The Golden Rule: International Comity

By Tanner Bowen

Tanner Bowen is a freshman at the University of Pennsylvania.

In November, the Ninth Circuit Court of Appeals confirmed the trend in American international policy to respect the rulings of foreign courts in matters that originated in foreign countries.  Although this policy of deference has not always been at the forefront of American politics, this was definitely the case in a recent court decision involving two American companies and an air raid in Colombia. 

In 1998, the companies Occidental Petroleum Corp. and AirScan, Inc. had taken up base in Colombia.  With Colombia’s richness in natural resources, the Colombian government had hired Occidental to build a petroleum pipeline.  This building project, however, was often interrupted and attacked by left-wing insurgents, requiring AirScan to provide security for Occidental’s pipeline. On December 13, 1998, AirScan helped supply the Colombian Air Force with the finances necessary to engage in an air strike against the radical insurgents.  This strike ultimately killed seventeen and injured twenty-five individuals.

But after several successful cases in the Colombian court system, the plaintiffs decided to take the case to the United States and sue the two American companies for a violation of the Torture Victims Protection Act  as well as the Alien Tort Statute. [1] The case Mujica v. AirScan was filed in California and appealed to the Ninth Circuit, where it was asked whether the plaintiffs in this case had a claim under federal and state-law claims.  To this, the answer was no. 

To start, the Ninth Circuit swiftly struck down the federal law claims under the TVPA and the ATS by stating that Occidental and AirScan were corporations, not individuals.  Thus, they could not bring claims under the Torture Victims Protection Act.  Additionally, the Alien Tort Statute claim was struck down through the extraterritorial application.  In this case, since none of the actions took place within the borders of the United States and only in Colombia, this argument could not be validated.

Going beyond this, we now get into the bulk of the opinion, which discussed whether adjudicatory comity was applicable in such a situation, where a “true conflict” between domestic and foreign law was not present.  To this, the Ninth Circuit looked towards the Supreme Court’s last case involving international comity.  In the case Hartford Fire Ins. Co.v. Cal., the Court ruled that there was not a true conflict that needed to be present in order to determine discretionary deference. [2]  So, unlike the district court ruling of Mujica in which the Plaintiffs’ claim was automatically dismissed because the judge found no “true conflict” to exist, the Ninth Circuit adopted the policy of including whether a conflict exists in the case analysis instead of using that as the automatic determiner. 


Following this logic, in this case the Court next considered the US interest, the Colombian interest, as well as the adequacy of Colombian judicial forum.  For the United States, the State Department actually attached a Statement of Interest to this case as well as the submission of an amicus curiae brief, which stated that the Government would prefer to have the case dismissed so as to not jeopardize one of America’s strongest Latin American and oil-producing allies. 

As for the Colombian interest and forum, the Ninth Circuit easily concluded that since the event occurred on foreign soil, the country would naturally have a greater interest in the case than that of the United States.  In addition, the respect for Colombian jurisdiction and the hope to avoid duplicate litigation (the Plaintiffs have tried for years to bring the case against AirScan in Colombian courts) prove strong motivators for the application of international comity.  Finally, the fact that the Plaintiffs have been incredibly successful in Colombian courts in suing their government, then the forum for an appropriate remedy to take place is already sufficient in this Latin American country. 

With all of this consideration, the Ninth Circuit readily dismissed the federal and state-law claims of the plaintiffs. 

Although the concept of reciprocity is still intact in American policy, the case still presents other puzzling questions.  For example, the strong interest in the United States government leads one to wonder if the true intentions are simply to promote respect of foreign powers or if there is a deeper underlying issue.  This case also highlights the issue of supremacy in the fact that the United States felt a different way about the case than the State of California, which had an interest in providing a forum for those harmed by the actions of corporate citizens. But in this case, the Court couldn’t deny the power of the federal government over state government interests. 

So, the Golden Rule of International Comity has maintained its status quo: do unto others as you would have done unto you.  We will now have to see how long this policy lasts or can be stretched until the United States decides to intervene like it has for the last century in Latin America.

 

[1] 28 U.S. Code § 1350
[2] Hartford Fire Ins. Co.v. Cal., 509 U.S. 764 (1993). Photo Credit: Flickr User Thomas Hawk