Human Rights Views Differing; ATCA Then, Now Business & Human Rights Approaches Internationally (Customary Law Versus General Principles)

Now let us change gears in moving from Unit 3’s more theoretical exploration of rights-based approaches to a preliminary examination of the wisdom of employing human rights law claims. and similar approaches in domestic and foreign courts as a means to address international environmental law concerns. Recognize the traditional lack of litigation fora to challenge environmental and development policy choices of most countries in the international environmental law areas, with sovereign immunity being the least of prospective litigants’ worries. Beyond issues concerning what the law was, from an interested NGO perspective, the biggest practical concern was finding a judicial forum in which to press legal claims in an attempt to develop the law. The technical requirement was for something like a “universal jurisdiction” statute in public international law terms, of the kind employed against piracy and slavers in the 18th–19th centuries.

1/4 So modern litigation was originally pursued as part of the general revival of the 1789 Alien Torts Claim Act (ATCA) from the 1980s through the early 2000s following Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir 1980), which has now been substantially cut back by the US Supreme Court in Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108 (2013), followed by Jesner v. Arab Bank PLC, 138 S. Ct. 1386 (2018).

2/4 The pattern case typically involved a situation in which a multinational corporation would make a multi-billion dollar natural resource investment tied to petroleum or mineral deposits in the backcountry area of a developing country, relations would then deteriorate with local indigenous peoples because over time exploitation of said mineral deposit or oil and gas would seriously damage the local habitat on which the indigenous peoples depended for their livelihoods. At this point threatening incidents and conflict typically occurred (such as damage to jungle pipelines or bow-and-arrow attacks on maintenance crews), leading to the country’s police or armed forces being called in to restore security, at which point the security forces would get out of hand, and gross human rights violations would occur (unlawful killings, woundings, burning of indigenous villages, etc.). At that point, typically via the local branch of an international NGO, the local indigenous peoples would acquire (foreign) legal representation in order to pursue ATCA and related claims in US federal court, so long as personal jurisdiction could be obtained over the multinational corporate defendant. In practice, the same fact patterns might become the subject of different substantive legal claims (via different counts in the same complaint) to test out applicable claims concerning international environmental law, meanwhile it was always clear that traditional gross human rights violations were cognizable as a matter of law. The real legal question was whether the foreign investor could be held legally responsible for excessive actions committed by a foreign sovereign government’s police or armed forces, but which benefited the foreign investor in a practical sense.

3/4 There was high consciousness of the ATCA in the sophisticated corporate bar since the early 1990s, and it became a staple of the white collar criminal practice in many large law firms (alongside the Foreign Corrupt Practices Act). Practically speaking, however, for multinational corporations the problem remains that even while the Supreme Court has cut back on US ATCA jurisdiction, foreign jurisdictions are increasingly entertaining public international (environmental) and human rights law claims resembling the 1980s-early 2000s ATCA challenges. Consider this a forum shopping kind of issue. So it remains important for students to understand the international law (interpretive) character of those challenges, because the client’s general or corporate counsel may need a clearer understanding up front of the client’s exposure in multiple jurisdictions, better than the litigators hired only for local litigation. And here some foreign jurisdictions’ wider legal views of human rights (e.g., second and third generation rights) and potentially international environmental law eventually may come back to haunt those who might have become US litigants once upon a time. In the course of 30+ years of ATCA jurisprudence, the chief result in American law was to articulate in the federal courts a relatively narrow view of permissible substantive human rights and environmental law claims. Similarly, concern exists about other countries’ potentially broader interpretations of public international law doctrine generally, particularly in the area of claims based upon “complicity” of foreign investors in human rights violations committed by police and the armed forces of a foreign country (which is analogous to, but different from, the parallel of accessoryship in traditional criminal law).

4/4 The ATCA litigation circa 1995–2013 in turn sparked a reaction on the side of corporate defendants in the form of private industry sectoral codes, in effect trying to articulate “best practices” in their conduct and foreign investments as a proactive response to the ATCA litigation, but also to address wider reputational and similar damage with capital markets consequences, which approaches we review here and in more detail in Unit 5.

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