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St. Thomas Law Review

Sonia Jimenez

First Page

721

Document Type

Comment

Abstract

Any good business person knows the best way to increase profit is to reduce overhead without compromising the quality of the product. With this in mind, many U.S. corporations have established business operations abroad, particularly in lesser developed countries. While lesser developed countries may not be attractive to tourists, they are attractive to industries and corporations for a number of reasons. Leaders of lesser developed countries can offer such corporations inexpensive materials, untapped natural resources, a cheap, yet highly productive, labor force, and there is virtually no regulation of business practices. Oftentimes, the leaders of such regions are just as concerned with maximizing their profits as the corporations, and in an effort to meet this end, they subject their citizens to various individual human rights violations. In America, the Constitution, tort law, and criminal statutes protect against individual human rights violations and provide for civil damages and criminal punishment that deters corporations from engaging in such unethical practices. Internationally, the legal community has created several "soft law" instruments that seek to protect citizens of countries that do not have legal systems to prevent and deter human rights violations. Additionally, the nature of these instruments addresses relations among the states and does not consider the actions of private actors, such as corporations. However, U.S. corporations doing business in foreign countries may be held accountable under the scarcely used Alien Tort Claims Act ("ATCA") for contributing to human rights violations abroad. The Alien Tort Claims Act has been in existence, in one form or another, since the founding of America. However, legislative intent is ambiguous, and the Act has never been fully interpreted by the judiciary. Some scholars believe that the framers' intent was to protect the integrity of the country against U.S. citizens who committed wrongs against foreigners abroad. Further, the Supreme Court has only reviewed one case claiming a cause of action under the ATCA,4 leaving the lower courts with virtually no binding precedent. In fact, the lower courts have applied several different legal theories resulting in inconsistent decisions and futile attempts to define the scope and extent of the Act. Perhaps this can be explained best by citing dicta from a case out of the Eleventh Circuit in which Judge Hatchett stated, "Congress ... may enact a statute that confers on the federal courts jurisdiction over a particular class of cases while delegating to the courts the task of fashioning remedies that give effect to the federal policies underlying the statute." The courts do not have any uniform measure to adequately fashion such remedies. The ATCA, if given a clear definition with specific application, has tremendous potential to affect U.S. corporations' business dealings abroad. For the first time, an ATCA claim against a U.S. corporation may survive summary judgment, giving the judiciary another opportunity to give the ATCA form and meaning. Doe v. Unocal, a groundbreaking case in the Ninth Circuit Court of Appeals, will soon determine whether or not Unocal, a U.S. corporation, while doing business in Burma, may be held liable under the Alien Tort Claims Act for numerous human rights violations. Unocal, a U.S. owned petroleum company, has contracted with the Burmese government to assist with the development of their oil pipeline project, which will connect Burma (Myanmar) with Thailand. The country of Burma is known for its military state and is notorious for its human rights violations against its own citizens. Unocal initiated business dealings with the government of Burma before the United States took a formal stance against the Burmese government's treatment of their citizens. Therefore, the Unocal-Burmese business relationship is exempt from trade sanctions, which were subsequently implemented. As a result, several nongovernmental organizations ("NGOs"), in conjunction with independent counsel, filed the lawsuit under the theory of tort provided by the ATCA on behalf of the villagers of Burma who have endured such human rights violations as forced labor, rape and murder. The various implications of a judicial decision in favor of the villagers (Doe) with regard to U.S. companies doing business abroad could have a profound effect, particularly on U.S. corporations' freedom to establish operations while at the same time acting responsibly to avoid unethical, illegal practices involving human rights violations. An additional implication involves the inherent environmental cost to undeveloped and underdeveloped countries, who often bow to U.S. business interests. In these lesser developed countries, there are no regulatory protections to ensure reduced exposure to pollutants and the maintenance of the eco-system, which are the most basic survival needs of a community. In order to fully understand the impact that the Doe v. Unocal decision may have on U.S. corporations, it is vital to have a basic understanding of the evolution of international human rights, the history of the Burmese situation, and the actual lawsuit. Furthermore, it will be necessary to examine the legislative history of the ATCA, the various courts' interpretation of the act, and finally the potential effects of a Supreme Court ruling on an ATCA claim.

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