I would like to thank the senior staff of the American Journal of Law & Medicine, particularly Ed Zacharias and Erika Wilkinson for their editorial assistance in finalizing this article. Additionally, on a personal note, I would like to thank Daniella for putting up with me and all my “law school” sessions. Finally, all errors and omissions are my own.

1 28 U.S.C. § 1350 (2005).

2 Restatement (Third) of the Foreign Relations Law of the United States §102(2) (1987).

3 Id.

4 Paquete Habana, 175 U.S. 677, 700 (1900).

5 See, e.g., Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991); Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003); Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116 (C.D. Cal. 2002); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Aguinda v. Texaco, Inc., 1994 WL 142006 (S.D.N.Y. Apr. 11, 1994).

6 For example, courts have recognized the viability of ATCA suits for such claims as genocide: Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995); Presbyterian Church of the Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289 (S.D.N.Y. 2003). Summary execution: Tachione v. Mugabe, 234 F. Supp. 2d 401 (S.D.N.Y. 2002); Wiwa v. Royal Dutch Petroleum, 2002 WL 319887 (S.D.N.Y. Feb. 28, 2002). Torture: Presbyterian Church, 244 F. Supp. 2d 289; Wiwa, 2002 WL 319887; Kadic, 70 F.3d 232.

7 See Lee, John, The Underlying Legal Theory to Support a Well-Defined Human Right to a Healthy Environment as a Principle of Customary International Law, 25 COLUM. J. ENVTL. L. 283 (2000)Google Scholar.

8 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

9 Metalclad Corp. v. United Mexican States (U.S. v. Mex.) Case No. ARB(AF)/97/1 (Aug. 30, 2000), available at http://naftaclaims.com/Disputes/Mexico/Metalclad/MetalcladFinalAward.pdf [hereinafter “Metalclad Award”].

10 Methanex Corp. v. United States of America (Aug. 9, 2005), available at http://www.state.gov/documents/organization/51052.pdf

11 Sosa, 542 U.S. at 692.

12 North American Free Trade Agreement, U.S.-Mex.-Can. [NAFTA], 32 I.L.M. 289 (1993).

13 Id.

14 North American Agreement on Environmental Cooperation, U.S.-Mex.-Can. [NAAEC], 32 I.L.M. 1480 (1993).

15 See generally Block, Greg, Trade and Environment in the Western Hemisphere: Expanding the North American Agreement on Environmental Cooperation into the Americas, 33 ENVTL. L. 501, 506 (2003)Google Scholar.

16 The Preamble itself has three references to the environment: “The Government of the United States of America, the Government of Canada and the Government of the United Mexican States, resolved to: … UNDERTAKE each of the preceding in a manner consistent with environmental protection and conservation; PRESERVE their flexibility to safeguard the public welfare; PROMOTE sustainable development; STRENGTHEN the development and enforcement of environmental laws and regulations.” NAFTA, 32 I.L.M. 289, 297; Block, supra, note 15, at 506. In addition, Article 1114 of NAFTA's investment chapter contains language referencing the environment. Article 1114(1) states that nothing in Chapter 11 shall prevent a party from maintaining measures to ensure that investment is undertaken in an environmentally sensitive manner. Article 1114(2) states that parties “should” not encourage investment by relaxing or waiving or derogating their domestic health, safety or environmental measures in order to encourage investment.

17 NAAEC, 32 I.L.M. 1480 (1993), art. 14(1).

18 Although this Note will not explore the exquisite detail of the citizen submission process, another writer summarizes the process as follows:

Under Article 14 of the NAAEC, the Secretariat may consider a submission from any nongovernmental organization or person asserting that a Party to the NAAEC is failing to effectively enforce its environmental law. Where the Secretariat determines that the Article 14(1) criteria are met, it shall then determine whether the submission merits requesting a response from the Party named in the submission under Article 14(2). In light of any response provided by that Party, the Secretariat may recommend to the Council that a factual record be prepared, in accordance to Article 15. The Council, comprised of the environmental ministers (or their equivalent) of Canada, Mexico and the United States, may then instruct the Secretariat to prepare a factual record on the submission. The final factual record is made publicly available upon a two-thirds vote of the Council.

Markell, David L., The Commission for Environmental Cooperation's Citizen Submission Process, 12 GEO. INT’L. ENVTL. L. REV. 545, 550 (2000)Google Scholar.

19 See Spasin, Jason, Thompson, Theresa M., Stone, Lesley, Deland, Katherine E., Symposium: Emerging Issues in Public Health: National and Global Perspective International Trade, Law, and Public Health Advocacy, 31 J. L. MED. & ETHICS 546 (2003)CrossRefGoogle Scholar.

20 See id.

21 “During the six-year period from 1994-2000, foreign direct investments in NAFTA countries reached nearly thirty percent of the total world foreign investments.” See Block, supra note 15, at 506.

22 See id.

23 See id.

24 Definition of a maquiladora:

A maquiladora is a foreign owned and managed Mexican corporation which operates under a maquila program approved for it by the Mexican Secretariat of Commerce and industrial Development. A maquila program entitles the company, first, to foreign investment participation in the capital – and in management – of up to 100% without need of any special authorization; second, it entitles the company to special customs treatment, allowing duty free temporary import of machinery, equipment, parts and materials, and administrative equipment such as computers, and communication devices, subject only to posting a bond guaranteeing that such goods will not remain in Mexico permanently.

Ordinarily, all of a maquiladora's products are exported, either directly, or indirectly, through sale to another maquiladora or exporter. The type of production may be the simple assembly of temporarily imported parts; the manufacture from start to finish of a product using materials from various countries, including Mexico; or any conceivable combination of the various phases involved in manufacturing, or even non-industrial operations, such as data-processing, packaging, and sorting coupons.

Other synonymous terms are: Offshore operation, production sharing, twin plants, and in-bond. What is a Maquiladora? Manufacturing in Mexico: The Mexican In-Bond (Maquila) Program, http://www.mexconnect.com/business/mex2000maquiladora2.html.

25 See Block, supra note 15, at 506.

26 Defining “maquiladora sectors” as those regions in Mexico which are the most heavily concentrated with maquiladora plants. These regions include, but are not limited to the border cities of Tijuana, Ciudad Juarez, Matamoros, Mexicali, Reynosa, Nogales, and Tecate and interior cities of Mexico, including Puebla. See ZAWDIE, GIRMA & DJEFLAT, ABDELKADER, TECHNOLOGY AND TRANSITION: THE MAGHREB AT THE CROSSROADS (Frank Cass & Co. Ltd. 1996)Google Scholar.

27 See U.S. – Mexico Border Health Commission, Demographical Profile of the U.S. – Mexico Border, http://www.nmsu.edu/%7ebhcom/ (last visited May 10, 2006).

28 See id.

29 See Gallagher, Kevin P., Free Trade and the Environment: Mexico, NAFTA, and Beyond 24 (Stan. U. Press 2004)Google Scholar.

30 See generally Jablonski, Scott R., NAFTA Chapter 11 Dispute Resolution and Mexico: A Healthy Mix of International Law, Economics and Politics, 32 DENV. J. INT’L L. & POL’Y 475 (2004)Google Scholar.

31 See Sapsin et al., supra note 19, at 547 (discussing how international health and safety regulations are often viewed as barriers to trade).

32 See Yee, Marisa, The Future of Environmental Regulation After Article 1110 of NAFTA: A Look at the Methanex and Metalclad Cases, 9 HASTINGS W.-N.W. J. ENVTL. L. & POL’Y 85, 87 (2002)Google Scholar (“NAFTA defines expropriation more broadly than U.S. or Mexican law. There are three important aspects of the expanded definition: (1) In addition to land and physical assests, private property refers to the market-determined commercial value of property, including a corporation's asset value and future profit earnings. (2) Under the new definition, compensation is awarded when any part of commercial value is lost. Traditionally, compensation was awarded only when the entire value of property was lost. (3) In addition to expropriation, acts tantamount to expropriation also require compensation. This includes a range of governmental policies, laws and administrative acts which may be reviewed as having a similar effect as expropriation.”). Id.at 89.

33 The NAFTA dispute resolution systems are decentralized throughout the document. In total there are five major mechanisms devoted to resolving NAFTA disputes. Conflicts are channeled into the appropriate specialized resolution mechanism. Chapter 20 deals with all general disputes arising under the terms of the agreement. Additional mechanisms are provided in Chapter 19, Chapter 11, the side agreement for labor (the North American Agreement on Labor Cooperation (NAALC)), and the NAAEC. Each mechanism has its own procedure for resolving disputes. For more discussion on the other NAFTA dispute settlement procedures, see Taylor, Cherie O’Neal, Dispute Resolution as a Catalyst for Economic Integration and an Agent for Deepening Integration: NAFTA and MERCOSUR, 17 N.W. J. INT’L L. & BUS. 850, 854-855 (1996)Google Scholar.

34 See Jablonski, supra note 30, at 504.

35 See id. at 475.

36 See id.

37 NAFTA, 32 I.L.M. 289 at art. 1110(1)-(3) (1993).

38 The United Nations Commission on International Trade Law's website states: The United Nations Commission on International Trade Law (UNCITRAL) (established in 1966) is a subsidiary body of the General Assembly of the United Nations with the general mandate to further the progressive harmonization and unification of the law of international trade. UNCITRAL has since prepared a wide range of conventions, model laws and other instruments dealing with the substantive law that governs trade transactions or other aspects of business law which have an impact on international trade.

See Origin, Mandate, and Composition of UNCITRAL, http://www.uncitral.org/uncitral/en/about/origin.html (last visited May 10, 2006).

39 See ABOUT ICSID, http://www.worldbank.org/icsid/about/about.htm (last visited May 10, 2006) (defining the activities and functions performed by the ICSID).

40 See Jablonski, supra note 30, at 506.

41 See id.

42 See Metalclad Award, supra note 9; see also Dodge, William S., International Decision: Metalclad Corp. v. Mexico, 95 A.J.I.L. 910 (2001)Google Scholar (summarizing the facts and legal decision in the case).

43 See Tollefson, Chris, Metalclad v. United Mexican States Revisited: Judicial Oversight of NAFTA's Chapter Eleven Investor-State Claim Process, 11 MINN. J. GLOBAL TRADE 183, 187 (2002)Google Scholar.

44 See id. at 188.

45 See id. at 187-188.

46 See id. at 188.

47 See Metalclad Award, supra note 9, at ¶ 28.

48 See Tollefson, supra note 43, at 188.

49 See id.

50 “When [COTERIN] refused to obey federal orders to close down in 1991, local residents – brandishing machetes – enforced the order themselves.” Wheat, Andrew, Toxic Shock in a Mexican Village, 16:10 MULTINATIONAL MONITOR 1, 1 (Oct. 1995)Google Scholar, available at http://multinationalmonitor.org/hyper/mm1095.07.html.

51 See Tollefson, supra note 43, at 188.

52 “The more than 55,000 drums of toxic wastes on the site, including some explosive wastes, are buried five meters deep in three pits. There is evidence that the surrounding soil has been contaminated by heavy metals, hydrocarbons derived from petroleum, volatiles and halogenates. After analyzing an environmental audit prepared by Metalclad, Greenpeace concluded that there is evidence that leakage from the drums containing high concentrations of mercury, benzene and various organochloride solvents has contaminated the soil and could infiltrate the subsoil.” Wheat, supra note 50.

53 See Tollefson, supra note 43, at 188.

54 See id.

55 Mexico's National Ecological Institute is an independent sub-agency of the federal Secretariat of the Mexican Environment, Natural Resources and Fishing (SEMARNAP, the Mexican version of the United State's Environmental Protection Agency). See Metalclad Award, supra note 9, at ¶ 29.

56 La Pedrera, the landfill site, lies 100 kilometers northeast of the capital city of San Luis Potosi and is 70 kilmoeters from the city Guadalcazar. Approximately 800 people live within ten kilometers of the site. See id, at ¶ 28.

57 See id. at ¶ 38.

58 See id. at ¶ 40.

59 See id. at ¶¶ 40-42.

60 See id. at ¶ 42.

61 See id. at ¶¶ 43-45.

62 See Tollefson, supra note 43, at 188-190.

63 See id.

64 See Metalclad Award, supra note 9, at ¶ 56.

65 See Id. at ¶ 58.

66 See id. at ¶ 59.

67 See id,; see also Tollefson, supra note 43, at 191.

68 Specifically, Metalclad claimed violations of Article 1102(1), (2), (3); Article 1103; Article 1104; Article 1105; Article 1106(1)(f); Article 1110; and Article 1111.

69 See Dhooge, Lucien J., The North American Free Trade Agreement and the Environment: The Lessons of Metalclad Corporation v. United Mexican States, 10 MINN. J. GLOBAL TRADE 209, 246-247 (2001)Google Scholar.

70 Unfortunately, “fair and equitable treatment” under Article 1105, like many other terms in the text of NAFTA, is not clearly defined. However, other commentators have laid out the general background of the term. See generally, Kirkman, Courtney C., Fair and Equitable Treatment: Methanex v. United States and the Narrowing Scope of NAFTA Article 1105, 34 LAW & POL’Y INT’L BUS. 343, 346-347 (2002)Google Scholar; see also Tollefson, supra note 43, at 192.

71 See Tollefson, supra note 43, at 192.

72 See Metalclad Award, supra note 9, at ¶¶ 33, 36.

73 See Yee, supra note 32, at 100.

74 Metalclad Award, supra note 9, at ¶ 131.

75 See id. at ¶ 73.

76 Id. at ¶ 79.

77 Id, at ¶ 86.

78 Id.

79 See id,

80 Id, at ¶ 99.

81 Id, at ¶¶ 87-88.

82 Claimant Methanex Corporation's Draft Amended Claim at 3-4. Methanex Corp. v. United States (Feb. 12, 2001), available at http://www.state.gov/documents/organization/7379.doc [hereinafter Methanex Amended Claim].

83 Notice of Intent to Submit a Claim to Arbitration Under Article 1119, Section B, Chapter 11 of the North American Free Trade Agreement at 1, Methanex Corp. v. United States (July 2, 1999), available at http://www.state.gov/s/l/c5819.htm [hereinafter Methanex Notice of Intent].

84 See Yee, supra, note 32, at 90; Kirkman, supra, note 70, at 361.

85 See EPA: Methyl Tertiary Butyl Ether (MTBE) – What is MTBE?, available at http://www.epa.gov/MTBE/faq.htm

86 As an oxygenate, the clean-burning properties of MTBE significantly reduce harmful emissions from motor vehicles. See Statement of Claim Under Chapter 11, Section A of the North American Free Trade Agreement at 9, Methanex v. United States (December 3, 1999), available at http://www.state.gov/documents/organization/8772.pdf [hereinafter Methanex Statement of Claim].

87 EPA, supra note 85.

88 Yee, supra, note 32, at 90.

89 Id.

90 See generally Kirkman, supra, note 70, at 361 (stating that the World Health Organization has not classified MTBE as a human carcinogen).

91 Yee, supra, note 32, at 90 (citing to EPA website).

92 Id.

93 Id.

94 EPA, supra note 85

95 Energy Policy Act of 2005, H.R. Rep. 109-215(I), 499 (July 29, 2005); EPA, supra note 85

96 Energy Policy Act of 2005, H.R. Rep. 109-215(I), 499 (July 29, 2005);

97 Yee, supra, note 32, at 90; Statement of Defense Under Chapter 11 of the North American Free Trade Agreement of Respondent United States of America, Methanex Corp. v. United States of America [hereinafter “Methanex Statement of Defense”], available at http://www.state.gov/documents/organization/7379.doc, at ¶¶ 60-61.

98 “MTBE binds tightly to surface and groundwater, biodegrades slowly and travels deep underground to reach aquifers. Even a small release of gasoline containing MTBE can have significant adverse effects. For example, a December 1997 car accident in Standish, Maine led to the release of about ten gallons of gasoline containing MTBE. The release contaminated twenty-four private wells with MTBE. MTBE concentration at three of the wells exceeded 1,000 parts per billion – a level hundreds of times greater than that at which MTBE's unpleasant taste and odor can be detected by humans.” Methanex Statement of Defense, supra note 97 at ¶ 61.

99 See Yee, supra, note 32, at 90.

100 See EPA, supra note 85

101 See id.

102 See id.

103 Residential drinking water wells in Glennville, California were contaminated with MTBE at concentrations up to 20,000 parts per billion. Consequently, the town has relied on alternative sources of drinking water since 1997. See Methanex Statement of Defense, supra note 97, at ¶¶ 65-66; Yee, supra note 32, at 90.

104 See EPA: Region 9: News Releases – Oil Companies Pay U.S. EPA to Settle Santa Monica MTBE Cleanup Costs, available at http://yosemite.epa.gov/r9/r9press.nsf/7f3f954af9cce39b882563fd0063a09c/ebc7ad7579fd914a88256faa006b3124!OpenDocument.

105 See Methanex Statement of Defense, supra note 97, at ¶ 57.

106 See Kirkman, supra note 70, at 362.

107 See Yee, supra note 32, at 91.

108 See Kirkman, supra note 70, at 362.

109 See id.

110 See id.

111 Methanex Notice of Intent, supra note 83, at ¶¶ 2-3

112 See Kirkman, supra note 70, at 362.

113 Methanex Notice of Intent, supra note 83, at ¶ 8.

114 Methanex Notice of Intent, supra note 83, at ¶ 9.

115 Methanex Statement of Defense, supra note 97 at ¶ 3.

116 See generally Mann, Howard, NAFTA and the Environment: Lessons for the Future, 13 TUL. ENVTL. L.J. 387, 405 (2000)Google Scholar.

117 See generally Yee, supra note 32, at 104; also Stoddard, Glenn M., Case Note and Comment, Implications of the North American Free Trade Agreement for U.S. Environmental Law and Policy, 13 WIS. INT’L L.J. 317, 319-320 (1994)Google Scholar.

118 See Yee, supra note 32, at 103-105; Stoddard, supra note 117, at 319-320.

119 See Mann, supra note 116, at 407.

120 Yee, supra note 32, at 103.

121 U.S. CONST. amend. V.

122 See Concrete Pipe and Prods. v. Constr. Laborers Pension Trust, 508 U.S. 602, 615 (1993).

123 Indeed, Metalclad shows that compensable takings under Chapter 11 are merely “incidental interference” with the use of property that need only cause a “significant” or “substantial” impairment of an investment. See Metalclad Award, supra note 9, at 28.

124 See PUBLIC CITIZEN, THREAT OF INVESTOR-STATE CHALLENGES CHILLS PUBLIC INTEREST POLICIES, available at http://www.citizen.org/documents/MajorFindings_Final.pdf.

125 See id.

126 See Ethyl Corp. v. Government of Canada, Decision Regarding the Place of Arbitration (Nov. 28, 1997), 38 I.L.M. 702 (1999), available at http://www.dfait-maeci.gc.ca/tnanac/documents/EthylPlaceofArbitration.pdf; Ethyl Corp. v. Government of Canada, Award on Jurisdiction (June 24, 1998), 38 I.L.M. 708 (1999), available at http://www.dfait-maeci.gc.ca/tnanac/documents/ethyl6.pdf.

127 See id.

128 See INT’L INST. FOR SUSTAINABLE DEV. & WORLD WILDLIFE FUND, PRIVATE RIGHTS, PUBLIC PROBLEMS: A GUIDE TO NAFTA's CONTROVERSIAL CHAPTER ON INVESTOR RIGHTS 73 (2001), available at http://www.iisd.org/pdf/trade_citizensguide.pdf [hereinafter IISD & WWF].

129 See Notice of Intent to Submit a Claim to Arbitration Under Section B, Chapter 11 of the North American Free Trade Agreement at 2-4, Cor Van Raay, et. al. v. United States (August 12, 2004), available at http://www.citizen.org/documents/ACF6E0.pdf [hereinafter CCFT Notice of Intent].

130 Id. at ¶¶ 2-4.

131 See PUBLIC CITIZEN, supra note 124.

132 Id.

133 28 U.S.C. § 1350. The original version of the ATCA in the Judiciary Act provided in relevant part that the district courts shall “have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the laws of nations or a treaty of the United States.” Judiciary Act of 1789, ch. 20, §9, 1 Stat. 73, 77.

134 Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

135 Filartiga v. Pena-Irala, 577 F. Supp. 860, 867 (E.D.N.Y. 1984).

136 Filartiga, 630 F.2d at 887 (construing the ATCA “not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law.”)

137 See Koh, Harold H., Transnational Public Law Litigation, 100 YALE L.J. 2347, 2366 (1991)CrossRefGoogle Scholar (stating that Filartiga is the Brown v. Board of Education for transnational litigants); see also Bridgeman, Natalie L., Human Rights Litigation Under the ATCA as a Proxy for Environmental Claims, 6 YALE HUM. RTS. & DEV. L.J. 1, 5 (2003)Google Scholar.

138 Wiwa, 2002 WL 319887, at *1

139 Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997). Recently, the parties announced that a tentative settlement had been reached.

140 Aguinda v. Texaco, 1994 WL 142006, at *1.

141 Sinaltrainal, et al. v. Coca-Cola Co., 256 F. Supp. 2d 1435 (S.D. Fla. 2003).

142 See Salazar, Claudia T., Applying International Human Rights Norms in the United States: Holding Multinational Corporations Accountable in the United States for Human Rights Violations Under the Alien Tort Claims Act, 19 ST. JOHN's J. LEGAL COMMENT 111, 117 (2004)Google Scholar.

143 See id.

144 See generally Filartiga, 630 F.2d 876.

145 See Reali, Luciana, Alvarez-Machain v. United States: How Should the Ninth Circuit Determine Which Torts are Actionable Under the Alien Tort Claims Act?, 17 N.Y. INT’L. L. REV. 51, 61 (2004)Google Scholar.

146 Bridgeman, supra note 137, at 6-7. The Ninth Circuit has found that murder, rape, slavery, torture and forced labor are examples of jus cogens violations. Doe v. Unocal Corp., 395 F.3d 932, 945 (9th Cir. 2002) [hereinafter Unocal III].

147 See Reali, supra note 145, at 60.

148 Id. at 62.

149 Id. at 61.

150 Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004).

151 See Bridgeman, supra note 137, at 5.

152 Filartiga, 630 F.2d at 878.

153 Id., at 880.

154 Id., at 879.

155 Professors at Princeton University, New York University School of Law, Yale Law School, and the University of Virginia School of Law, all averred with unanimity that “it is beyond reasonable doubt that torture of a person held in detention that results in severe harm or death is a violation of the law of nations.” Id.

156 See id. at 878.

157 Id. at 880.

158 Id.; See e.g. Flores, 414 F.3d at 243-44 (2d Cir. 2003) (“[T]he Filartiga Court not only held that the ATCA provides a jurisdictional basis for suit, but also recognized the existence of a private right of action for aliens only seeking to remedy violations of customary international law.”); Abebe- Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996) (“We read the [ATCA] as requiring no more than an allegation of a violation of the law of nations in order to invoke section 1350.”); In re Estate of Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475-76 (9th Cir. 1994) (the ATCA “creates a cause of action” and “nothing more than a violation of the law of nations is required to invoke section 1350”) (internal quotations omitted)).

159 Filartiga, 630 F.2d at 880 (citing United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820)). The Second Circuit went on to cite to the Supreme Court's opinion in Paquete Habana, which directed that “where there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators.” 175 U.S. 677 (1900).

160 In Sosa, the Drug Enforcement Agency (DEA) believed that Alvarez, a Mexican physician, had participated in the torture and execution of a DEA agent in Mexico. Alvarez was indicted of the torture and execution in a U.S. court. Failing to obtain the cooperation of the Mexican government, the DEA hired Mexican nationals, including Sosa, to abduct Alvarez from his home, hold him in a motel and then bring him to Texas where federal officers arrested him. Alvarez was later acquitted for the torture and murder. After his return to Mexico, Alvarez instituted a suit. under the Federal Tort Claims Act and the ATCA, against Sosa, six Mexican nationals, the United States and four DEA agents. Among other things, Sosa characterized the kidnapping as an arbitrary arrest and detention, which therefore amounted to a tort in violation of the law of nations. 542 U.S. 692, 697-698 (2004).

161 See In re South African Apartheid Litigation, 346 F. Supp. 2d 538, 547 (S.D.N.Y. 2004) (stating that “the [Sosa] Court left the door at least slightly ajar for federal courts to apply [the ATCA] to a narrow and limited class of international law violations beyond those well-recognized at the time.”)

162 See Sosa, 542 U.S. at 731 (noting Congress, through the Torture Victim Protection Act, has already expressed support of judicial determination of customary international norms in some detail)

163 See id. at 746 (Scalia, J. concurring).

164 Id. at 731 (noting that Congress has not shut the door to the law of nations entirely; and until Congress offers at least some guidance, the door is open for courts to “derive a standard or set of standards for assessing” ATCA claims).

165 Id. at 725

166 d. at 732.

167 Id. at 725-26 (stating that consistent with Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), courts should be wary of the role they play in making common law, and therefore should “look for legislative guidance before exercising innovative authority over substantive law,” especially when deciding ATCA issues which involve exercising a jurisdictional authority that has remained remarkably silent for most of the prior two centuries.)

168 Id. at 727.

169 Id.

170 Id.

171 Id. at 728.

172 Id. at 730.

173 An international agreement of the United States may be said to be non-self-executing “(a) if the agreement manifests an intention that it shall not become effective as domestic law without the enactment of implementing legislation, (b) if the Senate in giving consent to a treaty, or Congress by resolution, requires implementing legislation, or (c) if implementing legislation is constitutionally required.” American Law Institute, Restatement (Third) of the Foreign Relations Law of the United States, § 111,(4) (1987).

174 Here, the implementing language of NAFTA stated that Congress must have enacted into law an implementing statute before the NAFTA could take effect in the United States. Therefore, NAFTA is a non-self-executing treaty which courts do not view as creating a cause of action under the ATCA.

175 Numerous instruments have recognized the right to life as the most basic of human rights. See e.g. Universal Declaration of Human Rights, Art. 3, Gen. Assembly res. 217 A (III), Dec. 10, 1948 (“Everyone has the right to life, liberty and the security of the person.”); American Convention on Human Rights, July 18, 1978, 1144 U.N.T.S. 123; International Covenant on Civil and Political Rights, Gen. Assembly res. 2200A (XXI) Dec. 16, 1966; European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950, Dec. 10, 1948.

176 Bridgeman, supra note 137, at 6-7. The Ninth Circuit has found that murder, rape, slavery, torture and forced labor are examples of jus cogens violations. Unocal III, 395 F.3d at 945.

177 See supra Parts II.B.2.b.i-ii.

178 See Herz, Richard L., Litigating Environmental Abuses Under the Alien Tort Claims Act: A Practical Assessment, 40 VA. J. INT'L L. 545, 577-79 (2000)Google Scholar (stating that “murder” is a violation of customary international law and that an ATCA claim exists where an actor's mens rea rises to the level of that required to prove murder, which “includes the creation of conditions likely to result in death … “ Additionally, citing to various opinions of the United Nations Human Rights Committee to support this proposition).

179 Voigt, David, The Maquiladora Problem in the Age of NAFTA: Where Will We Find Solutions?, 2 MINN. J. GLOBAL TRADE 323, 328 (1993)Google Scholar.

180 Mary E. Kelly, NAFTA and the Environment: Free Trade and the Politics of Toxic Waste, MULTINATIONAL MONITOR (Oct. 1993), available at http://multinationalmonitor.org/hyper/mm1093.html#env.

181 A study by the Texas Department of Health from 1993 –1996 showed that 15 out of every 10,000 babies born in the four Texas border counties were anencephalic, which is more than double the national rate. During that same time period, 46 anencephalic births were reported in Cameron County alone, as well as 42 cases directly across the border in Matamoros, Mexico. This trend still continues and in 1998, the Texas Department of Health has declared the entire border area continues to be a “high-risk area [for neural tube defects] compared to the rest of the US.” PUBLIC CITIZEN, supra note 124.

182 See also JOHNSON, PIERRE MARC & BEAULIEU, ANDRE, THE ENVIRONMENT AND NAFTA: UNDERSTANDING AND IMPLEMENTING THE NEW CONTINENTAL LAW 19 (Island Press 1996)Google Scholar.

183 See GALLAGHER, supra note 29, at 24.

184 See Herz, supra note 178, at 578.

185 See e.g. Restatement (Third) of Foreign Relations Law § 702 (“A state violates international law if, as a matter of state policy, it practices, encourages, or condones …”).

186 “In general, the § 1983 tests ask whether the conduct allegedly causing the deprivation of a right can be fairly attributable to the State. The mere fact that the state regulated a private entity or acquiesced in its initiatives, or that the entity was executing a public contract, does not, in and of itself, warrant a finding that the private party is a state actor.” Herz, supra note 178, at 560 (citing as examples, Kadic, Beanal, and Unocal III).

187 See e.g. Unocal III, 395 F.3d at 964; Presbyterian Church, 244 F. Supp. 2d at 319.

188 See supra note 176 and accompanying text.

189 International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

190 BLACK's LAW DICTIONARY 665 (7th ed. 1999).

191 See Aguinda, 1994 WL 142006, at *2.

192 “Assuming an adequate alternative forum exists, courts balance a number of private and public interest factors to determine if the chosen forum is convenient. In conducting this analysis, the district court has broad discretion. Moreover, the deference afforded to a foreign plaintiff's choice of forum is not as strong as the presumption in favor of a citizen's or resident's choice. In addition, at least some of the relevant factors, such as the ease of access to sources of proof, are likely to weigh in favor of dismissal of an ATCA claim. Thus, a court inclined not to hear an ATCA case typically can find ample forum non conveniens grounds to dismiss, even where the balance of factors seems to favor retaining jurisdiction. Indeed, courts have proven quite willing to dismiss foreign plaintiffs’ municipal law and ATCA based environmental claims against American corporate defendants, despite the fact that at least some of these factors seem less important when the defendant is based in the United States.” Herz, supra note 178, at 569-70.

193 See e.g. Beanal, 197 F.3d at 167. (“federal courts should exercise extreme caution when adjudicating environmental claims under international law to insure that environmental policies of the United States do not displace environmental policies of other governments … especially when the alleged environmental torts and abuses occur within the sovereign's borders and do not affect neighboring countries.”).

194 See Sosa, 542 U.S. at 733 n. 21.

195 See supra Part II.B.3.

196 See Sosa, 542 U.S. at 727-28.

197 See Herz, supra note 178, at 572.

198 At the time of this writing, only one other article existed in the Westlaw database that discusses the applicability of the ATCA to injuries caused by NAFTA investors. See Spencer, Grace C., Comment, Her Body is a Battlefield: The Applicability of the Alien Tort Statute to Corporate Human Rights Abuses in Juarez, Mexico, 40 GONZ. L. REV. 503 (2005)Google Scholar.

199 See generally Lee, supra note 7.