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International Law Limits on Investor Liability in Human Rights Litigation

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International Law Limits on Investor Liability in Human Rights Litigation \\server05\productn\H\HLI\50-2\HLI204.txt unknown Seq: 1 25-JUN-09 7:36 VOLUME 50, NUMBER 2, SUMMER 2009 International Law Limits on Investor Liability in Human Rights Litigation Michael D. Ramsey* This Article assesses efforts in U.S. courts, principally under the federal Alien Tort Statute, to hold foreign investors indirectly liable for human rights violations committed by the governments of countries in which they do business. Such claims, though intended as remedies for international law violations, create substantial tensions with international law in two respects. First, to the extent they purport to regulate the non-U.S. activities of non-U.S. entities, they may conflict with international law principles of prescriptive jurisdiction, which limit a nation’s ability to regulate the extraterritorial activities of non-nationals. Although an exception for universal jurisdiction allows nations to punish a few especially heinous interna- tional crimes without regard to territory or citizenship, it seems difficult to establish universal jurisdiction for most indirect investor liability claims, and in any event U.S. courts appear to have lost sight of this limitation. Second, investor liability suits may misconceive the source of customary international law principles. Because customary international law arises from the actual practices of nations followed out of a sense of legal obligation, its content cannot be derived from analogies to nations’ practices in areas that are factually and normatively distinct. The only reliable evidence of nations’ practices is what nations actually have done with respect to investor liability, and there is no consistent practice of imposing indirect liability on investors for host government abuses. While international law allows the United States to impose indirect investor liability upon its own corporations, the United States cannot claim to be doing so as a matter of enforcing existing international law, as the Alien Tort Statute appears to require, nor can it—consistent with international law—impose liability upon non-U.S. entities over which it lacks pre- scriptive jurisdiction. I. INTRODUCTION Investor liability litigation, which seeks to hold foreign investors respon- sible for human rights abuses in developing nations in which they do busi- ness, has proliferated in U.S. courts. Many of those claims differ from conventional human rights litigation—such as the landmark decision in Fi- l´artiga v. Pe˜na-Irala1—because the investor-defendants are not alleged to have participated directly in the abuses in question. Investor liability claims proceed on theories of indirect liability, usually described as aiding and abetting the wrongful acts of the host government; in at least some cases the connection between the investor-defendant and the governmental miscon- * Professor of Law, University of San Diego Law School. Thanks to Larry Alexander, Brannon Den- ning, William Dodge, Oona Hathaway, Chim`ene Keitner, Herbert Lazerow, Sean Murphy, Christiana Ochoa, Iddo Porat, Saikrishna Prakash, Michael Rappaport, Paul Stephan, Christopher Wonnell, Ingrid Wuerth, and participants in the Vanderbilt Law School roundtable on international law for comments on earlier drafts. Thanks also to Peter Stockburger for research assistance and to Dean Kevin Cole and the University of San Diego Law School for generous research support. 1. Fil´artiga v. Pena-Irala, ˜ 630 F.2d 876 (2d Cir. 1980). \\server05\productn\H\HLI\50-2\HLI204.txt unknown Seq: 2 25-JUN-09 7:36 272 Harvard International Law Journal / Vol. 50 duct is quite attenuated. Cases testing this theory of liability now stand at crucial junctures in U.S. courts, and judges have produced an array of con- flicting responses to them.2 This Article considers the potential tensions between an expansive version of indirect investor liability and international law. Because investor liability claims are themselves typically cast as efforts to find remedies for interna- tional human rights violations, their consistency with international law may often be assumed. As this Article describes, however, they create at least two important tensions with international—one doctrinal and one conceptual. The doctrinal tension arises because many investor-defendants are not U.S. entities and most claimed harms occur outside the United States. The international law principles of prescriptive jurisdiction limit the ability of individual nations to regulate conduct of non-nationals beyond national boundaries.3 The only exception to this rule with potential to be generally available in investor liability cases is for universal jurisdiction offenses—that is, for conduct so universally abhorred and condemned that under interna- tional law any nation may punish it. This exception has allowed U.S. courts to hear direct-liability human rights cases such as Filartiga ´ , which rested on the proposition that the conduct at issue—torture—was a universal jurisdic- tion offense.4 Subsequent courts appear to have lost sight of these principles, however, and, in particular, there has been little effort to establish that in- ternational law recognizes universal jurisdiction for indirect investor liabil- ity. Foreign nations—especially leading capital-exporters such as European 2. In one leading example, plaintiffs in federal court in New York seek damages on behalf of all persons who lived in South Africa between 1948 and 1994 and were injured by international law viola- tions of the apartheid government; the defendants are various multinational corporations that did busi- ness in South Africa during this time. In re South Africa Apartheid Litigation, 346 F. Supp. 2d 538 (S.D.N.Y. 2004), aff’d in part, vacated in part, remanded sub nom. Khulumani v. Barclay Nat. Bank Ltd., 504 F.3d 254 (2d Cir. 2007), aff’d without opinion sub nom. Am. Isuzu Motors, Inc. v. Ntsebeza, 128 S. Ct. 2424 (2008) (affirmed by default for lack of quorum). The court of appeals panel, reversing the district court’s dismissal of the action, produced long and closely reasoned opinions reflecting three completely different views of the case. On petition for writ of certiorari, the U.S. Supreme Court lacked a quorum of unrecused judges, which by statute results in affirmance without opinion. 28 U.S.C. § 2109 (2006). In another leading case, citizens of Sudan sued a Canadian oil exploration company operating in Sudan for injuries they sustained at the hands of the Sudanese government. Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006), appeal argued, No. 07-0016-cv (2d Cir. Jan. 12, 2009). At the suggestion of Talisman Energy, the author submitted an amicus brief to the court of appeals supporting the defendants/appellees in this case. Brief of Amicus Curiae Professors of Interna- tional Law, Federal Jurisdiction and the Foreign Relations Law of the United States, Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016 (2d Cir. May 7, 2007) (on file with the Harvard Law School Library). Portions of this article are based in part upon ideas developed in that brief, and I especially thank the brief’s co-author, Samuel Estreicher, for his contributions to my thinking in this area. This article does not reflect the views of Talisman Energy, Inc., or any participant in that brief. 3. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 401 (1987) [hereinafter RESTATEMENT (THIRD)]; MARK W. JANIS, AN INTRODUCTION TO INTERNATIONAL LAW 318–26 (4th ed. 2003); SEAN D. MURPHY, PRINCIPLES OF INTERNATIONAL LAW 240–56 (2006). 4. See Fil´artiga, 630 F.2d at 890. \\server05\productn\H\HLI\50-2\HLI204.txt unknown Seq: 3 25-JUN-09 7:36 2009 / International Law Limits on Investor Liability 273 Union member states—have begun to express concerns on this basis about the extension of U.S. liability rules in human rights litigation.5 Of course, Congress (and courts acting on its authority) may choose to violate international law and regulate conduct in the absence of prescriptive jurisdiction. But U.S. courts apply a longstanding interpretive presumption that ambiguous or generally worded statutes are not construed to violate international law if another interpretation is available.6 The principal U.S. statute invoked in investor liability cases, the federal Alien Tort Statute (“ATS”), does not appear to provide unambiguous direction as to its juris- dictional reach and thus would not be appropriately applied to violate inter- national law.7 This conclusion has two consequences for non-U.S. investor-defendants. First, U.S. courts cannot, consistent with international law, use purely do- mestic U.S. law—such as U.S. tort law—to impose aiding and abetting liability (contrary to what many plaintiffs and commentators have argued and what some judges have concluded). If the investor-defendant’s conduct is not something international law condemns, the United States lacks juris- diction to regulate it. Second, even if the investor’s conduct arguably vio- lates international law, U.S. courts cannot prescribe a remedy unless it is within the subset of international law violations subject to universal juris- diction. Thus the proper analytical question in these cases, which no court has yet directly addressed, is whether an investor’s involvement in the host government’s misconduct constitutes a universal jurisdiction offense under international law. Posing the analytical question in this way leads to the second tension, namely the broader conceptual difficulty these claims present: how should U.S. courts identify existing international law rules for investor liability? In the absence of a treaty, international law is understood to arise principally from the consistent common conduct of nations followed out of a sense of legal obligation.8 The idea that investors are indirectly responsible for inter- national law violations of their host governments has little basis in nations’ practice—indeed, in its modern form it appears to be chiefly a U.S.
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