Moreover, although much of international human rights law has developed in the criminal context, as the majority notes, the question of how to establish third-party liability is not in any way unique to human rights cases. The fact that the substantive violation involves international prohibitions on forced labor rather than a more traditional tort does not present any different concerns with respect to the determination of thirdparty liability. I thus see no reason to look to international criminal law doctrines for a civil liability standard when a substantial body of federal common law already exists regarding third-party liability generally. In sum, because Supreme Court precedent concerning the application of federal common law dictates its application here, and because the accepted choice of law factors overwhelmingly militate in favor of applying federal common law, I would derive a thirdparty liability standard for ATCA cases from that body of law.

     Finally, I would note that the majority’s disclaimer in its opinion that its legal conclusion regarding the applicability of international law rather than federal common law “is based on the record before it”, and that in cases with other facts federal common law may apply, see maj. op., n. 25, serves no apparent purpose other than to attempt to distance the majority from its choice of international law. Indeed the footnote undermines the opinion’s fundamental holding. All appellate decisions are based on the record before the court. More important, in all cases in which a third party is alleged to be legally responsible for the acts of a host government, third part liability determinations must be based on a principled choice of law. We must decide whether either international law or federal common law is applicable to the category of cases at issue here. The choice of law in such cases does not depend on the facts of the particular case, nor does it vary with the particular circumstances of the case. A binding legal rule must apply, or to put it differently, a controlling legal principle must govern, the legal question involved, regardless of the particular facts of a case. Either international law applies to third-party liability issues in ACTA cases or it doesn’t. Either the ancillary question of whether an American corporate entity may be held liable under ACTA for the conduct of a host government is governed by federal common law or it isn’t. What varies from case to case is not the question of the governing law, but whether liability attaches in the particular instance. That determination is based on the facts and circumstances of the case and that determination must be made regardless of whether international law or federal common law has been held to be applicable when resolving the issue of third-party liability. Thus, I reiterate that, unlike the majority, I would hold that the ancillary issue of third-party liability in ACTA cases must be decided as a matter of federal common law. I would not have the choice of law depend on the facts of the particular case.

     3. Application of Federal Common Law

     Having determined that ancillary legal issues in ATCA cases are to be resolved in accordance with federal common law, the question remains, for me, as to the proper federal common law rule for third-party liability in this case. Federal common law has developed over time a number of principles under which courts determine whether third parties may be held liable for the wrongful acts of others. Specifically, as will be discussed infra, the principles of joint venture, agency, and reckless disregard have all been applied across a wide range of torts and other legal wrongs, and the overwhelming weight of federal authority supports their application here.

     Before turning to the application of the three federal common law theories to the instant case, it is necessary first to consider briefly whether the international law principle adopted by the majority may be applicable as part of the federal common law. It plainly is not. As noted earlier, international law principles may, under appropriate circumstances, become a part of the federal common law. Specifically, when an international legal principle achieves sufficient international acceptance that it constitutes customary international law, it also becomes part of the federal common law. Filartiga v. Pena-Irala, 630 F.2d 876, 881 (2d Cir. 1980).⁸ However, the Yugoslav Tribunal’s “moral support” standard is far from such a settled rule. As I observed earlier, it is a novel standard that has been applied by just two ad hoc international tribunals. It does not constitute customary international law, and thus we are not free to apply it as part of federal common law.

     Moreover, even if it were possible for this court to determine that the Yugoslav Tribunal’s novel criminal standard constitutes a part of the federal common law, I would strongly doubt the wisdom of using that rule to override the wellestablished federal common law tort principles that would otherwise be applicable to resolving third-party tort liability questions. The Yugoslav Tribunal’s standard provides that an individual may be liable for “practical assistance, encouragement, or moral support which has a substantial effect on the perpetration of the crime.” Prosecutor v. Furundzija, IT-95-17/1-T (Dec. 10, 1998), reprinted in 38 I.L.M. 317, ¶ 235 (1999). It is, in my view, far too uncertain and inchoate a rule for us to adopt without further elaboration as to its scope by international jurists. Although it is of some comfort that the majority considers “moral support” to be equivalent to “encouragement” in domestic tort law, it is nevertheless far from clear what the practical implications would be of adopting the standard recently announced by the ad hoc tribunal on war crimes in the former Yugoslavia.⁹ Members of a future ad hoc tribunal elected by representatives of all of the nations that may then belong to the United Nations General Assembly might well define the term quite differently than does the majority here. Thus, the unintended consequences of adopting the ad hoc tribunal’s “moral support” standard may be significant.¹⁰

     Returning to the three federal common law theories of third-party liability, plaintiffs alleged all three in their complaint, all of the theories are well-established in the federal common law, and disputed questions of fact exist with respect to each. Thus, in my view, plaintiffs are entitled to proceed to trial on the basis of each of the three theories. I address the basis for each theory in federal common law, as well as the evidence in the record supporting each:

     a. Joint Venture Liability

     It is well-established as a federal common law principle that a member of a joint venture is liable for the acts of its coventurers. Federal courts freely invoke this principle of liability when called upon to apply federal common law in a variety of contexts. See, e.g., Davidson v. Enstar Corp., 848 F.2d 574, 577-78 (5th Cir. 1988) (applying federal common law of joint liability rather than the idiosyncratic Louisiana law of joint liability in determining whether a relationship constituted a joint venture for purposes of the Longshore and Harbor Workers’ Compensation Act); United States v. United Pacific Insurance Co., 545 F.2d 1381, 1382-83 (9th Cir. 1976) (applying the federal common law of joint venturer liability in interpreting the Miller Act, 40 U.S.C. § 270a-d). Moreover, “different jurisdictions generally adopt the same criterion for the establishment of a joint venture.” United States v. USX Corp., 68 F.3d 811, 826 n. 30 (3d Cir. 1995).¹¹

     The principle that a member of a joint venture is liable for the torts of its co-venturer is well-established in international
law and in other national legal systems. International legal materials frequently refer to the principle of joint liability for co-venturers. See, e.g, United Nations Convention On the Law of the Sea, Art. 139, Oct. 21, 1982, 21 I.L.M. 1245, 1293 (establishing principle of joint liability in international maritime law for parties acting jointly in maritime ventures); Convention on International Liability for Damage Caused by Space Objects, Mar. 29, 1972, 961 U.N.T.S. 187 (establishing joint liability principles to harms caused by parties launching objects into space); see also John E. Noyes & Brian D. Smith, State Responsibility and the Principle of Joint and Several Liability, 13 YALE J. INT’L. LAW 225, 249 (1988) (describing joint and several liability for co-venturers’ actions as a general principle of international law). The status of joint liability as a general principle of law is supported not only by international law sources but also by the fact that it is fundamental to “major legal systems.” See, e.g., N.Y. PARTNERSHIP LAW § 24 (McKinney 2002); Buckley v. Chadwick, 45 Cal. 2d 183, 190 (1955); Caron v. Lynn Sand & Stone Co., 270 Mass. 340, 346 (1930); 2 LAWS AND REGULATIONS OF THE PEOPLE’S REPUBLIC OF CHINA 71 (1984) (Chinese joint venture statute); AIB Group (UK) Plc. v. Martin, 2001 U.K.H.L. 63 (United Kingdom joint venture law).

     The body of international law described above serves to confirm my view that federal common law regarding the liability of joint venturers applies in the Alien Tort Claims Act context in the same manner and to the same extent as it does in construing other federal statutes. I would therefore hold that plaintiffs may recover on a federal common law theory of joint liability if they can prove both that the forced labor violations occurred and that Unocal was a co-venturer with the Myanmar military, which perpetrated the violations.

     As discussed above, there exists a question of fact requiring trial regarding the occurrence of the forced labor violations. There also exists a question of fact regarding whether Unocal and the Myanmar military were co-venturers. The corporate entity that oversaw the gas exploration project consisted of four partners: Unocal, Total, the Myanmar government (which is a military regime and thus indistinguishable from the military), and a Thai corporation. Thus, contrary to Unocal’s contentions, the evidence supports more than the conclusion that Unocal simply chose to invest in a project that happened to take place in a nation in which human rights abuses were widespread. Rather, a reasonable jury could conclude that Unocal freely elected to participate in a profitmaking venture in conjunction with an oppressive military regime — a regime that had a lengthy record of instituting forced labor, including forced child labor.

     Unocal contends that the Myanmar regime was a partner only in the offshore drilling portion of the Yadana project and not in the pipeline construction portion of the project. The company argues that a Total affiliate and a Unocal subsidiary created a pipeline construction corporation (called the Moattama Gas Transportation Company, or “MGTC”) which was independent of both the joint venture and the military. A factual dispute exists with respect to this contention. Significantly, however, one of Unocal’s business managers stated that “the [Yadana] project is an entirety . . . although there may appear to be two different businesses . . . this is an illusion.” There is substantial evidence in the record that MGTC was the alter ego of the joint venture, in which case Unocal would be responsible for torts committed by its co-venturer, the Myanmar military, in the course of the pipeline construction company’s activities. Plaintiffs contend that despite the existence of MGTC, the only reasonable reading of the contract forming the joint venture is that the joint venture is also responsible for the pipeline construction. Plaintiffs also argue that MGTC is a shell corporation because it maintained no independent offices, was under-capitalized, and relied only on the employees of the joint venture. Finally, evidence in the record states that Unocal would share revenues and costs of both the drilling and transportation components of the Yadana project. In view of the above, I believe that plaintiffs ought to proceed to trial on their claim of joint venture liability.

     b. Agency Liability

     Plaintiffs contend that Unocal may also be held liable for the acts of the Myanmar military because the military acted as the company’s agent. The theory of agency liability is also well-supported in the federal common law. The Supreme Court has observed in the context of the Copyright Act that “when we have concluded that Congress intended terms such as ‘employee,’ ‘employer,’ and ‘scope of employment’ to be understood in light of agency law, we have relied on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms.” Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740 (1989); see also Gleason v. Seaboard Air Line Ry. Co., 278 U.S. 349, 356 (1929) (“[F]ew doctrines of the law are more firmly established or more in harmony with accepted notions of social policy than that of the liability of the principal without fault of his own.”)

     Plaintiffs’ theory of agency liability is consistent with the substantial federal common law of agency developed in the context of the Labor-Management Relations Act and ERISA. See, e.g., Anderson v. International Union, United Plant Guard Workers of America, 150 F.3d 590, 592-93 (6th Cir. 1998) (addressing an agency issue under ERISA and holding that “we are guided by the law of agency as developed and interpreted as a matter of federal common law.”); National Football Scouting, Inc. v. Continental Assurance Co., 931 F.2d 646, 648 (10th Cir. 1991) (examining whether “under the federal common law of agency” an agent of a plan fiduciary was acting within his actual or apparent authority). That federal common law should govern plaintiffs’ claim that the Myanmar military acted as Unocal’s agent.

Part 9

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8. As the Second Circuit explained in the landmark case of Filartiga, all international legal principles do not automatically become a part of the federal common law; only those that achieve the status of customary international law or are included in international treaties are incorporated as part of federal common law. A customary international law rule “results from a general and consistent practice of states followed by them from a sense of legal obligation.” Restatement (Third) Foreign Relations Law, § 102. The Filartiga court observed, “[t]he requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent one. Were this not so, the courts of one nation might feel free to impose idiosyncratic legal rules upon others, in the name of applying international law.” 630 F.2d at 881 (quoting The Paquete Habana, 175 U.S. at 694). Thus, the Filartiga court reached its conclusion that a claim for torture was cognizable under the ATCA in large part because the prohibition on torture had become part of customary international law. Id.

9. In an effort to minimize the damage caused by its unfortunate decision to apply international law to the third-party liability issue, and perhaps to make that choice of law more palatable to American courts generally, the majority disclaims an integral portion of the international law standard it adopts, purporting to leave “to another day” the question whether moral support alone (whatever that may mean) is sufficient to give rise to thirdparty liability. See maj. op., 14219. However, by substituting international law standards for federal common law, rather than following federal common law and incorporating those portions of international law that attract sufficient legal support, the majority has lost whatever opportunity it had to pick and choose the aspects of international law that it finds appealing. Having declared that international law governs, and that the Yugoslav Tribunal’s standard constitutes the controlling international law, the majority cannot then escape the implications of being bound by the law it has selected. Indeed, the majority, despite its disclaimer as to “moral support,” is no more successful in avoiding the consequences of its choice of the Yugoslav Tribunal’s criminal standard than it is in avoiding the consequences of its predicate decision to reject federal common law as the appropriate rule for ancillary issues in Alien Tort Claims Act cases. See maj. op., n. 25.

10. For instance, liability for moral support raises the question whether political advocacy not imminently causing violence that would otherwise be protected by the First Amendment could be the source of ATCA liability under the majority’s standard.

11. It is well-accepted that joint liability will exist where (1) parties intended to form a joint venture; (2) parties share a common interest in the subject matter of the venture; (3) the parties share the profits and losses of the venture; and (4) the parties have joint control or the joint right of control over the venture. W. Keeton, PROSSER & KEETON ON TORTS, § 72 at 518 (5th ed. 1984).