So basically every corporation operating in the US has to follow US law at all times, regardless of the economic/legal circumstances in other countries?
I can see why that is controversial and almost certainly will be extremely selectively enforced.
I can see why that is controversial and almost certainly will be extremely selectively enforced.
I don't think it's really that controversial to prevent US companies from doing this.
But to be clear they had already pled guilty to doing that crime in 2007 (and they also prosecuted the AUC, many AUC leaders were extradited to the US in 2008).
This isn't about enforcement at all, this is them being found liable in a civil class action lawsuit, one brought by families of folks the AUC murdered.
> But to be clear they had already pled guilty to doing that crime in 2007 (and they also prosecuted the AUC, many AUC leaders were extradited to the US in 2008).
That's exactly what I mean for extremely selective enforcement
Say some hypothetically medium/small US business with some operations in Mexico has their employees stalked/intimidated and their equipment gets burned down and people with guns hang out in the office, usual cartel stuff that happens daily there
Then they go to the Mexican gov for help and find out they don't give a shit because they are paid off or worse directly working for the cartel (as this particular Colombian paramilitary group was notorious for being protected by the gov).
So they pay money to some local cartel to make them go away
This is bad yes and should be punished.
But I don't see how that behaviour at all should allow civil action by random families from Mexico who were harmed (indirectly) by the same Cartel to make a case in the US
That's the most disconnected and roundabout form of justice imagineable.
Their crime should have rightfully been procescuted by Colombia at the time or the US sanctioning them. That is the real deterence. Civil courts in the US have no business playing judge in that context IMO. Unless your goal is feel good emotions by giving victims of crime money by takkng money from another party coerced by the same criminals.
Traditionally it's more like "they pay money to some local armed group to get rid of union activists and unruly workers asking for more rights and better conditions and salaries".
It's not like such companies like Chiquita even support dictators or topple goverments (or lobby to get it done on their behalf) to protect their margins and cheap labour...
"Among the Honduran people, the United Fruit Company was known as El Pulpo ("The Octopus" in English), because its influence pervaded Honduran society, controlled their country's transport infrastructure, and manipulated Honduran national politics with anti-labour violence."
Columbia extradited the AUC leaders.
Its about punishment to enforce the civil contract and once you exclude bodies, eg drug trafficing CIA officials or sociopathical CEOs, you start to loose credibility.
> But I don't see how that behaviour at all should allow civil action by random families from Mexico who were harmed (indirectly) by the same Cartel to make a case in the US
So then only attorneys are left to lead the charge, right? How can you still trust a system that prosecutes journalists that uncover war crimes that get covered up by the same cartel?
wait - was the argument that the laws of these other countries they were operating in required them to fund paramilitary death squads? I must have missed that part.
I'm thinking the slope is not as slippery as feared here.
on edit: Ok I read your Mexican cartel example, slipperiness still not apparent to me how one slides from we hired death squads that killed people to we hired a cartel for protection but the money we paid was put in a big pile of money that cartel used to also fund bad stuff the cartel did that hurt people who were not trying to damage our company.
at any rate the amount of money paid out here having people killed is the usual cost of doing business slap on the wrist considering Chiquita's size and doesn't actually affect them. The negative publicity is worse.
I mean actually this is probably the rule for most countries regarding some laws at least - EU companies as I understand the law need to follow GDPR when outside EU, there are laws against bribery and money laundering that work across nations despite what the economic/legal circumstances are in play in other countries.
Luckily though I believe every country in the world that is not a fictional dystopia actually has laws against corporations paying to have people killed so it probably doesn't matter much in this case anyway.
But the EU only enforces that for transactions involving EU citizens. If you want to grab all the data from US visitors, go for it, the EU will not complain (as long as you don't do it to EU visitors).
I think the difference here is that the US is enforcing US law on an operation in a foreign country by a company that operates in the US. The equivalent would be the EU enforcing GDPR for all site transactions, regardless of the visitor's nationality.
The point of making this distinction is that there are countries that have laws that we don't want to follow (e.g. various Middle East countries having drastic punishments for atheism and apostasy), and that should not be applied to people (or organisations) who don't reside there. If the USA makes the precedent that it can enforce its domestic law on actions happening in other countries, then it's possible that (e.g.) Australia could enforce its ridiculous anti-online-bullying laws on US citizens who have never left the USA.
Again, there is already ample precedent for this
https://www.trade.gov/us-foreign-corrupt-practices-act
this applies to any U.S company engaging in business in another country.
>I think the difference here is that the US is enforcing US law on an operation in a foreign country by a company that operates in the US.
Well, perhaps that Chiquita used to be an American company affects the situation, not sure here, since Chiquita is nowadays a Swiss company.
https://europa.eu/youreurope/business/dealing-with-customers...
>The GDPR applies if:
>your company processes personal data and is based in the EU, regardless of where the actual data processing takes place
>your company is established outside the EU but processes personal data in relation to the offering of goods or services to individuals in the EU, or monitors the behaviour of individuals within the EU
Notice how they emphasized EU citizens? Yeah, neither did I.
If you look into the actual GDPR, you will find the phrase "data subjects who are in the Union", which are "natural persons", for whom the data protection laws apply.
oh good! Cause I've done that.
>you will find the phrase "data subjects who are in the Union", which are "natural persons", for whom the data protection laws apply.
tourists who are in the union also apply, there is no idea that you can figure out if that person is just traveling through the EU for some months you can do what you want with them.
https://www.dataprotectionreport.com/2018/12/edpb-clarifies-...
>Data subjects in the Union means any person in the Union whose information is being collected at that moment, regardless of their nationality or legal status. That means EU citizens and residents are squarely in scope. And someone in the EU, even a US tourist using an app in the EU, is a data subject in the Union for purposes of the GDPR.
on edit: if you were just clarifying/backing up my original point, sorry, I thought it seemed you were going with interpretation of the person who I was replying to an EU company can do what they want with any U.S citizen's data.
For the extra cup of strange irony, part of the government in my country (Australia) just tried forcing X to delete posts for everyone globally instead of just not showing them to Australian users. Thankfully the court system told the Aust gov to bugger off due to overreach. ;)
Austrian courts forced Meta to delete certain posts globally. That's some crazy overreach.
https://globalfreedomofexpression.columbia.edu/cases/die-gru....
It is wild to me how some people can throw something like this out as this like, unreasonable and clearly sarcastic question like, what you expect a corporation to follow the law everywhere? And I'm just over here like... yeah? Yeah. I... always did, really, I never considered that if I formed a corporation I could fund death squads in other countries to maintain access to cheap products. What the hell is wrong with you where you thought that was not only desirable, but a normal situation...?
I grew up very conservative and pro-free-market, and honestly a huge part of my transition to being a pinko commie scum was recognizing just how FUCKED big businesses are, especially overseas. Like you have the banal stuff like tax sheltering which is shitty but like, it's just money but then, oh MAN, they get up to some truly horrific shit. Death squads, union breaking, cataclysmic environmental damage, and it's 100% enabled by our system. I hope that this trend continues and we can finally get some justice out of these organizations that have clearly overstepped in so many ways.
If we’re talking about crimes like “bribing a public official”, it’s less so. There are countries where that is simultaneously 1) technically illegal by that country’s own laws, 2) absolutely an expected and required part of doing business. So what do you do in that case?
[0]. Arms-length, third-party, paper-trail-negative contractors.
Sounds lucrative.
Not quite.
You may be thinking of the “grease payment” exception [1] to the FCPA [2]. Customariness isn’t as important as whether the payment is to speed up a decided outcome or effect the outcome.
[1] https://en.m.wikipedia.org/wiki/Facilitating_payment
[2] https://en.m.wikipedia.org/wiki/Foreign_Corrupt_Practices_Ac...
You just don't do business in such countries? Why do you want to work with corrupt regimes so much?
whereas if you bribe public officials in other countries as normal business practice, that might give you an advantage over other companies that also operate in the US. if they have to also engage in bribery to compete with you, that seems like a much more direct harm to another US entity.
my point is that the jurisdiction of the US criminal justice system should be limited to the US. if people do things in another country that demonstrably harm US residents, that's fair game. otherwise, it seems like an overreach for the US to enforce laws that might not even exist in other countries. just my opinion, you don't have to agree.
This would make it very easy for Americans to be mercenaries and assassins for foreign governments.
Err, which one? You've mentioned a few different things. :)
The funny thing about the leftist children of Reaganites is that they maintain their parents’ universalism and lack of respect for foreign sovereignty. “Maybe America should fuck off and mind its own business” is never part of the political conversion.
I guess it's a good thing, wish I had it. Makes for persuasive and effective writing, that's for sure.
> 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 highlighted part just doesn’t make sense unless you believe in some universal, God-given “law of nations.” In this context, the supernatural belief renders the statute itself nonsensical, like a law setting tariffs on imported “faerie wings.”
I’m not using it as an ad hominem to disparage a statute that makes sense on its face. The part of the statute referring to acts in violation of US treaties is perfectly fine.
I'm not an international lawyer, but my understanding is that for a very long time there has indeed been a generally-accepted "law of nations" that simply evolved by (more or less) common consent, not necessarily by any formal enactment on the part of some generally-accepted authority. Lex mercatoria ("the Law Merchant") comes to mind, as does the "right" of any nation to execute pirates captured on the high seas.
The brute fact is that ultimately, might does indeed make right.
Sure. But that’s not “law” that’s the exercise of power. In 2024 we shouldn’t indulge the fiction that it’s more than that.
The way it has been construed, the ATS empowers US courts to do whatever they want if some foreign conduct offends the sensibilities of some Americans. Some feelers in America upset that Bangladesh summarily executes drug traffickers? They can sue for violation of “the law of nations.” I’m not saying the US can’t do that, I’m saying it’s stupid and arrogant.
Citation? In the mifepristone case just yesterday, SCOTUS reminded us of the need for "standing" — albeit while practically drawing a road map for other plaintiffs to try again.
Question: Under your reasoning, are Judge Kacsmaryk's nationwide injunctions, e.g., in the mifepristone case, similarly "stupid and arrogant," even though they're technically permissible under the All-Writs Act [which needs major revision IMHO]?
Some “human rights” group in the U.S. would just have to find a random Bangladeshi person (including a non-citizen) to claim some family member was killed in some supposedly “illegal” execution of drug dealers.
> Question: Under your reasoning, are Judge Kacsmaryk's nationwide injunctions, e.g., in the mifepristone case, similarly "stupid and arrogant," even though they're technically permissible under the All-Writs Act [which needs major revision IMHO]?
No because he’s a judge of the same legal entity being enjoined. Unlike the national borders, the federal districts are mostly just lines in an org chart.
I'm no expert, but this seems overbroad and even flat-out wrong.
1. Here's something from The New Republic [0] (certainly not a bastion of right-wing thought) earlier this week: "In recent history, as well, the U.S. has closed off some of the few venues through which victims of human rights violations committed by corporations can be heard in U.S. courts. In Kiobel v. Royal Dutch Petroleum [1], in 2012 [sic; 2013], the Supreme Court ruled that the Alien Tort Statute does not apply to human rights violations committed outside of the country, unless claimants can prove a strong connection to the United States."
2. From the Court's 9-0 decision in Kiobel:
<quote>
The question presented is whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.
***
[N]othing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach.
The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States.
Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality.
</quote>
(Extra paragraphing added.)
3. Then a few years later in Jesner v. Arab Bank, PLC (2018) [2], the Court said, 5-4: "With the ATS [Alien Tort Statute], the First Congress provided a federal remedy for a narrow category of international-law violations committed by individuals. Whether, more than two centuries on, a similar remedy should be available against foreign corporations is similarly a decision that Congress must make." (Emphasis added.)
And of course the Court has gotten much more conservative and pro-business since 2013 and 2018 ....
[0] https://newrepublic.com/article/182589/chiquita-colombia-dea...
[1] https://scholar.google.com/scholar_case?case=622061642165784...
[2] https://scholar.google.com/scholar_case?case=157429310963466...
A longish response would be: "The United States is generally a force for good, and it's the main provider of the very-costly Pax Americana that supports so much of global commerce and a rules-based international order. If we decide you need to follow our standards everywhere if you want to enjoy access to our country, you're always free to refuse — and to accept the consequences."
The short, brutalist response would be: "Because we can."
A footnote: You seem to think that "sovereignty" is some kind of magical concept that causes everyone to honor the wishes of another people. It's not; history amply proves that "sovereignty" is simply shorthand for "we think we shouldn't have to do what you want us to do, because reasons, and we're willing to gamble that our economic power and military might (alone and/or with allies) are enough to enforce our preference over yours."
Short-term vs. long-term analysis. Analogously, if I understand your argument correctly: It's entirely rational for citizens to support costly- and occasionally-violent enforcement of the law against others — e.g., arrest and (upon conviction) imprisonment of murderers, robbers, tax cheaters, etc., and then publicizing that action — even though few if any citizens get any near-term material benefit from doing so. Likewise with the rules-based international order supported by Pax Americana.
Taking (what I think is) your argument to an extreme: The U.S. didn't get involved in WWII to stop Germany from exterminating European Jewry; nor did we invade Rwanda to try to stop the Hutu slaughter of Tutsis and others. But in either case, had we done so, I don't think it would have been "religious nut[-]jobbery."
(You and I are in agreement about the Crusades.)
That’s my beef: if the U.S. wants to meddle in other country’s affairs “because it can” nobody can stop it. But it’s insulting to disguise what is an exercise of power as the enforcement of “law.” And if Americans really do believe there is law that binds the whole world that’s where the religious nutjobbery comes in. Law is something that only exists within a state that has the monopoly on violence to enforce it.
(Intervening in World War II can be justified as an exercise is protecting U.S. security. Intervening in Rwanda cannot, and is an example of Americans believing it’s their job to enforce God’s law everywhere in the world.)
You're setting the bar pretty high. Some "law" simply evolves, by custom and practice, without any formal enactment by anyone. One example that comes to mind is (maritime) anti-piracy law.
Keep in mind that, unless I'm very much mistaken, American extraterritorial law is fundamentally grounded on, "if you want access to our country, financial system, etc., then you gotta follow our rules — and not necessarily just while you're within our geographic borders. You pays your money and you takes your choice."
BTW, the U.S. didn't invade Rwanda at all, to save the Tutsis or otherwise.
Many of us would assert that trying to stop mass murder is a good thing in its own right and doesn't need to be justified by reference to "God's law," whatever that might mean.
The Travel Act for example makes it illegal to fly to another country to engage in sexual acts with a minor, even if it is legal in that country. Do you think that is some sort of government overreach?
Mind you, Id gladly have pedos and banana execs shot in public.
Instead of having sex with minors, suppose the US elected some crazy religious zealots who managed to make it illegal to have sex outside of heterosexual marriage, after getting abortion banned (so, not exactly far-fetched). So does that mean that all "US persons" (citizens, green card holders, residents, etc.) who travel (or live) outside the US and have sex with someone they're not married to are now criminals?
Everyone is happy to give the government extra power for things they don’t like but rarely consider they would use it for things they don’t like
If we're keeping with consistency... yes.