* Editor in Chief, Boston College Third World Law Journal (2003–2004). Thanks to Wasana Punyasena, Erin Han, John Gordon, and Professor David Wirth for their helpful suggestions at various stages of this paper. This paper is dedicated to my wife and partner, Mary.
1 Doe v. Exxon Mobil Corp., No. 01–CV–1357 (D.D.C. filed June 19, 2001); Letter from William H. Taft, IV, Legal Adviser to the U.S. Department of State, to Hon. Louis P. Oberdorfer, Judge, U.S. District Court for the District of Columbia, at 2 (July 29, 2002) [hereinafter Exxon Letter], available at http://www.laborrights.org (last visited Nov. 10, 2003).
2 Kenneth Roth, U.S. Hypocrisy in Indonesia, Int’l Herald Trib., Aug. 14, 2002, at 4.
3 Id.
4 Civil Docket, Exxon (No. 01–CV–1357).
5 See Peter Waldman & Timothy Mapes, Administration Sets New Hurdles for Human Rights Cases, Wall St. J., Aug. 7, 2002, at B1 (“The growing movement to make multinational companies liable in U.S. courts for alleged human-rights abuses committed abroad has hit a snag—the Bush administration.”).
6 Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 (1994); Alien Tort Claims Act, 28 U.S.C. § 1350 (1993); Torture Victim Protection Act, 28 U.S.C. § 1350 note (1993). Although the use of the Alien Tort Claims Act in human rights litigation has been persistently derided by corporate defendants, Congress explicitly re-affirmed the importance of the statute in 1991, referring to it as a parallel remedy to the Torture Victim Protection Act. H.R. Rep. No. 102–367(I), at 4 (1991), reprinted in 1992 U.S.C.C.A.N. 84.
7 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1180 (C.D. Cal. 2002); Brief for the United States as Amicus Curiae, Doe v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608) [hereinafter Unocal Brief]; Exxon Letter, supra note 1, at 1.
8 See Unocal, 2002 WL 31063976, at *20; Sarei, 221 F. Supp. 2d at 1183, 1193, 1199; Plaintiffs’ Memorandum in Opposition to Defendant’s Motion to Dismiss at 31, 35, Exxon (No. 01–CV–1357) [hereinafter Plaintiffs’ Memo]. In several recent letters to courts, the Bush administration has refrained from addressing the legal merits of the cases, or the legal bases for dismissal, instead offering its views only on the foreign policy ramifications of adjudication. See Exxon Letter, supra note 1, at 1; Letter from William H. Taft, IV, Legal Adviser to the U.S. Department of State, to Hon. Robert D. McCallum, Assistant Attorney General, at 1 (Oct. 31, 2001) [hereinafter Sarei Letter], available at http://www.state.gov/ documents/organization/16529.pdf (last visited Aug. 22, 2003).
9 See generally First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964). These cases involved the expropriation of U.S. businesses’ assets by the government of Cuba. See First Nat’l City, 406 U.S. at 759–60; Sabbatino, 376 U.S. at 398–400. Not only do they provide an important early example of the act of state doctrine in litigation involving corporations and foreign sovereigns, they also illustrate the significant power the State Department wields in influencing whether a lawsuit with diplomatic undertones will be dismissed. See Sabbatino, 376 U.S. at 407, 420. First National City was a veritable ping-pong of dismissals and reversals that tracked the State Department’s changing opinion of the impact of adjudication on foreign relations as the case made its way through the courts. See Andreas F. Lowenfeld, Act of State and Department of State: First National City Bank v. Banco Nacional de Cuba, 66 Am. J. Int’l L. 795, 796–801 (1972) (recounting the case’s procedural history); see also note 235, infra.
10 See Sarei, 221 F. Supp. 2d. at 1181; Exxon Letter, supra note 1, at 2. The Bush administration’s interventions against human rights plaintiffs have not been limited to corporate defendants; the administration has also intervened in suits on behalf of the political leaders of states with poor human rights records. See Oscar Avila, Falun Gong Face 2 Foes: U.S., China, Chi. Trib., June 23, 2003, at 10 (describing the Justice Department’s efforts to dismiss a lawsuit filed against former Chinese President Jiang Zemin and other Chinese officials for human rights abuses); Joel Mowbray, Mistrial: America Defends Robert Mugabe, New Republic, July 28 & Aug. 3, 2003, at 13 (discussing the State Department’s actions opposing a suit against Zimbabwe’s president, Robert Mugabe, and his ZANU-PF Party under the Torture Victim Protection Act).
11 See David Corn, Corporate Human Rights, Nation, July 15, 2002, at 31.
12 See, e.g., Logan Michael Breed, Note, Regulating Our 21st-Century Ambassadors: A New Approach to Corporate Liability for Human Rights Violations Abroad, 42 Va. J. Int’l L. 1005, 1028 (2002).
13 See, e.g., Rebecca A. Fleming, Comment, Holding State Sovereigns Accountable for Human Rights Violations: Applying the Act of State Doctrine Consistently with International Law, 23 Md. J. Int’l L. & Trade 187, 207 (1999) (arguing that the act of state doctrine should be modified when its application would frustrate human rights plaintiffs); Sung Teak Kim, Note, Adjudicating Violations of International Law: Defining the Scope of Jurisdiction Under the Alien Tort Statute—Trajano v. Marcos, 27 Cornell Int’l L.J. 387, 413 (1994) (arguing that international comity should not apply to Alien Tort Claims Act cases); Nancy S. Williams, Comment, Political Question or Judicial Query: An Examination of the Modern Doctrine and Its Inapplicability to Human Rights Mass Tort Litigation, 28 Pepp. L. Rev. 849, 865–74 (2001) (arguing that the political question doctrine should not apply to human rights cases).
14 Brian C. Free, Comment, Awaiting Doe v. Exxon Mobil Corp.: Advocating the Cautious Use of Executive Opinions in Alien Tort Claims Act Litigation, 12 Pac. Rim L. & Pol’y J. 467, 483–86 (2003).
15 This term refers to instances in which the executive branch intervenes on behalf of corporate defendants—usually at the defendants’ behest—in human rights lawsuits in the United States.
16 See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 452 n.7 (2d Cir. 2000) (illustrating the tension among courts as to whether the act of state doctrine is properly categorized as an abstention doctrine or a rule of decision). Forum non conveniens, another doctrine that is often invoked in mass tort cases also frequently presents a substantial obstacle to adjudication. See, e.g., Aguinda v. Texaco, Inc., 303 F.3d 470, 480 (2d Cir. 2002) (dismissing, on forum non conveniens grounds, Ecuadoran plaintiffs’ class-action lawsuit against oil company for environmental tort); Villeda Aldena v. Fresh Del Monte Produce, No. 01–CV–3399 (S.D. Fla. filed Aug. 2, 2001).
17 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1193 n.273 (C.D. Cal. 2002).
18 See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 423 (1964); Oetjen v. Central Leather Co., 246 U.S. 297, 303–04 (1918).
19 Hilton v. Guyot, 159 U.S. 113, 163–64 (1895).
20 See Sarei, 221 F. Supp. 2d at 1184, 1193–94, 1205.
21 See Doe v. Unocal Corp., 2002 WL 31063976, at *20 (9th Cir. 2002); Sarei, 221 F. Supp. 2d at 1183, 1193, 1199; Plaintiffs’ Memo, supra note 8, at 31, 35, Exxon (No. 01–CV–1357).
22 Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 483 (D.N.J. 1999).
23 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165 (1803).
24 Baker v. Carr, 369 U.S. 186 (1962).
25 Id. at 217. Some judges consider the political question doctrine generally, without analysis of the Baker factors. See id.; see, e.g., Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996); Linder v. Portocarrero, 963 F.2d 332, 337 (11th Cir. 1992). This type of application, which focuses more on the rule’s policy underpinnings than on doctrine, is also common in cases involving the international comity doctrine. See infra note 54 and accompanying text.
26 Baker, 369 U.S. at 211; Iwanowa, 67 F. Supp. 2d at 484.
27 United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–20 (1936).
28 Baker, 369 U.S. at 211.
29 See Hwang Geum Joo v. Japan, 172 F. Supp. 2d 52 (D.D.C. 2001) (dismissing a suit by Japanese “comfort women” against the government of Japan on political question doctrine); In re Nazi Era Cases Against German Defendants Litigation, 129 F. Supp. 2d 370 (D.N.J. 2001) (requiring dismissal of a suit by forced laborers during World War Two (WWII) on political question grounds); Iwanowa, 67 F. Supp. 2d at 424–25 (dismissing case by Russian forced laborers during WWII against the Ford Motor Company on political question doctrine).
30 Iwanowa, 67 F. Supp. 2d at 485–89.
31 Id. at 485.
32 Id. at 486–88.
33 Id. at 489.
34 Trajano v. Marcos, 878 F.2d 1439, **2 (9th Cir. 1989).
35 Underhill v. Hernandez, 168 U.S. 250, 252 (1897); see also Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602–1611 (1994) (providing foreign sovereigns with immunity to suit).
36 See Banco Nacional de Cuba v. Farr, 243 F. Supp. 957, 975 (S.D.N.Y. 1965), aff’d, 383 F.2d 166 (2d Cir. 1967).
37 See Sabbatino, 376 U.S. at 423.
38 See Kirkpatrick Co. v. Envt’l Tectonics Corp., 493 U.S. 400, 404 (1990); Sabbatino, 376 U.S. at 421.
39 Sabbatino, 376 U.S. at 428. Although this standard was offered in the context of expropriation of property by a foreign government, the Sabbatino factors have since been considered in a number of cases of corporate accountability that do not involve expropriation issues. See, e.g., Envt’l Tectonics, 493 U.S. at 401–02; Doe v. Unocal Corp., 2002 WL 31063976 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1, 19–20 (9th Cir. 2003) (Nos. 00–56603, 00–56608); Bigio v. Coca-Cola Co., 239 F.3d 440, 444–51 (2d Cir. 2000); Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1121–29, 1183 (C.D. Cal. 2002).
40 See Envt’l Tectonics, 493 U.S. at 405.
41 See id.
42 See id.
43 See, e.g., Unocal, 2002 WL 31063976, at *19–20; Bigio, 239 F.3d at 451; Sarei, 221 F. Supp. 2d at 1183; Wiwa v. Royal Dutch Petroleum Co., 2002 WL 319887, at *27 (S.D.N.Y. 2002); Sampson v. Federal Republic of Germany, 975 F. Supp. 1108, 1121 (N.D. Ill. 1997), aff’d, 250 F.3d 1145 (7th Cir. 2001); Beanal v. Freeport-McMoRan, Inc., 969 F. Supp. 362, 367 (E.D. La. 1997) (dismissing corporate human rights abuse case by Indonesian nationals against mining corporation on standing and statutory grounds, despite defendant’s act of state defense); Plaintiffs’ Memo, supra note 8, at 31, 35, Exxon (No. 01–CV–1357).
44 See Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980) (refusing to dismiss a case against the Paraguayan government for acts of torture on act of state grounds). But see Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248 (D.N.J. 1999) (dismissing claims against corporations for use of slave labor during WWII on act of state grounds). Since Filartiga, the act of state doctrine has been raised, usually unsuccessfully, in a number of human rights cases. See, e.g., Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1156–59 (7th Cir. 2001) (dismissing suit against Germany for WWII slave labor on jurisdictional grounds, explicitly reversing the district court’s dismissal on act of state doctrine); Kadic v. KaradžiG, 70 F.3d 232, 250 (2d Cir. 1995) (allowing suit against Serbian war criminal over act of state defense); Trajano v. Marcos, 878 F.2d 1439, at **2 (9th Cir. 1989) (allowing adjudication of claims of torture against former Philippine President Ferdinand Marcos despite act of state defense); Wiwa, 2002 WL 319887, at *1 (allowing claims against Nigerian government despite act of state defense).
45 See 2002 WL 319887, at *27.
46 Id. at *1–2.
47 See Sabbatino, 376 U.S. at 428; Wiwa, 2002 WL 319887, at *28; see also Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130 (E.D.N.Y. 2000) (declining to dismiss suit against French financial institutions for economic collusion with Nazi government on act of state grounds, because the government in question had long since been replaced).
48 Laker Airways Ltd. v. Pan American World Airways, Inc., 604 F. Supp. 280, 291 (D.D.C. 1984).
49 Société Nationale Industrielle Aérospatiale v. U.S. Dist. Court for Southern Dist. of Iowa, 482 U.S. 522, 555 (1987) (Blackmun, J., concurring in part and dissenting in part).
50 Hilton v. Guyot, 159 U.S. 113, 163–64 (1895).
51 Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798 (1993).
52 See Restatement (Third) of the Foreign Relations Law of the United States § 403 cmt. a (1987).
53 See Sarei, 221 F. Supp. 2d at 1199; Restatement, supra note 52, § 403(2). The factors are: (1) The link of the activity to the territory of the regulating state; (2) the connections, such as nationality, residence, or economic activity between the regulating state and the person principally responsible for the activity to be regulated; (3) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; (4) the existence of justified expectations that might be protected or hurt by the regulation; (5) the importance of the regulation to the international political, legal, or economic system; (6) the extent to which the regulation is consistent with the traditions of the international system; (7) the extent to which another state may have an interest in regulating the activity; and (8) the likelihood of conflict with regulation of another state. Id.
54 See, e.g., Ahmad v. Wigen, 910 F.2d 1063, 1067 (2d Cir. 1990) (overturning district court’s decision to take testimony from witnesses concerning Israel’s law enforcement procedures because the interests of international comity would be “ill-served” by such action); Tachiona v. Mugabe, 169 F. Supp. 2d 259, 309 (S.D.N.Y. 2001) (holding that principles of international comity do not preclude service of process to Zimbabwean President Robert Mugabe).
55 See Sarei, 221 F. Supp. 2d at 1199.
56 See supra text accompanying notes 25 and 39.
57 See Hartford Fire, 509 U.S. at 798.
58 See Sarei, 221 F. Supp. 2d at 1205.
59 See Aquinda v. Texaco, Inc., 945 F. Supp. 625, 627 (S.D.N.Y. 1996) (dismissing suit on international comity and forum non conveniens grounds), dismissal vacated Jota v. Texaco, Inc., 157 F.3d 153, 158–61 (2d Cir. 1998), reversed as modified Aguinda v. Texaco, Inc., 303 F.3d 470, 480 (2d Cir. 2002).
60 See Jota, 157 F.3d at 156; Aquinda, 945 F. Supp. at 627; Sequihua v. Texaco, Inc., 847 F. Supp. 61, 63 (S.D. Tex. 1994).
61 See Sequihua, 847 F. Supp. at 63.
62 See Jota, 157 F.3d at 156, 163.
63 Aguinda, 303 F.3d at 480. The dismissal order noted that Ecuadoran courts remained open to the plaintiffs and that any decision rendered there would be enforceable in the United States. Id. at 477; Tyche Hendricks, Ecuadorans Put Chevron on Trial, S.F. Chron., Oct. 21, 2003, at A3. The trial in Ecuador began in October of 2003. Hendricks, supra, at A3.
64 See Doe v. Unocal Corp., 2002 WL 31063976, at *19 (9th Cir. 2002); Sarei, 221 F. Supp. 2d at 1193, 1199; Plaintiffs’ Memo, supra note 8, at 31, 35, Exxon (No. 01–CV–1357).
65 See Unocal, 2002 WL 31063976, at *3–4; Sarei, 221 F. Supp. 2d at 1127; Plaintiffs’ Complaint at 7, 14–19, Doe v. Exxon Mobil Corp., No. 01–CV–1357 (D.D.C. filed June 19, 2001) [hereinafter Plaintiffs’ Complaint].
66 See Unocal Around the World 2 (2002) (asserting that Unocal’s corporate headquarters are in California), available at http://www.unocal.com/aboutucl/uclataglance.pdf (last visited Nov. 10, 2003); Rio Tinto Group Operations (asserting that while Rio Tinto’s head offices are in London and Melbourne, among its 37 group offices are six offices in the United States), available at http://www.riotinto.com/about/ (last visited Nov. 10, 2003); ExxonMobil Business Headquarters (asserting that ExxonMobil’s business headquarters are located in Texas), available at http://www2.exxonmobil.com/Corprate /About/Corp_AboutXOM.asp (last visited Nov. 10, 2003).
67 See Unocal, 2002 WL 31063976, at *1 (involving allegations of abuse in the Tenasserim region of Burma); Sarei, 221 F. Supp. 2d at 1120 (involving allegations of abuse in Bougaiville, Papua New Guinea (PNG)); Plaintiffs’ Complaint, supra note 65, at 12–14, Exxon (No. 01–1357) (involving allegations of abuse in Aceh, Indonesia).
68 See Sarei, 221 F. Supp. 2d at 1180–81; Nat’l Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 335 (C.D. Cal. 1997), rev’d in part, 2002 WL 31063976, at *1, reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003); Civil Docket, Exxon (No. 01–CV–1357). The Department of Justice also intervened as amicus curiae in the en banc hearing of Unocal. See Unocal Brief, supra note 7.
69 See Unocal, 2002 WL 31063976, at *21; Sarei, 221 F. Supp. 2d at 1198; see also note 235 infra.
70 Plaintiffs’ Complaint, supra note 65, at 14–23, Exxon (No. 01–CV–1357). The above statement of facts in Exxon comes from the plaintiffs’ complaint, and should not be construed as proven at this stage in the litigation. See id.
71 Id. at 12, para. 31. The corporation began its exploration in Indonesia as Mobil Corporation, which was subsumed by Exxon in 1999, and is now a wholly-owned subsidiary of Exxon Mobil. Id., at 7–8, para. 17. Exxon Mobil is currently the second largest privately-held American corporation. Fortune, Fortune 500, at 2002, available at http://www. fortune.com/fortune/fortune500 (last visited Nov. 10, 2003).
72 Plaintiffs’ Complaint, supra note 65, at 12, para. 31, Exxon (No. 01–CV–1357).
73 Id. at 12, para. 32.
74 Id. at 7, para. 17; id. at 13, para. 35.
75 Hum. Rts. Watch, Indonesia: The War in Aceh 7–8 (2001), available at http://www.hrw.org/reports/2001/aceh/ (last visited Nov. 10, 2003).
76 Plaintiffs’ Complaint, supra note 65, at 19–23, Exxon (No 01–CV–1357).
77 Id. at 14–16.
78 Id. at 15, para. 41.
79 Oily Diplomacy, N.Y. Times, Aug. 19, 2002, at A16.
80 Plaintiffs’ Complaint, supra note 65, at 19–23, Exxon (No 01–CV–1357).
81 Civil Docket, Exxon (No. 01–CV–1357); Plaintiff’s Memo, supra note 8, at 31, Exxon (No 01–CV–1357).
82 Civil Docket, Exxon (No. 01–CV–1357).
83 Exxon Letter, supra note 1, at 2.
84 Id. at 3 (“This lawsuit could potentially disrupt the on-going and extensive United States efforts to secure Indonesia’s cooperation in the fight against international terrorist activity.”).
85 Id. at 4–5 (“[W]e note that increasing opportunities for U.S. business abroad is an important aspect of U.S. foreign policy. Under the circumstances presented here, the adjudication of these claims could prejudice the Government of Indonesia and Indonesian businesses against U.S. firms bidding on contracts in extractive and other industries.”).
86 See Affidavit of Harold Hongju Koh, Professor at Yale Law School, Aug. 28, 2002, in Terry Collingsworth, The Alien Tort Claims Act—A Vital Tool for Preventing Corporations from Violating Fundamental Human Rights, Attachment C, available at http://www.laborrights.org (last visited Nov. 10, 2003); Roth, supra note 2, at 4.
87 See, e.g., State of Indifference: The White House Backs Corporate Irresponsibility over Human Rights, Pittsburgh Post-Gazette, Aug. 31, 2002, at A11; Mary McGrory, Powell’s Awkward Position, Wash. Post, Aug. 29, 2002, at A31; Oily Diplomacy, supra note 79, at A16; Mike O’Donnell, Moral Relativism Won’t Defeat Terrorists, Christian Sci. Monitor, Aug. 16, 2002, at 11.
88 See, e.g., Human Rights Watch, U.S./Indonesia: Bush Backtracks on Corporate Responsibility, Aug. 7, 2002 [hereinafter Bush Backtracks], available at http://www.hrw.org/asia (last visited Nov. 10, 2003); Letter to Secretary of State Colin Powell from Directors of Human Rights NGOs, Aug. 26, 2002, available at http://www.lchr.org/workers_rights/wr_indonesia /wr_indonesia.htm (last visited Nov. 10, 2003).
89 See Letter to Secretary of State Colin Powell from Members of the United States Congress, Oct. 8, 2002, in Collingsworth, supra note 86, at Attachment B.
90 See Roth, supra note 2, at 4.
91 See Civil Docket, Exxon (No. 01–CV–1357).
92 Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1121 (C.D. Cal. 2002).
93 Id. at 1122.
94 Id. at 1121.
95 Id. at 1124–25.
96 Id. at 1123–24.
97 Sarei, 221 F. Supp. 2d at 1124–26; see also Chris Sherwell, Bougainville Secessionist War Worsens, Fin. Times (London), Feb. 10, 1990, at 3.
98 Sarei, 221 F. Supp. 2d at 1124–28; Michael Fathers, Revolution in Paradise, Independent (London), July 21, 1991, at 8 (reporting “murder and atrocities” committed by both sides during the early stages of the civil war). In addition to human rights abuses, the scale of environmental degradation in Bougainville was truly staggering. See Fathers, supra, at 8. By 1987, as a result of the Panguna mine, one billion tons of waste from a hole in the earth six miles wide had infested the region’s waterways. Id.
99 Sarei, 221 F. Supp. 2d at 1126–27.
100 Id. at 1127.
101 See id.
102 Id. at 1208–09.
103 Id. at 1193, 1207.
104 See Sarei, 221 F. Supp. 2d at 1193, 1207.
105 See id. at 1198–99.
106 See discussion supra Part II.A. The defendants in Exxon, in seeking the State Department’s opinion on the foreign policy implications of that case, simply followed the successful legal strategy of the Sarei defendant. Waldman & Mapes, supra note 5, at B1.
107 Unocal, 2002 WL 31063976, at *1; Unocal Around the World, supra note 66, at 2. Unocal’s corporate motto is “Improving People’s Lives Wherever We Work.” Unocal Around the World, supra, at 2.
108 Unocal, 2002 WL 31063976, at *1.
109 Id.
110 Id. at *3–4; see also Hum. Rts. Watch, World Report 2001, at 172–79.
111 Unocal, 2002 WL 31063976, at *2–3. At the least, Unocal was aware of the fact that the Myanmar military provided security and other services for this project. Id. at *2.
112 Id. at *4–5.
113 Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997); Nat’l Coalition Gov’t of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329, 329 (C.D. Cal. 1997); Roe v. Unocal Corp. & Union Oil Co. of Cal., No. BC 237679 (L.A. Sup. Ct. filed Sept. 29, 2000).
114 See Nat’l Coalition Gov’t, 176 F.R.D. at 334.
115 Id. at 360.
116 Unocal Corp., 963 F. Supp. at 883.
117 Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1330, 1602 (1976); Unocal Corp., 963 F. Supp. at 897–98.
118 Nat’l Coalition Gov’t, 176 F.R.D. at 354.
119 Id. at 362.
120 Doe v. Unocal Corp., 110 F. Supp. 2d 1294, 1296 (C.D. Cal. 2000).
121 Doe v. Unocal Corp., 2002 WL 31063976, at *24 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608).
122 Civil Docket, Union Oil, No. BC 237679; Lisa Girion, U.S. Ruling Says Firms Liable for Abuse Abroad, L.A. Times, Sept. 19, 2002, at A1.
123 See Girion, supra note 122, at A1.
124 Unocal, 2002 WL 31063976, at *21.
125 See Girion, supra note 122, at A1.
126 See Sonni Efron, Judge Lets Unocal Ask State Dept. to Intervene in Myanmar Lawsuit, L.A. Times, Aug. 8, 2002, § 3, at 2.
127 See id.
128 See id.
129 Civil Docket, Union Oil, No. BC237679.
130 See Unocal Brief, supra note 7, at 4.
131 See, e.g., Policing Human Rights, Wash. Post, Aug. 14, 2003, at A18; An Important Human Rights Tool, N.Y. Times, Aug. 8, 2003, at A16; Marianne Lavelle & Joellen Perry, The Court of Foreign Affairs, U.S. News & World Rep., June 23, 2003, at 31; The Alien Problem, Economist, June 21, 2003, at 51; Michael O’Donnell, Capitalism vs Conscience: Companies Abuse Human Rights and the Feds Don’t Care, L.A. Times, June 9, 2003, at B11; Ka Hsaw Wa, Court Is Villagers’ Only Hope, L.A. Times, June 9, 2003, at B11.
132 See Alex Markels, Showdown for a Tool in Rights Lawsuits, N.Y. Times, June 15, 2003, § 3, at 11.
133 See Corn, supra note 11, at 31.
134 See Anne-Marie Slaughter & David Bosco, Plaintiff’s Diplomacy, Foreign Aff., Sept./Oct. 2000, at 102, 104–05 (stating that President Reagan attempted to limit the scope of the ATCA but did not intercede in litigation to a significant extent, while President Clinton preferred allowing human rights litigation); Waldman & Mapes, supra note 5, at B1 (stating that President Clinton’s State Department generally remained neutral in diplomatically-sensitive human rights cases).
135 See Waldman & Mapes, supra note 5, at B1.
136 See discussion infra Parts III.A–C.
137 See discussion infra Parts III.A, C.
138 See discussion infra Part III.B.
139 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1195 (C.D. Cal. 2002); Exxon Letter, supra note 1, at 2.
140 See Sarei, 221 F. Supp. 2d at 1195.
141 See id. at 1198; Kadic v. KaradžiG, 70 F.3d 232, 249–50 (2d Cir. 1995) (resolving political question issue primarily on fourth through sixth Baker factors). The WWII-era human rights cases also demonstrate the importance of the latter three Baker factors, albeit in a litigation context that also allowed the courts to consider other Baker factors. See In re Nazi Era Cases, 129 F. Supp. 2d 370, 378 (D.N.J. 2001) (dismissing suit by forced WWII laborers against military parts company based on commitment to the political branches); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 485–89 (D.N.J. 1999) (dismissing case by WWII-era forced laborers against motor company on first, second, fourth and sixth Baker factors); Burger-Fischer v. Degussa AG, 65 F. Supp. 2d 248, 282–85 (D.N.J. 1999) (dismissing class-action suit against German corporation by WWII-era slave laborers on all Baker factors, but especially because of commitment to the political branches). The WWII-era cases list among their reasoning the unmanageability of the cases and the lack of clear standards. See Iwanowa, 67 F. Supp. 2d at 488–89. In the context of cases stemming from actions that were thirty or more years old, and which occurred on the massive scale of protracted, global war, this objection is perfectly reasonable. See id. But cases stemming from smaller-scale, contemporary abuses, such as the corporate human rights cases examined in this Note, do not suffer from the same unmanageability and lack of standards. See Kadic, 70 F.3d at 249.
142 See Kadic, 70 F.3d at 249. The Baker factors are:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; [2] a lack of judicially discoverable and manageable standards for resolving it; [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
Baker v. Carr, 369 U.S. 186, 217 (1962).
143 See Baker, 369 U.S. at 211.
144 Sarei, 221 F. Supp. 2d. at 1198–99. While the international comity and act of state doctrines precluded adjudication of the plaintiffs’ environmental tort and racial discrimination claims only, those claims and the plaintiffs’ arguably more important human rights claims were dismissed as non-justiciable political questions. See id. at 1184, 1201. The political question doctrine was, in other words, the “double-lock” to the door of adjudication. See Thomas M. Franck, Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? 28 (1992).
145 Baker, 369 U.S. at 217; Sarei, 221 F. Supp. 2d at 1198.
146 See Sarei, 221 F. Supp. 2d at 1198. The State Department had also made several statements in support of the PNG government in its efforts to secure a peace accord ending the Bougainville civil war. Id. at 1196.
147 See id. at 1198.
148 See Kadic, 70 F.3d at 249–50. But see Williams, supra note 13, at 872–76 (arguing, in the context of WWII-era cases, that Baker factors four through six are less likely to present an obstacle to human rights plaintiffs than factors one through three).
149 See Franck, supra note 144, at 15–16. Professor Franck argues that there is no constitutionally created authority over foreign relations, let alone one reserved to the executive. Id. Rather, he argues, the drafters enumerated a number of constitutional powers that could fall under the blanket category of “foreign relations” and divided them relatively equally among the branches. Id. at 16. For instance, the legislative branch has either an exclusive power or at least an important role over foreign commerce, declaring war, raising and funding the armed forces, spending on foreign affairs, appointment of ambassadors, and consent to treaties. Id. The judiciary, by contrast, was given the power to adjudicate disputes without any specific exceptions by subject matter, which, Franck maintains, suggests that it should adjudicate all disputes, including those touching on foreign relations. Id.
150 See Kadic, 70 F.3d at 249; Iwanowa, 67 F. Supp. 2d at 486–87.
151 Alien Tort Claims Act, 28 U.S.C. § 1350 (1993); Torture Victim Protection Act, 28 U.S.C. § 1350 (1993); Kadic 70 F.3d at 249.
152 See Baker, 369 U.S. at 217 (emphasis supplied).
153 See id.; Kadic, 70 F.3d at 249; Sarei, 221 F. Supp. 2d at 1196–98.
154 Baker, 369 U.S. at 211; Kadic, 70 F.3d at 249.
155 See Baker, 369 U.S. at 217; Kadic, 70 F.3d at 249.
156 See Kadic, 70 F.3d at 249.
157 See id. at 250. In Kadic, the State Department argued in a letter to the judge that adjudication of a known Serbian war criminal should not be barred out of concern over U.S. foreign relations. Id.
158 See id.
159 See Banco Nacional de Cuba v. Farr, 243 F. Supp. 957, 975 (S.D.N.Y. 1965).
160 See Franck, supra note 144, at 15–16; see also infra note 235.
161 See infra note 235.
162 See Exxon, No. 01–CV–1357. The same does not hold true for the en banc rehearing of Unocal: the Justice Department’s amicus submission in that case was not a solicited recommendation on the foreign relations ramifications of the suit, but rather an exclusively legal argument that focused mainly on the perceived misuse of the ATCA by human rights plaintiffs. See Unocal Brief, supra note 7.
163 See Baker, 369 U.S. at 217.
164 Kadic, 70 F.3d at 249.
165 See Hon. Sichan Siv, NGO Member of the U.S. Delegation, Remarks to the 57th Session of the UN Commission on Human Rights (Apr. 17, 2001) (demanding accountability for those responsible for the deaths of four human rights activists in Aceh, Indonesia, Jafir Siddiq Hamzah, Idris bin Yusuf, Emita binti Abdul Wahab, and Bachtiar bin Usman), at http://www.state.gov/g/drl/rls/rm/2001/2276.htm; see also George W. Bush, Securing Freedom’s Triumph, N.Y. Times, Sept. 11, 2002, at A33; Is Torture Ever Justified?, Economist, Jan. 11, 2003, at 9 (describing President Bush as “consistent in his claims to be defending human rights and democracy” throughout the war on terror). Mr. Bush’s presidency has been couched in the rhetoric of principle and high moral tone to a greater extent than any in recent memory. See generally David S. Broder, Bush’s Unease with Ambiguity, Wash. Post, April 9, 2002, at A19; Bill Keller, The Radical Presidency of George W. Bush, N.Y. Times, Jan. 26, 2003, § 6, at 26. See also Samantha Power, Force Full, New Republic, Mar. 3, 2003, at 28, 29 (reporting that in the Bush administration’s National Security Strategy, the words “human rights” appear five times; “human dignity” nine times; “liberty” eleven times, “democracy” thirteen times, and “freedom” forty-six times). In an opinion-editorial in the New York Times on the first anniversary of the 9/11 terrorist attacks on the U.S., President Bush wrote about the American-led war on terror:
[W]e are determined to stand for the values that gave our nation its birth. We believe that freedom and respect for human rights are owed to every human being, in every culture. We believe that the deliberate murder of innocent civilians and the oppression of women are everywhere and always wrong.
Bush, supra, at 33.
166 See Bush, supra note 165, at 33. The administration has also promoted human rights responsibility specifically to MNCs. See, e.g., U.S. Dept. of State, Voluntary Principles on Security and Human Rights [hereinafter Voluntary Principles], available at http://www.state.gov/g/drl/rls/2931.htm (Dec. 20, 2000). This non-binding, joint effort of the U.S. and British governments to promote responsible relationships between companies in the extractive and energy sectors and governments in site countries was largely coordinated by the U.S. executive branch. See id.
167 See Bush, supra note 165, at 33.
168 See Exxon Letter, supra note 1, at 2.
169 Id.; see also Sarei Letter, supra note 8, at 1 (noting the State Department’s concern that its recommendation of dismissal not be seen as a step back from its earlier denunciations of human rights abuses in Bougainville).
170 See Exxon Letter, supra note 1, at 2.
171 See id.; see also note 165, supra.
172 See discussion infra Part III.B.2.
173 See discussion infra Part III.B.1.
174 See discussion infra Part III.B.1.
175 See discussion infra Part III.B.2.
176 See Doe v. Unocal Corp., 2002 WL 31063976, at *19–21 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608).
177 See id. at *20; Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 428 (1964). The Sabbatino factors are:
[1] the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it; [2] the less important the implications of an issue are for our foreign relations, the weaker the justification for exclusivity in the political branches; [3] [t]he balance of relevant considerations may also be shifted if the government which perpetrated the challenged act of state is no longer in existence.
Id.
178 Unocal, 2002 WL 31063976, at *21.
179 Id.
180 Liu v. Republic of China, 892 F.2d 1419, 1432 (9th Cir. 1989).
181 Unocal, 2002 WL 31063976, at *21.
182 See id.
183 See id. at *19–21.
184 See id.
185 See id. at *20; Plaintiffs’ Complaint, supra note 65, at 19–22, Exxon (No. 01–CV–1357).
186 See Sabbatino, 376 U.S. at 428; Exxon Letter, supra note 1, at 1; see also discussion supra Part III.A.3.
187 See Sabbatino, 376 U.S. at 428; Megawati Takes Charge, Economist, July 28, 2001, at 13 (reporting that in July of 2001, Megawati Sukarnoputri assumed the presidency of Indonesia in a precarious transition from the government of Abdurrahman Wahid). The Exxon plaintiffs alleged abuses during the period of direct military control of Aceh from 1989 to 1998 and subsequently until March 2001. Plaintiffs’ Complaint, supra note 65, at 15, Exxon (No. 01–CV–1357); Plaintiffs’ Memo, supra note 8, at 7, Exxon (No. 01–CV–1357). Because the complained behavior ended in March, several months before the assumption of power by Ms. Megawati, factor three weighs in favor of the plaintiffs. See Plaintiffs’ Complaint, supra note 65, at 15, Exxon (No. 01–CV–1357).
188 See Megawati Takes Charge, supra note 187, at 13; Letter from Soemadi Djoko M. Brotodiningrat, Indonesian Ambassador the United States, to Richard Armitage, Deputy Secretary of State (July 15, 2002) [hereinafter Ambassador’s Letter] (arguing that a U.S. court’s adjudication of acts of the Indonesian military is offensive as a matter of principle, could imperil foreign direct investment in the Aceh region, and could complicate efforts to find a peaceful solution to the Aceh conflict), available at http://www.laborrights.org (last visited Nov. 10, 2003). Ambassador Soemadi’s letter contains polite diplomatic implorations, but, more pointedly, a barely-veiled threat that U.S. nationals’ investments in Indonesia would suffer if the Exxon case were allowed to proceed. See Ambassador’s Letter, supra (stating that “adjudication . . . will definitely compromise the serious efforts of the Indonesian government to guarantee the safety of foreign investments, including in particular those from the United States”) (emphasis supplied). The threat was apparently effective in motivating the State Department to argue for dismissal in its letter to the Exxon judge; the Legal Adviser lists the threat to U.S. economic interests as one of two key bases for dismissal. See Exxon Letter, supra note 1, at 2.
189 See Doe v. Unocal Corp., 2002 WL 31063976, at *20–21 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608); Plaintiffs’ Memo, supra note 8, at 33–35, Exxon (No. 01–CV–1357). The Ninth Circuit’s fourth factor would also weigh in favor of adjudication if Exxon fell under its jurisdiction: Indonesia’s military surely was not acting in the public interest by violating the human rights of the indigenous Acehnese. See Unocal, 2002 WL 31063976, at *21; Plaintiffs’ Memo, supra note 8, at 33–35, Exxon (No. 01–CV–1357).
190 See Sabbatino, 376 U.S. at 428.
191 See id.; see also infra note 235.
192 See Sabbatino, 376 U.S. at 428.
193 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1189 (C.D. Cal. 2002).
194 See id.
195 Id. at 1188.
196 Id. at 1189.
197 See Kirkpatrick Co. v. Envt’l Tectonics Corp., 493 U.S. 400, 409 (1990) (stating the Court’s position “that the policies underlying the act of state doctrine should be considered in deciding whether, despite the doctrine’s technical availability, it should nonetheless not be invoked”); Sabbatino, 376 U.S. at 428; Sarei, 221 F. Supp. 2d at 1189.
198 See Doe v. Unocal Corp., 2002 WL 31063976, at *21 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608); Kadic v. KaradžiG, 70 F.3d 232, 250 (2d Cir. 1995); Filartiga v. Pena-Irala, 630 F.2d 876, 889 (2d Cir. 1980); Sarei, 221 F. Supp. 2d at 1189.
199 See Unocal, 2002 WL 31063976, at *21; Kadic, 70 F.3d at 250; Filartiga, 630 F.2d at 889; Sarei, 221 F. Supp. 2d at 1189.
200 See Sabbatino, 376 U.S. at 428. This factor has led courts to reject defendants’ motions to dismiss on act of state grounds in a number of cases. See Bigio v. Coca-Cola Co., 239 F.3d 440, 452–53 (2d Cir. 2000); Wiwa v. Royal Dutch Petroleum Co., 2002 WL 319887, at *28 (S.D.N.Y. 2002); Bodner v. Banque Paribas, 114 F. Supp. 2d 117, 130 (E.D.N.Y. 2000).
201 See discussion supra Part III.A.3.
202 See Sabbatino, 376 U.S. at 428.
203 See Andrew Saindon, Note, The Act of State Doctrine and International Human Rights Cases in United States Courts, 7 Md. J. Contemp. Int’l Legal Issues 287, 308–09 (1995–96).
204 See Jota v. Texaco, Inc., 157 F.3d 153, 161 (2d Cir. 1998) (reversing district court’s dismissal on international comity grounds absent a showing of an adequate alternate forum in the plaintiffs’ state of Ecuador); Sarei, 221 F. Supp. 2d at 1207 (refusing to dismiss plaintiffs’ human rights claims under international comity doctrine); Canales Martinez v. Dow Chemical Co., 219 F. Supp. 2d 719, 731 (E.D. La. 2002) (refusing to dismiss claims by foreign banana workers against chemical company on forum non conveniens grounds predicated on international comity concerns); Bodner, 114 F. Supp. 2d at 129–30 (refusing to dismiss a case against French financial institutions for collusion with Nazi government on comity grounds because of nonexistence of French forum).
205 See Doe v. Unocal Corp., 2002 WL 31063976, at *1 (9th Cir. 2002), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608); Sarei, 221 F. Supp. 2d at 1207; Plaintiffs’ Memo, supra note 8, at 32, Exxon (No. 01–CV–1357).
206 See In re Nazi Era Cases Against German Defendants Litigation, 129 F. Supp. 2d 370, 386–88 (D.N.J. 2001) (dismissing case against German corporation and American subsidiaries for Nazi collusion on international comity grounds because of German Foundation law); Iwanowa v. Ford Motor Co., 67 F. Supp. 2d 424, 490–91 (D.N.J. 1999) (dismissing claims by WWII forced laborers against Ford based on international comity because of a multilateral treaty stipulating that claims would be addressed out of court).
207 See Corn, supra note 11, at 31.
208 See Jota, 157 F.3d at 158–60; Sarei, 221 F. Supp. 2d at 1201, 1207; Bodner, 114 F. Supp. 2d at 130.
209 See Hartford Fire Ins. Co. v. California, 509 U.S. 764, 798 (1993); Sarei, 221 F. Supp. 2d at 1201.
210 See Sarei, 221 F. Supp. 2d at 1201 (describing the PNG Compensation Act, which offered redress for victims of environmental harm stemming from mining); In re Nazi Era Cases, 129 F. Supp. 2d at 379, 387 (describing the U.S.-German Foundation Law, which offered individual payments to Nazi-era victims of German industry).
211 See Bodner, 114 F. Supp. 2d at 130.
212 See Jota, 157 F.3d at 158–60.
213 See Sarei, 221 F. Supp. 2d at 1207.
214 See id.
215 Id.
216 See id. at 1195. Sarei’s lengthy discussions of the international comity doctrine despite its dismissal of all claims as political questions supports the inference that the judge intended to provide a basis for future courts to adjudicate diplomatically-sensitive human rights cases in the face of the international comity defense. See id. at 1188, 1207.
217 See id. at 1207. If the court viewed human rights accountability as more important than the separation of powers, it would not have dismissed the human rights claims under the political question doctrine. See id. at 1195.
218 See Sarei, 221 F. Supp. 2d at 1207.
219 See supra note 54 and accompanying text. The Restatement factors are: (1) The link of the activity to the territory of the regulating state; (2) the connections, such as nationality, residence, or economic activity between the regulating state and the person principally responsible for the activity to be regulated; (3) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities, and the degree to which the desirability of such regulation is generally accepted; (4) the existence of justified expectations that might be protected or hurt by the regulation; (5) the importance of the regulation to the international political, legal, or economic system; (6) the extent to which the regulation is consistent with the traditions of the international system; (7) the extent to which another state may have an interest in regulating the activity; and (8) the likelihood of conflict with regulation of another state. Restatement, supra note 52, § 403(2).
220 See id.
221 See id.
222 See id.
223 See id.
224 See Sarei 221 F. Supp. 2d at 1207; Restatement, supra note 52, § 403(2).
225 See discussion supra Part III.
226 See discussion supra Part III.B.
227 See discussion infra Part IV.B.
228 See, e.g., Rodriguez v. Drummond Co., No. 02–CV–665 (N.D. Ala. filed Mar. 14, 2002); Aldana v. Del Monte Fresh Produce, Inc., No. 01–CV–3399 (S.D. Fla. filed Aug. 2, 2001); Sinaltrainal v. Coca-Cola Co., No. 01–CV–3208 (S.D. Fla. filed July 20, 2001).
229 See Efron, supra note 126, at 2.
230 See id.
231 See Girion, supra note 122, at 1.
232 See Waldman & Mapes, supra note 5, at B1.
233 See Testimony Before the Int’l Operations and Terrorism Subcomm., S. Foreign Relations Comm., Hearing on U.S. Human Rights Policy, 107th Cong. (2001) (testimony of Paula Dobriansky, Under Secretary of State for Global Affairs) (asserting that “[t]hroughout these years, our [the United States’] message has not wavered. Promoting democracy and protecting the individual against the excesses of the state is the policy of the United States,” and quoting President Bush as saying “repressed people around the world must know this about the United States: We might not sit on some commission, but we will always be the world’s leader in support of human rights”), available at http://www.state.gov/g/rls/ rm/2001/4134.htm (last visited Nov. 10, 2003).
234 See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1198 (C.D. Cal. 2002).
235 The complete history of cases in which the executive has interceded in diplomatically-sensitive litigation is beyond the scope of this Note. Nonetheless, prominent cases reveal a breathtaking record of deference shown by judges to the executive branch. See, e.g., Kirkpatrick Co. v. Envt’l Tectonics Corp., 493 U.S. 400, 408 (1990) (refusing to dismiss suit against corporation for collusion with corrupt Nigerian officials on act of state grounds, in part because of the State Department’s recommendation in a letter to the district court); First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 761 (1972) (reversing, for various reasons, two opinions by the Second Circuit Court of Appeals to allow a case by a U.S. bank against a Cuban bank for damages arising from expropriation after receiving letter from State Department advising that the act of state doctrine was not a bar); Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 420 (1964) (reversing, pursuant to State Department’s revised recommendation, lower court’s denial of motion to dismiss on act of state doctrine, a claim involving the challenge to a Cuban expropriation decree); Doe v. Unocal Corp., 2002 WL 31063976, at *20–21 (9th Cir. 2002) (denying motion to dismiss per State Department’s opinion that case against oil company for human rights abuse in Burma did not threaten U.S. foreign relations), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608); Kadic v. KaradžiG, 70 F.3d 232, 250 (2d Cir. 1995) (denying motion to dismiss case against former Serbian president Radovan KaradžiG on political question doctrine pursuant to State Department’s recommendation that the suit did not implicate foreign relations); Republic of the Philippines v. Marcos, 862 F.2d 1355, 1361 (9th Cir. 1988) (refusing to dismiss case against former president of the Philippines for corruption after State Department as amicus foresaw no reason not to adjudicate), aff’d on this issue, Trajano v. Marcos, 878 F.2d 1439, **2 (9th Cir. 1989); Allied Bank Intern v. Banco Credito Agricola de Cartago, 757 F.2d 516, 518–19 (2d Cir. 1985) (reversing court’s own dismissal on act of state grounds after the post-decision intervention of the Justice Department as amicus curiae; the Justice Department urged adjudication of the case, in which three state-owned Costa Rican banks defaulted on payments to a syndicate of American banks); Filartiga v. Pena-Irala, 630 F.2d 876, 876 (2d Cir. 1980) (allowing a case involving violations of international human rights law to proceed after a Justice Department amicus brief pressed for the same); Bernstein v. N.V. Nederlandsche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375, 375–76 (2d Cir. 1954) (reversing dismissal of case against Dutch company for economic collusion with Nazi party pursuant to a letter by the State Department’s Legal Adviser); Sarei, 221 F. Supp. 2d at 1196–98 (dismissing, pursuant to State Department’s recommendation, suit against mining corporation for human rights abuses in Papua New Guinea).
236 See 406 U.S. at 768. The plurality’s stance on what is known as the Bernstein Exception involved a situation in which the act of state doctrine seemingly barred adjudication, but the executive requested adjudication nonetheless. See id.; see also Lowenfeld, supra note 9, at 796–801. Since First National City, the Court has clarified that courts need not take the executive’s recommendation, but the case history suggests that courts still attach great significance to the executive’s opinion. See Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 386 (2000) (stating that collected statements by the executive were “more than sufficient” to demonstrate a statute’s incompatibility with U.S. foreign policy); Envt’l Tectonics, 847 F.2d 1052, 1062 (3d Cir. 1988) (stating that the State Department’s findings of fact regarding a lawsuit’s ability to frustrate its diplomatic aims are entitled to substantial respect), aff’d 493 U.S. 400 (1988). But see Kadic, 70 F.3d at 250 (announcing that the executive’s argument for dismissal in political question cases does not preclude adjudication, but is nonetheless entitled to respectful consideration).
237 See Free, supra note 14, at 473.
238 See discussion infra Parts IV.B.1–2.
239 See discussion infra Part IV.B.1.
240 See discussion infra Part IV.B.2.
241 See discussion infra Parts IV.B.1–2.
242 See Sarei Letter, supra note 8, at 2.
243 See id.
244 See id.
245 See Exxon Letter, supra note 1, at 3.
246 See id.
247 See Human Rights Watch, Powell Should Urge Accountability by Indonesian Military (2002) [hereinafter Powell Should Urge Accountability], available at http://hrw.org/press /2002/07/indo0731.htm (last visited Nov. 10, 2003). As Human Rights Watch has reported, the administration’s intervention on behalf of the defendant in Exxon came at the very moment the U.S. resumed direct military cooperation with the notorious Indonesian military. See Bush Backtracks, supra note 88.
248 Exxon Letter, supra note 1, at 2 (stating that “a lasting, peaceful solution to the Aceh conflict that maintains Indonesian sovereignty can only be achieved if the military and police end human rights abuses”).
249 See Human Rights Watch, The Indonesian Military and Ongoing Abuses (2002), available at http://hrw.org//backgrounder/asia/indo-bck0702.htm (last visited Nov. 10, 2003).
250 See Walter LaFeber, The Post September 11 Debate over Empire, Globalization, and Fragmentation, 117 Pol. Sci. Q. 1, 16 (2002) (arguing that U.S. engagement with China after September 11 has focused on terrorism cooperation to the expense of all other diplomatic goals, including human rights); Accountable Aid: U.S. Foreign Military Assistance and Human Rights, Foreign Pol’y, July 1, 2002, at 14 (stating that 51 of 180 states receiving military aid from the U.S. have been identified by the State Department as having “poor” human rights records); William F. Schulz, Q: Has the White House Ignored Human-Rights in the Name of National Security? Yes: The Administration Has Given Itself and Its Coalition Partners a ‘Pass’ on Human Rights Violations, Insight on News, July 15, 2002, at 41 (recounting the U.S.’s abysmal record of securing human rights improvements despite engagement, including on human rights issues, with the governments of Russia, Pakistan, Uzbekistan, Columbia, Malaysia, and Kazakstan); Robert Templer, Steppe Back, New Republic, Aug. 18 & 25, 2003, at 11–13 (arguing that the U.S.’s unquestioning support of Uzbekistan’s President, Islam Karimov, in return for strategic basing rights for use in the war on terror has stymied progress on the country’s terrible human rights situation); Powell Should Urge Accountability, supra note 247. Engagement where the actual goal is human rights reform stands a chance of success; unfortunately, human rights is often a politically risk-free façade for other diplomatic concessions—recently, cooperation in the war on terror. See Schulz, supra, at 41.
251 See Schulz, supra note 250, at 41.
252 See Exxon Letter, supra note 1, at 3.
253 See id.; Sarei Letter, supra note 8, at 2. Indeed, a contemporaneous diplomatic visit to Indonesia by Secretary of State Colin Powell reinforces the suspicion of many human rights pundits that the Bush administration is able and willing to allow adjudication of sensitive cases when such cases serve American economic interests. See Bush Backtracks, supra note 88. When asked by Indonesia’s foreign minister about an unrelated lawsuit brought by two U.S. firms against Indonesia’s state energy firm, Powell reportedly stated that U.S. foreign policy does not involve interfering in private lawsuits. See id.
254 See Exxon Letter, supra note 1, at 3–5; see also Murray Hiebert & John McBeth, Calculating Human Rights, Far E. Econ. Rev., Aug. 15, 2002, at 18. Indonesia experts have emphasized the improbability of the Indonesian ambassador’s threats to cut off lucrative government contracts for American businesses. See Hiebert & McBeth, supra, at 19. Indonesia has become economically dependant on the United States; the State Department’s letter even portrays the Indonesian economy as so fragile as to be on the point of collapse without investment. See id.; Roth, supra note 2, at 4. The fear that Indonesia would reconsider its support for the U.S. war on terror if its demand for a dismissal was denied was similarly unfounded. See Oily Diplomacy, supra note 79, at A16. Indonesia has long struggled with radical Muslim terrorism and would almost certainly not have forgone its strategic alliance with the United States for the small victory of making an embarrassing lawsuit disappear. See Roth, supra note 2, at 4.
255 See Oily Diplomacy, supra note 79, at A16.
256 See supra note 253.
257 See William Glaberson, U.S. Courts Become Arbiters of Global Rights and Wrongs, N.Y. Times, June 21, 2001, at A1.
258 See Slaughter & Bosco, supra note 134, at 102.
259 See Roth, supra note 2, at 4.
260 See Hiebert & McBeth, supra note 254, at 19 (reporting that Indonesia specialists dispute the assertion that Indonesia, with its economic woes and historic dependence on U.S. foreign direct investment, was in a position to abandon ties with U.S. multinationals if adjudication were allowed).
261 See Oily Diplomacy, supra note 79, at A16.
262 See discussion infra Part IV.B.2.
263 See McGrory, supra note 87, at A31.
264 See infra notes 267–274 and accompanying text.
265 See infra notes 275–278 and accompanying text.
266 See Schulz, supra note 250, at 41.
267 See supra note 253.
268 See Human Rights and Terror, Wash. Post, Aug. 10, 2002, at A18 (“The State Department’s real objection to the Exxon Mobil suit is that it doesn’t think courts are the right place to make foreign policy.”)
269 See Allied Bank Intern v. Banco Credito Agricola de Cartago, 757 F.2d 516, 519 (2d Cir. 1985).
270 See id.
271 See id.
272 Kadic v. KaradžiG, 70 F.3d 232, 250 (2d Cir. 1995).
273 Neil A. Lewis, U.S. Backs War Crimes Lawsuit Against Bosnian Serb Leader, N.Y. Times, Sept. 27, 1995, at A10.
274 See id.
275 See Roth, supra note 2, at 4.
276 See Exxon Letter, supra note 1, at 1; Fred Kaplan, Bush Targets ‘Corporate Abusers,’ Boston Globe, July 10, 2002, at A1.
277 See Roth, supra note 2, at 4.
278 See id.
279 See Power, supra note 165, at 28 (“American decision-makers must understand how damaging a foreign policy that privileges order and profit over justice really is in the long-term.”); Schulz, supra note 250, at 41; see generally William F. Shulz, In Our Own Best Interest: How Defending Human Rights Benefits Us All 38–65, 105–119 (2002).
280 See Dan Murphy, U.S. Ads Miss Mark, Muslims Say, Christian Sci. Monitor, Jan. 7, 2003, at 6 (describing the State Department’s $600 million public relations campaign in the Arab world as a strategy to create a better understanding of America among Muslims).
281 Schulz, supra note 250, at 41; see also Lorne W. Craner, Assistant Secretary for Democracy, Human Rights, and Labor, Remarks to the Heritage Foundation (Oct. 31, 2001) (“[T]here is often a direct link between the absence of human rights and democracy and seeds of terrorism. Promoting human rights and democracy addresses the fear, frustration, hatred, and violence that is the breeding ground for the next generations of terrorists. We cannot win a war against terrorism by halting our work promoting the universal observance of human rights. To do so would be merely to set the stage for a resurgence of terrorism in another generation.”), available at http://www.state.gov/g/drl/rls/rm/2001/6378.htm (last visited Nov. 10, 2003).
282 See Schulz, supra note 250, at 41.
283 See id.
284 See Human Rights and Terror, supra note 268, at A18.
285 See Slaughter & Bosco, supra note 134, at 110.
286 See Doe v. Unocal Corp., 2002 WL 31063976, at *7 (9th Cir. 2002) (restating the various procedural bases for piecemeal dismissal of the Unocal litigation at the district court level, including personal and subject matter jurisdiction, standing, and state action), reh’g en banc granted and opinion vacated, 2003 WL 359787, at *1 (9th Cir. 2003) (Nos. 00–56603, 00–56608).
287 See Breed, supra note 12, at 1016–20 (identifying subject matter jurisdiction, state action, and standing as persistent limitations to ATCA liability for corporate defendants).
288 See Slaughter & Bosco, supra note 134, at 115.
289 See Voluntary Principles, supra note 166. The United States, along with the United Kingdom, has pursued voluntary initiatives for promoting responsible relationships between companies in the extractive and energy sectors and governments in site countries. See id. However, until such initiatives attain binding legal force, MNCs have no responsibility to actually live up to promises made to great public-relations effect. See id.
290 See Slaughter & Bosco, supra note 134, at 111, 115. The United States has threatened to veto United Nations peacekeeping missions if the Security Council does not continue to grant it immunity from the ICC; it has also threatened—and in some cases, has proceeded—to cut off all military aid to countries that have ratified the ICC’s Rome Statute but have not signed biliateral impunity agreements with the United States that would exempt its citizens from the ICC’s jurisdiction. The International Criminal Court: For Us or Against Us?, Economist, Nov. 22, 2003, at 27.
291 See Slaughter & Bosco, supra note 134, at 110. But see Collingsworth, supra note 86, at 3–4 (arguing that no corporation complicit in genocide and torture warrants protection under U.S. foreign policy for any reason).
292 See Alien Tort Claims Act, 28 U.S.C. § 1350 (1993); Corn, supra note 11, at 31.
293 See Waldman & Mapes, supra note 5, at B1.
294 See Slaughter & Bosco, supra note 134, at 116.