‘‘established norms of the international law of human rights,’’ and that such norms could
therefore form the basis of an ATCA claim.
48 Since then, the ATCA has led to some sizeable
awards against perpetrators of human rights abuses. Awards typically have been in the millions of dollars.
49
Whereas international law treats states as actors, a development in the ATCA has been the
extension of liability to private actors who have been responsible for assisting with violations.
50
In the domestic context, states themselves are immune from liability under the ATCA.
51
These developments—targeting nonstate actors in the enforcement of international
norms—have prompted academic discussion of the possibility of using the ATCA as a tool
for punishing corporations who assist states with Internet filtering; attention has focused in
particular on U.S. corporations’ involvement with Internet filtering in China.
52 While this prospect is interesting theoretically, it should be noted that any such claims would face several significant hurdles.
At the outset, it would first be necessary to convince a federal court that the right to freedom
of expression is actionable under the ATCA. Making this argument would be complicated
given the conclusions of the U.S. Supreme Court in its first judgment concerning the ATCA in
2004: the Court concluded that while caution was necessary, claims for breaches of rights
were possible, provided that they were defined with specificity as were the limited number of
international law rules in the late eighteenth century (when the ATCA was passed), and that
they were based ‘‘on a norm of international character accepted by the civilized world.’’
53
This double hurdle need not be insurmountable. Regarding specificity, freedom of expression in an international context is clearly defined and admits only limited exceptions. While
there is room for debate about some borderline cases, the existence of a breach should be
clear where a state has a legal culture of wholesale filtering. However, the Supreme Court
was skeptical as to whether the UDHR and the ICCPR had achieved sufficient acceptance to
allow actionable claims under the ATCA. Such a precedent would inform the deliberations of a
court considering a claim that a nonstate actor who had engaged in filtering violated the right
to freedom of expression. The court would have the responsibility of determining whether the
requisite standard of clarity and acceptance was met in the freedom of expression provisions
of the UDHR and the ICCPR. It would seem that a convincing argument could be made that
freedom of expression is indeed actionable under the ATCA.
54
Next the defendant would have to establish the connection between the activities of the corporation and the breach of the right. There has been considerable debate over what standard
of involvement is appropriate, and it is not entirely clear what test would be applied by a court
adjudicating a potential claim.
55 However, the present leading authority is a 2002 federal
Court of Appeals decision, which rejected an argument that it was necessary to show that
the company in question was an active participant in the abuse for liability to occur under the
ATCA, and which instead held that it was only necessary for the company to give ‘‘knowing
practical assistance or encouragement’’ that had ‘‘a substantial effect’’ on the perpetration of
92
Mary Rundle and Malcolm Birdling
therefore form the basis of an ATCA claim.
48 Since then, the ATCA has led to some sizeable
awards against perpetrators of human rights abuses. Awards typically have been in the millions of dollars.
49
Whereas international law treats states as actors, a development in the ATCA has been the
extension of liability to private actors who have been responsible for assisting with violations.
50
In the domestic context, states themselves are immune from liability under the ATCA.
51
These developments—targeting nonstate actors in the enforcement of international
norms—have prompted academic discussion of the possibility of using the ATCA as a tool
for punishing corporations who assist states with Internet filtering; attention has focused in
particular on U.S. corporations’ involvement with Internet filtering in China.
52 While this prospect is interesting theoretically, it should be noted that any such claims would face several significant hurdles.
At the outset, it would first be necessary to convince a federal court that the right to freedom
of expression is actionable under the ATCA. Making this argument would be complicated
given the conclusions of the U.S. Supreme Court in its first judgment concerning the ATCA in
2004: the Court concluded that while caution was necessary, claims for breaches of rights
were possible, provided that they were defined with specificity as were the limited number of
international law rules in the late eighteenth century (when the ATCA was passed), and that
they were based ‘‘on a norm of international character accepted by the civilized world.’’
53
This double hurdle need not be insurmountable. Regarding specificity, freedom of expression in an international context is clearly defined and admits only limited exceptions. While
there is room for debate about some borderline cases, the existence of a breach should be
clear where a state has a legal culture of wholesale filtering. However, the Supreme Court
was skeptical as to whether the UDHR and the ICCPR had achieved sufficient acceptance to
allow actionable claims under the ATCA. Such a precedent would inform the deliberations of a
court considering a claim that a nonstate actor who had engaged in filtering violated the right
to freedom of expression. The court would have the responsibility of determining whether the
requisite standard of clarity and acceptance was met in the freedom of expression provisions
of the UDHR and the ICCPR. It would seem that a convincing argument could be made that
freedom of expression is indeed actionable under the ATCA.
54
Next the defendant would have to establish the connection between the activities of the corporation and the breach of the right. There has been considerable debate over what standard
of involvement is appropriate, and it is not entirely clear what test would be applied by a court
adjudicating a potential claim.
55 However, the present leading authority is a 2002 federal
Court of Appeals decision, which rejected an argument that it was necessary to show that
the company in question was an active participant in the abuse for liability to occur under the
ATCA, and which instead held that it was only necessary for the company to give ‘‘knowing
practical assistance or encouragement’’ that had ‘‘a substantial effect’’ on the perpetration of
92
Mary Rundle and Malcolm Birdling