A group of law professors–in conjunction with the National Association of Manufacturers–recently filed an amicus brief in a Ninth Circuit corporate liability ATS case, Doe v. Nestle. The law professors make the standard arguments that (a) there is no well-established customary international law governing aiding-and-abetting liability; and (b) there is no well-established customary international law providing for corporate liability. Earlier posts from Susan and me have pretty much beat these topics to death, so there’s no need to rehash all that here.
What I find more interesting is the professors’ third argument: that “principles of federal common law” would bar Plaintiffs’ claims. The argument is interesting because, if taken to its logical limits, it would effectively nullify the Alien Tort Statute (or, at the very least, freeze the law of the ATS in its present state). The law professors chiefly rely on two principles: (1) that federal courts should avoid implying private causes of action; and (2) judicial interference in matters of international law and foreign policy is inappropriate (and better left to Congress).
First, the law professors are mistaken in suggesting that ATS courts should not permit corporate liability claims because to do so would inappropriately imply a private cause of action. It’s important to recognize here that the cause of action could only be “implied” from international law itself, not from the ATS. (This must be so given the Sosa court’s admonition that the ATS is merely a jurisdictional statute that does not itself provide a cause for relief.) Even in the best case, “implying” a private cause of action from international law would be an exceptionally difficult task, especially compared to implying rights from Congressional statutes: while Congress could be expected to speak clearly and directly if it wished to make a private right, international law does not speak with the same specificity. Cf. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004) (“[T]he absence of congressional action addressing private rights of action under an international norm is more equivocal than its failure to provide such a right when it creates a statute.”). In other words, an ATS court is not faced with the same task of limiting itself to a given set of words (that is, the statute), but would be “implying” things from a much more amorphous and abstract body of international norms and principles.
The deeper problem with treating ATS liability as an issue of “implication” in the usual sense is that it would be hard to find a single rule of international law that would meet the law professors’ test. I cannot think of a single international rule of law that contemplated individual enforcement, including the infamous Blackstone Three. (“The principal offenses against the law of nations, animadverted on as such by the municipal laws of England, are of three kinds: 1. Violation of safeconducts; 2. Infringement of the rights of embassadors; and, 3. Piracy.”). Taking the law professors’ approach would strip out any conceivable claim for relief.
The simpler approach is to recognize the context in which this statute arose. The phrase “cause of action” didn’t come about until the late 1840s, several decades after the ATS was passed in the late 1700s. Instead, early law simply assumed that a violation of a legal principle to the detriment of a party provided that party a right to relief. See, e.g., Tex. & Pac. R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (“A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law.”). As such, Congress likely assumed that any specific, identifiable international law norm could create a private remedy for a harmed individual.
Second, the law professors make a related argument that courts must be cautious in interfering with foreign affairs (a domain typically controlled by the executive and the legislature). They suggest that federal common law is ordinarily used to restrain courts in international affairs. And they note that Congress has enacted more “specific” remedies (such as the Torture Victims Protection Act) for violations of international law, such that courts should hesitate to act beyond those specific statutory instruments.
The fact that the law professors would cite the TVPA as support for their position is galling. Congress only acted to pass the TVPA after an opinion by Judge Bork strongly endorsed the positions taken by these law professors and seemed to gut the ATS. See Tel-Oren v. Libyan Arab Repub., 726 F.2d 774, 798 (D.C. Cir. 1984) (Bork, J, concurring). In response, Congress–which had apparently assumed previously that courts understood what the ATS said–passed the TVPA to “reinforce” and “clarify” that extrajudicial killing and torture (the specific acts at issue in Tel-Oren) were undeniably actionable.
No, the fact that the ATS refers to the law of nations suggests that courts were never expected to wait for Congress to act (again). Certainly, some amount of caution should be taken in condemning the acts of another nation. But caution must be distinguished from paralysis. Virtually every ATS case involves some foreign interest; refusing to act when such interests are involved would write the ATS out of the code books. As the Supreme Court indicated more than 100 years ago, courts must not flee from a case upon any appearance by the scary specter of international law or matters of “foreign relations”:
International law, in its widest and most comprehensive sense — including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation — is part of our law, and must be ascertained and administered by the courts of justice, as often as such questions are presented in litigation between man and man, duly submitted to their determination.
Hilton v. Guyot, 159 U.S. 113, 163 (1895); see also Michael Tigar, Judicial Power, The “Political Question Doctrine,” and Foreign Relations, 17 UCLA L. Rev. 1135, 1178 (1970) (“In reality, if one examines the case law and history of judicial review [of matters involving foreign policy], deference has been a burden-shifting and burden-building device. … To refer to an absolute refusal to decide, grounded in no explicit congressional command, as ‘deference’ is to misdescribe what is in fact to surrender.”).