III.
CONCLUSION
For
the foregoing reasons, we REVERSE the District Court’s grant of
summary judgment in favor of Unocal on Plaintiffs’ ATCA claims
for forced labor, murder, and rape.35 We however AFFIRM the District Court’s grant of summary judgment
in favor of Unocal on Plaintiffs’ ATCA claims for torture. We further
AFFIRM the District Court’s dismissal of all of the Doe-Plaintiffs’
claims against the Myanmar Military and Myanmar Oil. We also AFFIRM
the District Court’s grant of summary judgment in favor of Unocal
on the Doe-Plaintiffs’ RICO claim against Unocal. We REMAND
the case to the District Court for further proceedings consistent with
this opinion.
Each
party to bear its own costs.
REVERSED
IN PART, AFFIRMED IN PART and REMANDED.
REINHARDT,
Circuit Judge, concurring:
I
agree with the majority opinion, except for Part II(A), in which the
majority discusses the Alien Tort Claims Act. As to that Act, I agree
with the majority that material factual disputes exist regarding plaintiffs’
claims for forced labor used in connection with the Yadana Pipeline
Project. I also agree with the majority that if plaintiffs prove their
allegations, Unocal may be held liable under the Act for the use of
forced labor as a part of the project. Where I differ from my colleagues
is principally with respect to the standard of thirdparty liability
under which Unocal may be held legally responsible for the human rights
violations alleged. I do not agree that the question whether Unocal
may be held liable in tort for the Myanmar military’s alleged human
rights violations should be resolved, as the majority holds, by applying
a recently-promulgated international criminal law aiding-andabetting
standard that permits imposition of liability for the lending of moral
support. In fact, I do not agree that the question of Unocal’s
tort liability should be decided by applying any international law test
at all. Rather, in my view, the ancillary legal question of Unocal’s
third-party tort liability should be resolved by applying general federal
common law tort principles, such as agency, joint venture, or reckless
disregard. I also believe that there is no reason to discuss the doctrine
of jus cogens in this case. Because the underlying conduct alleged
constitutes a violation of customary international law, the violation
was allegedly committed by a governmental entity, and Unocal’s
liability, if any, is derivative of that government entity’s, jus
cogens is irrelevant to any issue before us. Assuming the allegations
to be true, the fact that the underlying conduct violated customary
international law is sufficient to support liability not only on the
part of the governmental actor, but also on the part of a third party
whose liability is derivative thereof.
1.
Forced Labor As A Violation of the Law of Nations
In
order to bring an action under the Alien Tort Claims Act, an alien plaintiff
must allege a tort committed in violation of the law of nations. Hilao
v. Estate of Marcos, 25 F.3d 1467, 1475 (9th Cir. 1995). I agree
with the majority that the plaintiffs have alleged the requisite international
law violation, and that a genuine issue of material fact exists regarding
whether forced labor was used by the Myanmar government in connection
with the Yadana Project. Because the majority opinion thoroughly sets
forth the plaintiffs’ serious allegations, and the evidence supporting
those allegations, I do not repeat them here.
There
can be little doubt that the use of forced labor violates widely-held
international legal norms. Forced labor is banned by the Universal Declaration
of Human Rights, the International Covenant of Civil and Political Rights,
and the International Covenant of Economic, Social and Political Rights.
See Universal Declaration of Human Rights, G.A. Res. 217(A)III (1948);
International Covenant on Civil and Political Rights, art. 22, 999 U.N.T.S.
171, 173-74; 6 I.L.M. 368; International Covenant of Economic, Social
and Political Rights, art. 8, 993 U.N.T.S. 3, 4; 6 I.L.M. 360. Forced
labor was listed as a war crime in the charter of the Nuremberg Tribunal. See Agreement for the Prosecution and Punishment of the Major
War Criminals of the European Axis, and Charter of the International
Military Tribunal, Aug. 8, 1945, art. 6, 82 U.N.T.S. 280. Moreover,
it is banned by two of the most widely-adopted international labor conventions.
Convention Concerning the Abolition of Forced Labour (No. 105), June
25, 1957, 320 U.N.T.S. 291; Convention Concerning Forced or Compulsory
Labour (No. 29), June 28, 1930, 39 U.N.T.S. 55. In light of these legal
authorities, the allegations of forced labor practices, if true, constitute
a violation of customary international law and, in any event, are sufficient
to confer jurisdiction under the ATCA.
In
contrast, the majority states that plaintiffs have alleged the necessary
international law violation because forced labor is a modern variant
of slavery, which is a jus cogens or “peremptory norm”
of international law.1 In fact, whether
or not forced labor is a modern variant of slavery is of no legal consequence
in this case, because there is no requirement that plaintiffs state
a jus cogens violation in order to obtain jurisdiction under
the ATCA. It is true that a cause of action against non-state actors
for conduct in which they engage directly exists only for acts
that constitute jus cogens violations and that other conduct
of private parties that would violate international law if engaged in
by a governmental entity is not actionable under the ATCA. See Kadic
v. Karazdic, 70 F.3d 232, 240 (2d Cir. 1995). Here, however, if
Unocal is held liable, it will be because the Myanmar military committed
the illegal acts and Unocal is determined to be legally responsible
for that governmental conduct under a theory of third-party liability
— not because Unocal itself engaged in acts transgressing international
law. Because the violations of customary international law, if they
occurred, were committed by a governmental agency, third-party liability
may attach regardless of whether the international law violated is jus
cogens.2 Thus, I see no need to discuss
whether forced labor is a modern variant of slavery, which would render
it a jus cogens norm, or even whether the prohibition on forced
labor is itself a jus cogens norm, which it may well be. See
Princz v. Fed. Republic of Germany, 26 F.3d 1166, 1179-81 (D.C.Cir.
1994) (Wald, J., dissenting on other grounds). The well-established
principle that forced labor practices violate customary international
law is sufficient in itself to confer jurisdiction in this case with
respect to all parties, jus cogens or not.
2.
The Appropriate Source of Law for Determining Third-Party Liability
If
the plaintiffs can prove their allegations that the Myanmar military
instituted a policy of forced labor, they would satisfy the Alien Tort
Claims Act requirement of a violation of the law of nations. Then, in
order to prevail on its claims against Unocal, plaintiffs would have
to prove that the private entity may be held legally responsible for
the Myanmar military’s human rights violations. The latter requirement
raises important questions of first impression: Under what circumstances
may a private entity doing business abroad be held accountable in federal
court for international law violations committed by the host government
in connection with the business activities of the private entity; and
to what body of law do we look in order to determine the answer? Logically,
it is necessary to consider the second question first. In my view, the
answer is that we look to traditional civil tort principles embodied
in federal common law, rather than to evolving standards of international
law, such as a nascent criminal law doctrine recently adopted by an
ad hoc international criminal tribunal.
Plaintiffs
allege that Unocal should be held liable for Myanmar’s forced labor
actions with respect to the pipeline under a number of international
law theories, as well as under several theories based on federal common
law principles. The text of the Alien Tort Claims Act states only that
federal courts have jurisdiction over torts constituting a violation
of “the law of nations.” It is thus clear from the face of
the statute that international law applies to determine whether a violation
has occurred. The statute is silent, however, as to what body of law
applies to ancillary issues that may arise, such as whether a third
party may be held liable in tort for a governmental entity’s violation
of the law of nations. The majority elects to apply international law
principles to resolve such issues. I strongly disagree. I believe that
we are required to look to federal common law to resolve ancillary legal
issues that arise in ATCA cases.
Following Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), federal courts
ordinarily apply federal common law in limited circumstances, usually
when authorized to do so by Congress. However, actions involving international
relations constitute one category of cases in which federal common law
is frequently applied. The Supreme Court has stated that even without
congressional authority to develop federal common law, the federal courts
should apply such law “in such narrow areas as those concerned
with the rights and obligations of the United States, interstate and
international disputes implicating the conflicting rights of States
or our relations with foreign nations, and admiralty cases.” Texas
Industries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 641
(1981); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S.
398, 425 (1964) (“It seems fair to assume that the Court did not
have rules like the act of state doctrine in mind when it decided Erie
R. Co. v. Tompkins.”). Because Alien Tort Claims Act cases
involve the violation of international law, they almost always “implicat[e]
. . . our relations with foreign nations.” Texas Industries,
451 U.S. at 641.3 There are thus unique
federal interests involved in Alien Tort Claims Act cases that support
the creation of a uniform body of federal common law to facilitate the
implementation of such claims.
There
is another reason why the application of federal common law is appropriate
here: we are required to resolve issues ancillary to a cause of action
created by Congress. The Supreme Court has stated that in such cases,
courts should apply federal common law “to fill the interstices
of federal legislation.” United States v. Kimbell Foods,
440 U.S. 715, 727 (1979). In this regard, federal common law is applicable
where courts are required to implement the policies underlying a federal
statute by fashioning appropriate remedies. Illinois v. City of Milwaukee,
406 U.S. 91, 100-04 (1972) (holding that federal courts may fashion
federal common law remedies to implement the policies of federal water
pollution statutes, because interstate navigable waters are inherently
a matter of federal concern, and the federal legislation did not address
the specific legal issue presented.); see County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 237 (1985) (applying federal common
law to a remedial question where the federal Non-Intercourse Act failed
to address what legal standard to apply). It is precisely in order to
implement the policies underlying Congress’s decision to make the
violation of international law a federal tort, that it is necessary
to flesh out the statute and apply federal common law; here, we must
do so in order to fashion a remedy with respect to the direct or indirect
involvement of third parties in the commission of the underlying tort.4
Next,
the question of when third-party liability arises is a straightforward
legal matter that federal courts routinely resolve using common law
principles. See cases cited Part 3, infra. It is not an issue
of such rarity, so seldom broached and so puzzling that our domestic
law offers inadequate guidance and we are compelled to look elsewhere.
The fact that some of the acts at issue here may have taken place abroad
does not militate in favor of applying international law; transnational
matters are litigated in federal court, using federal legal standards,
more and more frequently as the pace of globalization grows ever more
rapid. Nor is there any reason to apply international law to the question
of third-party liability simply because international law applies to
the substantive violation; as discussed above, federal common law is
properly invoked when the statute at issue leaves an ancillary question
unanswered, regardless of the nature of the statute. In short, federal
common law principles provide the traditional and time-tested method
of filling in the interstices and resolving the type of ancillary legal
questions presented by this case.
In
my view, courts should not substitute international law principles
for established federal common law or other domestic law principles,
as the majority does here, unless a statute mandates that substitution,
or other exceptional circumstances exist. Examples of when the substitution
of international law is appropriate include interpreting the substantive
provisions of the Torture Victims Protection Act, Pub.L. No. 102-256,
106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350), certain provisions
of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1330 et
seq., and the substantive component of the ATCA. In those cases,
the statutes make it plain that certain provisions require the application
of international law. In other instances, I believe it prudent to follow
the general rules established by the Supreme Court regarding the use
of federal common law. It is important to recognize that there is a
distinction between substituting international law for federal
common law and making proper use of international law as part of federal
common law. Employing federal common law does not force courts to ignore
a constructive or helpful rule adopted under international law, because
in appropriate circumstances federal common law incorporates relevant
principles of international law. The Paquette Habana, 175 U.S.
677, 700 (1900); see also n. 7, infra. Thus, the benefits
of the vast experience embodied in federal common law as well as any
useful international law principles are obtained when we employ the
traditional common law approach ordinarily followed by federal courts.
Those benefits are lost, however, when we substitute for the wide body
of federal authority and reasoning, as the majority does here, an undeveloped
principle of international law promulgated by a recently-constituted
ad hoc international tribunal.5
Almost
all of the factors that we are required to consider as part of a choice-of-law
inquiry militate in favor of determining that the proper law to apply
here is the federal common law.6 First,
“ease in the determination and application of the law to be applied”
is furthered by applying a well-developed body of law, as opposed to
a standard announced in a criminal case only recently decided by an
ad hoc international tribunal. Similarly, “certainty, predictability
and uniformity of result” are more likely to be achieved when there
exists extensive precedent upon which to draw, and the state of the
law does not depend on the future decisions of some as-yet unformed
international tribunal established to deal with other unique regional
conflicts. Additionally, although the “justified expectations”
of potential parties may be limited in the sense that no direct precedent
exists on the question of third-party liability in ATCA cases, the federal
common law principles of joint liability, agency, and reckless disregard
that we regularly apply in other contexts are generally well-known.
In contrast, the international law regarding third party “moral
support” is of very recent origin, and our selection of that law
would not lead to settled expectations in future cases; for, the standard
may well change dramatically if and when it is applied by a different
ad hoc tribunal appointed by future representatives of the nations that
compose the General Assembly of the United Nations. Next, as noted earlier,
the policy of the Alien Tort Claims Act is “to establish[ ] a federal
forum where courts may fashion domestic common law remedies to give
effect to violations of customary international law.” Abebe-Jira
v. Negewo, 72 F.3d at 848. Thus, the “relevant polic[y] of
the forum” is to apply federal common law remedies such as the
imposition of third-party liability in the case of violations of customary
international law. Finally, “the basic polic[y] underlying the
particular field of law” is to provide an appropriate tort remedy
for certain international law violations. The application of third-party
liability standards generally applicable to tort cases directly furthers
the basic policy of using tort law to redress international wrongs,
whereas the application of international criminal law doctrines does
not advance that objective. The two remaining choice-of-law factors
are neutral, at the least, and certainly do not support rejecting the
use of federal common law.7
Part
8
1.
As the majority notes, such a norm is one that is “accepted and
recognized by the international community of states as a whole as a
norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
character.” Vienna Convention on the Law of Treaties, art. 53,
May 23, 1969, 1155 U.N.T.S. 332, 8 I.L.M. 679; see also Siderman
de Blake v. Republic of Argentina, 965 F.2d 699, 714-15 (9th Cir.
1992)
2.
I do not read the majority opinion as holding otherwise. The opinion
nowhere states that a third party can be liable for a governmental action
only if that action constitutes a jus cogens violation. Rather,
I view the majority’s interesting academic dissertation on why
forced labor is like slavery and why slavery constitutes a jus cogens violation as background historical material that may be of interest
to legal scholars but is unnecessary to its decision.
3.
It is the rare Alien Tort Claims Act case that does not involve a foreign
state or official as a defendant. Most international law norms apply
only to states; a private party will ordinarily violate international
law by its own actions only if it transgresses a legal norm that has
achieved jus cogens status. See discussion, supra.
4.
That the principles discussed in the text apply not only to traditional
domestic legislation but to the Alien Tort Claims Act as well is demonstrated
by a statement by the Eleventh Circuit in Abebe-Jira v. Negewo,
72 F.3d 844, 848 (11th Cir. 1996). There, that court observed that the
purpose of the ATCA is “to establish[ ] a federal forum where courts
may fashion domestic common law remedies to give effect to violations
of customary international law.”
5.
The International Criminal Tribunal for the Former Yugoslavia was formed
with the limited mandate of adjudicating allegations of human rights
abuses that took place in the Balkans in the last decade. Established
by Security Council Resolution 827 in May, 1993, it is a temporary body
whose members are elected for four-year terms by the members of the
United Nations General Assembly. The International Criminal Tribunal
for Rwanda, which subsequently applied the Yugoslav Tribunal’s
test, is a similarly-constituted body.
6.
The Restatement (Second) of Conflict of Laws, § 6, provides that
the following factors are to be considered as part of a choice of law
analysis: (1) the needs of the interstate and international systems;
(2) the relevant policies of the forum, (3) the relevant policies of
other interested states and the relative interests of those states in
the determination of the particular issue; (4) the protection of justified
expectations, (5) the basic policies underlying the particular field
of law, (6) certainty, predictability and uniformity of result, and
(7) ease in the determination and application of the law to be applied.
“Federal choice of law rules follow the approach of the Restatement
(Second) of Conflict of Laws.” In re Vortex Fishing Sys., Inc.,
277 F.3d 1057, 1069 (9th Cir. 2002); see also Chuidian v. Philippine
Nat’l. Bank, 976 F.2d 561, 564 (9th Cir. 1992)
7.
The two remaining Restatement factors are the first, “the needs
of the interstate and international systems,” and the third, “the
relevant policies of other interested states and the relative interests
of those states in the determination of the particular issue.”
Restatement (Second) of Conflict of Laws, § 6.
