Wednesday, September 14, 2005


One of the items brought up by Lewis Gordon was the Alien Tort Claims Act of 1789. The law states: ""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."

The Cato Institute claims that the law was passed to clarify jurisdiction in cases involving piracy and diplomats. Recent hopes are that the law can be twisted into a foundation for international tort law. Although the law would not allow American courts to try foreign entities, they could seek tort action against any US entity that did business with the foreign entity.

ACTA was little used until the 1980s when it was revived in the case Filartiga v. Pena-Irala which sought civil action against a former Paraguayan officer who tortured the claimants brother.

NOTE: In 1991 the US passed the Torture Victim Protection Act to address issues of torture, genocide, etc..

ACTA is a tort law used in cases of crimes committed by non-US citizens against non-US citizens in foreign land. The catch is that the perpetrator of the crime must be in US territory when sued. The law does not apply to foreign officials or diplomats. In Filartiga v. Pena-Irala, Pena-Irala was in the US when served with the suit.

Since Filartiga v. Pena-Irala there had been a desire to use ACTA in a host of environmental and civil rights suits. In the case Doe I v. Unocal, ACTA was used to bring a civil suit against Unocal. UNOCAL was a partner in a construction project in Myramar (Burma) in which the Myanmar military used slave labor. Arguably Unocal knew about the abuses and benefitted from them. (NOTE: It is estimated that 8 million people in Burma are working in forced labor [See Burma Report]. If you do business in Burma, it is likely that somewhere, somehow forced labor is involved.

In Wiwa v. Royal Dutch Shell, Shell was accused of complacency in acts taken by the Nigerian Government. In this case a Dutch company being sued simply has a presence in the US.

Recently, law firms were lining up to sue every American firm that did business in South Africa in the days of Apartheid for the abuses of apartheid.

Unfortunately, for the legal community that is, the devil incarnate (George W. Bush) has been working to plug several of the loopholes created by the new interpretation of this old law. The US business community applauds restricting the law because they feared ACTA would place an excessive burden on US companies that did business in foreign lands. Many sovereign nations were upset with ACTA since it the law was basically setting up US district courts as an uber legal system.

Lewis Gordon made Bush's actions sound like a major take away from the world environmental community. If you believe in the inherent goodness of lawyers then you could call curbing a law that would be used to try human rights and environmental cases a crime against humanity.

One could even call limiting the law a crime against humanity since it curtailed a legal avenue used by human rights lawyers. Personally, I agree that ACTA was open for abuse. International law should be established by treatise and not activist courts.

With the ACTA style of jurisdiction, plaintifs would simply shop around for a court sympathetic to their cause. There are 94 US District Courts. The plaintiff needs simply find the court most sympathetic to their cause and sue in that jurisdiction and sue for all the defendent is worth.

Of course, if the US were making widespread use of ACTA, then other nations would follow with their own version of ACTA. I could imagine a Cayman Island group or perhaps a nation such as Venezuela or Libya setting itself up to be the tort capital of the universe.

It looks to me that the new interpretation of this law is rife for abuse. The idea that US courts have uber-jurisdiction on tort cases is as imperialistic as the multinational firms that we are taught to loath.

On the positive the recent contortions of ACTA might help nudge the world closer to developing a workable international law. The great danger that we see in ACTA is that lawyers will wish to contort any international court into an ├╝ber-court. We saw this with the ICC which unilaterally changed the wording of its charter between the passage of the Rome Statute of the International Criminal Court in 1998 and its ratification.

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