Her Body is a Battlefield:
The Applicability of the Alien Tort Statute to Corporate
Human Rights Abuses in Juarez, Mexico
Grace C. Spencer*
TABLE OF CONTENTS
I. INTRODUCTION ..................................................................................................
H. LIFE IN THE MAQUILADORAS OF JUAREZ ........................................................
A.
B.
A Pyrrhic Victory.: The "Unexpected" Effects ofNAFTA ......................
Conditions in the Maquiladoras..............................................................
1. Murders ..............................................................................................
2 . Wages ................................................................................................
3. Child Labor and the Absence of Unions ..........................................
4. Reproductive Health and Safety .......................................................
C . Who is to B lame? .....................................................................................
111. THE RISE OF THE ALIEN TORT STATUTE ..........................................................
A. A BriefHistoryof the Alien Tort Statute..................................................
B. The Elements of the ControversialAlien Tort Statute ............................
C. The Decisionin Sosa v. Alvarez-Machain ..............................................
I.
503
507
508
510
5 10
5 11
511
512
513
515
515
518
519
THE APPLICABILITY OF THE ALIEN TORT STATUTE TO THE SITUATION OF
THE MAQUILADORA WORKERS .......................................................................
A.
B.
C.
The Working Conditions in JuarezFactories:A Tort in V,7olation of
the Law ofN ations? ................................................................................
The Working Conditions in JuarezFactories:A Tort in Violation of
a United States Treaty? ............................................................................
Should the Alien Tort Statute Provide Redressfor the Human
Rights Abuses in Maquiladoras?............................................................
V C ONCLUSION .....................................................................................................
524
524
527
529
532
I. INTRODUCTION
In the ever-expanding landscape of the global market-place, there are serious
casualties mounting in the effort to produce consumer goods quickly and cheaply.'
*
2005-2006 judicial clerk for Justice Bobbe J. Bridge,, Washington State Supreme Court;
J.D., magna cwn laude, Gonzaga University School of Law, 2005; B.A., cum laude, Bates College,
Lewiston Maine, 2000. Much thanks to: Professor Mary Pat Treuthart for her guidance and
encouragement in writing this paper, Professor Michael McClintock for discussions on NAFTA; the
Gonzaga Law Review editorial staff; the GU Law chapter of Amnesty International for introducing
me to the maquiladoras; and Patrick O'Connor for his love and patience.
1.
See, e.g., Saman Zia-Zarifi, Suing MultinationalCorporationsin the US. for Hiolating
GONZAGA LAW REVIEW
[Vol. 40:3
This paper explores the contours of the possible legal solution presented by the Alien
Tort Statute to the growing problem of human rights abuses perpetrated by Americanowned corporations operating abroad-particularly those abuses that occur in the
export factories located in Juarez, Mexico.
Global markets can expand cross-cultural and economic relationships, and the
export factories that accompany this expansion provide jobs and other significant
benefits for many economically depressed areas.2 Such expansion is to be lauded,
but what is deeply problematic is the imbalance that occurs between business and
human rights as global markets develop. In the clash to reconcile a "compassionate"
capitalism and an efficient, profit-driven capitalism, not everyone gets out alive.
Some of these global market fatalities are workers at the bottom end of corporate
hierarchies;3 some victims are of a more amorphous variety, such as the neverrealized promises of economic independence made by multi-national corporations to
foreign host nations.4
5
It is women who almost exclusively comprise the export-workforce worldwide.
It is women's bodies that frequently serve as the battlefield for the struggle between
human rights and an expanding corporate presence abroad. Poor working conditions
and low wages take their toll on women's health, safety, and lives.6 The convergence
between political and economic exploitation and women's bodies is not a new
theme.7 Unfortunately, it is one that continues to have relevance, especially as the8
discussion of corporate accountability abroad takes on a distinctly gendered element.
InternationalLaw, 4 UCLA J. INT'L L. & FOREIGN Arr. 81, 81-82 (1999) (discussing the acts of
genocide, slavery, and torture attendant with multi-national corporations involved in the resource
extraction business in places like Africa).
2.
Jeffrey L. Dunoff, Does GlobalizationAdvance Human Rights? 25 BROOK. J. INT'L L.
125, 126-27 (1999) (describing one school of thought that praises the many social, economic and
political benefits under-resourced nations derive from globalization).
3.
See Zia-Zarifi, supranote 1,at 81-82.
See Karn Lyderson, The Disappeared; In Juarez' Maquiladoras, Murders of Women
4.
Continue, IN THESE TIMES, June 9,2003, at 5.
at
Economy,
in
the
Global
Women
5.
AFL-CIO,
http://www.aflcio.org/issuespolitics/globaleconomy/women.cfin) ("Ninety percent of the 27 million
workers in export processing zones (EPZs) are women, most of them between the ages of 16 and 25.
EPZs are tax-free industrial areas for foreign companies in which labor laws often are suspended and
workers unprotected.") (last visited Jan. 21, 2005) (on-file with the author).
6.
See id.
7.
See MARJORiE AGOsiN, Introduction to WoMEN, GENDER, AND HUMAN RIGHTS: A
GLOBAL PERSPECTIVE 11 (2001) ("It is always [women's bodies that are] tortured, abused, and
punished in wars fought between countries, sects, or partners.").
at
and
Women,
Economy
The
Global
See
AFL-CIO,
8.
http://www.aflcio.org/issuespolitics/women/global/ (affirming that "women are among the hardest hit
by the global economy. According to the U.N. Development Fund for Women, most women
throughout the world work in low-skilled, low-wage jobs. They are paid less than men in nearly
every country in the world and they work longer hours.") (last visited Jan. 21, 2005) (on-file with the
2004/05]
HER BODY IS A BATTLEFIELD
Perhaps no casualties in the war between profit and women's human rights are as
compelling as the murder epidemic in Juarez, Mexico. 9 Since NAFTA was ratified
by the United States Congress in 1993,10 at least 370 young women have been
murdered in Juarez, though some estimates put the figure at over 400.11 Many of
these murdered young women were employees of maqiladoras'2-assembly plants
that produce goods for export.1 3 The violence experienced by the female
maquiladora workers is not limited to rape, kidnapping and murder. Maquiladora
pregnancy tests, starvation wages, and a myriad
workers are also subjected to forced
14
of other brutal working conditions.
Juarez is a city steeped in violence, and "[t]he floor under the gore of Juarez is an
economy of factories owned by foreigners, mainly Americans."' 5 Maquiladoras
produce components for many of the items used by Americans in the course of their
every-day life; as one commentator noted, "Juarez is in your home when you turn on
the microwave, watch television, take in an old film on the VCR, slide into a new pair
of blue jeans, make toast in the kitchen, enjoy your kid playing with that new toy
truck on Christmas morning. ' ,1 6 It appears to be a win-win situation for the United
States. Americans enjoy relatively inexpensive consumer goods, and Americanowned corporations enjoy the "free" aspect of the free-trade zone: it is free of unions,
minimum wages, and largely free of enforceable regulations. The American
corporations operating in Mexico are free to enjoy increasing profits while
minimizing their costs.
author).
9.
I do not use language evocative of war imagery only for effect; at least two observers of
Juarez have compared it to the war-tom Balkan states:
Juarez looks to me like the war zones I know-like Chechnya, Kosovo, Bosnia. There is
the same casualization of violence, the same sense of despair, the same blurred lines
between right and wrong, the same wild packs of hungry street dogs roaming the city, the
same sense of doom.
Mariana Karzarova, Letterfrom Juarez; iolence Against Women, THE NATION, Mar. 29, 2004, at 8.
"[Juarez photographer] Jaime Bailleres says, 'Sometimes I feel like I am in Bosnia."' Charles
Bowden, While You Were Sleeping, HARPER'S MAGAZINE, Dec. 1996, at 44, 52.
10.
RALPH H. FOLSOM, NAFTAINANuTSHELL69 (1999).
11.
12.
Karzarova, supranote 9, at 8.
Molly E. Moore, Nightmare in a City ofDreams: Partl,
WASH.
Posr, June 5, 2000, at
http://www.washingtonpostcom/wp-srv/photo/onassignment/juarez (last visited Jan. 8, 2005) (on
file with the author, no page numbers available).
13. AFL-CIO, Life on the Line: Violence Against Women Working in Factoriesin Mexico,
at http://www.aflcio.org/issuespolifics/globaleconomy/upload/Juarezflyer.pdf (ast visited Jan. 9,
2005) (on file with the author).
14. Id.
15. Charles Bowden, While You Were Sleeping, HARPER'S MAGAZINE, Dec. 1996, at 44,48.
16. Id.
GONZAGA LAW REVIEW
[Vol. 40:3
The conditions in the Juarez maquiladoras illustrate that all this freedom comes
at a price to the workers who keep the free-trade zone viable. 17 The growing
awareness of the need for a solution to the fatalities of the global market-place begs
an important question: assuming labor rights fall under the umbrella of human
rights, 18 how might American corporations be held accountable for violations of
those rights, especially when the countries hosting American corporations cannot or
will not enforce labor standards?
The seed of solution to the problem of corporate accountability may lie in 28
U.S.C. §1350, commonly known as the Alien Tort Statute ("ATS"). The short statute
provides simply that an alien may bring a civil action in U.S. courts for a "tort only,
committed in violation of the law of nations or a treaty of the United States."' 9 Since
1980, circuit courts have used the ATS to remedy human rights violations, and in
many jurisdictions, the courts allowed the ATS to be utilized against corporate
defendants. 20 Despite the flurry of activity surrounding the ATS, the United States
Supreme Court declined
to consider the statute until its June 2004 decision of Sosa v.
21
Alvarez-Machain.
Sosa was a landmark decision in the area of international law and human rights
22
for the simple fact that it took notice of-and thereby lent validity to-the ATS.
17.
Although this paper focuses on the plight of female workers in Juarez, it goes without
saying that factory workers and other laborers the world over are subjected to dehumanizing and
unacceptable working conditions---these problems are not limited to Juarez. See, e.g.,
Beth
Stephens, The Amorality ofProfit: TransnationalCorporationsand Human Rights, 20 BERKELEY J.
lNr'LL. 45,49-53 (2002).
18. See Justine Nolan & Michael Posner, InternationalStandardsto PromoteLabor Rights:
The Role of the United States Government, 2000 COLUM. Bus. L. REv. 529, 529-32 (2000) (making
the case that labor rights are an important subset of human rights, as evidenced by the intemational
concern for promoting labor rights through instruments like the Conventions of the International
Labor Organization). But see Sarah H. Cleveland, Book Review: Global Labor Rights and the Alien
Tort Claims Act, 76 TEX. L. REv. 1533, 1557-1559 (1998) (suggesting that a universal standard of
labor rights may prove so difficult to ascertain that labor rights will have to be excluded from the
umbrella of international human rights in certain instances. For example, Cleveland uses the
possibility of norms against child labor as one indication of the difficulty in creating a universal
definition of labor rights as human rights. Cleveland suggests that the differences in cross-cultural
definitions of "child" would make it hard to enforce a universal standard of child labor based on a
numerical age. Childhood may last longer inurban areas versus rural areas, or inmore economically
sophisticated areas versus those with fewer resources. Thus, the ease with which labor standards
may fit into a human rights framework becomes muddled by cross-cultural differences in acceptable
labor practices).
19.
28 U.S.C. § 1350 (2005); see William S. Dodge, Which Torts in iolation of the Law of
Nations?, 24 HAsTiNGs INT'L &COMP. L. REV. 351, 351 (2001) (commenting on the statute's unusual
brevity).
20. See William S. Dodge, The Constitutionality of the Alien Tort Statute: Some
Observations on Text and Context, 42 VA. J.
INT'LL. 687, 687-88 (2002).
21.
124 S. Ct. 2739 (2004).
22.
See Stacey Harms & Samira Puskar, The Court Opens the Doorto InternationalHuman
2004/05]
HER BODY IS A BATTLEFIELD
The Sosa decision is heralded by human rights advocates as an "open door" for
litigating human rights abuses.23 The jubilation must come with a caveat, however.
Although the Sosa decision laid to rest important debates about the statute's purpose
in American jurisprudence, the decision left in its wake as many unanswered
questions about the construction of the statute. 24 Ultimately, the Sosa decision may
force the dubiously-reasoned conclusion that horrific, violent working conditions, like
those present in Juarez, are not quite bad enough to amount to violations of the Alien
Tort Statute. Thus, the decision that was meant to open a door to remedy human
rights abuses may only open a small window.
Part I of this paper will discuss the details of life in the maquiladoras, including
the murders, in order to highlight the brutality of the conditions there. Part Ell of this
paper will explore the Alien Tort Statute with regard to its history, the controversies
surrounding it, and the Sosa decision. Part IV will examine the efficacy of applying
the Alien Tort Statute to the situation in Juarez in two ways: whether the statute could
apply to Juarez, and whether the statute should apply. Finally, this paper will
conclude that if the Alien Tort Statute is inapplicable to the situation in Juarez, then
the current incarnation of the Alien Tort Statute falls woefully short of providing
genuine relief for labor abuses perpetrated by American-based corporations. The
potential failure of the ATS to provide serious recourse for oppressed workers is
particularly disheartening given the absence of alternative cogent legal remedies for
human rights abuses. 25 The need to reconcile the realities of the global market-place
with an enforceable human rights framework remains an urgent and difficult task.
II. LIFE IN THE MAQUILADORAS OF JUAREZ
There are over 3,000 maquiladoras in Mexico. 26 Juarez, like many of its sister
border-towns, is home to numerous industrial parks where factories dominate the
Rights Cases, Northwestern University Medill School of Journalism, July 23, 2004 (quoting
plaintiffs attorney Paul Hoffman, "Every other [ATS] litigation forever is going to be referring to the
analysis
in
this
case.")
at
http://www.medill.northwestem.edu/-securedocket/mt/archives/000991.php (last visited Feb. 27,
2005) (on file with the author).
23.
Id.
24.
See, e.g., The Supreme Court, 2003 Tenn-Leading Cases, 118 HARV. L. REV. 446, 446
(2004) (stating that "Sosa failed to articulate a clear conception of the interaction between customary
international law and domestic law, and offers little guidance to lower courts both within ATS
doctrine and beyond").
25. See, e.g., Griselda Vega, Maquiladorar Lost Women: The Killing Fieldsof Mexico-Are
NAFTA and NAACL Providing The Needed Protection?,4 J. GENDER, RAcE & JusT. 137, 138-41
(2000) (discussing the sweeping failure of NAFTA's built-in labor protections to remedy the working
conditions in Juarez).
26.
AFL-CIO website, supra note 13.
[Vol. 40:3
GONZAGA LAW REVIEW
508
landscape.27 In Spanish, these industrial parks are known as maquiladoras,a word
that originally referred to millers who "kept a part of the flour as payment for
grinding wheat,"28 'and is loosely translated as "places for making industrial
products."2 9 Maquiladoras were the result of a 1965 program designed to open up
trade markets between the U.S. and Mexico. 30 The advent of NAFTA exploded the
number of Mexican maquiladoras, with the idea that Mexico's economy would
flourish with the influx of new jobs, and with it, Mexico's workers. 3 1 Despite their
peaceful and prosperous sounding origins, however, the maquiladoras have proved to
be anything but a blessing for the women who work in them.
A. A Pyrrhic ictory." The "Unexpected" Effects ofNAFTA
The marriage of Mexican and U.S. trade interests was not consummated with
NAFTA. Instead, NAFTA was the natural outgrowth of the Border Industrialization
32
Mexico and the U.S., brought
Program (BIP) of 1965. The BIP, negotiated between
33
a relatively small number of maquiladoras to Mexico.
Despite this long-standing trade relationship, when negotiations for the North
American Free Trade Agreement commenced between the U.S., Mexico, and
Canada, the treaty had a multitude of detractors.34 Unions and human rights groups
cried foul,35 warning that NAFTA contained little or no protections against egregious
labor abuses.36 Supporters of NAFTA, however, continued to extol the virtues of the
agreement because it would kick-start a thriving economy in Mexico, and perhaps
more importantly, stymie the flow of Mexican immigrants across the border into the
27.
Lives
There are an estimated 340 maquiladoras in Juarez. AFL-CIO, Young Women Risk Their
to
Work
in
Mexico s
Maquilas,
available
at
http://www.aflcio.org/issuespolitics/globaleconomy/ns10092003.cfm (last visited Jan. 31, 2005) (on
file with the author). See, e.g., Elvia R. Arriola, Voices from the Barbed Wirs of Despair: Women in
the Maquiladoras,Latina Critical Theory, and Gender at the US.-Mexico Border,49 DEPAUL L.
REV. 729, 761 (2000) ("It is not difficult to pick out the setting ofa maquiladora in a Mexican border
city. Their physical infiastructure broadcasts power: state-of-the-art manufacturing, assembly and
packing plants, modem industrial parks, huge truck parking facilities, powerful electric lights,
massive water tanks, and in some, beautifully landscaped exteriors.").
28.
Elvia R. Aniola, Voices fivm the BarbedWires of Despair: Women in the Maquiladoras,
Latina Critical Theory, and Gender at the US.-Mexico Border, 49 DEPAUL L. REV 729, 759 n.3
(2000).
29.
Moore, supranote 12.
30.
Id.
31.
Arriola, supranote 28, at 759.
32.
See id.at 762.
33.
Moore, supranote 12.
34.
Folsom, supranote 10, at 69.
35. Id.
36.
See Vega, supra note 25, at 139-40.
2004/05]
HER BODY IS A BATTLEFIELD
If a job were waiting at the border, potential immigrants would be less likely
to come to the U.S.; NAFTA negotiators apparently believed it was the male Mexican
worker who was the most likely individual to cross the border.38 From an
international relations standpoint, the promise of NAFTA was two-fold.39 The treaty
40
would bolster an ailing economy, and remedy a perceived immigration problem.
A decade later, NAFTA's failure to fulfill its dual promise is evident. Although
NAFTA technically creates jobs and wealth in Mexico,4 1 its attendant factories have
not fueled Mexico's economy. For example, in 2000 the maquiladoras in Juarez
generated an estimated $10 billion dollars.42 That same year, Juarez received only
$1.5 million of that profit. 43 Juarez does not have enough money to build schools,
roads, or housing, or provide other services for its population.44 In fact, the border
factories appear to be the culprits for Juarez's exploding population. Since the
factories arrived in the 1960s, Juarez's population has almost quadrupled, "from
45
400,000 to 1.5 million.... '[a]t one point... 600 people were arriving every day."Drawn by the promise of a better life on the border, Mexican citizens from rural areas
and depressed inland towns and cities flock to the maquiladoras.4 6 But instead of
finding prosperity and security in Juarez, newcomers find acre after acre of makeshift
U.S. 3 7
shanty towns on the cracked desert land surrounding the industrial parks. 47 Rather
the NAFTA-bom factories have
than acting as a boon for Juarez's economy,
48
generated population-explosions and poverty.
The migration from rural farms to border cities has not stopped the flow of
illegal immigrants into the U.S. either.49 Traditional divisions of labor in Mexico
dictate that the work done in maquiladoras--sewing, sorting, packing-is "women's
See Arriola, supra note 28, at 759.
37.
38. Id.
See id
39.
40. Id
41.
Michael C. McClintock, Sunrise Mexico: Sunset NAFTA-CENTRIC FTAA-What Next
and WJhy?, SW. J. L. & TRADE AM. 1,77-80 (2000).
Molly E. Moore, Nightmare in a City of Dreams: Part11, WASH. PosT, June 5, 2000,
42.
http://www.washingtonpost.com/wp-srv/photo/onassignment/juarezpart2.htm (last visited Jan. 8,
2005) (on file with the author, no page number available).
43.
Id.
44.
See id.
45.
Barbara Fraser & Paul Jeffrey, In Latin America the Gender Gap Kills; Latin America:
searchfor affuture, NAT'L CATH. REP., Oct. 8, 2004, at 9.
46.
See Moore, supra note 12.
47.
Id. (describing many houses in Juarez as constructed from "wooden pallets and
cardboard boxes discarded by the maquiladoras" and a house for a family of four consisting of a
"single cement room [with] no telephone or running water [and pirated electricity]"); Fraser &
Jeffrey, supranote 45, at 9.
48. See Fraser & Jeffrey, supranote 45, at 9.
49.
Arriola, supra note 28, at 750.
GONZAGA LAW REVIEW
[Vol. 40:3
work."50 Thus, the paradigmatic male Mexican worker contemplated during NAFTA
negotiations continues to be largely jobless. 5 1 Instead, the maquiladora workers are
mainly women, and it is mainly women who shoulder the burden of violence
bom of
52
the poverty and dehumanizing working conditions in cities like Juarez.
B. Conditionsin the Maquiladoras
1. Murders
As previously discussed, arguably the most horrific manifestation of globalmarket causalities are the unceasing murders of the women of Juarez. The correlation
between the advent of the maquiladora and the murders is undeniable. While
violence has always been the backdrop to the Juarez landscape, the number of
murdered women skyrocketed in the early 1990s, coinciding with the arrival of the
maquiladoras.53 The murdered women share several characteristics: they were
young, pretty, and for the most part employed by the maquiladoras.54 Many
disappeared on their way to and from work at the maquiladoras, setting off early in
the morning or late at night through the dark streets of the makeshift neighborhoods
surrounding the industrial parks, or waiting for unpredictable city buses on lonely
comers. 55 Most of them were found raped, beaten, tortured, mutilated and, dead in
the scorching desert surrounding Juarez.56
The murders are brutal, and the numbers are nearly incomprehensible.
Population-wise, Juarez is roughly the size of Philadelphia, which is the fifth largest
city in the United States. 57 If for more than a decade nearly forty young women a
year were savagely beaten and killed on their way to and from work in Philadelphia,
it may be safe to assume that the public outcry would spur a resolution to the
mystery.5 8 But in Juarez, the murders are far from being explained or stopped, 59 and
sadly, the murders are but one facet of a maquiladora worker's world.
50.
51.
Id. at 759.
See id.
52.
See id.; see also Fraser & Jeffi-ey, supranote 45, at 9.
53. See Vega, supranote 25, at 137; Moore, supranote 12.
54. See Vega, supranote 25, at 145; Fraser &Jeffrey, supra note 45, at 9.
55. See Moore, supranote 42; Bowden, supra note 15, at 44.
56. Karzarova, supra note 11, at 8.
57. Although a precise population count of Juarez is difficult to ascertain, estimates put it
somewhere between 1.2 and 2 million. See Moore, supra note 42. The 2003 population estimate for
Philadelphia is 1,479,339. Top 50 Cities in the U.S. by Population and Rank, available at
http://www.infoplease.com/ipa/A0763098.html (last visited Jan. 5, 2005).
58. See John Bumett Chasing the Ghouls: The Juarez SerialMurders, and a Reporter Who
Won t Let Go, COLUM. JOURNALISM REv., March-April 2004, at 12.
59. Karzarova, supra note 11, at 8.
2004/05]
HER BODY IS A BATTLEFIELD
2. Wages
NAFTA's promise of economic independence has not materialized for the
citizens employed by American corporations operating in Mexico. Although it is
difficult to determine exactly how much maquiladora workers are paid, estimates
range from somewhere between three and five dollars per day.60 In fact, literature
available to potential investors in maquiladoras assures them that workers are
typically paid less than $1 an hour,6 ' making operations cheap and profits substantial.
North Americans often justify the unconscionably low wages in the
maquiladoras by pointing to the cost of living in Mexico. 62 However, "wages are just
a hair above starvation level."'63 Particularly in border towns, the cost of living has
increased to the point where it is on par with the cost of living in America.64 Thus,
along the border in Mexico, it takes a woman eight hours to earn enough to buy a
kilogram of beef, four hours for a kilogram of beans, and between one and three
hours to earn enough money for a day's roundtrip bus fare65-perhaps explaining in
part why so many of Juarez's murdered women were walking alone in the dark
morning hours to work, rather than taking the bus. 66 Since the average work shift in a
maquiladora ranges from between nine and thirteen hours a day, one kilogram of beef
is almost a full day's wages. In order to survive, it is not uncommon for the young
women of the maquiladoras to turn to prostitution. 67 The presence of hunger and
prostitution indicate that the wages in a maquiladora offer little economic
independence for the women who work in them.
3. Child Labor and the Absence of Unions
In addition to low wages, maquiladoras also engage in child labor and anti-union
activity. In the wake of the 2000 murder of a 12-year old girl employed by an
American-owned factory in Juarez, factory officials claimed that child labor was
frowned upon, but admitted that the company had done no audits of its employees
since 1995.68 The murdered child, Irma Angelica Rosales, obtained employment
with the company by presenting a fake birth certificate at the factory's personnel
60. Bowden, supranote 15, at 48.
61.
Arriola, supra note 28, at 766.
62.
Bowden, supranote 15, at 48.
63.
Id. at 48-49.
64.
Arriola, supra note 28, at 769.
65.
Id. at 813, Table A.
66.
Although the bus itself may not be that safe; one theory pursued by the Mexican police
involved a ring of bus drivers suspected of the murders. See Moore, supranote 42.
Bowden, supranote 15, at 48.
67.
68.
Moore, supranote 40.
GONZAGA LAW REVIEW
[Vol. 40:3
office.6 9 Despite the fact that the birth certificate was missing a requisite thumbprint
and state seal, the personnel office failed to question Irma closely.70 Instead, it
administered a mandatory pregnancy test to the 12-year old girl and hired her when
the results came back negative. 71 Two weeks later, Irma was abducted on her way
home from work, "[r]aped, smothered to death with plastic bags, [and] dumped in an
abandoned lot."'72 Irma's employment was not unusual-it "has been... generally
accepted that the women who come to work in these maquiladorasare very young,
many of them are children.
73
In the United States, independent, non-governmental unions protect workers
from inhumane working conditions, enforce child labor laws, and advocate for a
living wage.74 In Juarez, evidence suggests that union activists may be the victims of
unexplained deaths or homicide.75 In addition, union activists also face diminished
job security.76 Activists who keep their jobs may find that on the factory floor,
workplace practices discourage unions from organizing.77 The hostility by
maquiladora management toward unionization makes sense in the context of this
quote by a factory manager, who describes the immense profit in Mexican operations:
"[W]e have a virtual haven for productivity,
free of [collective] bargaining fetters.
78
This is so much easier than in the U.S.",
4. Reproductive Health and Safety
Maquiladora workers also face frequent attacks on their reproductive rights.79
First, maquiladora workers are forced to take pregnancy tests when they apply for
work. 80 If the test comes back positive, the woman will not be hired. 81 Second, if a
69. Moore, supranote 12.
70. Id.
71.
Id.
72. Moore, supranote 40.
73. Vega, supra note 25, at 147.
74.
See AFL-CIO, How and Why People Join Unions, available at http://www.aflcio.org/aboutunions/joinunions/ (last visited Jan. 8, 2005).
75.
See Bowden, supra note 15, at 49 n.3 (describing a union leader who was found dead,
shot twice in the heart. Authorities ruled it a suicide); Arriola, supra note 28, at 812-13 (describing a
hit put out on a worker advocate in Mexicali).
76. See Arriola, supranote 28, at 794; Fraser and Jeffrey, supranote 45, at 9.
77.
Arriola, supranote 28, at 770. ('[Wlorkers [are] so busy competing with each other [to
meet production quotas] that they do not have an opportunity to organize collectively against
management."').
78.
Id.at 771.
79. Michelle Smith, Potential Solutions to the Problem of Pregnancy Discriminationin
Maquiladoras Operated by US. Employers in Mexico, 13 BERKELEY WOMEN'S L.J. 195, 197-8
(1998).
80.
Id
HER BODY IS A BATTLEFIELD
2004/05]
woman does become pregnant during her employment, conditions in the
maquiladoras may imperil her health and safety along with that of her unborn child.
It is not uncommon for the plant to refuse to accommodate an expectant mother's
pregnancy by giving her, for example, seated work, and consequently, miscarriages
are not uncommon. 82 In addition, the rates of anencephaly-a disorder in which
mothers. 83
babies are born without a brain-are alarmingly high among maquiladora
Anencephaly can be caused by exposure to industrial solvents like the ones with
which some maquiladora workers come in contact.8 4 Companies dismiss this
correlation, claiming the anencephaly is the result of a pre-natal diet low in folic acid,
though this assertion appears to be baseless. 85 Thus, maquiladoras across the border
have a well-documented disregard for the health and safety of expectant mothers in
their employ.
C. Who is to Blame?
The reports from Juarez paint a stark picture. Just across the border from the
86
United States, a woman in a maquiladora earns barely enough money to survive.
She may live in makeshift housing with no electricity, running water, or sewers.8 7 In
exchange for the pittance she earns, she is subject to forced pregnancy tests, mindnumbing work, long hours, and few breaks.88 If she becomes pregnant, she may
90
miscarry as a result of her working conditions; 89 or she may herself be a child,
91
who, like so many others, on her way to and from work, risks being murdered.
In recent years, the horrifying nature and dizzying numbers of the Juarez
murders has garnered attention from the international community. 92 Numerous
newspaper articles have been written about the situation, and there is at least one
forthcoming English-language book on the topic.93 In 2002, PBS aired the
documentary Sehorita Extraviada,an exploration of the murders and their possible
81.
Id.
82. Id. at 198-99.
83. Id.
84. Smith, supra note 25, at 198-99.
85. Id. (noting that although diets low in folic acid are also thought to cause anencephaly,
most maquiladora workers actually have diets with normal or high levels of folic acid).
86.
87.
See Arriola, supra note 31, at 769.
See Fraser and Jeffrey, supranote 45, at 9.
88.
89.
90.
91.
92.
93.
SeeArriola,supra note 31, at 770-75, 783-88.
Smith, supranote 80, at 198-99.
Vega, supra note 25, at 147.
Id.
Lyderson, supra note 4, at 5.
Alicia Gaspar De Alba, Desert Blood: The Juarez Murders, forthcoming March 31,
GONZAGA LAW REVIEW
[Vol. 40:3
94
culprits. In February 2004, a women's rights group, the V-Day Movement, and
over 5,000 people in Juarez "demanding an end
Amnesty International led a march of
95
to the murders of women and girls."
Despite the attention, however, the murders remain unsolved. Investigation by
Mexican authorities has not been comprehensive. In late 2000, Mexican officials
created the Special Office for the Investigation of Women's Murders in Ciudad
96
Juarez.
97
In its first nine months, the office had five different heads. While it is true
that Mexico has done a poor job of promoting the health and safety of its female
workers, it is not the only culprit. The enforcement mechanisms provided by
NAFTA's labor watchdog, the North American Agreement on Labor Cooperation
("NAALC") are also ineffective. 98 This is due, in part, to the fact that Mexico is
responsible for initiating and sustaining investigations of labor abuses under NAALC.
It is also due to the fact that the99U.S. and Canada have not put pressure on Mexico to
correct its labor transgressions.
But what of the American-owned corporations in Juarez that provide a forum for
these labor abuses? These corporations are undoubtedly aware of the worker
protections under NAALC: fair wages and overtime pay, the freedom to associate and
right to organize, the right to bargain collectively, and protection of children.'00
Furthermore, these companies are aware that these rights and protections are the
norm in the United States-indeed, the enforcement of those standards at home is
precisely why corporations move abroad.' 0 Yet there is rarely public mention of the
role maquiladoras play in exploiting the women they employ.10 2 The absence of the
actual corporate entities in the discussion of human rights in the Juarez maquiladoras
makes little sense. Instead, a successful dialogue about the problems presented by
global markets requires recognition of the need for corporate social responsibility in
fashioning a remedy for human rights abuses.
94.
95.
96.
97.
98.
protecting
99.
See Lyderson, supranote 4, at 5.
Karzarova, supranote 11, at 8.
See Moore, supranote 12.
Id.
See Vega, supra note 25, at 140 (discussing in-depth the role and failure of NAALC in
Mexican workers).
Id. at 155. However, a joint resolution addressing the Juarez murders was introduced in
Congress in March, 2005. Rep. Solis Reintroduces Cd. Juarez Human Rights Resolution,
http://solis.house.gov/Resources/News/Releases?women/2005.03. 10.pdf (last visited Aug. 2, 2005).
100. See Folsom, supranote 10, at 237-39 (outlining the protections under NAALC).
101. See Arriola, supranote 31, at 810.
102. See id.
at 809 (stating that if Americans knew about the conditions in the maquiladoras,
they would not support them-but since they continue to thrive, a reasonable inference is that many
Americans do not know of the conditions tolerated or encouraged by corporate entities operating
abroad).
2004/05]
HER BODY IS A BATTLEFIELD
III. THE RISE OF THE ALEN TORT STATUTE
One possible avenue for legally sanctioning American corporations operating
abroad is the Alien Tort Statute ("ATS"); 10 3 but the avenue is rather narrow and
bumpy, and plaintiffs bear a heavy burden of proof when invoking the statute against
corporations. 104 The statute is over 200 years old and has often been called a "legal
Lohengrin," named for the fabled mysterious knight who rescued damsels in distress
but retreated into the ether at any question of his identity. 10 5 Likewise, courts viewed
the ATS as a mysterious act that could be used to rescue foreign citizens who were
injured, but an act whose origin and meaning were nonetheless murky.' °6 A more
recent observer argues that in the wake of prolific ATS litigation since 1980,
Lohengrin may be a misnomer. 1° 7 In keeping with this trend, human rights activists
view the0 8statute as an exciting tool for protecting the rights of workers exploited
abroad.'
But as this section will illustrate, a recent decision by the United States Supreme
Court, Sosa v. Alvarez-Machain, 0 9 may throw the ATS back into obscurity. The
heavy burden of proofATS plaintiffs bear in suits against corporations may prove too
onerous to provide much relief for human rights abuses.
A. A BriefHistory of the Alien Tort Statute 1 0
The text of 28 U.S.C. § 1350 reads, "The district courts shall have original
jurisdiction of any civil action by an alien for a tort only, committed in violation of the
law of nations or a treaty of the United States.""' The Statute was passed by
Congress with the first Judiciary Act in 1789,112 and evolved from a resolution passed
by the Continental Congress in 1781 designed to "ensure individual tort liability for
103. 28 U.S.C. § 1350(2005).
104. The elements of the Alien Tort Statute are described more fully at supra notes 19-21 and
accompanying text.
105.
Jay M. Lewis Humphrey, A Legal Lohengrin: FederalJurisdiction Under The Alien
Tort Claims Act of1 789,4 IMMIGR. & NAT'L1TY L. REV. 327 at 327 n3 (1980-1981).
106. Id.at 327.
107. See Dodge, supranote 20, at n.27.
108.
109.
See Harms and Puskar, supranote 22.
124 S. Ct. 2739 (2004).
110. The Alien Tort Statute is also referred to as the Alien Tort Claims Act (ACTA). See
Humphrey, supra note 102, at 327. Because the recent decision in Sosa v. Alvdrez-Machain, 124 S.
Ct. 2739 (2004) refers to the statute as the Alien Tort Statute (ATS), that is the.moniker I use, unless
quoting a source that uses the ACTA designation.
111. 28 U.S.C. § 1350(2005).
112. Humphrey, supranote 105, at 327.
GONZAGA LAW REVIEW
[Vol. 40:3
violations of the law of nations."' 13 It is possible that support for the 1789 Act was
bolstered in part by a response to an incident that occurred in the streets of
Philadelphia in 1784, wherein a French citizen, Chevelier DeLongchamps, assaulted
the French Consul General, Francis Barbe Marbois.1 14 DeLongchamps was tried
and convicted under criminal law because the ATS or an equivalent statute did not yet
exist in Pennsylvania.'" 5 In its opinion, the Pennsylvania Supreme Court used
language that forecasted the text of the ATS, noting that, "'Whoever offers any
violence to [a public minister], not only affionts the Sovereign he represents, but also
hurts the common
safety and well-being of nations; he is guilty of a crime against the
1 16
world."
whole
In addition to concern for deference to the law of nations, it also appears that the
principle drafter in the Judiciary Act, Oliver Ellsworth, was suspicious that state
courts would fairly adjudicate matters concerning the law of nations. 17 This
suspicion may explain why the jurisdictional grant of the ATS is grounded in the
federal courts. In any event, after its passage in 1789, the ATS was rarely invoked by
plaintiffs and even more rarely interpreted by courts.18 It is suggested that the rather
nebulous meaning of the term "tort" and the phrase conceming "the law of nations"
caused courts to shy away from invoking or interpreting the ATS. 119
The Second Circuit Court of Appeals rescued the Alien Tort Statute from
obscurity in 1980 with its decision in Filartigav. Pena-Irala120 There, two citizens
of Paraguay living in the U.S. brought suit against a fellow Paraguayan. 12 Father
and daughter Joel and Dolly Filartiga sued Americo Norbeto Pena-Irala
for
22
wrongfully causing the death of their son and brother, Joelito Filartiga1
Dr. Joel Filartiga was a visible and active opponent of the Paraguayan
government under President Alfredo Stroessner, 23 and Pena-Irala was Inspector
General of the Police in Asunci6n, Paraguay's capital. 124 Joel and Dolly Filartiga
alleged that as punishment for Dr. Filartiga's anti-government activities, Pena-Irala
114.
Dodge, supra note 20, at 692.
See id at 694-96.
115.
116.
117.
118.
119.
Id.at 694-95.
Id. at 698-99.
Id.at 697.
See Humphrey, supra note 105, at 338-43.
Id. at 348-49.,
113.
120. See Jeffrey M. Blum and Ralph G Steinhardt, FederalJurisdictionover International
Human Rights Claims: The Alien Tort Claims Act after Filartiga v. Pefia-lrala, 6 IMMIGR. & NAT'LrrY
L. REV. 511, 570 (1982-1983), reprintedwith permissionfiom 22 HARv. INT'LL. J. 53 (1981).
121. Filartiga v. Pefia-Imla, 630 E2d 876, 878 (2d Cir. 1980).
122. Id, at 878-79.
123. Id. at 878.
124.
Id.
HER BODY IS A BATTLEFIELD
2004/05]
kidnapped and tortured to death Joelito Filartiga on March 29, 1976.125 The
Filartigas attempted to criminally prosecute Pena-Irala in Paraguay, but to no avail."'
Eventually, the Filartigas fled to the United States,' 27 and in 1978, Dolly Filartiga
learned that Pena-Irala was living in Brooklyn, New York. 128 She served him with a
summons and complaint, in part under 28 U.S.C. § 1350, alleging he wrongfully
caused her brother's death.129
The Filartigadecision principally held that: "[D]eliberate torture perpetrated
under color of official authority violates universally accepted norms of the
international law of human rights, regardless of the nationality of parties. Thus,
with process by an alien within our
whenever an alleged torturer is found and served
130
borders, § 1350 provides federal jurisdiction.'
One of the most difficult tasks before the Filartiga court was to determine
whether a law of nations was violated.131 Relying on a United States Supreme Court
case, the Filartigacourt determined that the law of nations could be found in a variety
of places--"'the works ofjurists... or by the general usage and practice of nations;
or by judicial decision recognizing and enforcing that law."" 32 In the case at bar, the
Filartigacourt invoked the United Nations Charter and the Universal Declaration 1of
33
Human Rights to support the proposition that torture violated the law of nations.
Most importantly, the Second Circuit noted that U.N. instruments were exempt from
a framework of binding treaty versus non-binding pronouncement, "'but rather [are]
an authoritative statement of the international community.""
34
Thus, the Second
Circuit properly concluded in Filartigathat "courts must interpret international law
not as it135was in 1789, but as it has evolved and exists among the nations of the world
today.'
The legacy of Filartigawas momentous; the decision not only paved the way for
remedies of human rights abuses perpetrated abroad, 136 but it also recognized that
125. Id.
126. Filartiga,630 F.2d at 878. In fact, shortly after the criminal case was commended, the
Filartigas' lawyer was arrested, shackled to a wall in the police station, threatened with death, and
later disbarred without just cause. Id.
127. See id.
128. Id.at 878-79.
129. Id. at 879.
at 878.
130. Id.
131. The other was determining whether § 1350 properly fell under federal jurisdiction. See
Filariga,630 F.2d at 880, 885 (dividing the opinion into two distinct sections, the first dealing with
the definition of "law of nations," and the second dealing with the jurisdictional challenge).
132.
133.
Id.at 880 (citation omitted).
Id. at 881-83.
134.
Id. at 883 (citation omitted).
135.
Id. at 881.
136.
See Dodge supra note 20, at 687-88.
GONZAGA LAW REVIEW
[Vol. 40:3
federal courts in the United States have a role to play in evolving and refining the
scope of international law.1 37 From near-obscurity, the Second Circuit shook the dust
off a 1789 statute, and breathed a contemporary, compassionate life into it. In the
years following the 1980 decision,138several circuit courts adopted and refined the
boundaries of the Alien Tort Statute.
B. The Elements of the ControversialAlien Tort Statute
On its face, the commonly recognized elements of the ATS appear straightforward as long as the court has personal jurisdiction over the defendant' 39-"(1) an
alien sues (2) for a tort (3) committed in violation of the law of nations.' 140 The alien
must show state action by the individual against whom she is invoking the ATS if she
claims a violation of an international law whose definition requires state action. If the
definition of international law which she is invoking does not involve state action, a
violation of the law solely by a private actor will be enough to make a prima facie
case. 14' Most importantly, several
courts have allowed ATS claims to proceed against
42
corporations as private actors. 1
Since the explosion of ATS litigation following the Filartigadecision, the ATS
has been the subject of countless books and law review articles. 143 Congress has
considered the statute, at least peripherally, three times since its inception in 1789. 144
Litigation and scholarly debate generated several difficult questions about the efficacy
and role of the statute in American jurisprudence. For example, there is disagreement
about what constitutes a "tort" under the statute; 45 there are disputes about how
137. See Blum and Steinhardt, supranote 121, at 570.
138. See Beth Stephens, Translating Filartiga: A Comparative and International Law
Analysis of Domestic Remedies for InternationalHuman Rights Violations, 27 YALE J. INT'L L. 1, 2
(2002) (stating that, "Since [Filartiga], a series of cases has further developed U.S. civil remedies for
international human rights violations").
139. Id.at 8. Without personal jurisdiction, many ATS claims fall to the doctrine of forum
non-conveniens. Id.Since this discussion deals exclusively with American based companies, I
choose to not address this very real pitfall for plaintiffs inATS litigation.
140. Beanal v. Freeport-McMoran, Inc., 969 F. Supp. 362, 370 (E.D. La. 1997).
141. See Stephens, supranote 139, at 8.
142. See Russell S. Kerr, U.S. Supreme Court Leaves "Door Ajar," ORANGE COUNry
LAWYER, Oct. 2004, at 25-26.
143. See Stephens, supra note 139, at 2 n.3 (writing that a Westlaw search for "Filartiga"
uncovered 900 references "in the Journal and Law Review database, with articles addressing a range
of historical, constitutional, procedural, and human rights issues").
144. See id.at 9. Congress has created civil causes of action for aliens who are subjected to
torture or terrorism, and amended the Federal Sovereign Immunities Act to allow suit against "small
group of foreign govememnts.... [if] the claim falls within a handful of enumerated exceptions to
immunity." Id.
145. See, e.g., Joseph Modeste Sweeney, A Tort Only in riolationof the Law of Nations, 18
2004/05]
HER BODY IS A BATTLEFIELD
519
courts must define the "law of nations;" !46 the relationship between international law
and U.S. law under the statute is unclear; 147 and finally, there has been much debate
about whether the First Congress intended the ATS to deliver only a jurisdictional
grant with causes of action to be determined by later Congresses, or if the statute itself
embodies both a jurisdictional grant and a cause of action. 148 The scholarly answers
to many of these questions were mere speculation. For the nearly two and half
decades following Filartiga,the U.S. Supreme Court declined to weigh in on the
the summer of 2004, when it issued its decision in Sosa v. Alvarezdebates--until
49
Machain.'
C. The Decision in Sosa v. Alvarez-Machain
Sosa v Alvarez-Machain answered at least one question in the on-going debate
about the proper reading of the ATS but left many questions unanswered.150 In doing
so, the Court appears to have converted the ATS into a double-edged sword. On one
edge, the statute is a Lancelot, capable of providing a remedy for seriously egregious
human rights abuses. On the other edge, the statute is a Lohengrin, unpredictable and
capable of retreating back into obscurity before it may be utilized by workers like the
women of Juarez.
In Sosa, the plaintiff, Humberto Alvarez-Machain (Alvarez), was indicted for the
torture and murder of a DEA agent captured in Mexico.' 51 After fruitless attempts to
extradite Alvarez to California for trial, the DEA hired Mexican nationals to seize
Alvarez and bring him into: the U.S. 15 2 According to plan, Alvarez was abducted,
held overnight in a motel, and then transported to El Paso, Texas, where he was
arrested and taken into custody.153 One of Alvarez's abductors was Jose Francisco
& CoMw. L.
exclusively to the law of prize).
HASTINGS INT'L
REV.
referred
445, 446-447 (1995) (arguing that in 1789, "tort"
146. See, e.g., William S. Dodge, Which Torts in iolation of the Law of Nations? 24
HASTiNGS INT'L & COMP. L. REV. 351 (2001) (arguing for a broader definition of the law of nations).
147. See, e.g., The Supreme Court, supra note 24, at 451 (malking the argument that Sosas
conception of the ATS allows federal judges to recognize causes of action, and fails to answer an
ongoing debate about whether causes of action for violations of international law created by federal
judges violates the Eerie doctrine).
148. See, e.g., Dodge, supra note 20, at 689-90 (arguing against his colleague, Professor
Bradley, that the statute is both a jurisdictional grant and a cause of action).
149. See The Supreme Court,supranote 24, at 446.
150. See id.; Charles W. Brower, CallingallNGOs: A Discussionofthe Continuing Vitality of
the Alien Tort Statute as a Tool in the Fightfor InternationalHuman Rights in the Wake of Sosa v.
Alvarez-Machain, 26 WHirrrm L. REV. 929, 939 (stating that the Supreme Court expressed
"reluctance to extend the scope of the ATS to new causes of action.").
151. Sosa v. Alvarez-Macha, 124 S. Ct. 2739,2746(2004).
152. Id.
153.
Id.
GONZAGA LAW REVIEW
[Vol. 40:3
Sosa. 154 Alvarez was eventually acquitted of the murder charge and returned to
Mexico, where he commenced an ATS action against several of the participants in his
abduction. 155 In District Court, Alvarez prevailed on his ATS claim, and was
awarded $25,000 in damages. 156 The Ninth Circuit affirmed the ATS judgment,
relying on the 'clear and universally recognized norm prohibiting arbitrary arrest and
detention."",157 The United
States Supreme Court granted certiorari in order to clarify
58
the scope of the ATS.1
On certiorari, the U.S. Supreme Court reversed the Ninth Circuit's ATS award. 5 9
The Court found, in part, that Alvarez's brief detention did not violate a norm against
arbitrary detention.160 Although the Sosa Court found against the ATS claimant, the
decision was embraced by human rights advocates because it dispelled
once and for
161
all the uncertainty of the First Congress' intent in passing the ATS.
Previously, legal scholars argued that the statute was merely a jurisdictional grant
with no means for utilization unless Congress recognized causes of action under the
ATS. 162 The majority of the Sosa Court disagreed with this reading of the statute,
holding instead that although the ATS was indeed a jurisdictional grant, "the
reasonable inference from the historical materials [regarding the Act's drafting and
passage] is that the statute was intended to have practical effect the moment it became
law.' 63 In addition, the Court admonished opponents of a broader reading of the
ATS that "it would take some explaining to say [in the 21st century] that federal
courts must avert their gaze entirely from any international norm intended to protect
individuals.' 6
Such an interpretation is surely a boon for human rights advocates, as it means
that modem-day abuses may be automatically actionable under the statute, and not
154. Id.
155. Id.at 2746-47. Alvarez also sought damages against the United States under the Federal
Tort Claims Act (FTCA). Id
156.
Sosa, 124 S. Ct. at2747.
157. Id. [citation omitted].
158. Id. The Court also granted certiorari to clarify the scope of the FTCA.
159. Id.
160. Id. at 2769. The nuances of the decision will be explained more fully, infra at notes 170182 and accompanying text.
161. See Kerr,supra note 143, at 22,26.
162. See Dodge, supra note 20, at 689-90; Gary Clyde Hufbauer and Nicholas K.
Mitrokostas, InternationalImplications of the Alien Tort Statute, 7 J. INT'L ECON. L. 245, 247 (2004)
(arguing the Supreme Court should use Sosa as an opportunity to find § 1350 a jurisdictional grant
only).
163. Sosa, 124 S. Ct. at2761 (2004).
164. Id. at 2764-65.
2004/05]
HER BODY IS A BATTLEFIELD
law in 178916s-namely, "safe
just the areas contemplated by customary international
166
conducts, the rights of ambassadors, and piracy.
The Sosa opinion, however, is not without some serious limitations, which could
have negative ramifications for the women of Juarez and other workers caught in the
vise of labor rights abuses. The Court's interpretation of the ATS requires that the
claimed abuse be one which violates a law of nations that "rest[s] on a norm of
international character accepted by the civilized world and defined with a specificity
It remains to be seen
comparable to the features of 18th-century paradigms.
whether labor rights abuses would meet the criteria,' 68 all the more69so because the
eighteenth century standard offered by the Court is somewhat vague. 1
With this standard, the Court clearly did not intend to say that only violations of
the laws of nations recognized in the 18th-century would be actionable; 170 but it is not
clear just what result the Court intended with a limitation based on comparisons to
18th-century paradigms.' 7 1 Are lower courts to consider whether a modem-day
abuse is of such a particularized nature that an 18th-century citizen would recognize
the abuse as one which violates the laws of nations? Or does the limitation mean that
a modem-day abuse must be viewed with the same general consensus of abhorrence
as the abuses contemplated by the First Congress-safe conduct, the rights of
ambassadors, and piracy?
Given its repeated endorsements of an evolving concept of international law, it is
more likely that the Court meant the latter reconciliation between modem-day abuses
paradigms. Even so, this conception offers little guidance to lower
and 18th-century
2
17
courts:
Even as an abstract matter, it is hard to imagine how to compare the degree of
specificity of one rule to that of another rule in a completely different substantive
area, as it existed over two hundred years ago-especially given the
disagreement over the bounds of eighteenth-century norms in the first place. In
practice, courts are unlikely to perform such a nile-to-rule comparison purely in
the abstract, instead implicating some sense of whether the alleged facts fit
within the new alleged rule in an effort to test the rule's bounds. Such a practice,
165. See Kerr,supra note 143, at23.
166. The Supreme Court,supranote 24, at 449.
167. Sosa, 124 S. Ct. at2761-62.
168. See Kerr, supra note 143, at 26 (predicting "strenuous debate whether [certain torts]
meet the requisite elements of universality and definability to qualify as violations of the law of
nations').
169. See The Supreme Court,supranote 24, at 454.
170. See Sosa v. Alvarez-Machain, 124 S. Ct at 2765 (arguing federal courts have the
"capacity to recognize enforceable international norms" even though those norms might not have
been expressly contemplated by the First Congress.). Id.at 2765.
171. See The Supreme Court,supranote 24, at 454.
172. See id.
GONZAGA LAW REVIEW
[Vol. 40:3
constrained only by 73Sosa cautious tone, threatens to produce rather varied
readings of the ATS.1
This is a disturbing conclusion for the very reason that confusion about how to
apply the statute accounted for its lengthy dismissal into obscurity in the years before
74
Filartiga.1
By failing to produce more coherent criteria for a norm of international
law to be actionable under the ATS, 175 the Court has potentially relegated the ATS
back into the shadows.
There is likely an international consensus about the norms against slavery, torture
and genocide that possesses a "level of specificity comparable to that of the norms
actionable in 1789,,,176 which is good news for human rights advocates. There is,
however, dangerous dicta contained in the Sosa opinion, which should give advocates
pause. Besides the fact that the Sosa decision fails to render a clear standard of
international norms, the opinion is also wholly dismissive of the U.S. obligation to
consider international human rights statements like the Declaration of Human Rights
(the Declaration) and the International Covenant on Civil and Political Rights (the
Covenant). 177 Despite referring to the documents as "well-known international
agreements, 11178 the Court foreclosed the plaintiff's reliance on them, writing that
"despite their moral authority, [the agreements] have little utility under the standard
' 179
set out in this opinion."
Since the "standard" set out in the opinion is rather opaque, 180 such a resounding
rejection of the role of international agreements in the discussion of international
norms is alarming because it dismisses a predominantly accepted yardstick of human
rights. 18 1 In addition, the rejection is particularly vexing in light of the circuit
173.
Id. at 454-55.
174. See Humphrey, supra note 105, at 348-49.
175. -See The Supreme Court,supra note 24, at 446.
176. Seeid. at450.
177. Sosa v. Alvarez-Machain, 124 S. Ct. at 2767. Non-binding instnments like the
Universal Declaration of Human Rights are "aspirational, recommendatory rather than, in a formal
sense, binding" when approved or adopted. "The Covenant, on the other hand, binds the states
parties in accordance with its terms ....
" HENRY J. STEINER AND PHILIP ALSTON, INTERNATIONAL
HUMAN RIGHTS INCONTEXT: LAW, PoLcs AND MoRALS 142 (2d ed. 2000).
In Sosa, the Court acknowledges that the Covenant is binding on the U.S., but side-steps this
obligation by pointing out that "the United States ratified the Covenant on the express understanding
that it was not self-executing and so did not itself create obligations enforceable in the federal courts."
124 S. Ct at 2767.
178. Sosa, 124 S. Ct. at 2767.
179. Id.
180. See The Supreme Court, supra note 24, at 451.
181. The Declaration and the Covenant are United Nations instnments. HENRY I. STEINER
AND PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONEXT: LAW,
PoLrTcs AND MORALs
1467-
70 (2d ed. 2000). As of 2000, there were 188 member states in the United Nations. Id. at 1467. As
2004/05]
HER BODY IS A BATTLEFIELD
authority preceding the Sosa opinion that unequivocally looked to international
agreements as indicative of international norms.' 82 Even outside of the area of ATS
litigation, the Court itself
has relied on less universally accepted authority to
183
champion human rights.
In denying the plaintiffs arbitrary detention claim, the Court appeared concerned
by the plaintiffs brief detention.'1 4 But if this is what worried the Court, it should
have explained why brief detentions do not violate customary international law
against arbitrary detentions, like the Declaration and the Covenant, rather than
advocating a wholesale dismissal of the validity or applicability of such agreements
in an ATS suit. In the context of an ATS suit, it makes little sense for the U.S.
Supreme Court to expect lower courts to recognize the evolution of international law
since 1789,185 and simultaneously trivialize the authority of the most universally
accepted expression of international law to date.
For all the potential victories the Sosa opinion might offer in the war for human
rights, the opinion is dangerous because it lacks internal coherence. First, it fails to
present clear criteria for determining specific human rights norms that would
constitute a law of nations. 186 Second, the muddled criteria it does present may be
too narrow to encompass the very real human rights abuses constituted by labor rights
violations. 187 Third, the decision appears to inexplicably reject some of the best
barometers of international law available to jurists, the pronouncements of the United
Nations.
Ultimately, despite the fact that the Sosa opinion encourages federal judges to
recognize new causes of action under the ATS, these failings will make it difficult for
lower courts to know on what authority they may base those causes of action. 88 As
of 2000, 144 of those states were signed on to the Covenant. Id. at 1468. And although the
Declaration is non-binding, it remains "the single most cited human rights instrument." Id. at 139.
Delegates to its 1948 convention "gloried in the profound significance of the achievement whereby
the nations ofthe world agree as to what are the obvious and inalienable rights of man." Id. at 150.
182. See e.g. Filartiga,630 F.2d 876, 881-84 (2d. Cir. 1980); Beanal v. Freeport McMoran,
Inc., 969 F. Supp. 362, 372-73 (E.D. La. 1997); Alvarez-Machain v. United States, 266 E3d 1045,
1050-53 (9th Cir. 2001).
183.
See Lawrence v. Texas, 539 U.S. 558, 572-73 (2003) (pointing to European Convention
on Human Rights as evidence of Western civilization's acceptance of a right to sexual privacy for
consenting homosexual adults).
184. Sosa, 124 S. Ct. at 2768-69. "Any credible invocation of a principle against arbitrary
detention that the civilized world accepts as binding customary international law requires a factual
basis beyond relatively brief detention in excess of positive authority." Id
185. See The Supreme Court,supranote 24, at 453 (stating that the Court in Sosa "asserts the
discretion to create a common law cause of action to enforce modem international norms").
186.
Seeid.at446.
187. See Kerr, supra note 143, at 23 (stating that "[o]nly a few international tort claims
bought by foreigners will meet the 'specificity' criteria required of Sosa").
188.
See The Supreme Court,supra note 24, at 446.
GONZAGA LAW REVIEW
[Vol. 40:3
it did in the pre-Filartigayears, the ATS again teeters on the dangerous precipice of
an obscurity born of uncertainty and confusion, and its utility as a tool to remedy
human rights abuses is questionable.
IV. THE APPLICABILITY OF THE ALIEN TORT STATUTE TO THE SITUATION
OF THE MAQUILADORA WORKERS
One unfortunate result of the flawed Sosa decision is that many egregious human
rights abuses perpetrated abroad will not necessarily violate an international norm
with enough specificity to be actionable under the ATS.189 Labor rights are the most
salient of these human rights abuses that may not be specific enough for the ATS to
offer redress. 9 Besides the disconcerting lines that this decision forces judges to
draw between human rights abuses, this limitation on the utility of the ATS is also
problematic because the ATS provides one of the few-if not only-avenues to hold
American corporations operating abroad accountable for dehumanizing labor
practices. 191
This section will explore the efficacy of a maquiladora worker's claim under the
ATS if she relies on section 1350's prohibition against torts in violation of the law of
nations. This section will also investigate a maquiladora worker's section 1350 suit if
she claims a tort in violation of a U.S. treaty.1 92 Since both avenues present serious
obstacles, this section will conclude by arguing that interpretations of the ATS must
be expanded in order to provide much-needed relief for workers being exploited
abroad.
A. The Working Conditions in JuarezFactories:A Tort in Violation
ofthe Law ofNations?
The women of the maquiladoras are often subjected to inhumane working
conditions, but that fact alone may not be enough to bring a successful claim under
the ATS. According to Sosa, the maquiladora women need to show that working
conditions violate an international norm that is defined and agreed upon with a high
degree of specificity. 193 There are many abuses in the maquiladoras that may meet
this standard. They include the use of child labor, unsafe working conditions, and the
inability of workers to associate, organize, or collectively bargain. All of these are
recognized norms in various international treaties, including Article 32 of the
189. See Kerr,supra note 143, at26.
190. See Sarah H. Cleveland, Book Review: GlobalLabor Rights and the Alien Tort Claims
Act, 76 TEx. L. REv. 1533, 1557-59 (1998) (suggesting that a universal definition of labor rights may
be so difficult that labor rights cannot fall under an umbrella of universal rights).
191.
192.
193.
Seeid.at1534-35.
28U.S.C.§ 1350(2005).
See Sosa, 124 S. Ct. 2739,2761-62(2004).
2004/05]
HER BODY IS A BATTLEFIELD
Convention on the Rights of the Child ("CRC"), 19 4 Article 22 of the International
Covenant on Civil and Political Rights ("Covenant"), 195 and the guiding [labor]
principles" recognized
in [the North American Agreement on Labor Cooperation]
196
(' NAALC").
While all of these human rights abuses occur daily in Juarez maquiladoras, there
is an obvious problem, based on Sosa, with using them to prove an ATS claim. As
discussed above, Sosa has exploded the notion that the universality of international
norms may be derived from international instruments regardless of their "binding"
effect on the United States. 197 As the Filartiga court properly noted in its
groundbreaking decision, the fact that an instrument is non-binding "does not end
[the] inquiry" into whether that instrument evidences a "prohibition [that] has become
part of the customary international law."'1 98 Coupled with the United States' own
laws prohibiting child labor, the right to association, collective bargaining, organizing
and safe working conditions, these international instruments are compelling
evidence
' 99
of international labor rights norms that have achieved "consensus."'
Unfortunately, the Sosa decision may improperly instruct courts to ignore
international instruments unless they are binding-and as the Court's treatment of the
Covenant shows, very few international instruments will be binding on the U.S. in a
formal sense.200 Therefore, it may be difficult for judges to determine whether labor
rights abuses like the ones occurring in the maquiladoras violate the law of nations,
and in turn sustain an ATS claim.
There may be other potential violations of the law of nations occurring in the
maquiladoras that would probably meet the standard articulated in Sosa. Unlike labor
rights, several courts recognize rape, murder and genocide asjus cogens violations of
international law20 -that is, principles of international law so respected under any
circumstance that no nation may ignore them. 20 2 The number of raped and murdered
women in Juarez grows daily; 203 there may be a point at which the companies in
Juarez become a party to these acts as well as the acts that occur within the factory
walls. For example, human right activists have blamed the companies for
contributing to the murders by failing to provide better security measures around the
industrial parks, such as lights and cameras. 204
194.
See Steiner andAlston, supranote 178, at 1415-16.
195.
196.
197.
198.
199.
200.
201.
202.
203.
204.
See id.at 1387.
See Folson, supra note 10, at 219,237-39.
See Sosa, 124 S. Ct 2739,2769(2004).
Filartiga,630 F.2d 876, 882 (2dCir. 1980).
Id.at 883.
See Kerr,supranote 143, at 23.
Doe I v. Unocal Corp., 345 F.3d 932, 945 (9th Cir. 2002).
See Dodge, supra note 147, at 356.
See Karzrova, supra note 11, at 8.
See Burnett, supranote 58, at 3.
GONZAGA LAW REVIEW
[Vol. 40:3
Women's rights as a body of international norms do not as yet enjoy a universal
acceptance on par with a more generalized conception of human rights. 20 5 Some
observers have named the epidemic of death caused by and around the maquiladoras
"femicide." 206 A claim of femicide probably does not yet carry the same weight as a
claim of genocide. There may be a time in the future when the murders and rapes
themselves-as femicide-could sustain a claim under the ATS as jus cogens
violations of the laws of nations.20 7
Proving a violation of the law of nations is no small feat, and once the obstacle is
overcome, an ATS claimant may still have to show state action if the violation is not a
jus cogen violation. Although the Supreme Court did not address the state action
requirement in Sosa,20 8 it is likely that the maquiladoraworkers would have to show
that the American corporations are state actors in order to successfully invoke the
ATS. a° A labor rights violation is the most viable claim the maquiladora workers
could currently present. Since such violations are probably notjus cogens violations,
it is doubtful the state action requirement would be waived.
To determine whether corporations operating abroad are state actors under the
210
ATS, most circuits have used tests akin to those found in section 1983 litigation.
For now, there is not enough evidence to determine whether the maquiladora workers
could meet the state actor requirement. It is interesting to note, however, that human
rights activists involved with the maquiladoras suspect there is likely collusion
between the factories operating in Juarez and the local and national Mexican
governments. 21 Even so, it is difficult to gather information on corporations
operating in Juarez, let alone discover links between the corporations and the
205. See, e.g., Charlotte Bunch, Transforming Human Rights from a FeministPerspective, in
WOMEN'S RIGHTS, HuMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECrIVES 12 (Julie Peters and
Andrea Wolper eds., 1995) (discussing the struggle to move women's rights into the forefront of the
human rights agenda).
206. See Karzarova, supranote 11, at 8.
207. See, e.g, MERRILL, supra note 7, at 320. (For example, there is already a growing
recognition of the phenomenon of "genocidal rape" in the context of war as a "crime against
humanity." Genocidal rape is the systematic rape of women and girls in wartime as a tactic to
subdue and conquer a people. As the invasion of women's bodily integrity becomes an increasingly
abhorrent practice by international standards, it may be that at some point, the femicide occurring in
Juarez could be considered genocidal rape, even outside the arena of armed conflict).
208. See Kerr,supranote 139, at 24.
209. See Stephens, supra note 135, at 8.
210. See Kerr,supranote 139, at 24.
211. See Moore, supra note 40 (writing, "Chavez and others in Juarez believed there was
another reason authorities weren't investigating the slaying more openly or aggressively: the political
clout of the foreign companies who owned the maquiladoras and the local politicians who benefited
from their presence"); Karzarova, supra note 11, at 8 (writing that "[sjomebody with resources,
power and impunity continues to kill young poor girls in Juarez)"; but see Burnett, supra note 56, at
12 (quoting a reporter who does not believe there is any link between the local government and the
maquiladoras).
2004/05]
HER BODY IS A BATTLEFIELD
government. 212 Ultimately, the narrow definition of the law of nations offered by
Sosa, and the state action requirement for nonjus cogens violations, make it more
than likely that the maquiladora workers would not prevail in an ATS claim brought
under a law of nations theory.
B. The Working Conditions in Juarez Factories:A Tort in Violation
of a UnitedStates Treaty?
If the success of an ATS claim based on a violation of the law of nations seems
unlikely, might the maquiladora workers prevail on an ATS claim brought on a theory
of treaty violation? It seems possible since all of the labor standards discussed above
that are violated in Juarez maquiladoras are addressed in a very important United
States treaty-NAFTA. Unfortunately, the success of this alternative is even more
unclear than under a violation of the law of nations theory.
In 1993, amid pressure from human rights groups and labor activists, President
Clinton negotiated the North American Agreement on Labor Cooperation
('"NAALC"). 2 13 NAALC presents "guiding principles that the Parties are committed
to promote, subject to each Party's domestic law, but do not establish common
minimum standards for their domestic law."214 In other words, Mexico, Canada and
the United States are not expected to have the same labor laws, and consequently a
Party's sovereignty will not be infringed upon by NAALC. NAALC was passed
primarily with Mexico in mind; although Mexico has an impressive number of
substantive labor laws on its books, they are rarely enforced.21 5 Time has proven that
the NAALC is ineffective in prompting Mexico to adhere to its own labor
216
standards.
For example, "while Mexico explicitly denounces child labor, to date
there has been no submission to [Mexico's federal watchdog committee under
NAALC]" despite the presence of child labor in the maquiladoras. 2 1 Overall, few
labor violations reported pursuant to218
NAALC's grievance procedures result in any
sort of remedy for the injured worker.
212. For example, inmy own research it was very difficult to contact corporations who may
or may not have plants inJuarez. Only one company listed inMs. Moore's news article had a Juarez
plant on its website; similarly only one website-that of the company Alcoa-acknowledged the
murders or other problems at their plants. Finally, inresponse to an email inquiry I wrote, a worker at
the Mexican Solidarity Network wrote that it is very difficult to get information on the corporations
in Juarez, and that MSN had a graduate student working on the project for over a year. (Emails and
relevant documents on file with the author).
213. See Vega, supra note 25, at 140-41.
214. Folsom, supranote 10, at 237.
215. Seeid. at219.
216. See Vega, supranote 25, at 140-41.
217. Id. at 148.
218. Id. at 143-44.
GONZAGA LAW REVIEW
[Vol. 40:3
Under the ATS, however, NAALC is part of a United States treaty that offers the
following relevant protections: freedom of association and protection of the right to
organize; the right to bargain collectively; the right to strike; labor protections for
children and young persons; minimum
employment standards; and prevention of
219
occupational injuries and illnesses.
Unfortunately, it is unclear from current case law and scholarship how an ATS
220
claim using NAFTA and NAALC would play out against a corporate-defendant.
Several problems with the theory can be identified. First, NAALC is not binding on
signatory nations or private employers like the Juarez maquiladoras.221 As noted
above, the decision in Sosa indicated that non-binding treaties will be shown little
deference by the Court. 222 Second, although NAFTA is codified in U.S. federal
statutes, 223 it is unclear whether NAFTA is a treaty pursuant to the U.S. Constitution's
Treaty Clause requiring approval by a two-thirds majority of the Senate. 22
Courts
have declined to answer that question because to do so would violate the political
question doctrine of justiciability.22 Thus, it is difficult to predict whether NAFTA
would meet the "strict" definition of treaty required by courts.226 Third, since
NAFTA does not create a private cause of action,227 it is not clear whether a plaintiff
would be required to appeal to a govemment, who would then exhaust all remedies
under NAFTA, before the plaintiff could bring an ATS claim using NAFTA.
On the other hand, a subsection of the NAFTA statute titled "construction" states
that nothing in NAFTA is meant to amend or modify any other U.S. statute unless
specifically provided for in NAFTA. 221 Thus, it appears unlikely that NAFTA will
trump the ATS in the sense that litigants would be forced to jump through the
enforcement mechanisms of NAFTA before using it to bring suit under the ATS for
the violation of a treaty. It remains to be seen whether NAFTA would qualify as a
binding treaty under the ATS conception of a binding treaty.22 9 One thing is clear:
219. See Folsom, supra note 10, at 237-39.
220. See Lisa T. Belenky, Cradle to the Border: US. Hazardous Waste Export Regulations
and InternationalLaw, 17 BERKELEY J.INt'L L. 95, 133-34 (1999) (writing, "It is unclear precisely
what kind of treaty violation is necessary to create a cause of action und ATCA, but the majority of
cases have found that it is not necessary for the treaty that is violated to provide an express cause of
action so long as the alleged conduct constituted a common law tort, e.g. fraud.").
221. See Michael J. Wishnie, Immigrant Workers and the Domestic Enforcement of
InternationalLaborRights, 4 U. PA. J. LAB. & EMP. L. 529,554 (2002).
222. See Sosa, 124 S. Ct. 2739,2769(2004).
223. See 19 U.S.C. § 3301, et. seq. (2005).
224. See Ann K. Wooster, Validity, Construction, and Application of North American Free
TradeAgreement and Implementing Statutes andRegulations 183 A.L.R. FED. 1, § 3 (2004).
225. See id.
226.
227.
228.
229.
See Belenky, supra note 223, at 133.
See 19 U.S.C. § 3312(c) (2005).
See 19 U.S.C. § 3312(a)(2) (2005).
See Humphrey, supra note 102, at 341-42.There was an early 20th century case with a
2004/051
HER BODY IS A BATTLEFIELD
"the critical link here is that a majority of [Juarez] companies are U.S.-owned, and
NAALC was established to provide a safety net for workers of all NAFTA
countries." 230 Were the question to appear before them, courts would be wise to
seriously consider NAFTA's status as a treaty, and whether corporate defendants have
violated that treaty.
C. Should the Alien Tort Statute ProvideRedressfor the
Human Rights Abuses in Maquiladoras?
If the ATS cannot help maquiladora workers because the law of nations theory
and treaty theory both fail, the broader question underlying this discussion is whether
the ATS should help the maquiladoras. In other words, should the ATS be construed
to hold corporations liable for on-going and egregious human rights violations, even
if those violations are not jus cogens or "universal" violations like forced labor,
genocide or torture? Assuming one believes that American corporations operating
abroad should be held to the same standard of corporate conduct that they are held to
within U.S. borders, 231 the answer is yes. But in order to do that, the current
interpretation of the ATS would have to be modified.
The first step in the right direction would be to amend the conception of the "law
232
of nations" that emerges from Sosa. Sosa indicates that only a very small category
of human rights violations will be actionable under the ATS.233 This reading may be
based on a vein of case law and scholarship since Filartiga defining the law of
nations as those which are "universal, definable, and obligatory.' ' 234 It is suggested
limit the reach of Filartigato torts constituting
that this reading sought to improperly
"'a handful of heinous actions."' 235
fact pattern that is somewhat analogous to the situation addressed in this paper in that it involved the
ATS, a company, and a treaty. In 1907, Mexico complained to the International Water Boundary
because a U.S. land and irrigation company diverted the flow of the Rio Grande in its operations,
altering the border between Mexico and the U.S. The alteration apparently violated a treaty between
the U.S. and Mexico. The Commission found in favor of Mexico, and asked the federal government
whether any federal statutes supported its position. The executive branch replied that the judgment
was proper under the ATS.
230. See Vega, supra note 25,at 150.
231. See e.g. Manuel Velasquez and John E. Fleming, Are Multinational CorporationsFree
From Moral Obligations? in TAKING SIDES: CLASHING VIEwS ON CONTROVERsIAL IssUES IN
BusINEss ETIcs AND SocEry 252,253 (Lisa H. Newton and Maureen M. Ford, eds., 5th ed. 1998
(offering opposing views on the question)).
232. See Dodge, supra note 143, at 351. The analysis that follows is largely based on
Professor Dodge's excellent article.
233. See Kerr,supranote 139, at 23.
234. See Dodge, supranote 143, at 355.
235.
Seeid.at355.
GONZAGA LAW REVIEW
[Vol. 40:3
Frustratingly, this restricted definition of the law of nations, and the "extremely
narrow scope" Sosa derived from it, are far narrower than the modem understanding
of customary international law.236 A more appropriate reading of the law of nations
would define it as "a customary international law rule resulting from 'a general and
consistent practice of states followed by them from a sense of legal obligation."-237
Such a reading is not only consistent with The Restatement (Third) of Foreign
Relations Law, it is also consistent with the text of the ATS. 238 "The first Congress
did not put the words 'universal, definable, and obligatory' in the Alien Tort Statute;
indeed, it provided that jurisdiction would extend to 'all causes where an alien' 39sues
for a tort only in violation of the law of nations or a treaty of the United States. '2
A more recent Congress appears to support a broader reading of the ATS. When
Congress passed the Torture Victims Protection Act in 1991, it carefully
acknowledged that the ATS "should remain intact to permit suits based on other
norms that already exist or may ripen in the future into rules of customary
international law."2 40 Such a pronouncement appears to contemplate a more forwardthinking and expansive reading of the ATS than the comparison to eighteenth century
paradigms advocated by Sosa.
Were the law of nations to be defined as the 'general and consistent practice of
states followed by them from a sense of legal obligation,' labor rights abuses would
almost certainly fall under the protection of the ATS. The existence of numerous
international instruments promoting fair labor practices support this notion, including
NAFTA, various United Nations resolutions, 24 and various fair labor laws of
the
countries across the world. 242 Furthermore, corporations themselves recognize
243
importance of fair labor practices with their own voluntary codes of conduct.
236. Id. at 355.
at 360 (citation omitted).
237. See id.
238. See id. at 353-54, 356.
239. See Dodge, supranote 143, at 356.
240. Id. at 359.
241. In addition to the resolutions the U.N. has already passed, it seems to be making
attempts at even more concrete instruments urging corporate accountability. For example, in 2003
the Sub-Commission on the Promotion and Protection of Human Rights approved a draft document
that urged corporate accountability. UN: New Standardsfor Corporations and Human Rights,
available at http://www.hrw.org/press/2003/08/un081303.htm (last visited Mar. 7, 2005). The
norms agreed upon by the Sub-Commission "reflect most of the cun-ent trends in the field of
international law, and particularly international human rights law, with regard to the activities of
transnational corporations and other business enterprises." Responsibilities of Transnational
Corporations and other Business Enterprises with Regard to Human Rights. Available at
http://wwwl.umn.edu/humanrts/linksres2003-16.html (last visited Mar. 7, 2005).
242. See, e.g.,
Folsom, supra note 10, at 219 (discussing Mexico's comprehensive labor
laws).
243. See Claire Moore Dickerson, Human Rights: The EmergingNorm of CorporateSocial
Responsibility, 76 TUL. L. REV. 1431, 1432 (2002).
2004/05]
HER BODY IS A BATTLEFIELD
With so much evidence that the international community equates labor rights
with human rights, why might courts shy away from construing the ATS to make
companies liable for engaging in human rights abuses that fall short of universal or
jus cogens violations? Perhaps one rather perplexing answer is offered by Gary
Clyde Hufbauer and Nicholas K. Mitrokostas, who argue that the scope of the ATS
should be severely limited in order to avoid the apparently undesirable prediction that
"[multi-national corporations will] curtail their investments in countries with lessthan-perfect records in human and labor rights."244 Hutbauer and Mitrokostas argue
will have "potentially devastating effects on international
that unchecked, the ATS
245
trade and investment."
Perhaps courts, too, fear that expansion of the ATS will open a floodgate of
litigation detrimental to business. These fears inexcusably ignore the realities of the
global market today-subhuman working conditions designed to increase profit
margins. 246 For example, Hufbauer and Mitrokostas point to Doe I v. Unocal Corp.,
a "troubling" 2002 decision by the Ninth Circuit "that would hold
- 47 multi-national
for the acts of foreign states and their entities.'2
corporations liable ...
In Doe, Myanmar villagers brought suit under the ATS against Unocal for human
248
rights abuses connected to Unocal's construction of an oil pipeline in the country.
Unocal employed the Myanmar military to help with construction; in tum, the
military subjected villagers to forced labor, murder, rape, and torture. 24 9 Doe is
replete with evidence that Unocal was aware the Myanmar military was engaged in
250
the record is also replete with horrific examples of the abuses the
such tactics;
25
Based on the record the Ninth Circuit had before them, it is
villagers enduredY.
difficult to see how the decision could be viewed as anything other than wellreasoned and necessary. Unocal itself must have seen the wisdom in the decision, or
at least the writing on the wall. After the Ninth Circuit's denial of its summary
judgment motion, Unocal settled the case, for an undisclosed amount, in December of
2004, rather than argue the merits of its case.252
244. Gary Clyde Hufbauer and Nicholas K. Miirokostas, InternationalImplications of the
Alien Tort Statute, 7 J. INT'L ECON. L. 245, 246 (2004).
245. Id.at 247.
246. See generally Karzarova, supranote 11, at 8.
247. Hufbauer and Mitrokostas, supranote 247, at 250.
248. See generally Unocal Corp., 395 E3d at 943.
249. See id.
250. See id at 940.
251. See, e.g., id.
at 940. (One women testified that "she and her baby were thrown into a fire
[by soldiers], resulting in injury to her and the death of the child").
252. See Robert Horn, Paying for It: Doing business with regimes may cost American
companies cash as well as goodwill, TIME ASIA, Dec. 27, 2004, notebook, available at
http://www.time.com/time/asia (last visited Mar. 7,2005).
GONZAGA LAW REVIEW
[Vol. 40:3
Certainly, jurists contemplating the ATS must be careful to balance the interests
of workers and business in the global-market place; Hufhauer and Mitrokostas are
correct to imply that international trade and investment deserve some protection. But
American corporations cannot be allowed to exploit workers like the women of
Juarez without some degree of accountability. If academicians and jurists are afraid
that heightened corporate responsibility will impact international trade and business,
then human rights advocates should hope they are correct. The Alien Tort Statute
should help realize that goal: by recognizing a broader definition of the law of
nations, it should provide an opportunity to hold American corporations operating
abroad liable for blatant human rights abuses.
V CONCLUSION
As one legal scholar noted, "[i]n general, what can be said about the
maquiladorasystem is that it is hardly a humane system of employment and hardly
'
something the knowing United States citizen would want to support."253
Such a
statement implies that there is a collective understanding that the conditions of life in
the Juarez maquiladoras-from the murders to the wages-shock the conscience of
modem-day people. Yet, it is also clear that the current interpretation of the Alien
Tort Statute may allow these violations to go unaddressed and unpunished.
Meanwhile, in Juarez women continue to die. On an abstract level, the murders
in Juarez are a microcosm of the war being fought in the global marketplace: 254 just
as the female form has always symbolized the plunder of a conquering nation,255 in
the act of globalization women's bodies may serve
as the site for exploitation in all its
256
varied forms-economic, sexual, and cultural.
Ultimately, the utility of the Alien Tort Statute may be decided by further
Congressional mandate.257 Indeed, the future of the statute may depend on it.
Particularly in the wake of the many questions left unanswered by the Supreme
Court's opinion in Sosa v. Alvarez-Machain,25 Congress may need to clarify exactly
what human rights abuses the Alien Tort Statute is intended to prohibit. One hopes
that in doing so Congress will be able to effectively balance the interests of
253. Arriolasupra note 31, at 809.
254. See Fraser and Jeffrey, supra note 43, at 9 ("Ciudad Juarez is a paradigm of things
happening inother countries.").
255. See MERRiLL, supranote 7, at 312 ("The literature ofwomen as war booty ...is thus as
old as epic poetry itself.").
256. See BUNCH, supra note 208, at 14-15 ("Female subordination runs so deep that it is still
viewed as inevitable or natural rather than as a politically constructed reality maintained by
patriarchal interest, ideology, and institutions. The physical territory of this political struggle is
women's bodies.").
257. See Sosa, 124 S. Ct. 2739, 2765 (2004) (affirming that the Court would welcome
Congressional guidance on the statute).
258. See generally id.
2004/05]
HER BODY IS A BATTLEFIELD
533
corporations and workers so that the global market-place ceases to be a battleground
and constructs itself as a more equitable and humane forum.