NOTE

FOREIGN ALTERNATIVES TO THE ALIEN TORT CLAIMS ACT: THE SUCCESS (OR IS IT FAILURE?) OF BRINGING CIVIL SUITS AGAINST MULTINATIONAL CORPORATIONS THAT COMMIT HUMAN RIGHTS VIOLATIONS Bahareh Mostajelean* I. INTRODUCTION Many independent nations, especially within the developed countries of the Western World, have complete, functioning domestic legal systems that are capable of handling both civil and criminal cases that arise within their boundaries.1 A variety of cultural, legal, and political barriers have prevented these nations, however, from developing a truly global system of justice to allow for civil suits that arise from injuries sustained outside of the territories of the individual countries.2 The rise of the multinational corporation (MNC) has made this gap in the justice system even more prevalent.3 Victims of actions by MNCs are often unable to seek redress for their injuries because of insufficient domestic legal systems in the country where the acts occurred and jurisdictional roadblocks within foreign legal systems.4 This problem is especially unfortunate when MNCs are guilty of human rights violations.5 The United States has attempted to overcome this barrier through its use of the Alien Tort Claims Act (ATCA).6 The ATCA allows aliens to bring tort claims for violations of international law
* J.D. 2008, The George Washington University Law School; B.A. 2004, The University of CaliforniaBerkeley. 1. See SARAH JOSEPH, CORPORATIONS AND TRANSNATIONAL HUMAN RIGHTS LITIGATION 11 (2004) (explaining that developed countries tend to have sufficient domestic accountability laws). 2. See id. at 12 (finding that international human rights law has not developed to create liability for nationals who commit human rights violations abroad). 3. See id. at 13-14 (discussing the difficulty of holding a multinational corporation (MNC) criminally liable for acts committed abroad). 4. See discussion infra Part II.C.2. 5. See JOSEPH, supra note 1, at 12-13. 6. 28 U.S.C. 1350 (2006). This statute has alternatively been referred to as the Alien Tort Statute.

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or treaties of the United States in U.S. federal courts, regardless of where the tort occurred.7 By passing the ATCA as well as the Torture Victims Prevention Act (TVPA),8 which grants both aliens and U.S. citizens the right to sue for torture or extrajudicial executions, the United States developed one feasible avenue for bringing civil suits against MNCs that commit human rights violations. The ATCA is still bound by jurisdictional issues, however, and is not a global solution to the problem.9 Only a truly multinational agreement, such as a jurisdictional treaty, or the establishment of universal jurisdiction across nations can provide more thorough legal relief from these corporate human rights violations.10 This Note will look at several foreign alternatives to the ATCA,11 focusing on options that allow an injured party to bring a civil suit against an MNC that has committed human rights violations.12 The first section of this Note will offer a brief discussion of the obligations of MNCs in todays international community.13 The next section will discuss the development of the ATCA within the United States, with a focus on the modern ATCAs effectiveness and its limitations in civil suits against MNCs.14 This Note will then present the alternatives to the ATCA in two broad categories: 1) public international law alternatives that allow for private civil suits and 2) alternatives within the domestic legal systems of individual countries.15 The discussion of the first category will focus on a number of declarations and conventions that have opened the door toward developing human rights norms and permitting civil suits against human rights violators.16 The discussion of the second category will focus on the likelihood of ATCAtype litigation in a common-law legal system, the United Kingdom,
7. See Developments in the Law International Criminal Law: Corporate Liability for Violations of International Human Rights Law, 114 HARV. L. REV. 2025, 2033-43 (2001) (providing a discussion of the Alien Tort Claims Act (ATCA) and how courts have interpreted it). 8. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350 (2006)). 9. See Developments in the Law, supra note 7, at 2042-43 (discussing certain procedural limitations to ATCA). 10. See id. at 2046-48 (proposing a multilateral treaty to fill the procedural gaps left by ATCA). Cf. Beth Stephens, Translating Fil rtiga: A Comparative and International Law Analya sis of Domestic Remedies for International Human Rights Violations, 27 YALE J. INTL L. 1, 40-44 (2002) (proposing universal jurisdiction as a means of redressing human rights violations). 11. See discussion infra Part II.C. 12. See discussion infra Part II.C. 13. See discussion infra Part II.A. 14. See discussion infra Part II.B. 15. See discussion infra Parts II.C.1-.2. 16. See discussion infra Parts II.C.1.a-.b.

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and a civil law legal system, France.17 The discussion of the second category will also examine the possibility of restructuring these human rights violations as garden-variety torts, in order to create a cause of action under the civil codes of different nations.18 The last section of this Note will present an analysis of these different alternatives and will evaluate their likelihood of success through a comparison of the discussed alternatives.19 Of the current alternatives, redefining human rights violations as garden-variety torts will provide the greatest opportunity for successful civil suits.20 These current alternatives are not as effective as the ATCA, however, and a convention or treaty is necessary to establish either universal jurisdiction or, more plausibly, a firmly established right within each signatory countrys legal system to bring civil suits of this nature.21 II. A. DISCUSSION

Multinational Corporations: Obligations and Liabilities

MNCs are prevalent in most aspects of todays societyfrom the clothes we wear to the goods we consume and the services we obtain.22 The presence of MNCs throughout the world has led to the development of some international legal standards on corporate obligations and liabilities.23 A major hurdle in bringing civil suits against MNCs for human rights violations is that MNCs often have complex corporate structures that separate the parent corporations companies from the local subsidiaries that commit the human rights violations.24 In some instances, however, the MNC
17. See discussion infra Parts II.C.2.a-.b. 18. See discussion infra Part II.C.2.c. 19. See discussion infra Part III.A. 20. See discussion infra Part III.B. 21. See discussion infra Part III.C. 22. See generally CorpWatch.com, Industries, http://www.corpwatch.org/article.php? list=type&type=203 (last visited May 4, 2008) (presenting a list of industries in which MNCs are involved, with links to relevant newspaper articles). See also Pauline Abadie, A New Story of David and Goliath: The Alien Tort Claims Act Gives Victims of Environmental Injustice in the Developing World a Viable Claim Against Multinational Corporations, 34 GOLDEN GATE U. L. REV. 745, 750-51 (2004) (discussing the size and influence of a number of prominent MNCs). 23. See Menno T. Kamminga & Saman Zia-Zarifi, Liability of Multinational Corporations Under International Law: An Introduction, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW 1, 1 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000). Several international organizations have established non-binding standards. See infra note 28 and accompanying text. 24. Richard Meeran, Liability of Multinational Corporations: A Critical Stage in the UK, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW, supra note 23, at

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itself may be just as culpable as the subsidiary corporation because MNCs

While international legal standards guiding the actions of MNCs do exist, they are, in general, voluntary instruments that assume that MNCs will be responsible for their own actions.26 Several international organizations, such as the Organization for Economic Cooperation and Development, the United Nations, and the International Labor Organisation, have established codes of conduct and have set out guidelines on the corporate accountability of MNCs.27 These codes are broadly drafted non-binding texts, however, as opposed to enforceable global standards.28 Though these instruments are non-binding, they provide a moral guide and a baseline of health and safety standards that may be influential on MNCs.29 With regard to human rights, the obligations and liabilities of MNCs have developed from the basic doctrines of international human rights that were originally imposed on state entities.30 Today, MNCs have an independent legal personality with respect to human rights obligations (similar to state actors) and are no
251-52. This Notes discussion of MNCs will include the actions of both the parent company and its subsidiaries, regardless of where they are located. 25. Organization for Economic Co-operation and Development [OECD], Working Party on the OECD Guidelines for Multinational Enterprises, The OECD Guidelines for Multinational Enterprises: Review 2000, at Part 1.I.3. 26. BINDA PREET SAHNI, TRANSNATIONAL CORPORATE LIABILITY: ACCOUNTABILITY FOR HUMAN INJURY 47 (2006). 27. See generally OECD, supra note 25; U.N. Econ. & Soc. Council [ECOSOC], SubComm. on Promotion & Protection of Human Rights, Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, U.N. Doc E/ CN.4/Sub.2/2003/12/Rev.2 (Aug. 26, 2003); U.N. Econ. & Soc. Council [ECOSOC], SubComm. on Promotion & Protection of Human Rights, Report of the United Nations High Commission on Human Rights on the Responsibilities of Transnational Corporations and Related Business Enterprises with Regard to Human Rights, U.N. Doc.E/CN.4/2005/91 (Feb. 15, 2005); International Labor Organisation [ILO], Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy, ILO Doc. No. GN 204/4/2 (Nov. 16, 1977), (amended in November 2000). 28. See sources cited supra, note 27. 29. SAHNI, supra note 26, at 47. 30. NICOLA JAGERS, CORPORATE HUMAN RIGHTS OBLIGATIONS: IN SEARCH OF ACCOUNTABILITY 32 (2002).

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longer immune from liability for their human rights violations.31 MNCs, just like states, are bound by customary norms of international law and may not engage in slavery, forced labor, genocide, torture, extrajudicial murder, piracy, crimes against humanity, and other basic human rights violations.32 This Note will focus on imposing civil liability for violations of these basic human rights that MNCs are obligated to protect.33 B. The Alien Tort Claims Act and Civil Suits in the United States

The ATCA, originally enacted in the United States as part of the Judiciary Act of 1789,34 has only made a significant impact on the U.S. and international legal systems within the past three decades.35 The ATCA allows aliens to sue in U.S. federal court for violations of international laws or treaties of the United States.36 The landmark case of Filartiga v. Pena-Irala marked the first success ful use of the ATCA on a human rights issue.37 Filartiga, a citizen of Paraguay, brought this case under the ATCA against Pena-Irala, a citizen and government official of Paraguay accused of torturing Filartigas son to death while both parties still resided in Para guay.38 The Second Circuit found that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.39 This decision created the possibility that torture, and other human rights violations, could trigger the ATCAs jurisdiction.40 Since the Filartiga decision, U.S. courts have continued to broaden the ACTAs jurisdictional reach through a number of dif31. See id. at 34. 32. See Kamminga & Zia-Zarifi, supra note 23, at 8. For an interesting chart describing the obligations of MNCs under international law norms, see JAGERS, supra note 30, at 73. 33. For a few examples of human rights violations committed by MNCs, see Abadie, supra note 22, at 752-55. 34. Judiciary Act of 1789, ch. 20, 9(b), 1 Stat. 73, 77 (codified as amended at 28 U.S.C. 1350 (2006)). 35. See Stephens, supra note 10, at 7-8 (discussing the beginning of modern ATCA jurisprudence in U.S. courts). 36. The statute reads: The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. 28 U.S.C. 1350 (2006). 37. 630 F.2d 876, 878 (2d Cir. 1980). 38. Id. 39. Id. at 880. 40. See id. at 884-87 (holding that torture is prohibited by the law of nations and that the ATCA open[s] the federal courts for adjudication of the rights already recognized by international law).

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ferent cases.41 The Supreme Court, however, in the case of Sosa v. Alvarez-Machain, defined the ATCAs jurisdictional reach fairly narrowly.42 It held that the ATCA was only jurisdictional in its terms and did not create any new rights of action under international law.43 While this may be seen as a blow to the ATCA on its face, the Court also added that:
[T]he statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.44

The Court continued by stating that nothing would prevent the courts from recognizing private causes of action in violation of the law of nations, but it set out two requirements: 1) that a claim based on present-day law of nations should rest on a norm of international law accepted by the civilized world and 2) that the claim be defined with a specificity that would be comparable to a violation recognized in the 18th century (when the ATCA was originally enacted).45 Scholars have debated the effect of the Sosa decision on the ATCA and the extent of the jurisdictional limitations imposed upon it.46 Some argue that Sosa marks the beginning of the end of transnational human rights litigation, while others argue that the decision in Sosa demonstrates that a future still exists for such actions, especially in the realm of corporate liability.47 Since the Sosa decision, the Ninth Circuit, in Sarei v. Rio Tinto, PLC, reversed the district courts dismissal of a case brought under the ATCA by residents of Papua New Guinea against an international mining
41. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (requiring that ATCA claims meet a threshold level of acceptance in the international community and that claims be comparable to one of the original violations in existence when the Statute was enacted); Abebe-Jira v. Negewo, 72 F.3d 844 (11th Cir. 1996) (including torture as a sufficient claim); Kadic v. Karadic, 70 F.3d 232, 244 (2d Cir. 1995) (considering genocide, war z crimes, summary execution, and torture as sufficient claims). 42. See 542 U.S. 692, 710 (2004). 43. Id. at 710. 44. Id. at 725. 45. Id. at 725-26. The Court refers to three primary offenses from the 18th Century: violation of safe conducts, infringement of the rights of ambassadors, and piracy. Id. at 725. It is likely that any claim brought today would therefore have to be comparable to one of these primary offenses. 46. See, e.g., Igor Fuks, Note, Sosa v. Alvarez-Machain and the Future of ATCA Litigation: Examining Bonded Labor Claims and Corporate Liability, 106 COLUM. L. REV. 112 (2006). 47. See id. at 112 (arguing that the limitations imposed by the Courts decision in Sosa still allow for ATCA litigation, particularly for issues involving corporations).

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company.48 The circuit court found violations of international-law norms that implicated the corporation under federal-common-law theories of vicarious liability.49 While this one post-Sosa decision seems to support the argument that the ATCA has not been seriously hampered, it is still too early to determine the effect of the Sosa decision over the long run.50 One thing, however, is clear: The decision extended the ATCAs jurisdictional reach to include not just state actors, but also private MNCs that commit human rights violations.51 The ATCA is unique in that it allows for aliens, regardless of where they are domiciled, to bring actions for torts in U.S. courts, regardless of where the tort occurred.52 The long-arm aspects of the ATCA are limited, however, by a number of hurdles: the properness of the claims (subject-matter jurisdiction), personal jurisdiction, and forum non conveniens.53 The ATCA, before it can be invoked, requires the plaintiff to identify an enforceable and universal international norm and properly allege its violation by the corporation concerned. This requires a very specific account of the facts, which are often difficult to establish for the plaintiffs.54 Therefore, in order to have proper subject-matter jurisdiction, the claim must be one brought under generally accepted principles of international law or norms that are definable, obligatory, and universally condemned.55 Furthermore, all civil cases within the United States require the plaintiff to establish personal jurisdiction.56 In the case of an individual defendant, the plaintiff can establish personal jurisdiction by properly serving the defendant according to the Federal Rules of Civil Procedure, either at the defendants place of residence in
48. 456 F.3d 1069, 1074 (9th Cir. 2006). 49. Id. at 1078. 50. See Fuks, supra note 46, at 143 (concluding that the Sosa decision will likely not adversely affect future ATCA litigation against corporate actors). 51. See Kadic, 70 F.3d at 239 (expanding the reach of the ATCA to apply to private actors who violate international laws, not just state actors); Doe I v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997) (treating corporations as private individuals for ATCA purposes). 52. See Developments in the Law, supra note 7, at 2033. 53. See JAGERS, supra note 30, at 200-03 (discussing procedural limitations of the ATCA). 54. Id. at 201. 55. Id. (quoting Forti v. Suarez-Mason, 672 F. Supp. 1531, 1539-40 (N.D. Cal. 1987), amended in part, 694 F. Supp. 707 (N.D. Cal. 1989)). 56. Katherine Neikirk, Note, Squeezing Cyberspace into International Shoe: When Should Courts Exercise Personal Jurisdiction over Noncommercial Online Speech?, 45 VILL. L. REV. 353, 356-57 (2000).

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the United States or personally upon the defendant while he or she is traveling through the United States.57 If the defendant is a corporation, personal jurisdiction will be more difficult to establish if the corporation does not have a U.S. headquarters or a place of business in the United States.58 Given the size of many of todays MNCs,59 however, it is possible that the MNC will have a subsidiary company, branch, or local office somewhere within the United States. Even if the plaintiff establishes both personal and subject-matter jurisdiction, the court may refuse to hear an ATCA case under the doctrine of forum non conveniens.60 Defendants invoke this doctrine when they wish to remove a case into the jurisdiction where the alleged injury occurred or into another jurisdiction that has a more substantial connection.61 The courts will consider a number of factors, such as location of the evidence and witnesses and convenience to both parties, in deciding whether to dismiss.62 Corporate defendants are particularly likely to invoke this doctrine, because they stand to gain from having their cases moved to jurisdictions with less stringent laws or poorly structured legal systems.63 These limitations on the ATCA show that the statute, while capable of being successfully invoked, still faces several hurdles that may prevent foreign victims from using it.64 With this in mind, it is important to consider several alternatives to the ATCA. C. Foreign Alternatives to the ATCA

This section will focus on the existing alternative avenues through which victims can bring civil suits in their domestic legal system against MNCs that commit human rights violations.
57. FED. R. CIV. P. 5. 58. See generally Asahi Metal Indus. Co. v. Sup. Ct., 480 U.S. 102 (1987) (foreign defendants selling of parts that were eventually made into components sold in the United States was insufficient to establish minimum contacts for personal jurisdiction purposes); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984) (foreign defendants negotiation of a contract within the United States and drawing checks in the United States was not sufficient to establish personal jurisdiction). 59. See Kamminga and Zia-Zarifi, supra note 23, at 2-4 (discussing the traits, particularly the size and scope, of MNCs). 60. See generally JAGERS, supra note 30, at 196-98. 61. See id. 62. Id. at 196-97. 63. For a detailed discussion of this doctrine, see Kathryn Lee Boyd, The Inconvenience of Victims: Abolishing Forum Non Conveniens in U.S. Human Rights Litigation, 39 VA. J. INTL L. 41 (1998). 64. See generally JAGERS, supra note 30, at 196-200 (mentioning forum non conveniens, the act of state doctrine, and the political question doctrine).

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1.

Public International Law Paving the Way for Private Civil Suits The International Framework for Human Rights

a.

Treaties have developed into an essential component of the global legal system, as they spell out rights of citizens and the obligations of signatory nations to ensure that those rights are protected.65 Of particular importance to the development of human rights standards throughout the world is the United Nations Universal Declaration of Human Rights, which is aimed at every individual and every organ of society.66 While this declaration is nonbinding, its focus seems broad enough to encompass corporations, as well as individuals and state actors. The declaration states that [e]veryone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized,67 and further that [n]othing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.68 The International Covenant on Economic, Social and Cultural Rights (ICESCR)69 and the International Covenant on Civil and Political Rights (ICCPR)70 contain provisions on the basic rights of individuals and on the right to self-determination held by each individual.71 These declarations, and others like them, establish principles of international law and common understandings about the status of human rights.72 While the declarations do set out requirements for the signatory states, they still require state action before they can enter into force.73 Article 2(1) of the ICCPR requires states to protect individuals within their territories and subject to their jurisdiction, while Article 2(2) requires states to
65. See, e.g., Developments in the Law, supra note 7, at 2046-47 (discussing the role of a multilateral treaty in transnational jurisdiction for human rights violations). 66. Universal Declaration of Human Rights, G.A. Res. 217A, at 72, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948) [hereinafter Universal Declaration]. 67. Id. at 76. 68. Id. at 77. 69. International Covenant on Economic, Social and Cultural Rights, Jan. 3, 1976, 993 U.N.T.S. 3 [hereinafter ICESCR]. 70. International Covenant on Civil and Political Rights, Mar. 23, 1976, 999 U.N.T.S. 171 [hereinafter ICCPR]. 71. See ICESCR, supra note 69, at 4; ICCPR, supra note 70, at 173. 72. See generally ICESCR, supra note 69; ICCPR, supra note 70. 73. ICCPR, supra note 70, at 173-74; ICESCR, supra note 69, at 4.

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implement legislation to protect these rights.74 These declarations set out human rights that have been commonly established, but, at the same time, they make clear that it is up to the individual states, rather than the global community as a whole, to protect these rights.75 b. Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters

Another example of public international law that is actionable through the individual states is the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels Convention).76 The Brussels Convention, which has been codified as the Brussels Regulation,77 is the only international convention that deals with the issue of jurisdiction.78 The Brussels Convention sets out limitations on when jurisdiction is appropriate for civil cases by creating specific bases of jurisdiction by which all members must abide.79 The Brussels Convention states that general jurisdiction is available in the country of the defendants domicile.80 When dealing with corporate defendants, the domicile is considered the location of the corporations seat, which is to be defined by the private international law of the individual courts.81 The seat of the corporation has been defined as the center of managerial control, the location of the principal establishment of the corporation, or the place of incorporation.82 The Brussels Convention also provides that specific jurisdiction is available for torts in the place where the tort occurred.83
74. ICCPR, supra note 70, at 173-74. 75. See generally ICESCR, supra note 69; ICCPR, supra note 70 (requiring and emphasizing State action throughout). 76. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, as amended, 1990 O.J. (C 189) 1 [hereinafter Brussels Convention]. 77. Council Regulation 44/2001, 2001 O.J. (L 12) 1 (EC) [hereinafter Brussels Regulation]. The Regulation applies to all EU Member states, with the exception of Denmark. Id. at 2-3. 78. See Stephens, supra note 10, at 22-23. 79. See generally Brussels Convention, supra note 76, at tit. II. 80. See Brussels Convention, supra note 76, art. 2. 81. Id. art. 53. 82. See Brian Pearce, The Comity Doctrine as a Barrier to Judicial Jurisdiction: A U.S.-E.U. Comparison, 30 STAN. J. INTL L. 525, 534 (1994) (discussing different standards that European legal systems apply to determine the seat of a corporation). 83. Brussels Convention, supra note 76, art. 5(3).

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The Brussels Convention also sets out the jurisdictional requirements to which contracting states must adhere during litigation with other contracting states.84 When the litigation involves a defendant domiciled in a non-contracting state, however, the Convention allows each individual state to use its own jurisdictional rules.85 Therefore, countries such as the United Kingdom and Ireland, which allow jurisdiction based on transitory physical presence,86 may only use that basis of jurisdiction when litigating against a non-contracting state.87 Aside from these few exceptions to the Brussels Convention, the basic rules allow only for jurisdiction over foreign actors for domestic violations, or against domestic actors for violations committed in foreign countries, but not for violations committed by foreign actors in a foreign countrythe type of litigation permitted by the ATCA.88 2. Civil Suits Within a Nations Domestic Legal System Opportunities for civil suits against MNCs also exist within both common law and civil law countries.89 This section will examine the possibility of transforming human rights violations into gardenvariety torts to create a cause of action for civil suits within domestic legal systems.90 a. A Common Law Country Alternative: the United Kingdom The United Kingdoms legal system, while in many regards similar to that of the United States, does not have an ATCA equivalent that offers an explicit authorization for civil suits against aliens who commit torts abroad.91 Furthermore, procedural differences and different cultural views on the use of civil litigation for legal reform are a significant barrier to the success of civil suits against MNCs within the United Kingdom.92 Bringing a civil suit in the United Kingdom against a foreign defendant for an act committed in a foreign territory carries with it
84. See id. art. 3. 85. See id. art. 4. 86. See id. art. 3. 87. See id. art. 4. See also Stephens, supra note 10, at 23. 88. See Stephens, supra note 10, at 24. 89. See, e.g., JOSEPH, supra note 1, at 15-16 (explaining that common law countries are more likely than civil law countries to have these types of suits). 90. See, e.g., Stephens, supra note 10, at 31-53 (discussing the possibility of defining human rights violations as torts to allow for civil suits). 91. See id. at 18 (introducing a discussion into the limitations of Filartiga-style civil suits brought by victims of torture in the United Kingdom). 92. See id.

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several procedural hurdles, the most important of which is obtaining jurisdiction for the court to even hear the case.93 In obtaining jurisdiction, the plaintiff must be able to serve the defendant with a claim form, similar to service of process in the United States.94 The British courts have allowed service on individuals based on mere transient presence, including on a person passing through for only a few days.95 Requirements for effecting service on a corporation depend on whether the corporation is foreign and its presence within the United Kingdom.96 If the defendant is a foreign corporation that has a branch in the country, jurisdiction can be obtained through service of process to an authorized agent.97 Similarly, if the foreign corporation has a place of business in the United Kingdom but no branch, jurisdiction can still be obtained by service of process to an authorized agent.98 Foreign companies with branches or places of business in Great Britain also must file the names and addresses of all authorized agents with the Registrar of Companies, thereby aiding in the service process.99 The U.K. Civil Procedure Rules also allow for service of process to be effected at any of the places of business of the company within the jurisdiction.100 While MNCs may have at least one place of business within the United Kingdom, some do not. In those instances, the plaintiff must serve process outside of the jurisdiction of the court.101 The U.K. Civil Procedure Rules allow this to occur in a limited number of circumstances, but strict procedural requirements must be met for service of this type to be proper.102 The British court must grant the plaintiff permission to serve process outside of the jurisdiction so that only those defendants with sufficiently close connections to the United Kingdom can be brought into the courts.103
93. See Human Rights Committee, International Law Association (British Branch), Report on Civil Actions in the English Courts for Serious Human Rights Violations Abroad, reprinted in 2001 EUR. HUM. RTS. L. REV. 129, 139 [hereinafter British ILA Report] (discussing the barriers to civil litigation in England for Filartiga-type cases). 94. See id. at 139-41. 95. See Colt Indus. Inc. v. Sarlie, 1 W.L.R. 440 (Q.B. 1966). 96. British ILA Report, supra note 93, at 140-41. 97. Companies Act, 1985, c. 6, 690A, 694A (Eng.). See also British ILA Report, supra note 93, at 140. 98. Companies Act 695. 99. Id. 690A, 694A, 695. 100. U.K. CIV. P. R. 6.2 and 6.5(6), available at http://www.justice.gov.uk/civil/ procrules_fin/menus/rules.htm. 101. U.K. CIV. P. R. 6.17-6.20. 102. U.K. CIV. P. R. 6.19-6.20. 103. U.K. CIV. P. R. 6.21. See also British ILA Report, supra note 93, at 141.

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The British ILA Report sets out three requirements that generally must be met in order for a plaintiff to obtain permission to serve a defendant outside of the United Kingdom: (a) that he has a good arguable case that his claim falls within one of the categories prescribed by Rule 6.20 of the Civil Procedure Rules; (b) that, on the merits, there is at least a serious issue to be tried; and (c) that England is the appropriate forum for the trial of the actionthe forum conveniens.104 The procedural difficulties in instituting suits of this nature arise in meeting these three requirements.105 The determination of the United Kingdom as the forum conveniens can be difficult to show.106 Under the British development of the forum conveniens doctrine, the court where the proceeding is brought must consider a number of factorssuch as connection of the case to the forum, location of the witnesses and documents, and procedural aspects of the two forumsin order to determine which forum is most appropriate for bringing the action.107 The burden is first on the defendant to show that there is another, more appropriate forum; but once the defendant shows that, the burden shifts to the plaintiff to show that justice cannot be done in the alternative forum.108 The British courts have interpreted this doctrine in a number of cases involving MNCs.109 The defendant corporations generally claim forum non conveniens. The court must then perform a forum non conveniens analysis to determine the most appropriate forum for the case to be heard. In this analysis it must consider which forum has sufficient connections to the claims and which forum would permit justice to be done.110 In order to effectuate a civil suit within the British courts, the plaintiff must therefore overcome the hurdle of showing that justice cannot be done
104. British ILA Report, supra note 93, at 142 (citing generally Seaconsar Far East Ltd. v. Bank Markazi Jomhouri Islami Iran, [1994] 1 A.C. 438 for (a) and (b), and Spiliada Maritime Corp. v. Cansulex Ltd., [1987] A.C. 460 for (c)). 105. Id. at 142. 106. See JAGERS, supra note 30, at 205. 107. See Meeran, supra note 24, at 254. 108. See id. See also Connelly v. R.T.Z. Corp., [1998] A.C. 854, 871-872 (H.L.) (Eng.). 109. See generally Spiliada Maritime Corp. v. Cansulex Ltd., [1987] 1 A.C. 460 (H.L.) (Eng.); Mohammed v. Bank of Kuwait, [1996] 1 W.L.R. 1483 (Eng.); Connelly, [1998] A.C. 854 (in all these cases, defendant corporations moved to apply the doctrine of forum non conveniens to have their cases removed to forums outside of England, but the courts dismissed the motions in the interest of justice). [Detailed analysis of these cases is beyond the scope of this Note, but see Meeran, supra note 24, for a thorough explanation of the courts reasoning in Connelly. 110. See British ILA Report, supra note 93, at 145.

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in what would likely be the more appropriate forum, the country where the violation occurred.111 A final consideration within the British system is the proper law to apply to civil cases against MNCs.112 A civil suit filed under the domestic laws of the United Kingdom would be ideal; as there is no ATCA equivalent, however, victims of these violations may have to file their claims under customary international law.113 In general, British courts, in considering a civil suit under customary international law for a tort committed abroad, must apply the law of the country where the event that led to the tort occurred.114 Therefore, the courts should apply the law of the country where the tort occurred, even though that might be a developing country with less stringent human rights laws. There is, however, an exception to the general rule. If upon comparison it is determined that
it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country.115

In making the determination for this exception, the court must compare the significance of the factors connecting the tort to the country under the general law to the factors connecting the tort to the other country.116 These are factors relating to the parties, to the events that constitute the tort, and to any other circumstances of the specific events.117 This choice of law question becomes important in circumstances where the tort or human rights violation is not one that is recognized globally as illegal.118 Plaintiffs must meet these procedural requirements before they can successfully bring a civil suit before the British courts.119 Part III of this Note will offer an analysis of the likelihood of effectuating civil suits against MNCs in the British courts, in light of the
111. See id. at 145-46. 112. See id. at 158-59. 113. Id. at 158-59. 114. Private International Law (Miscellaneous Provisions) Act, 1995, c. 42, 11(1) [hereinafter U.K. Private International Law Act]. See also Michael Byers, English Courts and Serious Human Rights Violations Abroad: A Preliminary Assessment, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW, supra note 23, at 241, 244. 115. U.K. Private International Law Act, supra note 114, 12(1). 116. Id. 117. British ILA Report, supra note 93, at 161. 118. See id. 119. See id. at 165.

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above-mentioned procedural requirements, and will provide a comparison to the success of similar suits in U.S. courts under the ATCA. b. A Civil Law Country Alternative: France

Many civil law countries, such as France, Spain, and Sweden, offer an alternative method of bringing civil suits: attaching the civil claim to an existing criminal prosecution.120 In France, the plaintiff who brings the claim is referred to as the partie civile.121 Within this partie civile system, the main claim is the criminal prosecution, and any civil claims must be a direct result of the criminal act of which the defendant is accused.122 This system is encompassed within the French Code of Criminal Procedure, which states that any [c]ivil action aimed at the reparation of the damage suffered because of a felony, a misdemeanor or a petty offence is open to all those who have personally suffered damage directly caused by the offence.123 While it is possible to bring a civil action separately, if a criminal proceeding has already been initiated, all separate civil actions will be placed on hold until the prosecution has concluded its case.124 This rule creates an incentive for victims of abuses to utilize the partie civile system, as the victim can bring an action under this system simultaneously with the public prosecution and in front of the same court.125 Furthermore, if the government has not yet initiated a criminal prosecution, the partie civile system still allows the private citizen to initiate a civil claim in the criminal court.126 Becoming a partie civile provides procedural advantages, as using the criminal process is often faster, easier, and less expensive than initiating a separate civil proceeding.127 An additional benefit is that the investigatory means used by the prosecutor, as well as the prosecutors specialized skills, can be used to prove both the crimi120. Stephens, supra note 10, at 19 n.62. 121. Matti Joutsen, Listening to the Victim: The Victims Role in European Criminal Justice Systems, 34 WAYNE L. REV. 95, 115 (1987) (describing the partie civile system used in European legal systems). 122. Id. 123. C. PR. PEN. art. 2, available at http://www.legislationline.org/legislations.php?jid= 19&ltid=15 [hereinafter FRENCH CODE CRIM. P.]. 124. FRENCH CODE CRIM. P. art. 4. See also Jean Larguier, The Civil Action for Damages in French Criminal Procedure, 39 TUL. L. REV. 687, 699 (1965). 125. See FRENCH CODE CRIM. P. art. 3. 126. See Larguier, supra note 124, at 698. 127. Joutsen, supra note 121, at 116.

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nal and civil case simultaneously.128 The partie civile system includes several limitations as well, which could have implications for bringing civil suits against corporations.129 First of all, recovery as a partie civile consists simply of restitution, and not punitive damages.130 This diminishes some of the deterrent effect of the civil action. Furthermore, determining the proper amount of damages can also be a hindrance, especially in cases where the extent of the injuries may not be known for many years to come.131 c. Transforming Human Rights Violations Into Torts

In both common-law and civil-law domestic systems, civil actions must be based on a claim that is recognized as a violation.132 Some aspects of human rights are considered jus cogens principles, which are peremptory and mandatory norms of international law that no nation may violate.133 Jus cogens principles are considered so fundamental that no nation may ignore them or attempt to contract out of them through treaties. For example, genocide and participating in a slave trade are thought to be jus cogens.134 The difficulty of bringing a proper claim for a civil case arises when the human rights violation committed by the corporation is one that is based entirely on international-law norms but that is not settled as a jus cogens principle.135 In this situation, in order to prevent the case from being thrown out for lack of an actionable claim, the possibility exists of reframing the human rights violation as a garden-variety tort that is already grounded in the domestic legal systems of the individual countries.136
128. See id. 129. See Larguier, supra note 124, at 688, 697 (discussing procedural difficulties generally and particularly those difficulties in bringing civil actions against certain parties). 130. See id. at 688-89. 131. Joutsen, supra note 121, at 117. 132. See, e.g., JOSEPH, supra note 1, at 15-16. 133. BLACKS LAW DICTIONARY 876 (8th ed. 2004). 134. Nolos Legal Glossary, Jus Cogens Legal Definition, http://www.nolo.com/glossary.cfm (search jus cogens in the search box; then follow jus cogens hyperlink) (last visited May 16, 2008). 135. See British ILA Report, supra note 93, at 158. 136. See Stephens, supra note 10, at 31-34 (discussing the possibility and difficulty of changing human rights violations into garden-variety torts as a means of creating a cause of action). See also John Terry, Taking Fil rtiga on the Road: Why Courts Outside the United States a Should Accept Jurisdiction over Actions Involving Torture Committed Abroad, in TORTURE AS TORT: COMPARATIVE PERSPECTIVES ON THE DEVELOPMENT OF TRANSNATIONAL HUMAN RIGHTS LITIGATION 109, 110 (Craig Scott ed., 2001) (advocating the use of tort remedies for human rights violations).

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The human rights violation would have to equate to a claim actionable as a domestic tort, like wrongful death, assault, or false imprisonment.137 For example, plaintiffs would have to allege the domestic tort of assault in cases of torture, wrongful death for disappearances and killings, and negligence for injuries from unsafe working conditions.138 In these kinds of cases, tort litigation provides not only a domestic cause of action, but also compensation to victims and deterrence to MNCs.139 One court has stated that human rights violations require global attention and that reducing them to no more (or less) than a garden-variety municipal tort would be inappropriate.140 In light of the current limitations on many domestic legal systems, however, converting the violations to basic torts would be the only way to bring a civil case capable of withstanding an attempt to dismiss it for failure to state a claim.141 III. ANALYSIS

The foreign alternatives to the ATCA, as discussed above, are each subject to their own procedural limitations.142 Within the existing alternatives, redefining human rights violations as common torts will provide the greatest likelihood that individual nations domestic courts will hear civil claims against MNCs.143 These alternatives do not guarantee jurisdiction for civil claims to the extent that the ATCA does, however. Instead, the global community as a whole must establish that universal jurisdiction applies to civil human rights cases, through a treaty or convention, and each individual country must authorize its legal system to hear these civil cases.144 This Part of the Note will compare the ATCA to the above-mentioned alternatives: existing public international law, jurisdiction within the domestic legal systems of the United Kingdom and France, and finally, the use of garden-variety torts to create civil claims within individual countries domestic legal systems.145 While each alternative offers a possibility of civil suits, such suits are
137. 138. 139. 140. 141. 142. 143. 144. should 145. See Stephens, supra note 10, at 31. Cf. id.; SAHNI, supra note 26, at 179. See SAHNI, supra note 26, at 181. Xuncax v. Gramajo, 886 F. Supp. 162, 183 (D. Mass. 1995). See British ILA Report, supra note 93, at 159. This section will discuss these procedural limitations in greater detail. See discussion infra Part III.B. See, e.g., Stephens, supra note 10, at 39-53 (arguing that universal jurisdiction obtain for civil as well as criminal responses to human rights violations). See discussion infra Parts III.A, III.B.

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never guaranteed. As this analysis will present, a major weakness of these alternatives is that none of them has statutory authority like the ATCA.146 A. 1. Three ATCA Alternatives and Their Limitations

The ATCA in Comparison to Public International Law

Public international law, in the form of treaties and conventions, has yet to offer a civil remedy for human rights violations comparable to the statutory authorization the ATCA created.147 While treaties, declarations, and conventions have developed human rights obligations, [t]hese obligations have tended to focus exclusively on or, at least, to emphasize the taking of criminal sanctions against the alleged offenders.148 The authorization for civil remedies for human rights violations has been left primarily to the discretion of individual states and their private international laws.149 Both the ICESCR and the ICCPR require individual state action before their requirements can enter into force.150 Public international law of this sort is therefore dependent upon individual state authorization before its obligations are legally binding.151 The requirement that states authorize these declarations, in combination with a strictly criminal view of human rights violations, have made public-international-law declarations unlikely to guarantee jurisdiction for civil human rights suits.152 The Brussels Convention, codified by the Brussels Regulation, specifically focuses on the issue of jurisdiction for civil suits within its signatory states.153 Signatory states must adhere to the Brussels Conventions jurisdictional requirements.154 This guarantees that under the specific circumstances set out in the Brussels Convention, the domestic courts will have jurisdiction to hear claims.155
146. See Terry, supra note 136, at 118 (stating that third country civil remedies should ideally be implemented by domestic legislation, like ATCA and TVPA). 147. See discussion supra Part II.C.1. 148. Andrew Byrnes, Civil Remedies for Torture Committee Abroad: An Obligation Under the Convention Against Torture?, in TORTURE AS TORT, supra note 136, at 537, 538. 149. Id. at 539. See generally U.K. Private International Law Act, supra note 114; Alien Tort Claims Act, 28 U.S.C. 1350 (2006). 150. ICESCR, supra note 69, at 4; ICCPR, supra note 70, at 173. 151. See generally ICESCR, supra note 69; ICCPR, supra note 70. 152. See discussion supra Part II.C.1. 153. See discussion supra Part II.C.1.b and accompanying footnotes for an explanation of the Brussels Regulation and Brussels Convention. 154. See generally Brussels Convention, supra note 76 (with articles 2-24 describing the jurisdictional requirements). 155. See generally id. arts. 2-24.

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The problem, however, is that the Brussels Convention can actually limit the ability of certain courts to take jurisdiction in litigation between contracting states, when those courts would otherwise have jurisdiction under their domestic laws.156 Both the United Kingdom and Ireland within their domestic laws allow for jurisdiction against a defendant based on transitory physical presence.157 The Brussels Convention, however, does not recognize transitory physical presence as a proper means of jurisdiction.158 In litigation with another Brussels Convention contracting state, neither the United Kingdom nor Ireland would be allowed to use transitory presence to establish jurisdiction, despite the existence of that option in their domestic laws.159 This problem is mitigated to some extent by the fact that contracting states are free to use their own domestic laws when involved in litigation with non-contracting statessuch as the developing countries in which MNCs would be more likely to commit human rights violations.160 Public international law is unlikely to provide for a solid alternative to the ATCA without individual state action.161 While these public laws, conventions, and declarations set out general obligations and understandings, without individual state authorizations, these obligations are mostly symbolic.162 In particular, public international law has yet to address the notion of civil human rights litigation, let alone establish universal jurisdiction for these suits.163 These international sources of law, therefore, cannot fully respond to the major roadblock of civil human rights litigation against MNCs: obtaining jurisdiction within the domestic courts of a country.164
156. See Stephens, supra note 10, at 23. 157. Id. 158. Brussels Convention, supra note 76, arts. 2, 3. See also Terry, supra note 136, at 120 (discussing limitations to service based on transient jurisdiction under the Brussels Convention). 159. See Brussels Convention, supra note 76, art. 3 (explaining that certain State-specific jurisdictional rules will not apply to persons domiciled in a Contracting State). See also Stephens, supra note 10, at 23. 160. Brussels Convention, supra note 76, art. 4. 161. See discussion supra Part II.C. 162. See Stephens, supra note 10, at 24 (restrictions [such as jurisdiction] make core human rights lawsuits impossible in many legal systems). 163. See Developments in the Law, supra note 7, at 2025-26 (International law has neither articulated the human rights obligations of corporations nor provided mechanisms to enforce such obligations.). 164. Cf. id. at 2045 (explaining that universal jurisdiction of the international legal system generally concerns only criminal jurisdiction).

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Public international law leaves countries with an understanding of what a human rights violation is but no specific guarantee of jurisdiction. Individual countries are left to use their own laws to establish jurisdiction for civil suits of this type, just as the United States has done with the establishment of the ATCA.165 The ATCA is an example of a private international law that establishes jurisdiction for civil suits of this nature.166 The ATCA, as a statute, has already authorized U.S. courts to find jurisdiction where there is a violation of an international norm as established by public international law.167 This authorization sets the United States apart as the only nation to authorize transnational civil human rights litigation by statute.168 The ATCA has enabled public international law to take effect within the United States, and it is an example of the type of authorization other nations should also implement to allow for civil suits against MNCs for human rights violations.169 2. The ATCA in Comparison to Alternatives of the United Kingdom

The United Kingdom does not have an ATCA statutory equivalent.170 Civil suits against MNCs are therefore dependant on establishing jurisdiction through domestic laws.171 The U.K. courts, despite having no statutory authorization of jurisdiction for civil human rights litigation, may hear these cases in certain specific circumstances.172 As discussed above, for civil human rights litigation to come to fruition in U.K. courts, the procedural requirements of service of process must be met, the U.K. court must be considered the forum conveniens, and the proper choice of law must be determined.173 These requirements make jurisdiction
165. See generally id. (discussing the use of ATCA in the United States to hold corporations liable for their human rights violations). 166. Alien Tort Claims Act, 28 U.S.C. 1350 (2006). 167. See Developments in the Law, supra note 7, at 2044-45 (considering ATCA an example of private international law that extends universal jurisdiction to civil suits). 168. See Stephens, supra note 10, at 3. 169. Cf. id. at 5 (Victims of human rights abuses around the world seek comparable results [to U.S.-style ATCA litigation] through varied procedural models, tailored to the requirements of their local legal systems.). 170. See id. at 18. 171. See discussion supra Part II.C.2.a for an explanation of the procedural roadblocks U.K. courts face in obtaining jurisdiction for civil human rights litigation. 172. See, e.g., Byers, supra note 114, at 245-47 (discussing the possibility of human rights liability for MNCs in the United Kingdom). 173. See discussion supra Part II.C.2.a and accompanying notes.

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more difficult to establish in the United Kingdom than under the ATCA.174 The doctrine of forum non conveniens is a procedural roadblock that both U.S. and U.K. courts face in civil human rights litigation.175 Defendants invoke this doctrine only after jurisdiction has been established and process has been properly served.176 Both U.S. and U.K. courts must determine whether their courts are the forum conveniens, or the most appropriate forum in which to bring the case. U.K. courts, through a number of cases, have discussed the issue of forum non conveniens and seem less likely to apply the doctrine when justice could not be done in the forum where the violation occurred.177 The court in Mohammed v. Bank of Kuwait expressed its unwillingness to stay a proceeding on the basis of forum non conveniens solely because the foreign forum was the more appropriate forum.178 Instead, the court required that the foreign forum also be an available forum, which it defined as one that is available in practice to [a] plaintiff to have his dispute resolved and one where substantial justice is likely to be achieved . . . .179 Despite the possible edge U.K. courts have over U.S. courts in the invocation of the forum non conveniens doctrine, a greater concern is the ability of U.K. courts to even reach the point at which forum conveniens is an issue after jurisdiction has been established and process has been served on a defendant.180 U.K. courts, like U.S. courts, allow for service of process to be made based on transient presence, thereby allowing for service upon defendants when they are only passing through the country.181 U.K. courts, however, are bound by the Brussels Regulation, which prohibits service against contracting members based on transient presence, while U.S. courts are not similarly bound.182 This gives U.S. courts greater leeway in serving defendants who would be subject to ATCA litigation. U.K. courts, however, can serve process to a defendant who is abroad under certain limited circumstances,
174. See generally British ILA Report, supra note 93 (analyzing the procedural difficulties in bringing ATCA-equivalent suits in the United Kingdom). 175. See JAGERS, supra note 30, at 205. 176. See British ILA Report, supra note 93, at 145. See also discussion supra Part II.C.2.a. 177. See Byers, supra note 114, at 246. See also Meeran, supra note 24, at 261-62. 178. [1996] 1 W.L.R. 1483, 1490 (Eng.). 179. Id. 180. See British ILA Report, supra note 93, at 145 (explaining that the issue of forum conveniens is the final hurdle). 181. See Stephens, supra note 10, at 23. 182. See discussion supra Part III.A.1 on the Brussels Regulation and its effect on U.K. courts.

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while U.S. courts cannot.183 While this gives the U.K. courts a minor advantage, the circumstances are extremely limited and often require some damage to have accrued in the United Kingdom.184 Therefore, this type of service is unlikely to be used against MNCs that commit human rights violations abroad, especially when it usually would be possible to serve process on the MNC at a place of business within the forum.185 A further jurisdictional roadblock to civil human rights litigation in U.K. courts is in bringing an actionable claim.186 The ATCA authorizes a cause of action for civil suits of this sort, but the United Kingdom, without an equivalent authorization, must establish its claim under its existing laws and public international law.187 If the claim is a violation of a jus cogens norm by an MNC such as slavery or forced labor, U.K. courts will likely hear the case.188 The hurdle arises, however, when the violation is not so firmly established in international law.189 In these situations, the court must decide whether a personal remedy is available through civil litigation, as no explicit authorization exists.190 While international public law has established obligations, it is important to note that even in respect of these conventional provisions the right to a remedy remains poorly developed.191 Therefore, despite certain procedural advantages that exist in the U.K. system, the absence of an explicit statute that authorizes civil suits of this nature presents a significant hurdle. 3. The ATCA in Comparison to Frances Partie Civile The partie civile system in France faces even greater hurdles than the U.K. system in providing a civil remedy for victims of human rights violations. A partie civile, as explained above, is a party that attaches a civil claim onto an on-going criminal prosecution.192 This system can be efficient and extremely beneficial for victims with a strong criminal case, because it saves time and money and allows the prosecution to prove both the underlying criminal case
183. 184. 185. cess in 186. 187. 188. 189. 190. 191. 192. See Byers, supra note 114, at 245. Id. See discussion supra Part II.C.2.a for a more detailed discussion of service of prothe United Kingdom. See British ILA Report, supra note 93, at 139-49. See id. at 138. See id. at 137. See id. See id. at 138. Id. See discussion supra Part II.C.2.b and accompanying notes.

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and the attached civil matter.193 A drawback, however, is that the success of any civil remedies for human rights violations rely exclusively on the existence and successful prosecution of a criminal matter.194 A foreign victim, suffering from harms committed in a foreign country, will likely be incapable of initiating a criminal case to which they can then attach a civil complaint. Assuming that a criminal prosecution was commenced, and the victim has attached a civil complaint, the victim would still have to address the question of the proper amount of damages. Under the partie civile system, recovery is limited to restitution only, thereby removing the deterrent effect of punitive damages.195 This is an especially unfortunate drawback of the partie civile system, as victims could stand to obtain a significant sum of money given the deep pockets of many MNCs. Limiting the amount of recovery to reparations also does not take into consideration possible future damages, whereas a significant punitive recovery could make up for that difference.196 The partie civile system, as opposed to the ATCA, does not establish an independent right to bring civil human rights litigation, as any civil remedy is tied in with the criminal case.197 While this is a nice option for victims of crimes committed within France, the foreign plaintiff, whose rights were violated by an MNC in a foreign jurisdiction, will have a more difficult time using this system. More than anything else, the partie civile system offers only an additional benefit of a civil remedy for a victim who actually has a criminal case.198 Victims who cannot obtain criminal justice, however, are left in the same position as before: without an established right to bring civil human rights litigation within a foreign jurisdiction. B. A Fourth ATCA Alternative and Todays Best Alternative: Changing Human Rights Violations into Torts

The final alternative considered in this Note is the transformation of human rights violations into common torts. One of the
193. See Larguier, supra note 124, at 687 (discussing the advantages of the partie civile system in France). 194. See id. at 688 (discussing the disadvantages of the partie civile system). 195. Id. at 688-89. See also Stephens, supra note 10, at 20 (describing how recovery has been extremely minimal in civil human rights cases in Europe). 196. Cf. Stephens, supra note 10, at 20 (stating that recovery under the current partie civile is mostly symbolic). 197. Larguier, supra note 124, at 689 (the civil action must be grounded on the commission of a criminal offense). 198. See id.

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major roadblocks to civil human rights litigation against MNCs is that human rights obligations of corporations have yet to develop to the extent of human rights obligations of individuals.199 This means that international law alone may not provide a claim against an MNC that commits these violations, especially if the domestic laws of a country do not also provide a remedy for those violations.200 The concept of converting human rights violations into domestic torts is a response to this absence of civil relief otherwise. The ATCA is a uniquely American statute that creates a civil cause of action for violations of the law of nations.201 Despite the lack of an explicit statute authorizing this kind of litigation in other nations, the use of a tort remedy offers a workable alternative.202 In the United Kingdom, as discussed above, civil suits for human rights violations are more plausible when the remedy is based on a domestic cause of action, such as a tort.203 That tort law is already established within the domestic legal system of these countries is advantageous as well.204 While a tort remedy does not guarantee service of process or establishment of jurisdiction, at least it guarantees that a cause of action exists for victims. Legal scholars have presented numerous arguments about the legal benefits of transforming the human rights violation of torture into a tort remedy for civil relief.205 The extensive international discussions about the rights of torture victims, which established the prohibition on torture as a jus cogens norm, make this tort remedy particularly effective for civil suits.206 Domestic courts are more willing to exercise jurisdiction over violations that occurred in another forum when the violation was of a jus cogens international norm, such as torture.207 While the jurisdictional reach of these courts has generally been for criminal matters, a court will
199. See Developments in the Law, supra note 7, at 2025-26. See also discussion supra Part II.A about obligations of MNCs. 200. See discussion supra Part III.A.1. 201. Alien Tort Claims Act, 28 U.S.C. 1350 (2006). See also Terry, supra note 136, at 110. 202. See Terry, supra note 136, at 110-11 (advocating a tort remedy when there is no explicit legislative authorization for these kinds of civil cases). 203. See discussion supra Part III.A.2. 204. See Terry, supra note 136, at 115 (discussing the advantages of the tort remedy over criminal remedy). 205. See generally TORTURE AS TORT, supra note 136 (exploring numerous issues on the subject of treating torture as a tort). 206. See Terry, supra note 136 , at 119 (quoting Prosecutor v. Anto Furundzija, Case No. IT-95-17/1-T, Judgment, 153 (Dec. 10, 1998), available at http://www.un.org/icty// furundzija/trialc2/judgement/fur-tj981210e.pdf). 207. Id.

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likely still extend its jurisdiction for civil matters where the tort is a torture equivalent.208 Courts may also exercise jurisdiction over civil cases involving human rights violations that occurred abroad when the damages inflicted upon the victim continue to accrue during the time the victim is within the courts jurisdiction.209 Emotional or mental distress, as well as future physical injuries, are just some examples of damages that may occur well after the human rights violations have stopped and the victim is within the new forum.210 By converting the human rights violation into a tort, a court will have greater options regarding whether a civil suit states a cause of action and when the court can properly take jurisdiction. The conversion of human rights violations into torts may also prove particularly effective in light of the structure of the modernday MNC.211 MNCs can be held liable not only for direct human rights violations but also for negligence if plaintiffs use a tort remedy.212 Under a negligence theory, an MNC can be held liable for human rights violations to which it contributed by recklessly disregarding working standards or, worse yet, deliberately ignoring them.213 MNCs are frequently structurally complex and composed of not only the corporate entity but also of wholly owned subsidiaries, partially owned subsidiaries, and other affiliated groups.214 A tort remedy would permit these MNCs to be held liable under a theory of vicarious liability.215 This type of liability could implicate MNCs that attempt to shield themselves from the actions of their subsidiaries in other countries.216 If the third-party subsidiaries that actually commit the human rights violations are government
208. See id. at 120 (discussing the requirement of the ICCPR that states ensure that persons have an effective remedy and that the remedy is not limited to the state where the alleged action occurred). 209. See British ILA Report, supra note 93, at 161 (explaining that the British courts may hear cases where later damages accrued in England, but the original tort was committed abroad). 210. See id. 211. See discussion supra Part II.A. 212. For a discussion of negligence principles as applied to MNCs, see generally SAHNI, supra note 26, at 183-88. 213. Cf. id. (discussing the duty of care doctrine and how it may apply to MNCs); see Sarah Joseph, An Overview of the Human Rights Accountability of Multinational Enterprises, in LIABILITY OF MULTINATIONAL CORPORATIONS UNDER INTERNATIONAL LAW, supra note 23, at 76 (listing potential examples of such negligence). 214. See Meeran, supra note 24, at 252 (explaining the composition of many MNCs). 215. See generally SAHNI, supra note 26, at 213-15 (discussing vicarious liability of parent companies for intentional torts committed by their subsidiaries). 216. See id.

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actors, the Act of State Doctrine often renders them immune from suit.217 Under a vicarious liability tort theory, however, a victim could at least attempt to recover damages from the MNC through a civil suit.218 In comparison to the other discussed alternatives, a tort theory of liability seems to offer the greatest opportunity for civil suits against MNCs that commit human rights violations. Tort remedies, however, do not offer jurisdictional guarantees to the same extent as the ATCA.219 While the ATCA allows civil suits for violations of the law of nations, this tort remedy requires the transformation of serious human rights violations into garden-variety torts.220 Some consider that using tort terminology lessens the egregiousness of the violations in many cases.221 Furthermore, there is still no guarantee that a court will be willing to accept a tort cause of action.222 The following section will propose a solution to the limitations of these ATCA alternatives. C. Tomorrows Better Alternative: Universal Jurisdiction for Civil Claims and Other Jurisdictional Guarantees

The use of civil litigation against MNCs that commit human rights violations is an idea that has developed fairly recently within the United States.223 This concept has developed in the United States because of the ATCA and the TVPAs statutory implementation of jurisdiction based on international laws.224 Civil suits for human rights violations in other nations face significantly greater procedural roadblocks, however, particularly because of this absence of statutory authorization.225 While international law on human rights exists, none specifically deals with this type of civil remedy.226 Furthermore, without domestic legislation, none of the existing international laws can be fully enforced within these coun217. See generally British ILA Report, supra note 93, at 149-51 (discussing the procedural hurdles of State immunity). 218. See SAHNI, supra note 26, at 214 (stating that the motivation for imposing vicarious liability is to provide deterrence and fair compensation). 219. See Stephens, supra note 10, at 31-32. 220. See id. 221. Id. at 31. 222. Id. at 32. 223. See discussion supra Part II.B. 224. Alien Tort Claims Act, 28 U.S.C. 1350 (2006); Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. 1350 (2006)). 225. See discussion supra Part III.A. 226. See discussion supra Part III.A.

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tries.227 An effective civil remedy alternative would be expressly permitted or required by treaty and then implemented by means of domestic legislation comparable to the TVPA.228 Therefore, both the global community and individual nations must explicitly authorize a civil remedy for victims of human rights violations. The international community must acknowledge the importance of permitting victims of human rights violations to bring civil suits against their offenders. As other basic rights and norms have been established through treaties, declarations, and conventions, the same must occur for this type of civil remedy.229 An agreement must be established that expressly guarantees universal jurisdiction for civil suits within independent nations for victims of human rights violations. Currently, only jus cogens norms of international law are guaranteed universal jurisdiction, and, in those instances, universal jurisdiction is primarily for criminal actions.230 A new international agreement is necessary to guarantee universal jurisdiction for all human rights violations, not just jus cogens norms. This agreement could incorporate other existing declarations as well, such as the ICESCR and the ICCPR.231 Most importantly, however, this agreement must guarantee the rights of victims to pursue a civil remedy for human rights violations in addition to any criminal actions. While an international agreement that establishes universal civil jurisdiction is necessary to effectively develop this remedy, without state action it may not be enough. Individual nations, especially in the developed world, must be willing to enforce an international agreement and guarantee that their domestic legal systems will allow a civil action to go forward. These nations can guarantee civil actions in one of two ways: 1) authorizing civil suits by an alien for a violation committed abroad with ATCA-equivalent legislation or 2) enforcing public international law within their domestic courts through more lenient jurisdictional requirements and a greater willingness to accept the concept of a civil remedy for human rights violations. The first option is preferable as it would create a statutory obligation to enforce these civil remedies. Both would, however, effectively develop this civil remedy.
227. 228. 229. 230. 231. See discussion supra Part III.A. Terry, supra note 136, at 118. See discussion supra Part II.C. See Byrnes, supra note 148, at 537. See generally ICESCR, supra note 69; ICCPR, supra note 70.

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Victims of human rights violations caused by MNC activities are located throughout the world given the global presence of the modern-day MNC.232 These victims often live in developing countries and look to nations with developed legal systems to help them obtain justice.233 The establishment of universal civil jurisdiction for human rights violations would provide a guaranteed civil remedy for victims of human rights violations. Furthermore, these victims need individual nations to support their claims and to understand that a civil remedy, with monetary damages, could provide a significant amount of relief from their suffering. Therefore, each nation should enact an ATCA-equivalent statute that is supported by an international convention that has established an explicit right for victims of human rights violations to sue in a court of their choosing. IV. CONCLUSION

The United States is the only nation that has statutorily authorized an alien to bring a civil action against another alien for a violation of international law.234 The ATCA should be a model to other nations, especially in how it has allowed for civil suits against MNCs that commit human rights violations in their activities within developing countries. A number of alternatives to the ATCA currently existnamely, public international law, civil suits within the United Kingdom, the partie civile system of France, and converting human rights violation to torts.235 Of the current alternatives, redefining the human rights violations as common torts will provide for the greatest opportunity for civil suits to succeed.236 Without any statutory authorization for civil suits of this nature, however, none of these alternatives can guarantee jurisdiction to the extent of the ATCA. To develop and guarantee a civil remedy for a human rights victim, an international agreement, like a convention or treaty, is necessary to explicitly establish universal jurisdiction for these claims.237 Each individual signatory nation must be willing to enforce international law in order to provide for civil jurisdic232. 233. 234. 110. 235. 236. 237. See Abadie, supra note 22, at 750. See JOSEPH, supra note 1, at 11. Alien Tort Claims Act, 28 U.S.C. 1350 (2006); see also Terry, supra note 136, at See discussion supra Parts II.C, III.A-.B. See discussion supra Part III.B. See discussion supra Part III.C.

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tion.238 Ideally, this should be done through the establishment of ATCA-equivalent legislation within their domestic legal systems.239 A global agreement to provide a civil remedy for human rights violations is essential for victims of human rights violations to begin their road to recovery.

238. See discussion supra Part III.C. 239. See discussion supra Part III.C.