12 Jun Testing the Limits of Corporate Liability for Violations of International Law
The indefagitable pair of David Rivkin and Lee Casey have an op-ed in the WSJ today decrying an ACLU lawsuit against private company involved in providing flight planning services to the CIA, allegedly for extraordinary renditions (See Mohamed et. al. v. Jeppesen Dataplan). Rivkin and Casey aren’t happy with this and other lawsuits’ effect on the ability of private companies to support the U.S. government’s war on terrorism policies (an issue I discussed in this article here).
But I’m more interested in the broader legal effect of this and other cases on the concept of corporate aiding and abetting liability under customary international law, or at least in lawsuits brought under the U.S. Alien Tort Statute. Despite the U.S. Supreme Court’s decision in Sosa v. Alvarez Machain limiting such lawsuits, the number of complaints does not appear to have diminished, especially against corporations. Even Yahoo! is being sued (see here) for allegedly aiding and abetting the Chinese government’s torture of dissident journalists by turning over information that led to the individuals’ arrests.
Each complaint has some merit, no doubt, but as a whole, I think this attempt to bring more and more corporations into the Alien Tort Statute game via more and more expansive conceptions of aiding and abetting liability will lead to a backlash against all of these sorts of international human rights lawsuits. Corporations will argue with some force that they are being held accountable for the actions of governments that they can neither control and, in some cases, they are being held accountable for obeying those country’s laws (as in the Yahoo case).
Between the national security crowd irritated by ATS lawsuits against the government and its contractors and the international corporate business crowd, surely there will be a political coalition to amend the ATS in our near future. Won’t there?
Dear Julian,
As I am not familiar with this case in details, I can only offer some general comments on some issues arising from your post. I agree with you that that broad interpretation of Alien Tort Claim Act may lead to a backlash against international human rights lawsuits against corporations. That being said, corporations have responsibility to respect, protect and fulfil, at minimum, fundamental human rights. In Mohamed et al. v Jeppesen Dataplan, Inc., plaintiffs allege that Jeppesen participated in the forced disappearance, torture, and inhumane treatment of Binyam Mohamed, Abou Elkassim Britel, and Ahmed Agiza by agents of the United States and other governments. It does not take a genius to argue that a corporation cannot absolve itself from prohibition of torture and inhumane and degrading treatment. Whether present complaint has any legal merits or not, is another issue.
Jernej
Jernej
And what about Roger’s new article? Is it not relevant to the discussion? Alford, Roger Paul, “Arbitrating Human Rights,” Notre Dame Law Review, Vol. 83, 2007 Available at SSRN: http://ssrn.com/abstract=978305
I should have said I learned of Roger’s paper from Melissa Waters’ post ‘Can Boeing Make the U.S. Government Pay Up?: Human Rights Litigation and “Who Pays” Arbitration,’ over at Concurring Opinions: http://www.concurringopinions.com/ (scroll down a tad).
Between the national security crowd irritated by ATS lawsuits against the government and its contractors and the international corporate business crowd, surely there will be a political coalition to amend the ATS in our near future. Won’t there?
One would assume. Hopefully, they’ll just remove it entirely. The resurrection of an obscure statute from 1789 is certainly one of the more bizarre developments in American jurisprudence.
One of the salutary things about these lawsuits is that they bring into the open a set of alleged facts. Even when ultimately dismissed, they provide us a record of what one person alleges was done to them by our government in association with others. As we sit here and debate the suit, the fact it has been filed forces us to think again about extraordinary rendition and whether we care about what happened to these people. No doubt there will be people who will seek to have legislation changed to limit liability for such suits. And, in that case, there will be the time for discussion of these changes in Congress which may be a discussion that members will prefer not to have. So while some look with barely veiled disdain, the ACLU appears to keep trudging on trying to get people to care about horrendous things. Cindy Sheehan gave up in understandable despair. The ACLU has not which I find so remarkable that I became a member for the first time about two weeks ago.
Best,
Ben
Regarding the Yahoo case: Obeying the laws of a nation should be no bar to international law liability; nor should it be a bar to liability under US domestic law.
I’m curious about why you think China’s requirements on Yahoo should affect a question of US law. Should we really hold our citizens to lower standards when acting abroad? Isn’t the prevention of such substandard extraterritorial conduct at the heart of laws like the US ATS?
One of the salutary things about these lawsuits is that they bring into the open a set of alleged facts. Even when ultimately dismissed, they provide us a record of what one person alleges was done to them by our government in association with others.
…ok. The same could be said if I accused the US in court of hiding alien UFOs.
Isn’t the prevention of such substandard extraterritorial conduct at the heart of laws like the US ATS?
I really think the ATS had more to do with the prosecution of piracy. You have to remember the legislation is ancient, it predates much of IL framework.