This move strikes me as an exceptionally haphazard way of dealing with a complex statute. By gobbling up all of these questions in one case, the Supreme Court threatens to do a poor job of addressing any one particular issue.  I predict a sloppy opinion composed of various rudimentary answers to all sorts of ATS-related questions; I’d wager that the final product, a slapped-together product stumbling about like Frankenstein’s monster, will effectively emasculate the ATS and render Filartiga nothing more than an historical footnote.

-Michael

Why? Keep in mind the procedural posture here. This case came out of the district court as a certified appeal unrelated to corporate liability. The Second Circuit only reached that question because it determined corporate liability was a question of subject matter jurisdiction that it had an obligation to address sua sponte. If that decision was improper, then I expect the Supreme Court will simply flip it back to the Second, scold them for reaching an unnecessary issue, and avoid addressing the meat of the argument for now.

Such a decision would fit the Court’s recent tendency to insist that most questions are not questions of subject matter jurisdiction. But it would also be another moment when civil procedure ruins everything. Blech.

-Michael

1. The Kiobel plaintiffs will lose. Either directly on the Supreme Court’s ruling, or after being kicked back to the lower courts with a directive to make findings that spell doom for the plaintiffs, the case against Royal Dutch/Shell will ultimately be dismissed.
2. But not because of a finding that corporations cannot be liable under the Alien Tort Statute. The ATS was enacted as a mechanism allowing aliens injured by acts violations of international law to recover damages directly from the party who caused them harm, rather than having the U.S. itself make reparations to the victims. The ATS’s concern is not punishment, but in the financial reparation of damages. And, to that end, from the precedent set by prize law, marine torts, and other areas of the law which, in 1789, regularly featured civil claims for violations of the law of nations, there is plenty for the Court to draw from in finding that principles of agency law apply when ascertaining the entity liable for the damages under the ATS. Sosa already made it clear the Court is going to pay close attention to history in making pronouncements on the ATS’s scope and function, and an enquiry into the historical purpose of the statute necessitates a finding of corporate liability.
3. Instead, Kiobel will be dismissed under principals of comity. If I had to bet, this is the battleground on which Kiobel will be fought. The hubris of allowing a suit brought by aliens against foreign companies for foreign torts will be too much for the Supreme Court to look past, and they will find that international comity requires that U.S. courts decline to exercise jurisdiction in the situation presented. The defendants are corporations based in and operated out of the United Kingdom and the Netherlands, and none of their corporate holdings in the U.S. had any direct involvement with Shell’s abhorrent practices in Ogoniland. Allowing suit against these companies in the U.S. is one step short of having U.S. federal courts declare themselves to be an international tribunal competent of adjudicating foreign state’s violations of the law of nations, and the Supreme Court just isn’t going to go there. Bonus prediction: look to see Charming Betsy invoked to explain why the Founders only intended the ATS to be limited to cases with either (a) a sufficient U.S. nexus, whether it be based on territorial concerns or personality jurisdiction, or (b) universal jurisdiction. If Justice Breyer gets his way, part (b) will be expansive and include Really Super Bad Awful Acts. Otherwise, it’ll be limited to piracy and any other crimes in the jurisdictional void.
4. And possibly for failing to meet exhaustion requirements. The requirement that a plaintiff exhaust all domestic remedies before proceeding in a foreign forum was not a consideration in Sosa, but the Court noted then that “[w]e would certainly consider this requirement in an appropriate case. ” It’s also an issue that cropped up frequently in amici briefs submitted by foreign sovereigns in Kiobel, so the Court may consider it again now, assuming it doesn’t stop once it gets to the comity issue. Although I expect the Kiobel plaintiffs won’t be required to have filed suit in Nigeria in order to meet exhaustion requirements, their failure to pursue suits in the Netherlands and the UK may prove fatal. Particularly so for the UK — the fact that many of the plaintiffs, including the Kiobel family, are themselves UK citizens or residents puts the inappropriateness of a U.S. forum into stark relief.
5. The Court may also look into the Second Circuit’s decisions regarding aiding-and-abetting liability. The “knowledge and purpose” standard for aiding and abetting liability under the ATS may get some dicta thrown its way, but as Kiobel can be decided without reaching the question of secondary liability, I would guess that it will not feature prominently in the Court’s decision. There may be some discussion, though, about aiding and abetting as a substantive violation vs. agency liability as a theory of recovery, and whether both are decided under domestic law, neither are, or one is but not the other.
6.  Justice Scalia will author a very terse opinion dissenting in part.  Expect it to feature scathing but memorable descriptions about the purported ridiculousness of the Court exercising jurisdiction under the ATS.
7. Justice Thomas will join Scalia’s dissent.  True story.
8. Ultimately, even though the specific plaintiffs in this case will lose, the Court’s decision in Kiobel will strengthen, not weaken, a global regime of corporate liability for international human rights violations. The Court’s opinion will signal its intention to respect both international comity and international human rights. As such, one day, in a different case, with different facts, where the U.S. is a proper forum from which a judgment should be issued, Kiobel will ultimately provide support for a finding of corporate liability for violations of international law. And aside from that, the simple fact that the highest court in the U.S. will have gone on record acknowledging that the activities of corporations are indeed cognizable under international law will be a small but significant step in shaping global norms regarding corporate human rights abuses.

-Susan

The professors’ argument is a nifty one, but I think it rests on the faulty premise that the ATS was “originally intended” to cover only suits by aliens against U.S. citizens. The professors distinguish between a tortious act of a U.S. citizen (which they say could be imputed to the United States if it were left unredressed) and a tortious act of an alien (which supposedly “was not directly imputed to the United States under the law of nations if the United States failed to redress it.”)

Of course, the professors’ approach ignores Susan’s excellent discussion of how the original impetus for the ATS might have been an alien-on-alien crime in the United States.

But perhaps more importantly, it ignores the fact that nations have certain obligations related to the acts of persons other than their own citizens. It’s not a simple matter of imputation. In the criminal context, for instance, nations have an obligation not to shield a wrongdoer (whatever his citizenship) who is justly sought by another country. It might be said that the duty arises from the obligation of the “refuge” state to provide a means for the requesting state to vindicate its own interests. Likewise, in the tort context, Nation A has an obligation to provide redress for an injury to a citizen of Nation B because, absent such redress, the wrongdoer might avoid penalty by using Nation A as a (personal) jurisdictional shield. Acting as a shield might then provoke Nation B, who under well-understood principles of diplomatic protection might then take action against Nation A.  Indeed, one authority suggests that “the assault or wrongful treatment of foreigners was one of the major reasons for the incitement of war,” regardless of the nationality of the offender.

The Marbois Incident, which Susan posits led to the ATS in the first place, is actually an excellent example of this idea in practice. When one Frenchman committed a violation of the law of nations against another Frenchman, France obviously had no grounds to be angry towards the United States based on any theory of “imputation.” Rather, France took issue with the United States’ independent failure to provide a remedy; America’s interests were “stand[ing] in the way of French justice.” (To be fair, the perpetrator in the Marbois incident was nominally an American, but it was well-understood that the citizenship was pretextual.)

As Professor William Dodge has also noted, Congress first reacted to the Marbois incident (and another minor incident involving a New York police officer) by recommending to the states that they provide for punishment of violations of the law of nations. This resolution had two critical elements: (a) allowing torts suits to be brought by the alien for the breach of a treaty or international law; and (b) an indemnification provision for harm to the United States caused by the breach. Interestingly, while the indemnification provision applied only to acts committed by United States citizens, there is no similar limitation as to the tort suit portion. Thus, early Congresses seemed to anticipate that any defendant could face liability for a violation of the law of nations.

Let’s also not forget the plain text of the ATS. While the Act obviously provides for an alien plaintiff, it does not define the relevant class of defendants. Complementary state laws, such as one in Connecticut, did indeed define the defendant class, but they defined it broadly: any person whatsoever.

In sum, while I can appreciate the efforts of Professors Clark and Bellia, I think they err in reviving this long dead argument (which Curtis Bradley seems to have been making for some time now).  The puzzle of Kiobel cannot be so easily solved.

-Michael

*The Professors also bring back the old argument that Article III does not anticipate any independent jurisdiction of courts to enforce the law of nations.  I think that point has already been well-addressed before, so I choose not to rehash it here.  A quick read of Filartiga should suffice to address that concern.  See Filartiga v. Pena-Irala, 630 F.2d 876, 885-87 (2d Cir. 1980).

[H/T: Volokh]

Update: Our friends over at the Alien Tort Claims Act Blog don’t agree that Kiobel could amount to anything in the next election, calling it something that might show up in ”hour three of Rush Limbaugh’s show” at best. That’s probably fair; this post was meant to be somewhat tongue-in-cheek and I didn’t mean to overstate the case’s significance. Still, it’s possible you might see some discussion of this for a few days in June when the opinion comes out. It won’t drive the election (by any means) but it might provide an interesting talking point for one news cycle.

Right now, the only people excited about the upcoming Supreme Court argument (and ultimate decision) in Kiobel v. Royal Dutch Petroleum are international law nerds. At first glance, the case presents issues only a mother scholar could love:

(1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

But even though that sounds extraordinarily technical, the facts of the case actually might provide fodder for some explosive campaign rhetoric.

At bottom, Kiobel could be thought to confront two fundamental issues: (1) the rights of aliens to enjoy certain protections in U.S. courts; and (2) the accountability of corporations for acts that caused injury. Those issues touch upon some raw feelings, driven by xenophobia, anti-corporatism, and general distrust of the Supreme Court. Either way the case goes, it’s likely to stir intense political feelings:

• If the court rules that corporations may not be held liable under the Alien Tort Statute, we’re likely to see a mini-replay of the Citizens United furor. The decision would fit neatly into the narrative that the Roberts court cares more about the interests of corporations than individuals. I can already imagine President Obama giving a speech about the Court’s unwillingness to place limits on the acts of corporations, whether those limits come in the form of campaign spending law, basic human rights laws, or otherwise.
• If the court rules that corporations may be held liable under the Alien Tort Statute, then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc. Then again, Arizona v. United States might provide a better platform for anti-immigrant rants than Kiobel.
• If the court simply punts and says that the Alien Tort Statute does not apply extraterritorially, I don’t think anybody will care. Some people will scream about judicial activism, others will applaud the court’s judicial restraint. For its part, the Alien Tort Statute will be dead, squashed like a roach under the jackboot of judicial fuddyduddyness.

Personally, I think it’d be kind of nice to see candidates sparring on things of substance (like Kiobel) rather than spitting the same ‘ole sound bites. But that’s probably too much to ask for.

-Michael

Unfortunately, I came away from the article a bit disappointed; although Sykes accurately summarizes some economic concerns that are theoretically raised by the ATS, there is close to no examination of actual corporate behavior. I was frustrated with its near total disconnect from any specific applications of the ATS, as only a single example from actual ATS litigation is used to illustrate the potential economic downsides of corporate liability: that of Talisman’s withdrawal from Sudan and replacement by Chinese corporations. Actual dollar figures associated with defending ATS suits, or total amounts of judgments or settlements that have been paid under ATS cases, are never brought up.

My major complaint would be that, because the article simply focuses on the theoretical costs caused by corporate liability under the ATS, with little or no evidence as to the actual costs that have been experienced in ATS suits, Sykes’ analysis is almost equally applicable to the question of multinational corporate liability in any situation, not just Alien Tort Statute case. In his article, Sykes identifies five general economic costs:

1. Litigation is expensive
2. This is a confusing area of the law, which means judges are likely to end up making decisions that are biased against big, faceless corporations
3. Allowing multinational corporations to be sued for allegedly bad things they have done can piss off foreign governments, either where the MNC is headquartered or where the bad acts took place
4. Allowing corporations with connections to the U.S. to be sued is harmful because it gives a competitive benefit to corporations that do not do business in the U.S., and so cannot be sued
5. Allowing corporations with U.S. connections to be sued will cause them to engage in expensive restructuring to create subsidiaries that have the competitive benefit of not being able to be sued in the U.S.

These costs are not really unique to the ATS context. It is not that any of these costs aren’t real, but Sykes never discusses how each of these general economic concerns is particularly applicable in the context of the Alien Tort Statute. For instance, although the first point is an important consideration for any type of litigation, the article does not provide any evidence that the costs of ATS litigation are more concerning than the costs associated with, say, products liability, or Title VII cases. Plus, as Sykes himself admits, a large proportion of corporate ATS cases feature up to a dozen different claims in addition to any ATS -based claim for relief. If the ATS didn’t exist, it doesn’t mean these all the ATS cases would cease to exist as well — just that they woudn’t have brought ATS claims. And, other than in a handful of high profile exceptions, the ATS portions of those cases don’t cause any significant increase in the overall litigation costs. As Sykes also admits, U.S. Courts are already concerned with the potential costs of baseless litigation, and have implemented doctrines intended to curtail the expenses associated with such cases. I am all in favor of Twombly’s heightened pleading standard applying to ATS suits, but the record of ATS litigation thus far — with an overwhelming majority of ATS cases being dismissed — suggests that this is already occurring, and that litigation costs in ATS suits are no higher than for any other given type of litigation.

As for the second point, regarding the risk of judicial bias against corporations, there is zero evidence that this is a cost particularly likely to occur in the context of ATS litigation. Given the existence of a single plaintiff victory at trial in corporate ATS cases — and perhaps a dozen settlements, many of which heavily favored the corporations — the record would suggest that ATS suits do not feature any problematic bias against corporate defendants.

Although the third potential cost identified by Sykes, that of foreign sovereign backlash, is a real threat posed by ATS litigation, the problem is one that arises from a separation of powers perspective, and analysis under a law and economics framework is less useful. The problem with the risk of Foreign Sovereign Backlash (“FSB,” because I’m too lazy to keep typing it out) under the ATS is that it can place the judiciary in the role of FSB-gatekeeper, when that role is Constitutionally assigned to other branches. Yes, FSB can be expensive — but the problem is not the expense itself, but which branch of government is entitled to decide to cause it. Foreign relations are not a straight forward cost-minimization exercise, and the Executive is free to make a foreign relations decision that is more economically expensive if it believes other U.S goals are better served in doing so. The concern about the risk of FSB arising from ATS litigation is not an economic concern, but rather a Constitutional one.

Sykes’ argument also fails to spend more than a quick footnote considering the possibility that there may be a FSB benefit to ATS suits. ATS cases can potentially benefit the Executive by minimizing the U.S. government’s role in punishing corporations that engage in human rights abuses. It allows such corporations to be penalized, but without requiring the elected branches to themselves specifically decide who to prosecute or accuse of violating international law. Although allowing individual foreign plaintiffs to make the decision to bring an ATS suit can and does cause FSB, requiring that the U.S. government itself specifically choose to bring claims of, say, genocide against a foreign state (and corporation) is likely to cause even more offense still. If the Executive wants to punish extraterritorial corporate human rights abuses (and with Koh at the legal helm, I think we can assume it does), there is a definite benefit in allowing plaintiffs to bring ATS suits against bad corporate actors, rather than requiring that the State Department be the one to do all the dirty work.

The fourth economic cost Sykes identifies is that “corporations subject to suit in the United States thus face potentially discriminatory liability standards, imposing the costs of litigation and any resulting judgments on them for alleged conduct that actual and potential competitors can undertake without fear of liability.”

The problem with this argument is that it literally argues that, from an economics perspective, it is better if U.S. corporations should not be liable for any torts under U.S. law, because non-U.S. corporations are not liable for theirs. As a result of the ATS, Sykes writes,

business opportunities are diverted to competitors that are not subject to suit in the United States. Not only does the U.S. corporation lose business, but business opportunities are captured by competitors who are not subject to liability for violations of customary international law. The competitor thus faces no more incentive to guard against violations of customary international law than would the U.S. corporation if it did not bear discriminatory liability – the likely impact on compliance with international law is nil. The only thing that has changed is the displacement of the U.S. corporation by a higher cost and thus less efficient competitor. Global economic welfare declines.

Sykes does qualify this statement by acknowledging that global economic welfare can be assisted through the existence of corporate liability, by deterring inefficient distortions in where corporations choose to invest funds. Still, this caveat does not quite sufficiently cover the objections to his argument. I think that Judge Posner, in his recent opinion in Flomo, probably put it best:

One of the amicus curiae briefs argues, seemingly not tongue in cheek, that corporations shouldn’t be liable under the Alien Tort Statute because that would be bad for business. That may seem both irrelevant and obvious; it is irrelevant, but not obvious. Businesses in countries that have and enforce laws against child labor are hurt by competition from businesses that employ child labor in countries in which employing children is condoned.

Again, a law and economics approach alone is not particularly beneficial in this context. It is not that a law and economics analysis is useless here, or that these questions should never be asked. But asking simply “what is the economic cost of prohibiting child labor?”, or “what is the cost of prohibiting slavery?” only goes so far. Although there is not quite a unanimous opinion on the matter, in as much as the world has ever reached a global consensus on anything, there is now a fairly universal agreement that activities like slavery and genocide ought to be prohibited, no matter the economic cost caused by that prohibition. As such, the more useful question is what is the most efficient way of deterring these prohibited behaviors, not whether or not such activities should be deterred at all.

A related cost disadvantage Sykes identifies here is the reputation costs suffered by U.S. firms that are sued for foreign human rights abuses. True, this is a real cost suffered by corporations like Chiquita and Pfizer, but is it one that argues against a regime corporate liability under the ATS? If anything, it shows how ATS suits have the potential of benefiting shareholders, by giving them relevant information about a corporation’s foreign management practices. Sykes is essentially arguing here that, absent the ATS, U.S. consumers and shareholders would have less awareness of the fact that certain corporations may be assisting foreign regimes in carrying out genocide or other violations of international law, and therefore the ATS imposes a “cost” on these corporations by raising that awareness. It is true that companies suffer damage to their corporate reputations as a result of, say, enrolling marginalized children into drug trials without regard for their consent, but any “economic cost” from such reputation damage may very well be outweighed by the economic benefit of making it harder for corporations to deceive consumers and shareholders about information that is relevant to their consumption and investment choices.

[I've realized after finishing this post that I forgot to discuss the fifth cost identified by Sykes -- the costs incurred by companies that have to spin off subsidiaries to try and immunize themselves from human rights abuses by their overseas operations. I may get back to edit this later, but to a large extent, while I agree with Sykes' assessment of the costs imposed by the ATS here, I do have a problem with the framing. If corporations are engaging in inefficient restructuring in order to avoid liability for human rights abuses, that is an argument in favor of reforming corporate law to remove corporations' incentives to restructure as a means of avoiding liability for their bad acts. It is not an argument in favor of simply permitting the bad acts.]

While the five potential costs of ATS identified by Sykes are real, there is very little consideration of whether or not these costs are outweighed by the accompanying benefits. In places, Sykes does in fact acknowledge that the real question is not whether prohibiting genocide or other violations of international law is bad for business, but whether the ATS is an efficient method for deterring such activities. However — with the exception of his discussion on aiding and abetting liability — Sykes never fully engages with this question; he does, for instances, explain why imposing aiding and abetting liability is not likely to be effective at encouraging foreign sovereigns not to randomly kill their own citizens, but there is never any comparison between the relatively costs of achieving this goal via aiding & abetting liability vs. alternative methods of deterrence. Yes, there may be costs to ATS litigation, but the fact that there are costs is not by itself a sufficient argument against corporate liability, as it would seem that the United States does in fact consider deterring corporate human rights abuses to be of at least some marginal utility. In which case, if it turns out to be the case the ATS’s deterrence value is not sufficiently high to offset the costs of its enforcement, what other schemes exist that are capable of advancing these goals in a more cost effective manner?

Just saying that the ATS imposes “economic costs” is meaningless; of course it imposes costs, and those costs are likely similar to the costs imposed by other corporate liability regimes. The relevant questions here are instead (1) what are the actual dollar figures of those costs? Not in the abstract; if the ATS is so damned expenses, surely someone can pull up some supportable figures demonstrating it; (2) what is gained in exchange? Looking at the costs of the ATS is only part of the equation, there needs to also be an examination of its benefits to compare against the costs; and, (3) are there methods of deterring corporate human rights abuses more efficient than the ATS?

If the answer to this is simply that “the cost of deterring corporate human rights abuses is outweighed by the benefit of allowing corporations to engage in human rights abuses,” then come out and say so. But all Sykes has given is some abstract reasons as to why the ATS may have certain economic costs — without attempting to quantify what those costs are in reality, and without any reference to alternative schemes that might be more efficient in achieving the goals that are promoted by ATS supporters.

As noted above, Sykes does a fair job of discussing these issues with respect to aiding & abetting liability under the ATS — and he is completely right. Aiding and abetting liability under the ATS is of a dubious pedigree both from a legal perspective and an economics one. I just wish he’d gone on to make a comparison of the relative efficiencies between a regime of aiding and abetting liability and other potential methods, however.

For instance, if the goal is to encourage companies to invest in regimes that abide by certain minimum human rights standards, this would probably be more effectively carried out through direct federal statute, something analogous to ITAR or the anti-terrorism statutes that Chiquita got nailed with. That would allow the U.S. government to more directly tailor the specific prohibitions to match its foreign relations goals, and (well, theoretically) reduce the litigation costs associated with enforcement via the ATS. Trying to regulate the allocation of foreign investment through a scheme enforced via private litigation is obviously clumsy; direct instructions from the fed as to what foreign investment is deemed problematic from a human rights perspective is a much cleaner and easier scheme to execute.

On the other hand, as discussed above, accomplishing the ATS’ objectives through direct federal regulation would eliminate one major advantage provided by the ATS scheme: the fact that the U.S. government is not required to take sides. If a scheme to prohibit corporations from engaging in human rights abuses abroad was established through federal laws, the U.S. government would be required to specifically choose to prosecute any violation that occurred, or specifically name foreign human rights abusers that companies were discouraged from investing in. Despite all the complaints about the ATS’s “foreign relations costs,” it cannot be assumed offhand that the U.S.’s foreign relations would be better served by a scheme that requires the U.S. executive and legislative branches to deliberately and intentionally accuse foreign sovereigns of humans rights abuses.

This post has pretty much definitely gone on for too long, but there are two final points I wanted to briefly discuss. Throughout his paper, I think that, to a large degree, Sykes underestimates both (1) the extent to which it is the nerve centers of corporations, and not the local actors, which initiate corporate human rights abuses abroad; and (2) the comparative power of the corporations against the local developing governments. To be fair, I too am only aware of anecdotal evidence with regard to these arguments, one way or another. And Talisman’s involvement in Sudan, for instance, might have been without its directors’ knowledge, and carried out by the government of Sudan rather than through any corporate initiative. But on the other hand, Chiquita’s payments to the AUC and Shell Nigeria’s collaboration with the government in regards to the Ogoni were not decisions made by isolated foreign outposts that had no contact with or direction from company execs. There is clearly high-level executive complicity at play in many of the worst examples of corporate human rights abuses. Moreover, Sykes’ blithe assumption that MNCs have no ability to promote or deter human rights abuses by local government officials — because “[i]nvestors who interfere in any substantial way with the government’s preferred course of action can be booted out and [r]eplaced with others” — seems entirely at odds with actual experience. In many cases, MNCs operating in developing nations possess a near-monopoly status, and directors carefully develop close, err, “financial” ties to local government authorities, giving them considerable influence and decision making authority. See, e.g., faxes showing that the Nigerian government repeatedly expressed to Shell “concern at the limited availability of foreign capital”, and gave ongoing assurances that it would do whatever was in its power to please Shell officials, during the course of the Ogoni massacre. The idea that corporations in developing nations are operating in some state of near perfect competition with no ability to make demands on host governments is not an assumption that can be made without any supporting evidence.

In order to give an accurate analysis from a law and economics perspective of the costs and benefits of ATS litigation, what is needed — and what so far has been lacking in ATS literature — is an empirical understanding of the actual incentives corporations have to engage in or to assist foreign human rights abuses. Once we can get a better grasp on that, it would be much easier to answer the question of whether the Alien Tort Statute is the right the method of altering those incentives.

-Susan

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.”).

-Michael

The Fourth Circuit takes a truly bizarre path to relying on the Rome Statute. The court correctly recognizes that the “law of nations” can be drawn from international agreements (i.e. treaties), customary international law, and general principles of law common to civilized systems of law. But then the opinion breaks down, fashioning a principle of international law that doesn’t really use any of the above three sources.

The court ostensibly relies on the Rome Statute of the International Criminal Court to define the reach of aiding and abetting liability.  The treaty could useful evidence of customary international law, as treaties often are. Indeed, the United States apparently considers the Statute to be a reflection of binding international law. But the Fourth Circuit refuses to take that approach, concluding that the Rome Statute is “properly viewed in the nature of a treaty and not as customary international law.” The court apparently never considers the notion that treaties and customary international law can and often do overlap.

Instead, the Fourth Circuit just declares that the Rome Statute provides a nice standard because “its status as a treaty cuts in favor of accepting its mens rea standard as authoritative for purposes of ATS aiding and abetting liability.” The court points out that lots of nations have signed the Rome Statute, even if Iraq (where all the action in Aziz happened) and the United States haven’t. Well, that’s great, but doesn’t that go to whether or not the Rome Statute reflects customary international law, the very question the Fourth Circuit said it had already answered? I simply don’t understand how a treaty not signed by the relevant nations and not applicable to those nations as customary international law can nevertheless provide binding principles of law for those nations’ citizens. See VCLT art. 34 (“A treaty does not create either obligations or rights for a third State without its consent.”).

It looks like what’s really behind the Fourth Circuit’s adoption of the Rome Statute standard is the court’s uneasiness with the indefiniteness of customary international law.  The decision talks a lot about how customary international law is difficult to define and of “soft” character. This whole discussion indicates one of two things: (a) the Fourth Circuit was unwilling to do the hard work of doing the international law research and legwork necessary to determine what the relevant customary international law standards are; or (b) the standards really are hopelessly indeterminate, in which case this is not a norm that is “sufficiently definite” to be actionable under the ATS.  See Sosa v. Alvarez-Marchain, 542 U.S. 692, 732 (2004). Either way, this opinion merits a big thumbs down.

Maybe Susan will explain why I’m wrong, but for now I’m convinced that this was a bad decision.

-Michael

Update (Sept. 22): This post over at Opinio Juris confirms that others are reading this opinion the same way I am.

The legal historians’ amicus brief [PDF] in support of the cert petition in Kiobel addresses this question in the context of the common law’s historical approach to questions of liability, arguing that “the Second Circuit erred in concluding that ‘who is liable for what’ is a matter of customary international law,” and that, in the United States, entities are liable for their agents’ torts without regard to the source of the substantive norm of conduct, and this applies to the ATS no less than it would any other tort statute. Although I largely agree with the brief, I wanted to expand upon some of its arguments here, and, in particular, to challenge the claims that, under international law, a “corporation” is a distinct and insular category that can or ought to be afforded its own set of rules. Questions of corporate personality — and for that matter, natural personhood — were not cognizable on the international plane at the time of the ATS’s enactment, as distinctions between sub-state entities could only be made through a state’s domestic law. Accordingly, the question of whether a non-state actor has committed a violation of international law is entirely independent of how a state’s domestic law assigns legal personhood to its subjects.

Corporations & Humans: Pretty Much the Same, As Far as Customary International Law Is Concerned

Those who argue against corporate liability under the ATS, as does the majority in Kiobel, often attempt to portray the idea of corporate liability under international law as a revolutionary concept, as something qualitatively unique from the idea of individual human liability for violations of international law. But this argument places far too great of an emphasis upon the alleged distinction between “natural” and “juridical” persons — or rather, upon international law’s ability to distinguish between the two, in the context of civil liability.

Under the law of nations, there are only two real categories of beings — sovereigns and not-sovereigns. Sovereigns are states. Not-sovereigns are the subjects of states, and they take whatever form the state has established for them. As such, in the view of international law, corporations are not exotic creatures that exist in a legal realm distinct from humans; rather, the legal personhoods of corporations and humans alike are necessarily creations of domestic law, over which international law has traditionally had very little interest. There is no a priori distinction between natural personhood and juridical personhood; as far as international law is concerned, they are both just different kinds of non-sovereigns. Until the advent of the modern human rights regime, there was never any requirement that “legal personhood” include all humans, nor has it ever been required to exclude all non-humans — it was the prerogative of states to establish legal personhood for their subjects in whatever manner they saw fit.

Although non-sovereigns are capable of violating the law of nations, international law does not provide a civil remedy for not-sovereigns that are themselves victims of international law violations. Only domestic law does, unless and until states create through treaty an adjudicative body capable of hearing their grievances. As such, there simply cannot be any customary international law of non-sovereign remedies for civil violations of international law — it either exists by treaty or by domestic law, or not at all. Therefore, which forms of legal personhood are subject to domestic liability for violations of international law is a determination that is necessarily made by domestic law, or occasionally by treaty.

Thus, domestic remedies for violations of international law are matters left to individual states. International law did not force the United States to have an alien tort statute, nor did international law have any opinion on what sort of relief the ATS should afford — as far as international law is concerned, the United States could have enacted ATS jurisdiction solely for violations of international law that are committed on the last Tuesday of every month. The contours of the ATS were determined by the state, not international law; it is, above all, a domestic statute, and thus it is a step removed from pure incorporation of international law. Although agreement on this point is far from universal, the strongest argument is that the ATS has not provided a cause of action “directly” from international law– rather, in actual practice, the ATS has required the courts to create U.S. common law that is derived from international law. Thus, when our courts hear ATS cases, they are not technically deciding what international law is, but what federal common law’s conception of international law is; and, in effect, turning international law as a whole into persuasive rather than mandatory authority.

All of this is a round-about way of getting to the point of this post — that the idea that there is a binary distinction between “natural persons” and “juridical persons” is not supported by the history of the law of nations, nor is there any principled means for excluding incorporated entities from the kinds of non-sovereigns that are subject to liability under the ATS.

The State’s Prerogative Over the Legal Personhood of its Subjects

Because states are the only entities capable of establishing what entities possess legal personhood, only a state can establish which entities are capable of incurring liabilities under domestic law. States are thus the creators of all non-state liability units. For brevity’s sake, I am using here the term “liability unit” as shorthand to mean any legally defined entity that is capable of incurring private liabilities which will be enforced by a state’s civil processes. Although liability units can vary in scope — different rights and legal processes can be available to some liability units and not others — all liability units are based on the idea that a certain set of assets have been delineated and partitioned from the rest of the assets in the world, and given an accompanying assortment of possessory and contractual rights. And, where one unit seeks recovery against another unit, either in tort or contract, any recovery is limited to the assets associated with that liability unit. (For now, to simplify matters, I am going to ignore the fact that liability units are often rather fuzzy on borders — the partitions between them are porous, and dependent upon the particular contours of domestic law, but liability units do not need to be air-tight in order to have a meaningful existence).

In effect, a liability unit is an entity that has been incorporated by the state to possess an existence cognizable by its court systems. This form of incorporation can be attached to a single human being, or it can be attached to a pool of investors’ funds, or to a wide range of other possible groupings. It has two main components: partitioned assets over which ownership is either vested in the unit itself or vested in another unit(s) by contract, and a determination by the state as to who has decision-making authority over the use of those assets.

In most natural persons, there is a unity in ownership and control — the owner of the partitioned assets, i.e., that person’s property, is controlled by themselves. But the concept of separation of ownership and control is not unique to corporations. It can also apply to natural humans, as the state possesses the power to establish any sort of asset grouping as a liability unit — and to designate which human or group of humans it wishes to invest with the power to make decisions regarding use and disposition of those assets. For example, infants and wards of the state can still own assets and incur civil liabilities, but decisions regarding how to manage the property or what liabilities ought to be incurred are made by a guardian, not by the infant or the ward. A similar arrangement occurs upon a liability unit’s natural death; although a human being may die, the liability unit, which had been superimposed over the human as part of the state’s legal latticework, continues to exist in the form of his or her estate, which persists under control of a trustee until it is formally extinguished through the legal process. The human and the liability unit are related, in that the death of the human does have an effect on the corresponding liability unit, but their coexistence is mutable.

A corporation is, in effect, a liability unit that has partitioned assets in the form of its investors’ funds, over which decision-making control has been granted to a board of directors; it just happens to be a liability unit that is not directly mapped over an individual human being. Similarly, natural personhood under the law is a human being that has a corresponding liability unit, which provides them with legal recognition in the state’s court system and permits them to engage in private transactions that can be enforced through the use of state mechanisms. It is very much possible for an individual human being not to be vested with incorporation into legal personhood — and throughout much of human civilization, having the majority of individual humans be endowed with full legal personhood was the exception rather than the rule.

It is the state that has always established what human bodies are raised to the status of liability unit, and which human bodies are simply human bodies without a corresponding civil legal existence. Today, the overwhelming trend is for states to incorporate all human beings, so that all humans are established as entities that can sue and be sue, own property and incur debts, or enter into private contracts. (For humans below a certain age, or deemed by the state to be incompetent, the state generally continues to provide for full status as a liability unit, but separates control from ownership.) Liability units are certainly not limited to individual humans, but, as it is generally presumed today, every human is automatically its own liability unit.

This is an obviously rather modern state of affairs. For most of human history, fully independent liability units were bestowed only upon certain human bodies belonging to a particular class — it was not granted to all human beings as a matter of right. Nor is a liability unit necessarily limited to just a single, independent human being. A single liability unit can, as with the case of marriage, encompass two or more individual humans. Take, for instance, Blackstone’s description on the effect of the marital union:

“By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing[.]“

Traditionally, through marriage, a single liability unit consisting of two human beings was created, over which decision-making authority was vested with the husband — an arrangement which, under the common law, effectively prevented any plaintiff from bringing a tort claim against a spouse, as a single entity logically cannot sue itself. And, reaching even further back, under Roman law, the standard liability unit was a larger combination still: the family. The oldest living male and his descendants were, for the large part, treated as the standard unit of sub-state ordering, with the decision making authority concentrated in the oldest living male. (The pater familias could create a further sub-entity by spinning off some of the family’s assets into a peculium, which featured something of a one-way partition, and individuals could enter into partnership-like societas, but it was the family liability unit that was most closely analogous to the modern day individual human liability unit.)

Liability units can even consist of inanimate objects. As is well documented in the legal historians’ brief, there is a long history of individual ships being established as liability units under the domestic law of many jurisdictions, including the United States. Back in medieval Europe, the division of the liability unit could be smaller still — under the commenda, a single ship voyage had aspects of being itself a discrete liability unit.

And of course, for the first century of the United States’ existence, the legal personhood of corporations was more absolute than that of humans; prior to the 14th Amendment, there were corporations that could sue and be sued for tort, while there were human beings who could not. A slave was thus a human being that was not a liability unit. Although laws differed among individual U.S. states, in general, a slave could not bring suit in his own name, nor could suit be brought against him. In many cases, a slave’s owner was civilly liable for the torts of the slave, and would definitely be liable where the tort was committed in the course of the slave’s duties for his master.

Criminal law is different — an entity that is not a liability unit can be prosecuted for a criminal violation. A slave may not be sued for breach of contract, but he can be prosecuted for murder; a husband is held liable for a wife’s torts, but not her acts of treason. But civilly, there was no “customary international law of slave tort liability” or “customary international law of married woman tort liability” — some nations recognized such forms of liability, and some did not, but international law had nothing to say on the matter.

So what would have happened if, sometime in the early 19th century, a slave had, in the course of performing his duties for his master, carried out some blatant violation of international law? If the slave had (somehow) become a pirate, or failed to abide by a safe conduct issued to an alien, all for the financial benefit of his master? Would the alien that had been so aggrieved been left with no recourse under the ATS, because there was no customary international law requiring that all individual human beings be civilly liable?

Well, if a court in 1805 was somehow able to channel the decision in Kiobel, they might have held that the law of nations had no theory of liability for violations of the law of nations committed by slaves, let alone any theory of agency law under customary international law, and therefore find that they had no jurisdiction to adjudicate the claim. However, I think it much more likely that the court would have applied principles of agency law to find that the owner of the slave was liable for the tort, and that the question of whether or not a slave could be civilly liable for a violation of the laws of nations is answerable only by the domestic regime entertaining the cause of action.

Recognition of Foreign Liability Units

Because liability units are creatures of domestic law, their existence is only guaranteed within the territorial borders of the sovereign that granted them a legal form. As such, when liability units cross international borders, their continued existence as a liability unit is entirely at the mercy of the domestic law of the state where they now reside. Although in most cases, through comity, nations regularly recognize each others’ established liability units, unless it is otherwise regulated by treaty, this is merely a courtesy and not a guarantee.

This does not apply merely to juridical persons; it is equally applicable to natural persons. The question of whether an individual human is a liability unit is also a determination made by domestic law; although a person may be a liability unit in one nation, they are not necessarily so in another. As was noted in the Dred Scott decision, a slave going to England temporarily suspended his status of slave while there — for the “slave” was simply a human entitled to the same status as any other individual liability unit in England — but upon his return to the United States, “the slave resumed his original character of slave.”

Corporations, which are not bound up with the existence of any natural human being, pose an obviously more difficult situation when they cross international borders. When should one state recognize a corporate entity that has been granted status as a discrete liability unit by a foreign state?

To be continued in Part II. Because this post is already too long and rambling as it is.

-Susan

While I disagree with Judge Williams’ conclusion — that, in considering whether a plaintiff has stated a claim under the ATS, courts should look to “whether the defendant’s alleged behavior might provoke war if the United States occupied no more than an average position in global power rankings” — his concurrence attempts to inject some much needed ideological coherency into the federal courts’ constant invocations of the “Blackstone Three,” which, thanks to Sosa, are now an ubiquitous feature of modern ATS jurisprudence. Despite its prominent role in ATS litigation, however, most courts fail to understand the true significance of the Blackstone Three, and do not understand what unifies these three disparate norms of international law or why they have been chosen to be the paradigmatic causes of action under the ATS.

The Blackstone Three are the three violations of the law of nations that Blackstone discusses in Chapter 5, Book the Fourth, of his Commentaries on the Laws of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. The Supreme Court, in Sosa, established these three norms as the archetypal ATS causes of action, against which any other potentially actionable international norm must be closely compared before it may be allowed through the ATS’ door. However, as Justice Williams points out, “though the Court clearly showed interest in analogizing from the three offenses, the opinion does not link the Blackstone three into an intellectually coherent family of wrongs. But unless the Blackstone examples exhibit some sort of family resemblance, they provide little guidance for assessing candidates for ATS recognition.” This is not an unfair criticism, as the Sosa opinion is coy in regards to Blackstone’s reasons for linking these three norms, but the Supreme Court did make some attempt to place the Blackstone Three in their proper context:

There was … a sphere in which these rules [of merchant law] binding individuals for the benefit of other individuals overlapped with the norms of state relationships. Blackstone referred to it when he mentioned three specific offenses against the law of nations addressed by the criminal law of England: violation of safe conducts, infringement of the rights of ambassadors, and piracy. An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war. It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.

By “these rules,” the Sosa court was referring to a second, “more pedestrian” variety of the law of nations; that is, that small, less dramatic portion of international law over which the judicial branch is validly and perhaps necessarily involved.

Post-Sosa, “the Blackstone three” is often used as shorthand for “a norm of international character accepted by the civilized world and defined with specificity”, or, even more briefly, “norms with a definite content.” However, this is a misreading of both Sosa and Blackstone. The Blackstone Three were not the only norms of international law in existence in 1865, nor were they the most definite in content or the most widely accepted among the nations, nor were they the only norms appropriately incorporated into domestic civil law. Instead, they were singled out by Blackstone for a reason that, as far as I have seen, has never been acknowledged in an ATS opinion: their unique incorporation in domestic criminal law.

Blackstone unquestionably accepted the ability — indeed, the obligation — of domestic courts to incorporate international law as their rule of decision when deciding civil cases between nationally diverse parties. As noted by Blackstone, “in mercantile questions, … the law-merchant, which is a branch of the law of nations, is regularly and constantly adhered to. So too in all disputes relating to prizes, to shipwrecks, to hostages and ransom-bills, there is no other rule of decision but this great universal law, collected from history and usage, and such writers of all nations and languages as are generally approved and allowed of.” It is clear that, for Blackstone, the law of nations could and should be regularly incorporated by the judiciary in deciding matters of domestic civil law. At no point does Blackstone ever suggest that international law’s role in civil litigation should be limited to the Blackstone Three.

This is because Blackstone’s purpose in naming the Blackstone Three has nothing to do with domestic courts’ incorporation of international law for civil matters, as these three norms make their appearance in the Commentaries’ Book the Fourth, which is concerned solely with criminal (or “public”) wrongs. As such, Chapter V of Book 4, “Of Offences Against the Law of Nations,” was not intended to be a listing of the norms of international law with the most definite character, or which ought to be adjudicated by domestic courts, or which were most widely accepted by the community of nations; rather, it was intended solely as a compilation of the norms of international law which “fall within a narrow compass, as offences against the law of nations can rarely be the object of the criminal law of any particular state.” (emphasis added). So to Blackstone, the international norms represented by the Blackstone Three were linked by their common ability to be criminal offenses prosecuted under domestic law, and not for any alleged definiteness of character or broad-ranging acceptance.

The obvious irony here is that, today, the Blackstone Three are paradigmatic of the tort claims under international law that can be brought under U.S. domestic law, and have nothing at all to do with criminal law, either domestic or international. It is a further irony that the Blackstone Three are now a talismanic invocation intended to limit application of international law in domestic courts, for Blackstone instructed that “in civil transactions and questions of property between the subjects of different states the law of nations has much scope and extent”. Blackstone’s three norms of the law of nations were only intended to serve as a limitation when applied in a domestic criminal context, not civil. Thus, Using the Blackstone Three as the basis for speculation upon which violations of international law the Framers would have authorized as claims in tort would seem to be entirely nonsensical — unless it is considered in context with a certain early American diplomatic scandal known as the Marbois Incident. (At which point it becomes only mostly nonsensical.)

In fact, were it not for a fellow known as the Chevalier De Longchamps, we might not have an Alien Tort Statute at all. The Chevalier, apparently being something of a scoundrel and a miscreant, became the source of a 1784 international incident between France and the United States, by behaving in a most ungentlemanly fashion to the Consul General of France to the United States, Francis Barbe Marbois. Longchamps, himself a French national, reportedly threatened to “dishonor” the French diplomat, and then, a few days later, when the two ran into one another in the street, Longchamps called Marbois a “blackguard,” and attempted to hit Marbois’ cane, at which point Marbois naturally decided to use said cane to smack Longchamps around, until the two were split up by bystanders.

Longchamps was found guilty of an infraction of the law of nations, as “[t]he person of a public minister is sacred and inviolable. Whoever offers any violence to him, not only affronts the Sovereign he represents, but also hurts the common safety and well-being of nations;—he is guilty of a crime against the whole world.” The Pennsylvania court announced in its conviction of Longchamps,

“You then have been guilty of an atrocious violation of the law of nations; you have grossly insulted gentlemen, the peculiar objects of this law (gentlemen of amiable characters, and highly esteemed by the government of this state), in a most wanton and unprovoked manner: and it is now the interest as well as duty of the government, to animadvert upon your conduct with a becoming severity–such a severity as may tend to reform yourself, to deter others from the commission of the like crime, preserve the honor of the state, and maintain peace with our great and good ally, and the whole world.”

The court’s decision in Longchamps was directly lifted from Blackstone, although the Pennsylvania justices do not directly credit its source. But compare the above passage with the following lines from Blackstone, which were in turn quoted by Sosa:

“But where the individuals of any state violate this general law, it is then the interest as well as duty of the government under which they live to animadvert upon them with becoming severity, that the peace of the world may be maintained. For in vain would nations in their collective capacity observe these universal rules, if private subjects were at liberty to break them at their own discretion, and involve the two states in a war. It is therefore incumbent upon the nation injured, first, to demand satisfaction and justice to be done on the offender by the state to which he belongs; and, if that be refused or neglected, the sovereign then avows himself an accomplice or abettor of his subject’s crime, and draws upon his community the calamities of foreign war.”

While the Pennsylvania state court successfully convicted Longchamps for his ungentlemanly behavior, the case highlighted the federal government’s inability to regulate state treatment of international law, and, as noted by the majority’s opinion in Sosa, the incident was an enduring source of national debate. In the end, “[t]he Framers responded [to the Marbois Incident] by vesting the Supreme Court with original jurisdiction over ‘all Cases affecting Ambassadors, other public ministers and Consuls.’ U. S. Const., Art. III, § 2, and the First Congress followed through. The Judiciary Act reinforced this Court’s original jurisdiction over suits brought by diplomats, see 1 Stat. 80, ch. 20, § 13, created alienage jurisdiction, § 11, and, of course, included the ATS, § 9.”

Turning back to Shafi v. the Palestinian Authority, it is this reliance on Blackstone as the origin of the ATS that is the subject of Williams’ concurrence, wherein he attempts to “link the Blackstone three into an intellectually coherent family of wrongs.” According to Williams, “the unifying feature of the three offenses is that their punishment protects and facilitates the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war.” This is precisely the point made by Blackstone in his Commentaries, in the passage quoted above; the Blackstone Three are the criminal violations that a nation must itself provide a domestic punishment for, or else itself become a violator of the law of nations, with all the risk of war that such a violation entails. Or, as Judge Williams puts it, “The system of international relations implied from the Blackstone three, then, is one in which the threat of war among sovereigns is fully recognized, but international law, especially safe conducts and the rights of ambassadors, protect the system of diplomacy and intercourse among sovereign nations, and thereby curb the risk of war or its prolongation.”

Williams’ concurrence is a doctrinally consistent application of Blackstone’s theories on the incorporation international law into domestic criminal law to the Alien Tort Statute — one which the Supreme Court approached, but ultimately shied away from, in Sosa. It is an attempt to explain why the Framers would have included the ATS in the Judiciary Act of 1789 in a manner that is applicable to civil litigation in the 21st Century. To that extent, the Williams concurrence is the best interpretation of Sosa I have seen in a lower court opinion yet.

The problem with the concurrence, then, is not with Williams’ reasoning, but rather the house of cards that underlies it; that is, the Supreme Court’s establishment of the Blackstone Three as the foundation of modern ATS litigation. In Sosa, the Supreme Court attempted to divine the Framers’ original intent behind the ATS on the basis of a little-remembered historical event — the Marbois Incident. This, in turn, lead to the elevation of an ancient jurist’s writings on criminal law to the centerpiece of litigation under the ATS. As a result of Sosa, we are now left with the current state of affairs, wherein any time an ATS case pops up, we are forced to sit through judicial opinions that spend three pages on ahistorical carping about how international norms must be “as well established as the Blackstone Three” in order to be actionable, when being “well established” or of a “definite content” has absolutely nothing to do with why Blackstone chose those three norms to be the Blackstone Three in the first place.

-Susan