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For the foregoing reasons, we REVERSE the District Courts grant of summary judgment in favor of Unocal on Plaintiffs ATCA claims for forced labor, murder, and rape.35 We however AFFIRM the District Courts grant of summary judgment in favor of Unocal on Plaintiffs ATCA claims for torture. We further AFFIRM the District Courts dismissal of all of the Doe-Plaintiffs claims against the Myanmar Military and Myanmar Oil. We also AFFIRM the District Courts grant of summary judgment in favor of Unocal on the Doe-Plaintiffs RICO claim against Unocal. We REMAND the case to the District Court for further proceedings consistent with this opinion.
Each party to bear its own costs.
REVERSED IN PART, AFFIRMED IN PART and REMANDED.
REINHARDT, Circuit Judge, concurring:
I agree with the majority opinion, except for Part II(A), in which the majority discusses the Alien Tort Claims Act. As to that Act, I agree with the majority that material factual disputes exist regarding plaintiffs claims for forced labor used in connection with the Yadana Pipeline Project. I also agree with the majority that if plaintiffs prove their allegations, Unocal may be held liable under the Act for the use of forced labor as a part of the project. Where I differ from my colleagues is principally with respect to the standard of thirdparty liability under which Unocal may be held legally responsible for the human rights violations alleged. I do not agree that the question whether Unocal may be held liable in tort for the Myanmar militarys alleged human rights violations should be resolved, as the majority holds, by applying a recently-promulgated international criminal law aiding-andabetting standard that permits imposition of liability for the lending of moral support. In fact, I do not agree that the question of Unocals tort liability should be decided by applying any international law test at all. Rather, in my view, the ancillary legal question of Unocals third-party tort liability should be resolved by applying general federal common law tort principles, such as agency, joint venture, or reckless disregard. I also believe that there is no reason to discuss the doctrine of jus cogens in this case. Because the underlying conduct alleged constitutes a violation of customary international law, the violation was allegedly committed by a governmental entity, and Unocals liability, if any, is derivative of that government entitys, jus cogens is irrelevant to any issue before us. Assuming the allegations to be true, the fact that the underlying conduct violated customary international law is sufficient to support liability not only on the part of the governmental actor, but also on the part of a third party whose liability is derivative thereof.
1. Forced Labor As A Violation of the Law of Nations
In order to bring an action under the Alien Tort Claims Act, an alien plaintiff must allege a tort committed in violation of the law of nations. Hilao v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1995). I agree with the majority that the plaintiffs have alleged the requisite international law violation, and that a genuine issue of material fact exists regarding whether forced labor was used by the Myanmar government in connection with the Yadana Project. Because the majority opinion thoroughly sets forth the plaintiffs serious allegations, and the evidence supporting those allegations, I do not repeat them here.
There can be little doubt that the use of forced labor violates widely-held international legal norms. Forced labor is banned by the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the International Covenant of Economic, Social and Political Rights. See Universal Declaration of Human Rights, G.A. Res. 217(A)III (1948); International Covenant on Civil and Political Rights, art. 22, 999 U.N.T.S. 171, 173-74; 6 I.L.M. 368; International Covenant of Economic, Social and Political Rights, art. 8, 993 U.N.T.S. 3, 4; 6 I.L.M. 360. Forced labor was listed as a war crime in the charter of the Nuremberg Tribunal. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, art. 6, 82 U.N.T.S. 280. Moreover, it is banned by two of the most widely-adopted international labor conventions. Convention Concerning the Abolition of Forced Labour (No. 105), June 25, 1957, 320 U.N.T.S. 291; Convention Concerning Forced or Compulsory Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. In light of these legal authorities, the allegations of forced labor practices, if true, constitute a violation of customary international law and, in any event, are sufficient to confer jurisdiction under the ATCA.
In contrast, the majority states that plaintiffs have alleged the necessary international law violation because forced labor is a modern variant of slavery, which is a jus cogens or peremptory norm of international law.1 In fact, whether or not forced labor is a modern variant of slavery is of no legal consequence in this case, because there is no requirement that plaintiffs state a jus cogens violation in order to obtain jurisdiction under the ATCA. It is true that a cause of action against non-state actors for conduct in which they engage directly exists only for acts that constitute jus cogens violations and that other conduct of private parties that would violate international law if engaged in by a governmental entity is not actionable under the ATCA. See Kadic v. Karazdic, 70 F.3d 232, 240 (2d Cir. 1995). Here, however, if Unocal is held liable, it will be because the Myanmar military committed the illegal acts and Unocal is determined to be legally responsible for that governmental conduct under a theory of third-party liability not because Unocal itself engaged in acts transgressing international law. Because the violations of customary international law, if they occurred, were committed by a governmental agency, third-party liability may attach regardless of whether the international law violated is jus cogens.2 Thus, I see no need to discuss whether forced labor is a modern variant of slavery, which would render it a jus cogens norm, or even whether the prohibition on forced labor is itself a jus cogens norm, which it may well be. See Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1179-81 (D.C.Cir. 1994) (Wald, J., dissenting on other grounds). The well-established principle that forced labor practices violate customary international law is sufficient in itself to confer jurisdiction in this case with respect to all parties, jus cogens or not.
2. The Appropriate Source of Law for Determining Third-Party Liability
If the plaintiffs can prove their allegations that the Myanmar military instituted a policy of forced labor, they would satisfy the Alien Tort Claims Act requirement of a violation of the law of nations. Then, in order to prevail on its claims against Unocal, plaintiffs would have to prove that the private entity may be held legally responsible for the Myanmar militarys human rights violations. The latter requirement raises important questions of first impression: Under what circumstances may a private entity doing business abroad be held accountable in federal court for international law violations committed by the host government in connection with the business activities of the private entity; and to what body of law do we look in order to determine the answer? Logically, it is necessary to consider the second question first. In my view, the answer is that we look to traditional civil tort principles embodied in federal common law, rather than to evolving standards of international law, such as a nascent criminal law doctrine recently adopted by an ad hoc international criminal tribunal.
Plaintiffs allege that Unocal should be held liable for Myanmars forced labor actions with respect to the pipeline under a number of international law theories, as well as under several theories based on federal common law principles. The text of the Alien Tort Claims Act states only that federal courts have jurisdiction over torts constituting a violation of the law of nations. It is thus clear from the face of the statute that international law applies to determine whether a violation has occurred. The statute is silent, however, as to what body of law applies to ancillary issues that may arise, such as whether a third party may be held liable in tort for a governmental entitys violation of the law of nations. The majority elects to apply international law principles to resolve such issues. I strongly disagree. I believe that we are required to look to federal common law to resolve ancillary legal issues that arise in ATCA cases.
Following Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts ordinarily apply federal common law in limited circumstances, usually when authorized to do so by Congress. However, actions involving international relations constitute one category of cases in which federal common law is frequently applied. The Supreme Court has stated that even without congressional authority to develop federal common law, the federal courts should apply such law in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases. Texas Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641 (1981); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425 (1964) (It seems fair to assume that the Court did not have rules like the act of state doctrine in mind when it decided Erie R. Co. v. Tompkins.). Because Alien Tort Claims Act cases involve the violation of international law, they almost always implicat[e] . . . our relations with foreign nations. Texas Industries, 451 U.S. at 641.3 There are thus unique federal interests involved in Alien Tort Claims Act cases that support the creation of a uniform body of federal common law to facilitate the implementation of such claims.
There is another reason why the application of federal common law is appropriate here: we are required to resolve issues ancillary to a cause of action created by Congress. The Supreme Court has stated that in such cases, courts should apply federal common law to fill the interstices of federal legislation. United States v. Kimbell Foods, 440 U.S. 715, 727 (1979). In this regard, federal common law is applicable where courts are required to implement the policies underlying a federal statute by fashioning appropriate remedies. Illinois v. City of Milwaukee, 406 U.S. 91, 100-04 (1972) (holding that federal courts may fashion federal common law remedies to implement the policies of federal water pollution statutes, because interstate navigable waters are inherently a matter of federal concern, and the federal legislation did not address the specific legal issue presented.); see County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 237 (1985) (applying federal common law to a remedial question where the federal Non-Intercourse Act failed to address what legal standard to apply). It is precisely in order to implement the policies underlying Congresss decision to make the violation of international law a federal tort, that it is necessary to flesh out the statute and apply federal common law; here, we must do so in order to fashion a remedy with respect to the direct or indirect involvement of third parties in the commission of the underlying tort.4
Next, the question of when third-party liability arises is a straightforward legal matter that federal courts routinely resolve using common law principles. See cases cited Part 3, infra. It is not an issue of such rarity, so seldom broached and so puzzling that our domestic law offers inadequate guidance and we are compelled to look elsewhere. The fact that some of the acts at issue here may have taken place abroad does not militate in favor of applying international law; transnational matters are litigated in federal court, using federal legal standards, more and more frequently as the pace of globalization grows ever more rapid. Nor is there any reason to apply international law to the question of third-party liability simply because international law applies to the substantive violation; as discussed above, federal common law is properly invoked when the statute at issue leaves an ancillary question unanswered, regardless of the nature of the statute. In short, federal common law principles provide the traditional and time-tested method of filling in the interstices and resolving the type of ancillary legal questions presented by this case.
In my view, courts should not substitute international law principles for established federal common law or other domestic law principles, as the majority does here, unless a statute mandates that substitution, or other exceptional circumstances exist. Examples of when the substitution of international law is appropriate include interpreting the substantive provisions of the Torture Victims Protection Act, Pub.L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350), certain provisions of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330 et seq., and the substantive component of the ATCA. In those cases, the statutes make it plain that certain provisions require the application of international law. In other instances, I believe it prudent to follow the general rules established by the Supreme Court regarding the use of federal common law. It is important to recognize that there is a distinction between substituting international law for federal common law and making proper use of international law as part of federal common law. Employing federal common law does not force courts to ignore a constructive or helpful rule adopted under international law, because in appropriate circumstances federal common law incorporates relevant principles of international law. The Paquette Habana, 175 U.S. 677, 700 (1900); see also n. 7, infra. Thus, the benefits of the vast experience embodied in federal common law as well as any useful international law principles are obtained when we employ the traditional common law approach ordinarily followed by federal courts. Those benefits are lost, however, when we substitute for the wide body of federal authority and reasoning, as the majority does here, an undeveloped principle of international law promulgated by a recently-constituted ad hoc international tribunal.5
Almost all of the factors that we are required to consider as part of a choice-of-law inquiry militate in favor of determining that the proper law to apply here is the federal common law.6 First, ease in the determination and application of the law to be applied is furthered by applying a well-developed body of law, as opposed to a standard announced in a criminal case only recently decided by an ad hoc international tribunal. Similarly, certainty, predictability and uniformity of result are more likely to be achieved when there exists extensive precedent upon which to draw, and the state of the law does not depend on the future decisions of some as-yet unformed international tribunal established to deal with other unique regional conflicts. Additionally, although the justified expectations of potential parties may be limited in the sense that no direct precedent exists on the question of third-party liability in ATCA cases, the federal common law principles of joint liability, agency, and reckless disregard that we regularly apply in other contexts are generally well-known. In contrast, the international law regarding third party moral support is of very recent origin, and our selection of that law would not lead to settled expectations in future cases; for, the standard may well change dramatically if and when it is applied by a different ad hoc tribunal appointed by future representatives of the nations that compose the General Assembly of the United Nations. Next, as noted earlier, the policy of the Alien Tort Claims Act is to establish[ ] a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law. Abebe-Jira v. Negewo, 72 F.3d at 848. Thus, the relevant polic[y] of the forum is to apply federal common law remedies such as the imposition of third-party liability in the case of violations of customary international law. Finally, the basic polic[y] underlying the particular field of law is to provide an appropriate tort remedy for certain international law violations. The application of third-party liability standards generally applicable to tort cases directly furthers the basic policy of using tort law to redress international wrongs, whereas the application of international criminal law doctrines does not advance that objective. The two remaining choice-of-law factors are neutral, at the least, and certainly do not support rejecting the use of federal common law.7
1. As the majority notes, such a norm is one that is accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Vienna Convention on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679; see also Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir. 1992)
2. I do not read the majority opinion as holding otherwise. The opinion nowhere states that a third party can be liable for a governmental action only if that action constitutes a jus cogens violation. Rather, I view the majoritys interesting academic dissertation on why forced labor is like slavery and why slavery constitutes a jus cogens violation as background historical material that may be of interest to legal scholars but is unnecessary to its decision.
3. It is the rare Alien Tort Claims Act case that does not involve a foreign state or official as a defendant. Most international law norms apply only to states; a private party will ordinarily violate international law by its own actions only if it transgresses a legal norm that has achieved jus cogens status. See discussion, supra.
4. That the principles discussed in the text apply not only to traditional domestic legislation but to the Alien Tort Claims Act as well is demonstrated by a statement by the Eleventh Circuit in Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996). There, that court observed that the purpose of the ATCA is to establish[ ] a federal forum where courts may fashion domestic common law remedies to give effect to violations of customary international law.
5. The International Criminal Tribunal for the Former Yugoslavia was formed with the limited mandate of adjudicating allegations of human rights abuses that took place in the Balkans in the last decade. Established by Security Council Resolution 827 in May, 1993, it is a temporary body whose members are elected for four-year terms by the members of the United Nations General Assembly. The International Criminal Tribunal for Rwanda, which subsequently applied the Yugoslav Tribunals test, is a similarly-constituted body.
6. The Restatement (Second) of Conflict of Laws, § 6, provides that the following factors are to be considered as part of a choice of law analysis: (1) the needs of the interstate and international systems; (2) the relevant policies of the forum, (3) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue; (4) the protection of justified expectations, (5) the basic policies underlying the particular field of law, (6) certainty, predictability and uniformity of result, and (7) ease in the determination and application of the law to be applied. Federal choice of law rules follow the approach of the Restatement (Second) of Conflict of Laws. In re Vortex Fishing Sys., Inc., 277 F.3d 1057, 1069 (9th Cir. 2002); see also Chuidian v. Philippine Natl. Bank, 976 F.2d 561, 564 (9th Cir. 1992)
7. The two remaining Restatement factors are the first, the needs of the interstate and international systems, and the third, the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue. Restatement (Second) of Conflict of Laws, § 6.