Does Involuntary Medical Testing by a Corporation Violate International Law?

The Second Circuit last week rendered another important ATS decision addressing some of the most troublesome issues relating to human rights litigation against corporate defendants. In the case of Abdullahi v. Pfizer, the Second Circuit was faced with the question of whether involuntary medical testing on humans violates international law.

Perhaps the most significant part of the decision was the spirited debate between the majority and the dissent over what constitutes actionable customary international law under Sosa. Scholars have long struggled with the Paquete Habana versus Filartiga approach to finding customary international law. This debate is nicely encapsulated in the majority and dissenting opinions. The majority held that in applying Sosa, “courts are obligated to examine how the specificity of the norm compares with 18th-century paradigms, whether the norm is accepted in the world community, and whether States universally abide by the norm out of a sense of mutual concern.” (p. 20). The court then looked to various sources, including the Nuremberg Code, the ICCPR, the Declaration of Helsinki, and the domestic practice of the United States to conclude that the norm “has become firmly embedded and has secured universal acceptance in the community of nations.” (p. 35).

The dissent, by contrast, took issue with the sources of international law chosen by the majority. “The ability to pick and choose from [a] seemingly limitless menu of sources presents a real threat of ‘creative interpretation.’… [T]he majority employs several sources that it believes demonstrate a customary norm against medical experimentation by non-state entities and weaves them together to reach its conclusion. Nowhere does the majority examines these sources in the context required by Sosa.” (p. 56). The dissent concluded that the majority is simply mistaken in employing a series of “extraordinarily weak sources to secure a purported norm of customary international law.” (p. 70).

The other particularly interesting part of the decisions addresses corporate liability. The majority applied domestic standards developed from § 1983 claims. The court took an extremely liberal standard of corporate liability, simply reciting the allegations in the pleadings of joint action and concluding that “these contentions meet the state action test because they adequately allege that the violations occurred as the result of concerted action between Pfizer and the Nigerian government.” (p. 45).

The dissent takes a radically different approach to corporate liability and state action. It appears that the dissent shares the view that § 1983 claims are an appropriate basis for analysis, which is an open question in other circuits. The dissent analyzes § 1983 cases and concludes that Supreme Court jurisprudence requires that there must be (1) evidence of conduct attributable to the state defined with the requisite specificity; and (2) a finding that the State is responsible for the specific conduct. The dissent argues that the Nigerian government is not alleged to have had any role in the specific illegal conduct, namely, the administering of the drug without informed consent. (pp. 85-86). In other words, if the corporation is the principal wrongdoer, it cannot be held liable under international law. It is only liable if it joined the state in engaging in illegal conduct.

In short, Pfizer is a blockbuster case. It deserves to be included in human rights casebooks. It presents many wonderful issues that remain unresolved by the Supreme Court, including the source material for ATS litigation, application of the Sosa test, and the standard for corporate liability under international law. It will be interesting to see whether the Court chooses to grant certiorari.