Michael J. O’Donnell*

Abstract:  This Note examines recent interventions in corporate human rights lawsuits by the executive branch from both legal and political perspectives. It first identifies a nascent trend in human rights litigation in U.S. courts—namely, the propensity of the Bush administration to intervene on behalf of corporate defendants accused of violating human rights in the developing world—by examining the factual and procedural history of three contemporary lawsuits. It then explores the role of the political question, act of state, and international comity doctrines in these and similar suits, and advances a method for applying all three doctrines in a “human rights-friendly” manner. Finally, the Note examines the Bush administration’s interventions from a human rights policy perspective and concludes that for political, in addition to legal reasons, the executive branch should desist from intervening on behalf of corporate defendants in human rights lawsuits.


In July of 2002, the Legal Adviser to the United States Department of State took the unusual step of writing a letter to a presiding judge to argue that a case should be dismissed because adjudication could adversely affect U.S. foreign relations.1 The United States District Court for the District of Columbia, upon Defendant Exxon Mobil’s request, had sought the State Department’s opinion as a possible justification for dismissal in a case involving corporate human rights abuse in Indo[*PG224]nesia.2 At issue was whether the court, by adjudicating the claims of Indonesian nationals who allegedly suffered murder, rape, and torture at the hands of Exxon’s security guards in war-torn Aceh province, would offend Indonesia’s government, damaging U.S.-Indonesia relations.3 At the time of this writing, the motion to dismiss is pending.4

Doe v. Exxon Mobil Corp. is the most striking example of a nascent trend in corporate human rights litigation in the United States.5 Corporate defendants, who have a number of procedural tools at their disposal in mass tort cases involving American statutes such as the Alien Tort Claims Act (ATCA), Torture Victim Protection Act (TVPA), and Racketeer Influenced and Corrupt Organizations statute (RICO), have increasingly invoked foreign relations as a defense to adverse human rights claims.6 Their arguments have been buttressed in several cases by letters and amicus curiae briefs by executive branch officials, in which the government argues that the cases should be dismissed because of their potential to create difficulties in America’s foreign relations.7

The legal basis for dismissal in these cases is often provided by the political question, act of state, and international comity doctrines, which are rooted in principles of separation of powers, prudence, constitutional considerations, and diplomatic sensitivity.8 The use of [*PG225]these doctrines by corporate defendants is not a novel basis for defending adverse claims.9 The Bush administration, however, has obliged corporate defendants’ requests for intervention to a greater extent than previous administrations, arguing that marginal U.S. interests, such as the fragility of an implausible indigenous peace process, or self-serving interests, such as maintaining a robust investment climate for U.S. businesses, should outweigh the resolution of human rights disputes.10 In an era in which corporate human rights litigation in the United States is experiencing a dramatic boom, this new obstacle presents a substantial threat to human rights plaintiffs.11

Commentators have proffered various solutions to the challenges presented by the political question, act of state, and international comity doctrines in human rights litigation. Some have proposed domestic legislation that would respond to the limited scope, in the case of the TVPA, or the arguable unsuitability, in the case of the ATCA, of U.S. statutes that are currently used to hold multinational corporations (MNCs) liable in U.S. courts.12 Others have advanced the idea of a human rights exception to particular judicial doctrines because of [*PG226]the importance of accountability for rights abuse.13 On the specific problem of the Bush administration’s interventions in recent human rights lawsuits, one commentator has recently argued that judges, when presented with a recommendation of dismissal by the executive branch, should assert their independence and refuse to dismiss human rights lawsuits.14

This Note takes a different approach, proposing a two-pronged solution to the developing trend, which is referred to below as executive-corporate collusion.15 It first suggests technical methods for applying the judicial doctrines in a manner that is more consistent with their language and purpose, and more amenable to human rights plaintiffs. It then offers a policy critique of executive intervention in diplomatically-sensitive human rights lawsuits, arguing that executive-corporate collusion is a public policy of dubious merit that represents a fickle commitment to human rights values. Thus, in the legal sense, when the executive branch intervenes on behalf of defendants in human rights lawsuits, the judicial doctrines do not necessarily offer easy bases for dismissal; upon examination, they are more “human rights-friendly” than the Bush administration might hope. In the policy sense, there is a solution to executive-corporate collusion that largely avoids the separations of powers issues that ordinarily permeate discussions of political questions, acts of state, and international comity: Lawyers and human rights advocates should pressure the executive branch not to intervene in the first place.

Part I of this Note explores the political question, act of state, and international comity doctrines individually, briefly recounting their history, current status, and mode of application in courts. Part II identifies [*PG227]three contemporary corporate human rights abuse cases in which striking factual and legal similarities demonstrate the birth of a new trend in human rights litigation. Part III examines the judicial doctrines as applied in these cases, arguing that the doctrines, on their terms, are not applicable in many human rights cases. Part IV offers a broader context by identifying the potential for further abuse if executive-corporate collusion continues, and exploring the powerful role of the executive branch in courts’ decisions whether to adjudicate human rights cases. Part IV also provides a policy critique of the Bush administration for its demonstrated willingness to intervene in human rights litigation on the behalf of corporate defendants. The Note concludes that human rights ideals, which are a staple of the administration’s political rhetoric, should constitute an integral part of American foreign policy, and hence preclude future executive intervention in corporate human rights litigation.

I.  Three Doctrines

The political question, act of state, and international comity doctrines, which require dismissal for prudential and constitutional reasons in instances where jurisdiction is nonetheless appropriate, elude easy categorization.16 The political question doctrine is the subject of debate between courts and commentators, some of whom view it as a jurisdictional limitation, while others see it as a prudential or constitutional doctrine.17 The act of state doctrine is based on separation of powers concerns, yet it is also grounded in principles of diplomatic comity.18 International comity has no constitutional underpinning, but is a device of international relations that requires deference when one state’s courts deal with the official acts of another state.19

The three doctrines share a common purpose, however, as tools that prevent diplomatically-sensitive litigation from frustrating the po[*PG228]litical branches’ ability to conduct foreign relations.20 Each has figured prominently in recent corporate human rights abuse cases.21

A.  The Political Question Doctrine

The political question doctrine is a prudential and constitutional mechanism by which a court that has jurisdiction over a dispute declines to adjudicate if the case raises questions that should be addressed by the political branches of government.22 The doctrine stems from Chief Justice Marshall’s dictum in Marbury v. Madison that articulated on non-textual constitutional grounds the president’s “important political powers.”23 The Supreme Court issued the authoritative modern opinion on the doctrine 159 years later in the landmark civil rights case Baker v. Carr.24 In that case, the Court called for the application of the doctrine in cases in which one of the following factors is “inextricably” involved:

[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.25

[*PG229] Non-justiciability is most often invoked in cases affecting U.S. foreign relations.26 In the famous words of Justice Sutherland, the nonjusticiability of political questions touching on foreign relations is predicated upon the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”27 Baker noted that the doctrine has particular relevance in cases touching on foreign affairs, but also carefully emphasized that not every such case presents non-justiciable political questions.28

The use of the political question doctrine in human rights litigation is increasingly common; for example, several recent cases involving claims from the World War II era were dismissed because they raised non-justiciable political questions.29 In Iwanowa v. Ford Motor Co., the district court found a claim by a forced laborer for a German Ford subsidiary during World War II non-justiciable on four of the six Baker factors.30 Under factor one, the court found a constitutional commitment to the executive branch in the issue of war reparations, which affected U.S. relations with the international community.31 The court found that adjudication would demonstrate a lack of respect for the political branches and could involve multifarious pronouncements by various branches of government under factors four and six because of an existing treaty dealing with war reparations.32 Finally, the court found that the existence of potentially thousands of 50-year-old claims resulted in a lack of judicially manageable standards under factor two.33

B.  The Act of State Doctrine

The act of state doctrine has been called the foreign relations equivalent of the political question doctrine.34 It provides that out of [*PG230]respect for other states’ sovereignty, U.S. courts should not judge the acts of foreign heads of state made within their states’ sovereign territory.35 In the context of diplomatically-sensitive suits, the doctrine stands for the proposition that when the executive branch makes a determination on a matter affecting U.S. foreign relations, it is not for the judiciary to second-guess that branch’s expertise by adjudicating what the executive concludes are sensitive claims.36

Like the political question doctrine, the act of state doctrine has a foundation in separation of powers principles, although not in the constitution’s text.37 While the doctrine is not compelled by principles of international law or by the inherent nature of sovereignty, both contribute to its underlying policy.38 In Banco Nacional de Cuba v. Sabbatino, the Supreme Court enumerated three considerations for courts deciding whether to adjudicate claims that implicate the act of state doctrine:

[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.39

Unlike the political question doctrine, the primary purpose of which is preserving the political branches’ prerogative in matters of foreign relations, the act of state doctrine is theoretically concerned with the separation of powers on a level once-removed.40 The doctrine’s pri[*PG231]mary function is to avoid passing judgment on the official acts of governments—in other words, maintaining respectful diplomatic relations between states.41 Because of the dominant role the political branches have typically played in that effort, however, the act of state doctrine implicates significant tensions that can arise between the judiciary and the executive.42

The act of state doctrine, which has frequently been raised by defendant corporations,43 has rarely been successful in defeating human rights claims.44 Wiwa v. Royal Dutch Petroleum Co. illustrates the doctrine’s application in a recent corporate human rights case that did not involve an intervention by the executive branch.45 Citizens of the Ogoni region of Nigeria sued two European oil companies, which they claimed had directed Nigeria’s security forces violently to suppress local opposition to the companies’ development efforts in the region.46 The court rejected the defendants’ act of state defense, based largely on the third Sabbatino factor; since the regime responsible for the human rights abuse had, by the time of the lawsuit, been replaced by a democratic government critical of the prior regime, the court did not fear that adjudicating would strain U.S.-Nigeria relations.47

[*PG232]C.  The International Comity Doctrine

International comity is the deference a domestic court pays to the act of a foreign government that is not officially binding on the court.48 Through comity, legal systems reflect the importance of reciprocal tolerance and good will.49 Comity is not an obligation to dismiss sensitive cases; it is, however, more than a simple matter of courtesy among nations.50 In its most recent statement on the doctrine, the Supreme Court found that a court with proper jurisdiction should dismiss a lawsuit on comity grounds only if an actual conflict exists between foreign and domestic law.51

International comity may properly be seen as the domestic equivalent of the international law principle of jurisdiction to prescribe.52 Thus, when a true conflict of laws exists, courts occasionally look to the Restatement (Third) of the Foreign Relations Law of the United States, which sets out a lengthy but non-exhaustive list of factors to determine whether or not adjudication is “reasonable.”53 In many diplomatically-sensitive cases, however, courts invoke comity concerns only generally, in order to strengthen other bases for their judgments.54

[*PG233] If the act of state doctrine is premised upon separation of powers concerns that are once-removed, then the international comity doctrine’s separation of powers concerns are twice-removed.55 Under the act of state and political question doctrines, deference to the executive in foreign relations matters appears plainly on the respective, court-decreed standards.56 Lawsuits implicate the international comity doctrine, however, not when the American executive fears an encroachment on its ability to conduct foreign relations, but when adjudication would contravene a policy, law, or prerogative of a foreign state.57 The United States has a clear foreign policy interest in a lawsuit once a foreign sovereign has articulated its discomfort with adjudication—namely, maintaining smooth diplomatic relations with the complaining state.58

Recent litigation between Ecuadorian nationals and oil giant Texaco for the latter’s human rights and environmental abuses in the Oriente region of Ecuador demonstrates the application of the international comity doctrine.59 In a series of cases, the opinion of the Ecuadorian government—as opposed to the American executive—appears to have been dispositive in determining whether to dismiss the case.60 A federal district court initially dismissed the claims based largely upon the indignant insistence of the Ecuadoran government.61 Yet several years later, when a new regime in Ecuador told the State Department that it had had a change of heart and wanted to see the claims adjudicated, a subsequent court vacated the dismissal order and the case proceeded.62 The suit was ultimately dismissed largely on forum non conveniens grounds and is now being pursued in Ecuador’s courts.63

[*PG234]II.  Three Cases

The three judicial doctrines have been the basis of decision in two recent cases of corporate human rights abuse abroad and will determine whether a third pending case may proceed.64 The factual similarities of the cases are striking. Each involves allegations of massive human rights abuse committed by MNCs in the mining and energy sectors.65 Two of the three corporations are based in the United States; the third has half a dozen group offices in the United States.66 In each case, the abuse centers around natural resource exploration that has acutely impacted indigenous populations in remote corners of developing countries.67 In all three suits, judges asked the State Department to predict the lawsuit’s potential to interfere with U.S. foreign policy.68 In the two cases that courts have ruled upon thus far, the courts’ decisions whether to dismiss have followed the recommendations of the State Department.69

A.  Doe v. Exxon Mobil Corp.

The ongoing Exxon case involves the alleged complicity of the Exxon Mobil Corporation in acts of torture, rape, and murder committed over a period of years by its plant security detail in Aceh, Indo[*PG235]nesia.70 Exxon began its energy exploration in Indonesia over 100 years ago.71 Around 1971, Exxon Mobil’s predecessor-in-interest, Mobil Oil, discovered a large natural gas field in Arun, located in Aceh Province, Indonesia.72 In return for exclusive access to the field’s natural gas deposits, Mobil provided Indonesia’s brutal military dictator, General Suharto, blank shares in Mobil Oil, among other forms of payment.73 Mobil, now Exxon Mobil, continued to operate at the Arun site, which was one of the largest and most profitable natural gas projects in the world, until 2001.74

Aceh has been the site of a violent separatist insurrection since 1976, and was under direct military control from 1990 to 1998.75 Human rights abuses attributed to military troops in the region during and after that time include torture, rape, extra-judicial execution, and forced disappearances of civilians.76 Amidst this conflict, Mobil allegedly contracted with a unit of the notorious Indonesian military to supply security for its Arun plant, paying monthly or annual fees for the troops’ services, and providing them with facilities and supplies.77 Throughout their tenure as security personnel at the Arun plant, Indonesian troops perpetuated a terror campaign against Acehnese citizens unaffiliated with the separatist movement.78

The plaintiffs, eleven anonymous Acehnese citizens, filed suit in the United States District Court for the District of Columbia in 2001, under the aegis of International Labor Rights Fund, a U.S.-based human rights organization.79 The citizens’ allegations include physical and psychological torture, sexual assault, physical abuse, and murder.80 Exxon Mobil moved to dismiss less than four months after the plaintiffs [*PG236]initiated the lawsuit, claiming inter alia that the act of state and political question doctrines barred adjudication.81 Roughly six months later, Exxon convinced the district court judge to solicit the views of the State Department regarding whether adjudication would interfere with U.S. foreign relations.82 In response, the Legal Adviser of the Department of State, William H. Taft IV, submitted a six-page letter to the court arguing that U.S. foreign policy favored dismissing of the suit for two reasons.83 First, adjudicating the abuses of the Indonesian security forces could embarrass the Indonesian government, causing it to waver in its cooperation with the United States in the war against terrorism.84 Second, the Indonesian government had threatened to retaliate by denying U.S. corporations lucrative government contracts in the future, which would harm U.S. economic and strategic interests.85

Criticism of the State Department’s intervention was swift and multifaceted. Legal experts,86 the popular press,87 human rights organizations,88 and even members of Congress89 denounced the move as a hypocritical betrayal of the principles behind the war on terror, as well as America’s renewed drive toward corporate accountability in [*PG237]the wake of a number of financial mismanagement scandals.90 As the discussion below indicates, however, the intervention in Exxon was neither the Bush administration’s first nor its last.91

B.  Sarei v. Rio Tinto PLC

Rio Tinto PLC, a large, British-based mining firm with plants around the world and in the United States, collaborated with the government of Papua New Guinea (PNG) to build a mine on the PNG island of Bougainville in the 1960s.92 Allegedly, this venture necessitated displacing villages and destroying large amounts of rainforest.93 Thus, Rio Tinto, in a move strikingly similar to Exxon Mobil’s collusion with the Indonesian government, reportedly offered approximately 19% of the mine’s profits to the PNG government in order to secure its cooperation in the effort.94 Because Rio Tinto revenues were crucial to PNG, the government allegedly gave the company direct military control over its mining operations.95 Though villagers in the path of the development fiercely resisted, PNG troops allegedly uprooted their homes and constructed the Panguna mine, which became one of the world’s largest.96 Popular opposition to the enormous mine grew during its construction, leading to acts of sabotage by citizens, harsh reprisals by the military, and eventually, a protracted civil war.97

In addition to massive environmental torts and cultural degradation, the plaintiffs, twenty-two current and former residents of Bougainville, claimed war crimes, crimes against humanity, and massive human rights abuses stemming from Rio Tinto’s mining operation and the civil war it sparked.98 The war crimes charge was partly the result of the government’s comprehensive blockade of the island during the civil war, which prevented the delivery of medical supplies, causing up[*PG238]wards of 10,000 Bougainvillean deaths.99 The plaintiffs also alleged violations of the laws of war, such as targeting civilian populations, pillage, rape, perfidious use of the Red Cross symbol, and wanton killing.100 Because the Panguna mine was at the heart of the conflict, the plaintiffs sought to hold Rio Tinto, the impetus behind the project and its primary beneficiary, responsible for civilian losses.101

The court dismissed the plaintiffs’ claims on several grounds.102 It dismissed their claims of environmental tort and racial discrimination incident to Rio Tinto’s hiring and payment schemes under the act of state and international comity doctrines.103 Significantly, these two doctrines did not preclude the plaintiffs’ arguably more serious human rights claims of war crimes and crimes against humanity.104 The court dashed any hope of a human rights victory in the case, however, by dismissing all claims under the political question doctrine.105 If Exxon is the case-study, then Sarei is the danger of what it might hold.106

C.  Doe v. Unocal Corp.

Unocal Corporation, which maintains its headquarters in California, has owned a 28% interest in the Yadana natural gas field off the coast of Myanmar since 1992.107 Along with a French oil company and the state-owned oil company of Myanmar, Unocal developed the Yadana field’s deposits as part of an effort to ship natural gas from Myanmar’s coast through a pipeline to Thailand.108 The pipeline was to run through Myanmar’s rural Tenasserim region.109

The Myanmar military, which has long been criticized for violating human rights, allegedly forced villagers from the Tenasserim region to work on construction of the pipeline, committing acts of [*PG239]murder, torture, and rape in the process.110 Unocal and its partners on the Yadana project allegedly hired the military as their security detail, and directed troops in their daily operations.111 The United States Court of Appeals for the Ninth Circuit found that Unocal was aware of the military’s dismal human rights record before investing in the project, and that Unocal knew about allegations of continued abuse in connection with the project once construction had begun.112

The Unocal litigation involves three lawsuits.113 In 1996, four Tenasserim villagers, the Federation of Trade Unions of Burma, and the Burmese government-in-exile brought suit in federal district court under the ATCA, alleging human rights abuses and confiscation of property without compensation.114 In 1997, the court granted Unocal’s motion to dismiss against two complainants, finding that the government-in-exile and the trade unions lacked standing to sue, but allowed the suit by the four villagers to proceed.115 Also in 1996, fourteen Tenasserim villagers sued Unocal and its partners in the Yadana project in district court under the ATCA and RICO for similar offenses.116 The court granted in part Unocal’s motion to dismiss the claims against the Myanmar military and state oil company under the Foreign Sovereign Immunities Act.117

In 1997, the court in the case brought by the initial four villagers sought the opinion of the State Department regarding whether adjudicating the remaining issues could adversely impact U.S. foreign policy interests.118 In a letter to the judge, the Department opined that, although all pertinent facts had not yet come to the surface, the suit did not appear to pose a foreign relations problem.119 The district court then consolidated the remaining claims and granted Unocal’s motion for summary judgment based on the absence of state action [*PG240]and subject matter jurisdiction.120 In 2002, the Court of Appeals for the Ninth Circuit reversed in part the district court’s dismissal order, finding that the ATCA case against Unocal could proceed in part because the act of state doctrine posed no barrier.121 In February of 2003, this ruling was vacated in preparation for a re-hearing before an eleven-member en banc panel of the Ninth Circuit. At the time of this writing, the en banc ruling is pending. A third case filed in California state court began in February 2003.122

The Unocal litigation represents the best and worst of both worlds to human rights plaintiffs.123 In contrast to the court in Sarei, the Ninth Circuit Court of Appeals, in its vacated judgment in Unocal, determined that the act of state doctrine did not bar the plaintiffs’ claims of rights abuse—political questions and international comity did not figure into its decision—and remanded the case for trial.124 This victory was celebrated far and wide as an unprecedented step in holding MNCs liable in U.S. courts.125 Unocal, however, is also the most recent evidence that corporate defendants accused of human rights violations abroad have caught on to the current executive’s willingness to intercede on their behalf.126 After the highly public State Department intervention in Exxon, and one month before the Court of Appeals ruled against Unocal’s motion to dismiss, defendant Unocal successfully petitioned the trial judge in the case’s parallel state proceeding to seek the State Department’s views on the lawsuit’s foreign policy implications.127 Although the Department had advised the district court in 1997 that it did not anticipate foreign relations problems stemming from the lawsuit, the defendant had urged the court to petition the Bush administration’s State Department for its views on the matter.128 As of this writing, the State Department has not yet made its views known to the court.129

[*PG241] Further, in anticipation of oral arguments before the en banc panel of the Ninth Circuit in the summer of 2003, the Justice Department intervened with an amicus brief, in which it bypassed criticizing a specific doctrine, advancing instead the bold position that the ATCA should no longer be interpreted to cover international human rights lawsuits.130 Because of the Justice Department’s intervention, the federal appellate-level of the hearing, and the Bush administration’s increasingly recognizable fingerprint on corporate human rights suits, the pending Ninth Circuit case has attracted considerable attention131 and is now considered the forum for a final “showdown” over the ATCA.132

III.  Human Rights-Friendly Doctrine

The executive interventions in Unocal, Exxon, and Sarei constitute a new trend in human rights litigation. Never before have so many victims of human rights abuse sought to hold MNCs accountable in U.S. courts for their actions abroad.133 And never before has a president, invoking diplomatic sensitivity, demonstrated such a willingness to intercede in human rights litigation on the behalf of corporate defendants.134 This situation makes for a litigation climate that is uniquely pernicious to human rights plaintiffs.135

A close examination of the role of the judicial doctrines in these three cases, however, demonstrates that despite the Bush administration’s propensity for intervening on behalf of defendants, the doctrines’ ability to frustrate human rights plaintiffs may be tenuous.136 [*PG242]Legal deficiencies exist in the application of the political question and international comity doctrines in corporate human rights cases.137 The act of state doctrine, by its own terms, is inapplicable in such cases.138 In short, the three doctrines may be more human rights-friendly legal devices than Sarei and Exxon portend.139

A.  Sarei: A Political Question?

Of all three judicial doctrines, the political question doctrine, the basis for dismissal in Sarei, presents the biggest obstacle for human rights plaintiffs.140 In particular, the latter three Baker factors have the potential to pose a significant threat.141 These doctrine is not, however, an insurmountable barrier to human rights adjudication.142 Af[*PG243]ter all, as the Supreme Court has noted, dismissal based on the political question doctrine should be the exception, not the rule.143

In Sarei, the court dismissed all of the Bougainvillean plaintiffs’ claims under the political question doctrine.144 After the State Department argued that the executive opposed adjudication, the court dismissed pursuant to the fourth and sixth Baker factors, “the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government,” and “the potentiality of embarrassment from multifarious pronouncements by various departments on one question.”145 The court implicitly relied in turn on the fifth factor, “an unusual need for unquestioning adherence to a political decision already made,” in the form of the State Department’s letter arguing that adjudication would prejudice U.S. foreign relations.146 Thus the Sarei court was wary of contradicting the expressed policy of the executive by adjudicating claims against the defendants for complicity in PNG troops’ human rights abuses.147

1.  Baker Factors One Through Three: A Minor Threat

The first three Baker factors are ill-suited to corporate defendants in human rights cases.148 Despite some courts’ claims to the contrary, there is no constitutional commitment to the executive branch for handling foreign relations under factor one, and certainly no textual restraint by subject-matter on cases properly adjudicated by the judiciary.149 Regarding factor two, barring the establishment of an arbitra[*PG244]tion panel or bilateral reparations scheme, as in the Nazi forced labor cases, the resolution of disputes is indisputably the province of the courts.150 Finally, under factor three, statutes such as the ATCA and TVPA, as well as universally accepted norms of international law, provide clear, judicially manageable standards for adjudicating private human rights claims.151

2.  Baker Factor Five: “Adherence to a Political Decision Already Made”

A point of departure with the Sarei court’s application of the political question doctrine is factor five, “an unusual need for unquestioning adherence to a political decision already made.”152 The U.S. Court of Appeals for the Second Circuit, in the 1995 case Kadic v. KaradžiG, articulated an interpretation of this factor that is more amenable to human rights plaintiffs, and more consistent with the spirit of Baker, than Sarei employed when it dismissed the plaintiffs’ claims as non-justiciable.153 Circuit Judge Jon O. Newman rearticulated Baker’s admonition that not every case affecting foreign relations is a political question and went on to say that “judges should not reflexively invoke these doctrines to avoid difficult and somewhat sensitive decisions in the context of human rights.”154 This interpretation of the doctrine in light of contemporary human rights litigation reflects Baker’s language: an unusual need for unquestioning adherence suggests that non-justiciability should be a rare diagnosis.155 Kadic’s interpretation also reflects a policy position that accountability for human rights abuse, in its own right, is an important goal that should not easily be trumped.156

Kadic, however, was a decision written with the confidence of a judge whose conclusion enjoyed the express support of the executive [*PG245]branch.157 One wonders how strong Kadic’s human rights language would have been in the face of a direct request by the State Department to dismiss the case.158 In truth, when the department of the executive charged with foreign relations makes a clear recommendation on a matter of U.S. foreign policy, it would flout most mainstream theories of separation of powers for a judge simply to ignore that advice.159 Although at least one commentator has forcefully argued that separation of powers does not limit the judiciary’s authority to hear such cases, as a practical matter it is unrealistic at present to expect judges to ignore decades of precedent counseling an obeisance.160 Thus, in the unusual case where the executive branch actually intervenes and makes a foreign relations argument, most judges can be expected to defer to its judgment.161 Barring a defiant act of independence by the trial judge in Exxon, this does not bode well for the Acehnese plaintiffs.162

3.  Baker Factors Four Through Six

Baker factors four, five and six, which together require respect for another branch’s “political decision already made,” are nonetheless amenable to attack as they apply to corporate human rights cases.163 Under the political question doctrine, the fourth and sixth Baker factors are relevant only if continued adjudication would contradict a prior decision made by a political branch.164 Yet the Bush administration’s inconsistent human rights policy could confuse judges about the executive’s actual position, hindering their ability to determine whether a conflict between branches actually exists. President Bush has consistently and publicly denounced worldwide human rights abuses throughout his presidency, and his administration has fre[*PG246]quently demanded accountability for human rights abusers, including members of the Indonesian military.165 This forceful rhetorical support for human rights values could easily muddle the executive’s actual policy position of dismissing nettlesome human rights claims--which arguably is not even a “decision” for political question purposes.166 Hence, judges would be quite justified in their confusion over this stark contradiction in announced policy.167

The administration’s inconsistency in demanding a cessation of embarrassing human rights litigation while purporting to condemn human rights violations is painfully transparent in Exxon.168 The State Department’s letter to the judge in that case made the following assertions before enumerating its bases for requesting a dismissal:

[T]he [State] Department would like to reaffirm its condemnation of human rights abuses by elements of the Indonesian armed forces in locations such as Aceh. Without expressing a [*PG247]view on the allegations in this specific lawsuit, we would like to reiterate 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.169

Had the State Department not later expressly recommended dismissing the Exxon case, the judge would have been justified in some confusion over which policy should govern for purposes of evaluating a political question conflict between the branches—the administration’s indignant denunciation of rights abuses (favoring adjudication) or its decision to brush aside embarrassing rights cases (favoring dismissal).170 Thus, a future judge sympathetic to human rights plaintiffs could simply refrain from inviting the views of the State Department and allow adjudication, which would appear perfectly consistent with the executive’s careful denunciations of human rights abuse around the world.171 As the next section demonstrates, the implications of the administration’s inconsistant human rights policy could also prevent courts from dismissing claims under the act of state doctrine.

B.  Unocal: No Act of State

The act of state doctrine should not continue to pose a threat to human rights plaintiffs.172 The Unocal court’s sensible rejection of the defendant’s act of state defense in its vacated opinion stemmed from a reading of the rule in light of its policy underpinnings and its unique ability to thwart human rights plaintiffs.173 A similar application would prevent a dismissal under the doctrine in Exxon, and in future cases.174 As this section will demonstrate, this “human rights-friendly” reading of the act of state doctrine is the only justifiable approach.175

In its brief analysis of the act of state defense, the Court of Appeals for the Ninth Circuit in Unocal properly found that the doctrine [*PG248]did not bar adjudication.176 On the first Sabbatino factor, which states that greater consensus concerning the area of international law to be applied favors adjudication, the court found the alleged human rights abuses of the Myanmar military to be universally condemned under international law, which supported allowing the suit to proceed.177 On the second factor, stating that adjudication becomes more appropriate the less important an issue is to U.S. foreign relations, the court found that the State Department’s consistent denunciations of Myanmar’s rights abuses, as well as its letter stating that adjudication would not imperil U.S. foreign relations, demonstrated the absence of a foreign policy conflict.178

The third Sabbatino factor, which weighs in favor of adjudication if the offending government is no longer in power, did not help the plaintiffs in Unocal because Myanmar’s government had not changed between the time of alleged abuse and the court’s decision.179 The Court of Appeals for the Ninth Circuit has added a fourth factor to the three-part Sabbatino test: “whether the foreign state was acting in the public interest.”180 Given the severity of the alleged human rights violations, the court rejected any intimation that the Myanmar military was acting in the public interest; thus, this factor favored adjudication.181 Apparently using a quantitative balancing of the factors, the court found that two factors against dismissal (three counting the additional Court of Appeals for the Ninth Circuit factor) outweighed one factor in favor of it.182

[*PG249]1.  Unocal As an Example for Exxon and Future Cases

Unocal’s quantitative treatment of the Sabbatino factors is an example for future corporate human rights abuse cases, including the en-banc rehearing of that case, as well as Exxon.183 If Exxon were to follow Unocal’s approach, the defendant’s motion to dismiss would be denied and adjudication would proceed on the merits.184 Under factor one, the alleged abuses in Exxon were nearly identical to the universally condemned abuses in Unocal, favoring adjudication.185 Barring judicial confusion over conflicting policy statements, Sabbatino factor two favors dismissal in Exxon because of the State Department’s clear recommendation of dismissal in its letter to the judge.186 Factor three, a change in government between alleged abuses and adjudication, would favor the plaintiffs.187 The tumultuous nature of the handover of power from Abdurrahman Wahid to Megawati Sukarnoputri after the closure of Exxon’s Arun plant would presumably resolve any fear that adjudication would seriously offend Miss Megawati’s government, despite the protestations of Indonesia’s foreign minister to the contrary.188

[*PG250] Under the quantitative approach to the act of state doctrine employed by Unocal, two factors favoring adjudication and one factor favoring dismissal should dictate that the Exxon defendants’ motion to dismiss be denied.189 The Supreme Court, however, described the paramount objective in the act of state analysis as preserving the political branches’ preeminence in matters of foreign relations, not assuring a rigid, quantitative application of the Sabbatino factors.190 In light of that admonition, and the near-dispositive weight judges have typically ascribed to the executive’s opinion on the diplomatic ramifications of lawsuits, it is distinctly possible that the Exxon court will give greater qualitative weight to factor two than factors one and three combined.191

2.  A Human Rights Approach to the Sabbatino Factors

Notwithstanding balancing, a vigilant construction of Sabbatino factor one would preclude dismissal under the act of state doctrine in corporate human rights cases, including Exxon.192 Factor one, which links justiciability to the degree of consensus surrounding the law to be applied, demands dispositive weight in the act of state calculus.193 Even Sarei, a human rights failure because it dismissed all of the plaintiffs’ claims on political question grounds, employed this approach.194 The act of state doctrine barred the plaintiffs’ environmental and racial discrimination claims.195 The court, however, found that acts of genocide, torture, rape, and pillage could not be considered acts of state; thus, an examination of the second two Sabbatino factors was unnecessary.196

In holding that grave human rights violations cannot properly qualify as acts of state, Sarei employed the only plausible interpretation of the act of state doctrine, considering its title and policy under[*PG251]pinnings.197 It is well established that human rights violations cannot be acts of state; therefore, the adjudication of atrocities cannot be prevented under the act of state doctrine, regardless of a lawsuit’s purported potential for diplomatic insensitivity.198 Thus, even when the executive branch requests dismissal, cases involving collusion between exploitative MNCs and abusive governments simply cannot be dismissed under the act of state doctrine because, by the doctrine’s own terms, the behavior in question was not an act of state.199

Sabbatino factors two and three are necessarily inconsequential under this approach to the act of state analysis. Nevertheless, factor three is entirely dependant upon the factual circumstances surrounding the case at bar: either there has been a regime change between the dates of alleged abuse and trial, or there has not.200 Factor two is vulnerable to the same weakness of conflicting policy signals that casts doubt upon the political question doctrine in human rights cases.201 Where the executive, by its consistent denunciation of rights abuses, makes an argument for dismissal that appears wholly inconsistent with its announced foreign policy of human rights accountability, judges will doubtless have difficulty deciding what “the implications of an issue are for our foreign relations.”202

A proper interpretation of the act of state doctrine strongly favors the adjudication of human rights claims. Thus, the doctrine should only continue to deteriorate in its influence in corporate rights abuse litigation.203 As the analysis below demonstrates, the international comity doc[*PG252]trine is also an inappropriate mechanism for frustrating human rights plaintiffs.

C.  Hopeful Signs for the International Comity Doctrine

The international comity doctrine does not pose as great a threat to human rights plaintiffs in diplomatically-sensitive lawsuits as the act of state and political question doctrines.204 While international comity was an obstacle to adjudicating several of the plaintiffs’ claims in Sarei, it did not bar the human rights claims in that case, in Exxon, or in Unocal.205 Further, with the notable exception of several recent cases involving World War II-era claims of corporate collusion with Nazi Germany, international comity has not generally kept human rights plaintiffs from their day in court.206 Given the doctrine’s foreign policy underpinnings and the growing number of corporate human rights cases in U.S. courts, however, a brief evaluation of the doctrine early in its corporate human rights career seems appropriate.207

Courts have tended to apply the international comity doctrine in ways that prevent it from barring human rights claims.208 In Sarei, the district court interpreted the Supreme Court’s most recent international comity decision to require an actual conflict between the laws of the U.S. and the state of the alleged abuse before considering dismissal [*PG253]on comity grounds.209 This threshold requirement, if employed in the future, would limit the dismissal of human rights cases to the rare instances in which the state of the alleged rights abuse actually created a viable alternate remedy to U.S. courts for the plaintiffs, such as an independent statute or compensation fund.210 Another court found the lack of such an alternative remedy, notwithstanding the controversial conflict of laws threshold requirement, to be a fatal deficiency in the defendant’s international comity defense.211 Yet another court reversed a dismissal on international comity grounds after the attorney general of the state of the alleged abuse intervened to argue the importance of human rights accountability in his country, although the court did not rely on the intervention in its explicit reasoning.212

Sarei also incorporated into its international comity analysis a potentially far-reaching construction of the doctrine for human rights cases.213 Although the court expressly declined to apply international comity to the plaintiffs’ human rights claims because of the non-existence of a conflict of laws, it also stated that public policy favored adjudication, notwithstanding the express foreign policy concerns expressed by the State Department.214 In the court’s words, “The fact that the conduct in which defendants engaged is alleged to constitute war crimes and crimes against humanity argues strongly in favor of the retention of jurisdiction.”215 The court’s refreshing deference to the importance of human rights in international affairs is undermined somewhat by the overall holding of Sarei, which dismissed all claims under the political question doctrine.216 Nevertheless, this clear statement of the primacy of human rights over diplomatic, if not separation of pow[*PG254]ers, concerns, is clearly progress.217 Future courts interested in upholding human rights values would do well to emulate this reasoning not only in their international comity analysis, but also in applying the act of state or political question doctrines in human rights cases.218

The Restatement factors themselves, so often ignored in international comity analysis, are conducive to Sarei’s human rights-friendly approach to the doctrine.219 Factor two, which counsels adjudication when there are close ties between the adjudicating state (the United States) and the entity responsible for the behavior in question (the MNC), weighs in favor of adjudication where U.S.-based MNCs are accused of rights abuse.220 Factors three and five, which deal with the character of the activity to be regulated and its importance to the international system, similarly favor adjudication when the activity in question is abhorrent and internationally-denounced human rights abuse.221 Factor four, which protects justified expectations that could be affected by adjudication, should not aid abusive corporations who might argue that they had expected to get away with abusive behavior because they relied on the weakness of domestic legal systems in the countries in which they maintained operations.222 Factor six—the extent to which regulation is consistent with international traditions—also leans toward adjudication in an era of increasing sensitivity to human rights values.223 Although several other Restatement factors appear to favor dismissal, when coupled with the strong public policy interest in human rights accountability articulated in Sarei, the above arguments [*PG255]could certainly support a strong case for adjudicating human rights claims in the face of an international comity defense.224

Given the case history, the availability of a human rights-friendly interpretation of Supreme Court precedent, and Sarei’s path-breaking statement of the importance of human rights accountability in international comity analysis, this doctrine, like the act of state doctrine and, to a lesser extent, the political question doctrine, is an eminently surmountable obstacle to corporate human rights adjudication.

IV.  Executive Intervention: Bad Public Policy

Part III of this Note demonstrates that the political question, act of state, and international comity doctrines are sufficiently flexible legal devices that they need not frustrate human rights plaintiffs.225 Nevertheless, so long as the executive branch is willing to intervene on corporate defendants’ behalf, the three doctrines will probably remain available as a defense strategy in human rights litigation.226 This section buttresses the legal bases for rejecting the application of the judicial doctrines in corporate human rights cases by arguing that executive-corporate collusion is a hypocritical and ineffective public policy that is deleterious to U.S. interests, as well as the interests of human rights plaintiffs.227

A.  Setting a Trend

Executive-corporate collusion threatens human rights plaintiffs for a number of reasons. First, because of a dramatic increase in ATCA corporate human rights litigation, a number of cases seeking to hold MNCs accountable for human rights abuses abroad face dismissal if the trend continues.228 Corporate defendants who have thus far sought dismissal on jurisdictional or forum non conveniens grounds will soon come to appreciate a strategy that provides an easy bar to adjudication.229 Indeed, the Unocal defendants’ petition for a second executive opinion after the Clinton State Department was unavailing clearly [*PG256]demonstrates that corporate defendants have already caught on to the new trend.230

Second, contemporary cases will invariably influence the next generation of legal decision-makers.231 Judges will be bound by precedent to the deference shown by higher courts to the executive branch. And future presidents, influenced by excessive notions of prerogative demonstrated by the Bush administration, could show even less solicitude for human rights lawsuits that interfere with their foreign policy agendas.232 Also, other governments in states otherwise committed to the rule of law could follow the example set by the United States, a self-proclaimed human rights leader,233 and similarly intervene in private litigation to defeat embarrassing, but necessary, human rights claims.

A third factor demonstrating the significance of executive-corporate collusion is the executive branch’s power to influence courts when it decides to intervene in sensitive lawsuits. The foreign relations defense presents intimidating and nearly irresistible grounds for dismissal to judges, who are often unfamiliar with foreign affairs and are wary of treading on the toes of the executive branch.234 For this reason, courts have tended to attach great significance to the opinion of the executive branch when it speaks on a lawsuit’s propensity to affect the foreign relations of the United States.235 Indeed, Justice [*PG257]Rehnquist, announcing the decision of a sharply-divided Supreme Court in First National City Bank v. Banco Nacional de Cuba, argued that courts must follow the executive branch’s recommendation when it advises them not to apply the act of state doctrine in diplomatically-sensitive lawsuits.236 Thus, the “persuasive power of executive communication,” makes it all the more imperative that human rights advocates impress upon the Bush administration the importance of abandoning its policy of intervening in lawsuits to frustrate human rights plaintiffs.237

[*PG258]B.  Public Policy and the Adjudication of Sensitive Claims

Executive-corporate collusion is subject to policy criticism on many fronts.238 It sacrifices accountability for rights abusers for political and economic gain, undermining human rights policy goals and values in the process.239 Executive intervention is also short-sighted in its reckless contribution to anti-Americanism in the developing world, a major security concern since the attacks of September 11, 2001.240 In short, upon in-depth examination, the policy is indefensible.241

1.  Ineffective Human Rights Policy

The Bush administration has argued that long-term human rights goals support its recent interventions in diplomatically-sensitive human rights cases.242 “Big picture” human rights policy, according to this argument, requires dismissing lawsuits that could interfere with broader U.S. diplomatic efforts geared toward increasing human rights sensitivity abroad.243 For instance, in Sarei, the State Department argued that only by dismissing the case at bar, which was embarrassing to the PNG government, could the United States allow PNG to continue to advance its politically fragile peace process; a verdict against the government could have jeopardized its decision to withdraw troops from Bougainville.244 The State Department made a similar appeal on behalf of the defendant in Exxon, arguing that adjudication would undercut U.S. pressure for military and judicial reform in Indonesia and could lead Indonesia to partner with businesses from states with poor human rights records.245 Thus executive-corporate collusion raises an important human rights policy question: does adjudicating diplomatically-sensitive cases better serve human rights goals than engagement with abusive regimes?246

A number of arguments support the view that executive-corporate collusion ultimately harms the current movement toward greater respect for human rights worldwide. First, engagement coupled with accountability is a more effective diplomatic answer to abusive regimes [*PG259]than blind engagement.247 By the State Department’s own admission, states that partner with MNCs cannot reach human rights goals until they effectively put a stop to rights abuses by their security services.248 Yet in Exxon, for instance, the Department, in claiming to seek an end to the Indonesian military’s abuses through engagement while ignoring accountability for past abuse, presumed that an end to the years-old Aceh conflict would instantly transform an abusive military and a government inured to rights abuse into a model regime.249 The lack of human rights progress despite close U.S.-Indonesia ties during the brutal Suharto dictatorship undercuts such an assumption, as do a number of other instances where uncritical engagement with abusive regimes has failed to stem human rights abuses—in post-9/11 China and Uzbekistan, for instance, to cite just two contemporary examples.250 Engagement must include accountability as a disincentive to continued rights abuse in order to succeed in creating a rights-sensitive military and government.251

[*PG260] Second, the Bush administration’s casual willingness to sacrifice human rights plaintiffs calls into question the sincerity of its stated goal of achieving human rights progress in the developing world in the first place.252 The State Department mentioned the human rights implications of adjudication in its letters in both Sarei and Exxon, but the executive’s true concerns were more likely political and economic in nature.253 For instance, in the State Department’s letter to the judge in Exxon, the human rights implications of adjudication were awkwardly lumped among the broader concerns of losing opportunities for U.S. investment in Indonesia and jeopardizing a critical alliance in the war on terror, arguments of dubious merit in their own right.254 Similarly, critics have accused the administration of urging dismissal in Sarei out of support for the mining industry, not because of a concern for long-term human rights policymaking.255 If human rights progress is not in fact the U.S. foreign policy interest in preventing adjudication in corporate human rights cases, experience shows that human rights concerns are likely to remain un-addressed.256

Third, executive intervention in corporate human rights cases undermines the United States’ commitment to human rights, especially in the eyes of indigenous plaintiffs who lay their hopes for institutional redress in U.S. courts.257 Despite the inadequacies of the United States [*PG261]as a permanent forum for international human rights litigation, it is nonetheless an attractive option to plaintiffs in the developing world, both because of procedural mechanisms such as punitive damages and jury trials, and because of unresponsive legal systems at home.258 The administration’s vainglorious human rights rhetoric, coupled with its unabashed pursuit of U.S. interests over human rights accountability, sends a message of hypocrisy to the international community.259 The damage of such a statement on U.S. credibility abroad outweighs any marginal economic and political gains secured by sacrificing human rights accountability.260

Rather than a long-term solution to human rights abuse abroad, executive-corporate collusion is a short-cut that sacrifices human rights values as expendable bargaining chips for short-term political and economic gain.261 As the next section demonstrates, executive-corporate collusion is also a misguided foreign policy that jeopardizes long-term U.S. interests.262

2.  Short-Sighted Foreign Policy

Executive intervention in diplomatically-sensitive lawsuits is also a disingenuous and ineffective foreign policy.263 Past executive interventions show that the executive branch is quite willing to allow domestic lawsuits to effect its foreign policy goals when it is convenient to do so.264 Further, intervening in corporate human rights cases breeds resentment abroad, because of perceived double-standards in American human rights policy and corporate responsibility rhetoric.265 Fanning the flames of anti-Americanism for so little gain is an ill-considered policy choice that ultimately is at odds with U.S. interests.266

Current267 and past administrations have conducted foreign policy, and even human rights policy, through U.S. courts in the past when it [*PG262]was expedient to do so.268 In a 1985 case before the U.S. Court of Appeals for the Second Circuit, the Reagan administration intervened in an appellate hearing to argue that the dismissal of a suit brought by a syndicate of American banks against Costa Rican banks for recovery of outstanding monies should be reversed.269 The executive argued that the district court had misapplied U.S. public policy by dismissing the case under the act of state doctrine.270 To the executive, securing debt repayment for U.S. banks outweighed any concern over the separation of powers or diplomatic niceties.271 Similarly, when former Serbian President Radovan KaradžiG raised a political question defense in a war-crimes suit, the State Department wrote two letters, including one with the support of the Attorney General and Solicitor General, emphatically stating that adjudication of his case would not adversely impact U.S. foreign relations.272 The Clinton administration, while wary that the lawsuit could strain ongoing Balkan peace negotiations, nonetheless decided to endorse the suit as a means of distinguishing itself from past Republican administrations on the subject of human rights, according to a State Department memorandum.273 While in these two instances, the executive’s foreign policy objectives warranted adjudicating diplomatically-sensitive lawsuits, improving the human rights records of developing states, without more, apparently does not rise to such importance for the Bush administration.274

In addition to the anti-American resentment fostered by duplicitous human rights policy, executive-corporate collusion creates an additional basis for resentment abroad in the arena of corporate responsibility.275 The State Department’s letter arguing for dismissal of Exxon was written not three weeks after President Bush declared that “America’s greatest economic need is higher ethical standards,” and that “there is no capitalism without conscience.”276 The administration’s [*PG263]outrageous willingness to support severe corporate malfeasance abroad so soon after pledging to embark upon a new era of responsibility leads to the impression that American companies are only responsible “to the water’s edge.”277 This double-standard invites resentment against the United States by suggesting to indigenous plaintiffs that corporate accountability, the height of America’s concern for domestic businesses at the time of both the Exxon and Sarei interventions, is an unnecessary bother for American businesses operating in the developing world.278

The resentment and anger engendered by U.S. hypocrisy on human rights policy and corporate responsibility are antithetical to long-term U.S. interests, and represent an immediate security threat in an age of global terrorism.279 As the U.S. has become entrenched in the Middle East, an area of the world currently saturated by virulent anti-Americanism, its perception abroad has increasingly become a matter of national security policy.280 As one prominent human rights leader has noted, “Human rights are the foundation of national security, both domestically and around the world.”281 Flagrant inconsistency between U.S. rhetoric and practice abroad provides anti-American extremists and terrorists with an invaluable propaganda tool for adding angry recruits to their ranks.282 Because such antagonism is eminently preventable, U.S. double standards on human rights and corporate accountability represent a clear foreign policy failure.283


The new trend of executive-corporate collusion to dismiss diplomatically-sensitive corporate human rights lawsuits is troubling on many fronts. The trend evidences a startling lack of concern for human rights values in the United States’ foreign policy, which is inconsistent with the Bush administration’s frequent invocation of human rights values. The trend also points to hypocritical policy enforcement abroad in terms of corporate responsibility. Further, executive-corporate collusion is a tenuous legal maneuver, given the adaptability of all three judicial doctrines discussed in this Note to “human-rights friendly” application.

Rather than intervene for political and economic gain, the executive branch should allow human rights cases that embarrass foreign sovereigns to run their course. If the allegations of the lawsuits are without merit, corporate defendants can adequately defend their interests without the help of the executive branch.284 In cases where corporations are in fact guilty of complicity in human rights abuse, the parties have the option to settle outside of court, which could mitigate any diplomatic ramifications of the dispute.285 Above all, where corporate defendants are guilty of complicity in human rights abuse abroad, their shameful and exploitative acts must be exposed, redressed, and stopped.

A resolution to the increased use of the political question, international comity, and head of state doctrines will not, however, resolve the difficulties inherent in MNC liability in U.S. courts.286 Other procedural and jurisdictional requirements still make the adjudication of claims under the ATCA, for instance, less, rather than more, likely.287 Consistent accountability for rights abusers will require a series of deeper, structural changes to the international regime of human rights protections.288 Binding standards for corporate conduct abroad are one example.289 A U.S. commitment to the International Criminal [*PG265]Court is another.290 And it is conceivable that in some instances, long-term human rights goals, if doggedly pursued, could theoretically outweigh short-term adjudication of past abuse, in which case human rights-conscious policymakers would face a difficult choice between absolutes.291

ATCA litigation in U.S. courts, however, is one of the only available solutions to the problem of unchecked corporate human rights violations abroad.292 Because of executive-corporate collusion, that solution is perilously close to losing any vestige of effectiveness.293 Until the international community can realize an international human rights framework that holds accountability for rights abuse above dated notions of sovereign prerogative, plaintiffs, in the interest of justice, should have their day in U.S. courts.294

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