation to genocide, war crimes and crimes against humanity it was irrelevant whether Karadzic was acting under lawful authority of the state as per his official capacity as the titular head of the self-proclaimed Bosnian-Serb republic referred to as ‘Srpska’, or whether he acted as a private individual to which individual responsibility could be attributed, ibid 242; see also Lord, above n 103; D P Kunstle, ‘Kadic v Karadzic: Do Private Individuals Have Enforceable Rights and Obligations Under the Alien Tort Claims Act (1996) 6 Duke Journal of Comparative and International Law 319; and R E Curtis, ‘Human Rights-Alien Tort Claims Act-Kadic v Karadzic, 70 F 3rd 292 (2nd Cir 1995)’ (1997) 20 Suffolk Transnational Law Review 549.

[105] Kadic v Karadzic, Ibid 239.

[106] 43 US (2 How) 210, 232 (1844) cited ibid 239.

[107] L Henkin (chief reporter), Restatement of the Law, Third, Foreign Relations Law of the United States (1986).

[108] Kadic v Karadzic, above n 104, 240.

[109] Universal Declaration of Human Rights, GA Res 217A (1948).

[110] J J Paust, ‘The Other Side of Right: Private Duties Under Human Rights Law’ (1992) 5 Harvard Human Rights Journal 51, 52.

[111] Ibid 53 and 54.

[112] Ibid 53.

[113] ASGB, above n 63, 16.

[114] Ibid 18.

[115] Brief Amici Curiae of Professors of Federal Jurisdiction and Legal History, above n 77, 25; the historical view expressed by the professors is supported by Dodge, above n 11.

[116] 26 F Cas 832, 846 (CCD Mass. 1822).

[117] Brief Amici Curiae of Professors of Federal Jurisdiction and Legal History, above n 77, 26.

[118] Ibid.

[119] Filártiga v Peña-Irala[1980] USCA2 576; , 630 F. 2d 876 (2nd Cir, 1980) 881.

[120] Kadic v Karadzic, [1996] USCA2 16; 70 F 3d 232 (2nd Cir 1995) 238-39.

[121] ASGB, above n 63, 20.

[122] Ibid 20, 21 and 22.

[123] H H Koh, ‘Transnational Public Law Litigation’ (1991) 100 Yale Law Journal 2347, 2365.

[124] Ibid 2366.

[125] Ibid.

[126] Ibid.

[127] Ibid 2358.

[128] GATT (15 April 1994), 1867 UNTS 187.

[129] H Ward, ‘Governing Multinationals: The Role of Foreign Direct Liability’, Briefing Paper, The Royal Institute of International Affairs New Series (2001) 18: the UK/Ok Tedi cases are distinguishable from the ATCA cases as they are based on ordinary tort law rather than international law norms.

[130] The ATCA case against Unocal’s French business partner, Total, was dismissed due to the fact that the nexus requirement (ie that a US court have personal jurisdiction over the corporation) was not satisfied, see Doe v Unocal, 27 F Supp 2d 1174 (CD Cal 1998), affirmed [2001] USCA9 270; 248 F 3d 915 (9th Cir 2001).

[131] ASGB, above n 63, 23.

[132] Ibid 23 and 25.

[133] Ibid 25 and 26.

[134] Koh, above n 123, 2392.

[135] Hilton v Guyot, [1895] USSC 185; 159 US 113 (1895), quoted in McConville, above n 79, 162.

[136] J M Blum and R G Steinhardt, ‘Federal Jurisdiction over International Human Rights Claims: The Alien Tort Claims Act after Filártiga v Peña-Irala’, in Steinhardt and D’Amato (eds), above n 9, 49.

[137] Koh, above n 123, 2367.

[138] A L Levenstadt, ‘Invoking the Doctrine of Forum Non Conveniens: A Comparison of Defensive Tactics and a Practical Assessment’ (2005) 3 Dartmouth College Undergraduate Journal of Law 51, <http://rockefeller.dartmouth.edu/assets/pdf/dcujl_s05_levenstadt.pdf> .

[139] Wiwa v Royal Dutch Petroleum Company, [2000] USCA2 359; 226 F 3d 88 (2nd Cir 2000). For a detailed discussion of forum non conveniens see Joseph, above n 79, 83-99.

[140] Ibid 1.

[141] Ibid 100.

[142] Ibid.

[143] Ibid 101, citing Gulf Oil Corp v Gilbert, [1947] USSC 45; 330 US 501, 508 (1947).

[144] Ibid 106.

[145] H E Mardirosian, ‘Forum Non Conveniens’ (2005) 37 Loyola of Los Angeles Law Review 1643, 1646.

[146] Joseph, above n 79, 94.

[147] Mardirosian, above n 145, 1655, see also Levenstadt, above n 138. According to Levenstadt, in US law the public and private interests are often referred to as the Gilbert factors derived from Gulf Oil Corporation v Gilbert, [1947] USSC 45; 330 US 501 (1947) in ‘which the court extended the doctrine of forum non conveniens beyond its maritime roots’.

[148] Mardirosian, above n 145, Levenstadt, above n 138, and Joseph, above n 79.

[149] Mardirosian, above n 145, 1657.

[150] A X Fellmeth, ‘Wiwa v Royal Dutch Petroleum Co: A New Standard for the Enforcement of International law in the US courts?’ (2002) 5 Yale Human Rights and Development Law Journal 241, 242.

[151] Ibid 242.

[152] Ibid.

[153] ASGB, above n 63, 27.

[154] Ibid 27.

[155] Ibid 28 (emphasis added). As pointed out earlier in this article, Sosa was not addressing the issue of liability or behaviour of multinational companies, and the continuous concern about business or multinational corporations raised by the ASGB governments reflects their ideological position, which is largely in step with that of the National Foreign Trade Council.

[156] Harvard Law Notes, ‘Developments in the Law: International Criminal Law v Corporate Liability for Violations of International Human Rights Law’ (2001) 114 Harvard Law Review 2025, 2036.

[157] Joseph, above n 79, 23-4.

[158] Harvard Law Notes, above n 156, 2036.

[159] Public Citizen, Frequent Filers: Corporate Hypocrisy in Accessing the Courts, (2004) 3 <http://citizen.org/documents/Frequent_Filers_FINAL.pdf> .

[160] Ibid 5.

[161] Ibid.

[162] Ibid 3.

[163] Sosa v Alvarez-Machain, [2004] USSC 2852; 542 US 692 (2004) 2769.

[164] Ibid 2758.

[165] Ibid 2755.

[166] Ibid.

[167] Ibid.

[168] Ibid 2761.

[169] Ibid.

[170] Blackstone’s three offences are violations of safe conducts, infringements of the rights of ambassadors, and piracy, ibid 2761.

[171] Ibid.

[172] Ibid 2761-62.

[173] Ibid 2761.

[174] Ibid 2766.

[175] Joseph, above n 79, 2.

[176] Sosa Case[2004] USSC 2852; , 542 US 692 (2004) 2762.

[177] Ibid 2763.

[178] Ibid.

[179] Ibid 2772.

[180] Ibid.

[181] Erie R Co v Tompkins, [1938] USSC 94; 304 US 64 (1938).

[182] Sosa Case [2004] USSC 2852; 542 US 692 (2004), 2772.

[183] Ibid 2773.

[184] Ibid 2764.

[185] Ibid 2766 fn 21.

[186] In re South African Apartheid Litigation, 238 F Supp 2d 1379 (JPML 2002).

[187] Sosa Case [2004] USSC 2852; 542 US 692 (2004) 2766.

[188] In re South African Apartheid Litigation 346 F Supp 2d 538 (SDNY 2004).

[189] Ibid 548.

[190] In re Agent Orange Product Liability Case 373 F Supp 2d 7 (EDNY 2005).

[191] Ibid 58.

[192] Ibid 52.

[193] Ibid 57.

[194] Ibid 134.

[195] Ibid 138.

[196] Ibid 10.

[197] Ibid 74.

[198] Kadic v Karadzic[1996] USCA2 16; , 70 F 3d 232, 249 (2nd Cir 1995) quoted in ibid 74.

[199] Joseph, above n 79, 3.

[200] P Newell, ‘Managing Multinationals: The Governance of Investment for the Environment’ (2001) 13 Journal of International Development 907, 908.

[201] Ibid.

[202] M B Baker, ‘Tightening the Toothless Vise: Codes of Conduct and the American Multinational Enterprise’ (2002) 20 Wisconsin International Law Journal 89, 89.

[203] Ibid 95.

[204] C Wells and J Elias, Holding Multinational Corporations Accountable for Breaches of Human Rights (undated) <http://www.ccels.cardiff.ac.uk/pubs/wellspaper.pdf> .

[205] M J Rogge, ‘Towards Transanational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in In Re: Union Carbide, Alfaro, Sequihua, and Aguinda’ (2001) 36 Texas International Law Review 299, 314.

[206] G Griffin, C Nyland and A O’Rourke, ‘Trade Unions, the Australian Labor Party and the Trade-Labour Rights Debate’ (2004) 39(1) Australian Journal of Political Science 89.

[207] M J O’Donnell, ‘A Turn for the Worse: Foreign Relations, Corporate Human Rights Abuse, and the Courts’ (2004) 24 Boston College Third World Law Journal 223, 226.

[208] Ibid 241.

[209] United States, Department of State, Supplemental Brief for the United States of America as Amicus Curiae, John Doe I, Et Al v Unocal Corporation, Et Al, In the United States Court of Appeals for the Ninth Circuit, On Appeal from the United States District Court for the Central District of California, Nos 00-56603, 00-56629 (2004) <http://www.earthrights.org/unocal/index.shtm> this was a supplemental brief addressing the threshold requirements from Sosa.

[210] Ibid.

[211] M O’Donnell, above n 207, 240.

[212] United States, Department of State, quoted in S Efron, ‘Judge Lets Unocal; Ask State Dept. to Intervene in Myanmar Lawsuit’ (2002) Los Angeles Times, <http://www.laborrights.org/press/unocalstate080902.htm> .

[213] Earthrights International, Final Settlement reached in Doe v Unocal (March 2005) <http://earthrights.org/news/unocalsettlefinal.shtml> .

[214] S Zifcak, ‘As Chair of the United Nations Commission on Human Rights, Australia’s Performance Has Been Shameful’ (October-November 2004) The Diplomat; see also S Zifcak, The New Anti-Internationalism: Australia and the United Nations Human Rights Treaty System, The Australia Institute (2003) Discussion Paper No 54.

[215] Ibid 18.

[216] United Nations, Commission Requests Secretary-General to Appoint Special Representative on Transnational Corporations, Press Release (20 April 2005) <http://www.unhchr.ch/huricane/huricane.nsf/view01/F92E35AD92F360D3C1256FEA002BF653?opendocument> .

[217] Zifcak, above n 214.

[218] Oxford Analytica, ‘U.N Resolution Mixes Human Rights And Business’ Forbes (6 June 2005) <http://www.forbes.com/business/2005/05/06/cz_0506oxan_UNhumanrights.html> .

[219] United States, Transnational Corporations, Item 17, Explanation of Position, (20 April 2005) 1 <http://209.238.219.111/USA-explanation-of-position-UN-resolution-20-Apr-2005.pdf> .

[220] Ibid 2.

[221] Ibid.


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