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Statue of Justice
1.09.04
Politics and Economy:
Global Business vs. Global Justice
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The Alien Tort Claims Act Overview

The Alien Tort Claims Act (ATCA) was adopted in 1789 as part of the Judiciary Act which set up the U.S. federal court system. (Tort refers to that body of the law which will allow an injured person to obtain compensation from the person who caused the injury.) The words that are now subject to such debate are simple:
"[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."
Foes and fans of the ATCA agree that the act was most likely originally designed to protect American ambassadors and combat piracy. However, there is a great disagreement over whether the ATCA may also be used to seek redress for human rights violations.

Read more from both sides on our debate page.



Cases

The ATCA only began to be used as a tool for human rights litigation in 1979. That year the family of Joel Filartiga, a 17-year-old who had been tortured and killed in Paraguay, sued the police chief responsible, citing a violation of "the law of nations" redressable under the 1789 Alien Tort Claim Act. The federal appeals court in New York ruled that Paraguay was guilty of state-sponsored torture and subject to prosecution under the ATCA. The case and ruling were cited in the passing of the Torture Victim Prevention Act of 1991.

Fewer than 100 cases have been filed using the ATCA. Additional ATCA cases included: 2000's Wiwa v. Royal Dutch Petroleum Co, alleging complicity in the executions of several Nigerians; 1996's Abebe-Jira v. Negewo, alleging torture of Ethiopian prisoners; 1995's Kadic v. Karadzic, alleging torture, rape, and other abuses orchestrated by Serbian military leader; 1994's In re Estate of Ferdinand Marcos, alleging torture and other abuses by former President of Philippines; 1984's Tel-Oren v. Libyan Arab Republic, alleging claims against Libya based on armed attack upon civilian bus in Israel; 1995's Xuncax v. Gramajo, alleging abuses by Guatemalan military forces.

In 1996, such endeavors took a controversial turn when an American corporations became the target of suits. There has yet to be a single judgment issued against a corporation.

Doe v. Unocal

NOW's story "Global Business vs. Global Justice" tells the story of the ATCA suit Doe v. Unocal, brought on behalf of farmers from the Tenasserim region of Burma by EarthRights International and the Center for Constitutional Rights. The energy giant Unocal is one of the last American companies doing business in Burma, a country noted by the U.S. government for having a poor human rights record. The suit alleges that Unocal was responsible for human rights abuses committed by Burmese soldiers during a pipeline project in which Unocal was a partner.

In a decision on September 18, 2002, the Ninth District Court of Appeals overturned a 2000 ruling by a federal judge that victims of the military's abuses could not sue the California-based company and remanded the case to trial. The Justice Department has filed a amicus (friend of the court) brief on behalf of Unocal. Both sides in Doe vs. Unocal are now waiting on a ruling by the full 9th Circuit Court of Appeals. It's likely that whatever the ruling, there will be a further appeal to the Supreme Court.

The "Code of Conduct" Proposal

Because the use of the Alien Tort Claims Act has proved controversial, some groups have proposed creating a new international legal standard for such conflicts. Stuart Eizenstat, the deputy treasury secretary in the Clinton administration, proposes establishing a "Code of Conduct" for multinational companies, based on the Organisation for Economic Co-operation and Development's (OECD) Guidelines for Multinationals, which would create a set of standards for business conduct in a variety of areas including employment and industrial relations, human rights and the environment. The code would clarify what counts as "aiding and abetting" a brutal regime in abuses. The effect would be to limit frivolous lawsuits and help multinationals, particularly the extractive industries, who could use the standards as part of their defense in ATCA cases. This type of agreement has already been established in the UK. However, such an international code may face an uphill battle in the United States, which has been extremely reluctant to place American citizens and businesses under the rule of international entities.

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