Journal of Political Risk, Vol. 7, No. 8, August 2018 

Terri Marsh, Ph.D., Esq.

Executive Director and Senior Litigation partner of the Human Rights Law Foundation

We are facing a crisis as regards U.S. corporations profiting from the sale of technology indispensable to the perpetration of egregious human rights violations in the People’s Republic of China. In 2007 Jerry Yang, CEO of Yahoo! was criticized by U.S. Representative Tom Lantos, chairman of the U.S. House Committee on Foreign Affairs, for Yahoo’s role in the arrest and imprisonment of Chinese journalist and democracy advocate Shi Tao. The case describes the actions that Yahoo! had taken to grow its business in China, complying with a government request for the identity of a Yahoo! user, which subsequently resulted in Shi Tao’s detention and torture. Cisco Systems Inc. arguably facilitated the development of the Golden Shield apparatus in China that has caught Falun Gong, Tibetan Buddhist and Uyghur dissidents in its torture/persecution network. See “Index of Relevant Allegations,” available upon request. These are but a few of the most salient examples.

While U.S. federal courts currently have jurisdiction over U.S. corporations’ international law violations under the Alien Tort Statute, the Supreme Court may deny the grant of jurisdiction, with the appointment of Judge Kavanaugh, as discussed below. The Alien Tort Statute, which became law in 1789 as part of the First Judiciary Act, enabled foreign citizens to seek justice for injuries caused by acts of piracy, which by their nature routinely occurred outside the territory of the United States. The operative part of the Alien Tort Statute (“ATS”) grants jurisdiction for torts in “violation of the law of nations or a treaty of the United States.” [1] Until 1980, the statute was used primarily for piracy cases; however, in 1980, nearly 200 years after the first Judiciary Act, the statue has been applied to human rights litigation. See Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

Since the 1980s, the federal courts have been developing standards to define the reach of the statute. In Sosa v. Alvarez-Machain, 542 U.S. 692, 748 (2004), the Supreme Court limited the jurisdiction of the ATS to a narrow range of violations that are “specific, universal, and obligatory.” [2] In 2011, the Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum, to decide whether federal courts have jurisdiction over corporations for enabling egregious human rights abuses overseas. However, because the Supreme Court resolved Kiobel on a different ground, it was not until 2017 in Jesner v Arab Bank PLC, 38 S. Ct. 1386 (April 2018) that the Supreme Court addressed the corporate liability question. In Jesner, it was alleged that the Arab Bank aided and abetted the terrorist organization allegedly responsible for terrorist attacks by maintaining bank accounts that Arab Bank knew would be used to fund terrorism and by identifying the relatives of suicide bombers so that they could be compensated with so called “martyrdom payments.” In a majority opinion authored by Justice Kennedy, the Court concluded that foreign corporations may not be defendants in suits brought under the ATS. See Jesner at 6-11, 18-19, and 25-27. However, the Court did not foreclose suits against U.S. corporations for aiding and abetting egregious human rights violations abroad.^[3]

The dissent authored by Justice Gorsuch in Jesner and that authored by Judge Kavanaugh in an earlier D.C. Circuit case signal a shift away from the status quo; that is, it is likely that U.S. corporations – Yahoo, Google, Cisco, Apple and so on, may be able to further egregious human rights abuses overseas if Judge Kavanaugh is confirmed.

Justice Gorsuch’s Opinion in Jesner

Justice Gorsuch authored a concurrence in Jesner.  Concurring with the majority opinion, he distinguished cases filed against foreign corporations, which “risk reprisals from [that] country” from those filed against U.S. corporations that “ensure our citizens abide by the law of nations and avoid reprisals against this country.” Jesner at 1419. However, Justice Gorsuch has indicated his opposition to the use of the ATS in the human rights contexts. Alito appears to agree. See Just Security, “Jenser v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations,” available at https://www.justsecurity.org/55404/jesner-v-arab-bank-supreme-court-preserves-possibility-human-rights-suits-u-s-corporations/. In other words, Jesner did not quite settle the question of corporate liability.

Judge Kavanaugh’s anti-ATS/Corporate Stance

In Doe v. Exxon Mobil Corp., 397 U.S. App. D.C. 371, a group of Indonesian villagers sued Exxon Mobil, claiming that its security forces near an Indonesian plant “committed murder, torture, sexual assault, battery, false imprisonment,” and other misconduct. When a lower court rejected an Exxon motion to dismiss the case at a very early stage, the company filed an appeal, seeking to get the appeals court to take the very unusual step of reversing the preliminary decision or issuing a writ of mandamus to throw out the entire case.  The D.C. Circuit concluded that aiding and abetting is well established under the Alien Tort Statute (ATS), Exxon at 399, and neither the text, history, nor purpose of the ATS supported corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. Id. at 400-419. Dissenting in part, Judge Kavanaugh opined that the plaintiffs’ ATS claims should have been dismissed, inter alia, because: (1) the ATS does not apply to conduct that occurred in foreign nations;[4] or (2) the ATS does not apply to claims against corporations. Id. at 432-434. In light of Judge Kavanaugh’s dissent in Exxon, Judge Kavanaugh seems ready to cast a (perhaps deciding) vote against ATS corporate liability.

Competing Values

The Filartiga line of cases reflect an important principle of international law, that is, that some crimes are so heinous that the perpetrators can be brought to justice for crimes perpetrated overseas.  In the vast majority of these cases, Plaintiffs seek redress not merely for acts that are unlawful, but more particularly, for violations of jus cogens norms, including but not limited to genocide, widespread torture and slavery. As the District Court in Presbyterian Church of Sudan v. Talisman Energy Inc. and the Republic of Sudan, 244 F. Supp. 2d 289 (S. D. N.Y.), noted, jus cogens violations are fundamentally different from other international law violations by the “depths of depravity the conduct encompasses, the often countless toll of human suffering the misdeeds inflict upon their victims, and the consequential disruption of the domestic and international order they produce.” [5] In a similar vein, the Second Circuit said in Filartiga, “[F]or purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind.”[6]

According to the testimonials of survivors, these cases have helped heal and empower them by providing survivors and their families with an experience of justice, a sense of meaning in their survival, renewed trust in people and institutions, and a tremendous satisfaction in knowing that they have brought dignity to themselves and to the memories of those who were killed. By uncovering facts and witnesses, these cases also establish a record of accountability through, e.g., the publication of reports. Cases filed against U.S. corporations have additional advantages including a deterrence effect. Moreover, by determining that no U.S. corporations may be sued under the ATS, we are immunizing these corporations from liability for human rights abuses, no matter how egregious they may be.

Of course, one might argue that the United States is putting U.S. corporations at a disadvantage with these laws. If the goal of a U.S. corporation is solely to make a profit regardless of the cost, then any laws that hinders that goal, including tax evasion, corporate fraud, bribery and money laundering also place U.S. corporations at a disadvantage, especially when compared with corporations that operate as state-run enterprises in such authoritarian regimes as China, where they are permitted to operate without such constraints. The egregious nature of the violations including the “toll of human suffering they inflict upon the victims,” would seem to further militate in favor of corporate liability in a well-defined range of circumstances.[7]

In addition, many would agree that these laws give the United States a public relations boon globally in terms of proving our support for human rights. As President Bush (43) said when he signed the Torture Victim Protection Act of 1991 into law (a statute that does not cover corporate violations):

I am signing into law H.R. 2092, the “Torture Victim Protection Act of 1991,” because of my strong and continuing commitment to advancing respect for and protection of human rights throughout the world. The United States must continue its vigorous efforts to bring the practice of torture and other gross human rights abuses to an end.”  See President Bush’s Signing Statement, March 16, 1992, Volume 28-Number 11, pp. 431-481.

The “Bush” principle cannot be upheld while our corporations trample upon these very values overseas.

Some have argued that these cases impose a corporate tax on U.S. corporations. However, the commission of such human rights violations as genocide, widespread torture, and slavery are violations that are inherently wrong wherever are perpetrated. Moreover, the law of aiding and abetting is quite stringent requiring that a corporation know that the product they sell will be used to perpetrate acts of torture (or the like) and nonetheless customize the product for that purpose. Unless one believes corporations may engage in the business of “torture” in order to enhance profits and gain market advantage in authoritarian regimes, this is not so much a “human rights tax” as a limit beyond which corporations should not tread. Indeed, to immunize corporations for the heinous crimes they further overseas is to place them above or outside of the law.

---

Dr. Terri Marsh is the Executive Director and Senior Litigation partner of the Human Rights Law Foundation, which she launched in 2005. She holds a Ph.D. in Classics from SUNY and a J.D. from New York University School of Law. Following law school, she worked as a consultant for the Legal Defense and Education Fund of the National Organization for Women, the Center for Law and Social Policy, and as the Director of a D.C. Superior Court Diversion Court for juvenile offenders in Washington D.C. She is an active member of the D.C. State Bar and of the federal bars of the Illinois and the District of Columbia, the bars of the First Circuit, Second Circuit, Seventh Circuit, and Supreme Court of the United States of America. She serves on the board of several China related organizations. She is the author of numerous professional articles and presentations on Western moral philosophy. JPR Status: Opinion.

---

[1] The “Law of Nations” is defined by Blackstone as “a system of rules … established by universal consent among the civilized inhabitance of the world; in order to decide all disputes which … must frequently occur between two or more independent nations, and the individuals belonging to each.” 2 William Blackstone, Commentaries *66, available at http://www.lonang.com/exlibirs/blackstone/bla-405.htm.

[2] This has generally been interpreted to include such egregious violations as torture, extrajudicial killing, enslavement, genocide and other crimes against humanity.

[3] Aiding and abetting has a high threshold: one must show that the aider knew what the product would be used for and nonetheless tailored it for that purpose. In other words, the net is not so wide as to entrap the innocent corporation engaged in routine corporate conduct.

[4] Here, he is requiring that a corporation or individual directly cause the abuses overseas, thereby foreclosing aiding and abetting liability. As a result, he appears to be willing to immunize corporations that aid and abet such abuses.

[5] In a similar vein, the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M 679 defines a jus cogens norm of international law as “a norm accepted and recognized by the international community as a norm from which no derogation is permitted. ^[5] Vienne Convention, art. 53. See also RESTATEMENT THIRD OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. (d) adopting the Vienna Convention’s definition of jus cogens as binding on all nations and “derived from values taken to be fundamental by the international community rather than from the … choices of nations.”

[6] Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)

[7] As many have observed, there are ample constraints in place. The Department of State may intervene in a case it opines interferes with serious foreign policy concerns. Corporations are not held liable for routine corporate behavior. To the contrary, it must be shown that the corporation actually aided and abetted said violations. Cases may be dismissed if a remedy is available in the place where the principal actors perpetrated the crimes.