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

My gut feeling is this is just a case of hard facts make bad law, because Defendant Anthony Bianchi, millionaire and convicted serial child rapist, is one of the least sympathetic litigants you could possibly have, and it’s not hard to see how one might be very strongly motivated to extend any assistance available to the unnamed minor plaintiffs.

But being a really horrible person does not magically invoke the jurisdiction of the ATS. Judge Bartle seems to have taken the requirement that only ‘extreme’ violations of international law are sufficient to invoke ATS liability to mean that, the more morally heinous an act is, the greater the likelihood is that there exists a cause of action for a tort in violation of the law of nations:

“Given the young age of his victims and the frequency with which Bianchi engaged in these heinous acts, this case is extreme enough for subject matter jurisdiction to exist under the ATS. What occurred here is a serious transgression of international law that is ‘specific, universal, and obligatory.’ Under all the circumstances, we conclude that Bianchi’s sexual assault of children through sex tourism falls within the ‘very limited category’ of claims cognizable under the ATS as a violation of the law of nations.” Quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 732.

To put it charitably, the decision is something of an international law train wreck. Its primary justification seems to be the existence of a international instrument condemning acts like those committed by Bianchi:

“[I]n support of this court’s jurisdiction, plaintiffs point to the Optional Protocol on the Rights of the Child, Sale of Children, Child Prostitution and Child Pornography (“Optional Protocol”).” … The Optional Protocol bans the ‘offering, delivering or accepting, by whatever means, a child for the purpose of … [s]exual exploitation of the child.’ S. Treaty Doc. No. 106-37 at art. 3(1)(a)(i). It also declares that parties ‘shall ensure that all child victims of the offences described in the present protocol have access to adequate procedures to seek, without discrimination, compensation for damages from those legally responsible.’ Id. at art. 9(4).

Although the U.S. is a signatory to the Optional Protocol, because that treaty is not self-executing, Plaintiffs had to go the law-of-nations route for the ATS suit, rather than relying on the treaty alone. But calling something ‘customary international law,’ even if it were, does not mean that it automatically comes with a cause of action against private parties. Judge Bartle notes that “‘[The Optional Protocol] also provides that ‘each State Party shall take measures, where appropriate, to establish the liability of legal persons’ for these offenses, both criminal and civil,” and then blithely goes on to assume, “[t]hus, the Optional Protocol clearly contemplates the liability of private individuals.” But that’s not what it says at all. The treaty clearly contemplates obligating nations to prohibit child sex crimes as a matter of domestic law, not making child sex crimes in themselves a violation of international law.

Other than the Optional Protocol, the decision’s basis for finding a violation of international law is based on the following:

“[C]ourts across the United States have acknowledged that child sex tourism … is uniformly admonished by the international community as reprehensible.”

“[Bianchi's] crimes represent a global problem, whereby individuals from developed nations travel to less developed nations to prey on young children from impoverished communities.”

“Courts have been willing to recognize claims by children under the ATS, even where the same claims would not be actionable if brought by adults.” Citing (questionably) Roe v. Bridgestone Corp., 492 F. Supp. 2d 988, 1019-22 (S.D. Ind. 2007).”

But none of this is sufficient to establish that Bianchi’s crimes were “a serious transgression of international law that is ‘specific, universal, and obligatory.’” His actions were evil and illegal, but not a matter of the law of nations.

Judge Bartle’s judicial over-reach in the name of universal jurisdiction is by no means an isolated decision. There is in fact fairly ample, if scattered, support for the idea that jurisdiction over Bianchi would be proper, under the argument that international commercialized child rape (I cannot bring myself to use the monstrously inadequate euphemism of ‘sex tourism’) is a modern crime akin to the traditional offenses of piracy and slavery. Eugene Kontorovich [PDF] has called this claim the “piracy analogy”. The piracy analogy is

the argument that [universal jurisdiction] is based on principles implicit in the earlier, piracy-only universal jurisdiction. According to the piracy analogy, international law treated piracy as universally cognizable because of its extraordinary heinousness. Universal jurisdiction was never about piracy per se, the argument goes, but about allowing any nation to punish the world’s worst and most heinous crimes. Thus universal jurisdiction over human rights violations is simply an application of the well-settled principle that the most heinous offenses are universally cognizable and not, as critics contend, a radical and dangerous encroachment on nations’ sovereignty.

The Bianchi decision is a text-book example of the piracy analogy in action, and of the mistaken belief that the world’s evils are best fought by expanding the nebulous jurisdictional reach of international law to encompass them. However, while states can and do use international law as a means of combating offenses that are universally condemned, as they have with the Option Protocol on the Rights of the Child, the mere fact that an offense can be regulated by international law cannot transform it into a violation of international law.

-Susan

I am reasonably confident that the list is a complete list of all losing ATS cases from the time of the Judiciary Act through 1990. Of course, I’ve probably jinxed myself by saying that, but other than maybe some unreported cases I couldn’t get my hands on, pretty much all of the ATS cases for that time period should be here. … That said, if you know of some I’ve missed, please let me know in the comments!

Of course, the overwhelming majority of ATS cases were brought between 2000 – 2010, so the list has a long way to go yet.

Alien Tort Statute Cases Dismissed by the Court (Complete Through 1990)

1. Moxon v. The Brigantine Fanny, 5317 F.Cas. 942 (D.C.Pa. 1793). “Neither does this suit for a specific return of the property, appear to be included in the words of the judiciary act of the United States, giving cognizance to this court 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.’ It cannot be called a suit for a tort only, when the property, as well as damages for the supposed trespass, are sought for.”

2. O’Reilly De Camara v. Brooke, 209 U.S. 45, 28 S. Ct. 439 (1908). This is the first time the ATS went before the Supreme Court. The case “was brought by the Countess of Buena Vista, a subject of the King of Spain, residing in Havana, Cuba, against Maj. Gen. John R. Brooke, to recover damages alleged to have been caused to the plaintiff by an order of Gen. Brooke, made August 10, 1899, when he was military governor of the Island of Cuba, abolishing the right or franchise to slaughter cattle in the city of Havana, owned by the plaintiff.” “Again, if the plaintiff lost her rights once for all by General Brooke’s order, and so was disseised, it would be a question to be considered whether a disseisin was a tort within the meaning of [the ATS]. In any event, the question hardly can be avoided whether the supported tort is ‘a tort only in violation of the law of nations’ or of the Treaty with Spain. In this court the plaintiff seems to place more reliance upon the suggestion that her rights were of so fundamental a nature that they could not be displaced, even if Congress and the Executive should unite in the effort. It is not necessary to say more about that contention than that it is not the ground on which the jurisdiction of the District Court was invoked. ” “[W]e think it plain that where, as here, the jurisdiction of the case depends upon the establishment of a ‘tort only in violation of the law of nations, or of a treaty of the United States,’ it is impossible for the courts to declare an act a tort of that kind when the Executive, Congress and the treaty-making power all have adopted the act. We see no reason to doubt that the ratification extended to the conduct of [the General].”

3. Pauling v. McElroy, 164 F.Supp. 390 (D.D.C. 1958). Suit to enjoin nuclear weapons testing. Request for injunction not a tort, and accordingly no relief available under ATS.

4. Khedivial Line, S. A. E. v. Seafarers’ Union, 278 F.2d 49 (2 Cir. 1960). Right of free access to ports not sufficient to establish jurisdiction.

5. Madison Shipping Corp. v. National Maritime Union, 282 F.2d 377 (3rd Cir. 1960). “[I]njunctive relief was prayed for on the theory that the appellants’ acts were violative of the appellee’s rights under the Treaty of Friendship, Navigation and Commerce made between the United States and the Republic of Liberia on August 8, 1938, 54 Stat. 1739. Jurisdiction of both of these claims was asserted to be pursuant to Sections 1331 and 1350 of Title 28 U.S.C. [I]t was [also] alleged that the appellants tortiously interfered with the appellee’s contractual relations in violation of the law of Pennsylvania. Injunctive relief and damages were prayed for, and jurisdiction was asserted to be pursuant to Sections 1332 and 1350, Title 28 U.S.C.” Except the court was reviewing the case under interlocutory appeal, and none of the questions before it reached the requisite standard, so the case was booted out.

6. Bowater S. S. Co. v. Patterson, 303 F.2d 369 (2nd Cir. 1962) (in dissent). Interesting, although questionable, early analysis of the ATS. Majority dismissed the case for lack of jurisdiction on unrelated grounds. In a dissenting opinion, Judge Lumbard, apparently raising the issue sua sponte, argues that the ATS granted the court a separate basis of federal jurisdiction. the Plaintiff, the Bowater Steamship Company, Ltd., was an English corporation. It “advance[d] a claim under the treaty ‘To regulate the Commerce between the Territories of the United States And of his Britannick Majesty,’ signed and ratified in 1815, 8 Stat. 228, and extended indefinitely on August 6, 1827, 8 Stat. 361.” According to Judge Lumbard, “This is sufficient to give the district court jurisdiction under 28 U.S.C. §§ 1331 and 1350.” However, the relevant treaty did not provide the substantive law, but rather guaranteed a federal form for the litigant. Therefore, the dissent would have, apparently, used the ATS as a means of providing jurisdiction for an alien to assert a claim under New York state tort law.

7. Lopes v. Reederei Richard Schroder, 225 F.Supp. 292 (E.D.Pa.1963). Doctrine of unseaworthiness not part of the law of nations.

8. Upper Lakes Shipping Limited v. International Longshoremen’s Ass’n, 33 F.R.D. 348 (S.D.N.Y. 1963). Plaintiff brought claim “arising under the treaty between the United States and Canada concerning the boundary waters between the United States and Canada.” Court found that treaty’s only available remedy was for plaintiff to “seek the espousal of its claim by the Canadian Government and its presentation to the International Joint Commission.”

9. Seth v. British Overseas Airways Corp., 216 F.Supp. 244 (D.Mass. 1963). Not an interesting case. “The theory of the third count is that this Court has jurisdiction under 28 U.S.C. § 1350 because this is a ‘civil action by an alien for a tort only, committed in violation of a treaty of the United States. … There being no evidence that BOAC committed a tort or violated any act of Congress, Counts 2 and 3 are dismissed with prejudice.”

10. Damaskinos v. Societa Navigacion Interamericana, S. A., Pan., 255 F.Supp. 923 (S.D.N.Y.1966). “Negligence in providing a seaman with a safe place in which to work, and unseaworthiness of a vessel in that respect, are not violations of the law of nations.”

11. Valanga v. Metropolitan Life Insurance Co., 259 F.Supp. 324 (E.D.Pa. 1966). “[A]ctions to recover funds based upon life insurance contract obligations do not impress this Court as being of the calibre of the cases which have been allowed recourse to § 1350. Plaintiff has failed to indicate the impact of defendant’s conduct as violating the “law of nations.” The mere fact that an individual breaches the contractual duty owed to an alien does not mean that such conduct is so flagrant as to warrant this court to conclude, as a matter of law, that it constitutes a violation of the rules of conduct which govern the affairs of this nation, acting in its national capacity, in its relationships with any other nation.”

12. Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir. 1973). Nigerians’ claims alleging fraudulent employment training contracts failed to state a claim involving an international law violation.

13. IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975). Source of the famous ATS quote: “This old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act, § 9, 1 Stat. 73, 77 (1789), no one seems to know whence it came.” Court found that “Thou shalt not steal” is not part of the law of nations.

14. Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (9th Cir. 1975). “[T]he illegal seizure, removal and detention of an alien against his will in a foreign country would appear to be a tort . . . and it may well be a tort in violation of the “law of nations’… We are reluctant to decide the applicability of § 1350 to this case without adequate briefing. Moreover, we are reluctant to rest on it in any event. The complaint presently does not join the adoption agencies as defendants.”

15. Dreyfus v. Von Finck, 534 F.2d 24 (2d Cir. 1976). Seizure of Jewish plaintiff’s property in Nazi Germany and repudiation of 1948 settlement agreement may have been tortious but not an international law violation.

16. Papageorgiou v. Lloyds of London, 436 F. Supp. 701 (E.D.Pa. 1977). Dismissed under the doctrine of forum non conveniens.

17. Soultanoglou v. Liberty Trans. Co., 1980 U.S. Dist. LEXIS 9177 (S.D.N.Y.). “Negligence in providing a seaman with a safe place in which to work, and unseaworthiness of a vessel in that respect, are not violations of the law of nations. Lopes v. Reederei Richard Schroder. Soultanoglou has failed to provide the Court with contrary authority. … The Court accepts Magistrate Raby’s conclusion that section 1350 is inapplicable here.”

18. Huynh Thi Anh v. Levi, 586 F. 2d 625 (6th Cir. 1978). There is no universally accepted international right that grants grandparents rather than foster parents custody of children.

19. Benjamins v. British European Airways, 572 F.2d 913 (2d Cir. 1978). Claims arising out of crashed airplane are a tort, but not one in violation of international law or U.S. treaty.

20. Akbar v. New York Magazine Co., 490 F. Supp. 60 (D.D.C. 1980). Libel not a violation of international law or treaty.

21. Canadian Transport Co. v. U.S., 663 F.2d 1081 (D.C.Cir. 1980). “Appellants’ second cause of action alleged that the exclusion of TROPWAVE violated the Treaty of Commerce and Navigation of 1815 between the United States and Great Britain (the 1815 Treaty), 8 Stat. 228. 33 Appellants argue that the District Court had jurisdiction to award them damages under 28 U.S.C. § 1350 (1976), which provides: ‘The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ Because nothing in the language of this statute indicates that the United States has waived its sovereign immunity from tort suits for treaty violations, the District Court’s decision dismissing this cause of action must be affirmed unless appellants can show another basis for concluding that sovereign immunity has been waived.”

22. Trans-Continental Inv. Corp. v. Bank of Commonwealth, 500 F. Supp. 565 (C.D. Cal. 1980). “Plaintiffs do not claim that any treaty has been violated nor do they suggest that any such claim can be pleaded. Thus, the invocation of Section 1350 jurisdiction is posited directly on their claim that ‘fraud is a universally recognized tort.’ This is essentially the same argument that was made in IIT v. Vencap, Ltd., and the answer must be the same, while the statement is undoubtedly true, universal recognition does not, per se, make the rule a part of ‘the law of nations,’ construed in accordance with Article III.”

23. Cohen v. Hartman, 634 F.2d 318 (5th Cir. 1981). Tortious conversion of funds (embezzlement) is not a violation of the law of nations.

24. Jafari v. Islamic Republic of Iran, 539 F.Supp. 209 (N.D.Ill. 1982). “[T]he ‘law of nations’ does not prohibit a government’s expropriation of the property of its own nationals.”

25. B.T. Shanker Hedge v. British Airways, 1982 U.S. Dist. LEXIS 16469 (N.D. Ill.). “The plaintiff alleges that he suffered physical injuries when he was struck by a luggage cart while he stood at the lost and found area controlled by the defendant at the airport in Geneva, Switzerland.” Yeah, not exactly a tort in violation of the law of nations. Now maybe if he’d sued for tortiously bad airline food… *rim shot*. But a somewhat interesting note: “This case alleges a tort, but not one in violation of the law of nations or any treaty of the United States. If jurisdiction were held to exist under this statute over this cause, the exercise of such jurisdiction would probably be in violation of Article III of the Constitution.”

26. Canadian Overseas Ores Ltd. v. Compania de Acero, 528 F. Supp. 1337 (SDNY 1982). Suit to recover “spare parts and related equipment.” “[T]his suit is not one to recover allegedly expropriated property and accordingly 28 U.S.C. § 1350, conferring jurisdiction over suits “by an alien for a tort only, committed in violation of the law of Nations,” does not provide a constitutional jurisdictional predicate for the suit. As the Court of Appeals stated in the footnote relied on by CANOVER, ‘commercial violations … do not constitute violations of international law.’”

27. De Wit v. KLM Royal Dutch Airlines, 570 F. Supp. 613 (S.D.N.Y. 1983). Trade secret and employment action. “The court finds that such extraordinary circumstances are not present here and therefore de Wit’s claim of jurisdiction under this provision is also lacking.”

28. Zapata v. Quinn, 707 F.2d 691, 1983 U.S. App. LEXIS 27589 (2d Cir. N.Y. 1983). “This is an unusually frivolous civil rights action brought under 28 U.S.C. § 1350 and 42 U.S.C. § 1983 by the winner of $273,178 in the New York State Lottery against its director, claiming that New York regulations, which provide that the winnings will be paid partly in cash and the balance by way of an annuity over 10 years instead of in one lump sum, deprived her of property without due process of law.”

29. Ramirez de Arellano v. Weinberger, 724 F.2d 143 (D.C.Cir. 1983). “As for remedies (available to the Honduran corporations alone) under the Alien Tort Statute: Assuming without deciding that that legislation allows suits against the United States, in the case.it nonetheless applies only to so-called transitory causes of action. Neither an action seeking ejectment nor an action seeking money damages for trespass would lie, since they are both local actions.”

30. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C.Cir. 1984). This case is famous enough, I don’t need to talk about it.

31. Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C.Cir.1984). Boring case, court found it not necessary to address the ATS claim by one of the parties.

32. Munusamy v. McClelland Eng’r, Inc., 579 F. Supp. 149 (E.D. Tex. 1984). This case is a weird one and should probably be discarded for purposes of looking at ATS issues. “The Plaintiffs insist the court has jurisdiction by virtue of” the ATS and three other jx statutes, and the causes of action were various, but included “the General Maritime Law of the United States and of Nation.” But the ATS issue is never discussed, and then the case got lost in FNC procedural mire, and I just did not care enough to track down the ultimate resolution.

33. Tamari v. Bache & Co., 730 F.2d 1103 (7th Cir. 1984). Boring case. “The alleged violations include excessive trading and churning of the accounts; making false representations, false reports and false statements to the Tamaris; and deceiving the Tamaris as to the true condition of the accounts.” “We note that 28 U.S.C. § 1350 has been narrowly construed and would not supply a basis for federal jurisdiction over the common law claim.”

34. Sanchez-Espinoza v. Reagan, 770 F.2d 202 (D.C. Cir. 1985). My favorite part of this case is the dismissive reference to “so-called ‘customary international law’”. Court found that either the acts of the defendants were private acts, and not covered by the ATS, or were the acts of officials, and therefore barred by sovereign immunity: “It would make a mockery of the doctrine of sovereign immunity if federal courts were authorized to sanction or enjoin, by judgments nominally against present or former Executive officers, actions that are, concededly and as a jurisdictional necessity, official actions of the United States.”

35. Greenham Women Against Cruise Missiles v. Reagan, 591 F.Supp. 1332 (S.D.N.Y. 1984). Plaintiffs, British citizens, sought to enjoin the deployment of ninety-six cruise missiles at Greenham Common, Great Britain. “Based on these alleged consequences of deployment, the Greenham plaintiffs contend that the deployment of cruise missiles contravenes several customary norms of international law, subjecting them to tortious injury actionable under the Alien Tort Claims Act, 28 U.S.C. § 1350.” No surprise that the court found that “[t]he instant case presents a non-justiciable political question.” Besides which, their claim wasn’t for a tort.

36. Jaffe v. Boyles, 616 F. Supp. 1371 (W.D.N.Y. 1985). Interesting case, and not just because it involves bounty hunters. Plaintiff was seized and dragged across the Canadian border into the US, where he was prosecuted. Court found that the US-Canada extradition treaty did not create private right of action, and as ATS is jurisdictional only, there was no tort a private person could sue for: “Any alien torts committed against Jaffe in violation of the law of nations occurred in Toronto with his seizure and continued with the crossing of the border here. The extradition treaty may well have been violated at the moment the border was crossed, but as already discussed, plaintiffs have no private right of action under that treaty.” So in a way, this case could go down into the “jurisdiction under ATS” column — the court did find that there may well have been a tort in violation of a US treaty, but it’s not one that Plaintiff was able to recover for.

37. Guinto v. Marcos, 654 F.Supp. 276 (S.D.Cal. 1986). Plaintiffs brought suit alleging Philippines government and seized and suppressed a film. Court rejected the filmmaker’s ATS claims: “However dearly our country holds First Amendment rights, I must conclude that a violation of the First Amendment right of free speech does not rise to the level of such universally recognized rights and so does not constitute a “law of nations.”

38. Saltany v. Reagan, 702 F. Supp. 319 (D.D.C. 1988). Boring case. ATS claim brought and then smacked down under FSIA.

39. Carmichael v. United Technologies Corp., 835 F.2d 109 (5th Cir. 1988). Plaintiff, a British citizen, was stuck in a Debtor’s Prison in Saudi Arabia, for two years, and brought claims against his creditors for false imprisonment and assault and battery. Plaintiff “allege[d] that the defendant corporations conspired with the Saudi government to have him jailed. He further alleges that, knowing of his incarceration and the type of treatment he was receiving, the defendants purposefully delayed giving their unilateral release of their claims in order to force him to sign mutual releases and covenants not to sue.” The court found it lacked PJx over all all defendants but Price Waterhouse. Those claims were dismissed because Plaintiff “simply cannot demonstrate any causal connection between Price Waterhouse’s conduct and his prolonged imprisonment or torture. In this case, there is no evidence that Price Waterhouse was responsible, directly or indirectly, for Carmichael’s initial incarceration. Second, Price Waterhouse owed no affirmative duty to Carmichael simply to release him from an obligation that he admitted owing. And finally, no evidence was adduced in the 12(b)(1) proceeding that Price Waterhouse in any way conspired with or aided and abetted in the act that we have assumed constituted the violation of international law, that is, the official torture of Carmichael.

40. Jones v. Petty-Ray Geophysical Geosource, Inc., 722 F. Supp. 343 (S.D. Tex. 1989). Complaint did not allege Plaintiff was an alien, nor did it plead any violation of the law of nations. “The plaintiff’s complaint alleges that Sudan was negligent in failing to warn plaintiff’s decedent of imminent political danger and violence and failing to provide adequate police protection and security to decedent. However, the plaintiff has not shown where this cause of action arises under the ‘law of nations’ and has not cited any persuasive source that recognizes a sovereign’s duty to protect foreign nationals from harm.”

41. Von Dardel v. Union of Soviet Socialist Republics, 736 F. Supp. 1 (D.D.C. 1990). Dismissing default judgment against USSR that was granted for, inter alia, claims under the ATS. Court found FSIA barred judgment.

42. Adras v. Nelson, 917 F.2d 1552 (11th Cir. 1990). Dismissed, court found “all claims were barred by doctrines of absolute immunity, qualified immunity, and for failure to state a claim, and lack of pendent jurisdiction.”

43. Castillo v. Spiliada Maritime Corp., 732 F.Supp. 50 (E.D.La. 1990). Plaintiffs claimed “retaliatory discharge under the Alien Tort Statute, 28 U.S.C. 1350 et seq.” Didn’t go anywhere.

44. Amlon Metals, Inc. v. FMC Corp., 775 F. Supp. 668 (S.D.N.Y. 1991). Amlon involved the shipment of allegedly hazardous copper residue to a purchaser in England for metallic reclamation purposes. Among its claims, the purchaser sought recovery in tort under the Alien Tort Statute, and “assert[ed] that the complaint does allege facts that constitute a violation of the law of nations. In particular, plaintiffs argue that FMC’s conduct is violative of the Stockholm Principles, United Nations Conference on the Human Environment (adopted June 16, 1972), to which the U.S. is a signatory.” The court said yeah right, nice try: “reliance on the Stockholm Principles is misplaced, since those Principles do not set forth any specific proscriptions, but rather refer only in a general sense to the responsibility of nations to insure that activities within their jurisdiction do not cause damage to the environment beyond their borders.”

45. Koohi v. U.S., 976 F.2d 1328 (9th Cir. 1992). No waiver of sovereign immunity. ATS claim dismissed in a quick footnote.

45. Hamid v. Price Waterhouse, 51 F.3d 1411 (9th Cir. 1995). “The wrongs alleged are in substance fraud, breach of fiduciary duty and misappropriation of funds. Although the conduct was international in scope, no violation of what has traditionally been the subject of international law is claimed. International law includes more than international treaties. But looting of a bank by its insiders, and misrepresentations about the bank’s financial condition, have never been in the traditional classification of international law.”

46. Aquinda v. Texaco, Inc., 945 F. Supp. 625, 627 (S.D.N.Y. 1996). Court in Aquinda referenced the possible application of § 1350 for environmental practices “which might violate international law.” Suit was subsequently dismissed on grounds of comity, forum non-conveniens, and failure to join a necessary party.

47. Beanal v. Freeport-McMoRan, Inc., 969 F.Supp. 362 (E.D.La. 1997). Court found that plaintiff “failed to articulate a violation of the international law. Plaintiff states that the allegations support a cause of action based on three international environmental law principles: (1) the Polluter Pays Principle; (2) the Precautionary Principle; and (3) the Proximity Principle. None of the three rises to the level an international tort.” Court also suggested that corporation could not violate international environmental law.

48. Jogi v. Piland, 131 F. Supp.2d 1024 (C.D. Ill. 2001). Dismissed, court held that ATS claims require a tort in violation of treaty, not just any treaty violation.

49. Mendonca v. Tidewater, Inc., 159 F.Supp.2d 299 (E.D.La. 2001). Boring case; lots of alleged violations of international law that make no sense. “the plaintiff can cite no solid support for his claim that the conduct complained of rises to the level recognized by the law of nations.”

50. Doe I v. The Gap, Inc., 2001 WL 1842389 (D.N.Mar.I. 2001). Plaintiffs brought claims of forced labor and deprivation of fundamental human rights in violation of international law. Interestingly, the court accepted the idea that a purely private actor could be held liable under the ATS, but that plaintiffs failed to prove their slavery claims, so the ATS claim was dismissed: “Although international law generally governs the relationship between nations, and thus a violation thereof almost always requires state action, it has been recognized that a handful of particularly egregious acts — genocide, war crimes, piracy, and slavery — by purely private actors can violate international law. As of now, however, only the acts mentioned above have been found to result in private individuals being held liable under international law.” “The court has above determined that plaintiffs have failed to make out a claim for the less egregious act of involuntary servitude and thus it need not consider whether the Unocal court’s equation of forced labor with slavery is sustainable on the facts as alleged here. As to plaintiffs’ claims of other alleged human rights violations, no court has yet accepted plaintiffs’ contention that the freedom to associate and the right to be free from discrimination are standards that have as yet evolved into norms of customary international law sufficient to invoke and be actionable under the ATCA.”

51. Tachiona v. Mugabe, 386 F.3d 205 (2d Cir. 2004). Dismissal of ATS claims for sovereign and head of state immunity.

52. Bancoult v. McNamara, 370 F.Supp.2d 1 (D.D.C. 2004). Plaintiffs tried to claim a “violation of the ATS.” Dismissed.

53. Schneider v. Kissinger, 310 F.Supp.2d 251 (D.D.C. 2004). Claims under TVPA and ATS against Kissinger dismissed. ATS claims did no fulfill the requirements of §2679(b)(2)(B), although TVPA claims “arguably did.” But TVPA claims still dismissed, as “[i]n carrying out the direct orders of the President of the United States, Dr. Kissinger was most assuredly acting pursuant to U.S. law, if any, despite the fact that his alleged foreign coconspirators may have been acting under color of Chilean law. In addition, the TVPA claims appear to be barred by Dr. Kissinger’s qualified immunity from suit.”

54. Ganguly v. Charles Schwab & Co., Inc., 2004 WL 213016, (S.D.N.Y. 2004). Foreign investor seeking to hold brokerage firm liable for losses failed to allege any violation of international law.

55. Mujica v. Occidental Petroleum Corp., 381 F.Supp.2d 1164 (C.D.Cal. 2005). Court found act of state doctrine did not apply, and refused to dismiss certain ATS claims. It then, however, dismissed the entire case, under the political question doctrine.

56. Holland v. Islamic Republic of Iran, 496 F.Supp.2d 1 (D.D.C. 2005). TVPA only good against individual defendants.

57. Joo v. Japan, 413 F.3d 45 (2005). “We hold the appellants’ complaint presents a nonjusticiable political question, namely, whether the governments of the appellants’ countries resolved their claims in negotiating peace treaties with Japan. In so doing we defer to “the considered judgment of the Executive on [this] particular question of foreign policy.”

58. In re Iraq and Afghanistan Detainees Litigation, 479 F.Supp.2d 85 (D.D.C. 2007). Defendants were immune under the Westfall Act. Because the Geneva Convention is not a law enacted by Congress, but rather an international agreement, it does not fall within the Westfall Act’s exception for statutes.

59. Taveras v. Taveraz, 477 F.3d 767 (6th Cir. 2007). Court found parental child abduction does not violate law of nations. Further, “the nexus between Mr. Taveras’s asserted injury and the alleged law of nations violation (that the right of the United States to control who enters its borders was infringed) is highly tenuous, at best. As Sosa definitively established that the underlying tort itself must be in violation of the law of nations to be cognizable under the ATS, we reject Mr. Taveras’s Adra-styled argument that Ms. Taveraz’s fraudulent entry into the United States is sufficient to implicate a law of nations infraction and thereby propel his purely domestic tort action within the jurisdictional ambit of the ATS.”

60. Jama v. Esmor Corr. Serv., 2008 WL 724337 (D.N.J. 2007). “Four of Jama’s claims went to the jury [including] violation of the Alien Tort Claims Act, 28 U.S.C. § 1350.” Ignoring the fact that you cannot violate a jurisdictional statute, the jury found “no liability against any defendant under the Alien Tort Claims Act.” However, it several of the Defendants did settle, so this one can go in both the win column and the loss column.

61. Ruiz v. Fed. Gov’t of the Mexican Republic, 2007 U.S. Dist. LEXIS 74736 (W.D. Tex. 2007). “In his Complaint, Ruiz contends that the defendants’ actions have violated the UN Charter and the UDHR. Neither of these documents create a tort actionable under the ATS.

62. Harbury v. Hayden, 522 F.3d 413 (D.C.C. 2008). Stating that “the ATCA cannot be the subject of ‘a violation’ of a federal statute because the ATCA provides no substantive rights that could be the subject of any claimed violation”.

63. Presbyterian Church of Sudan v. Talisman Energy, Inc. (2d Cir. 2009). Second Circuit found that corporate defendant not liable for assisting others’ alleged violations of the ATS in the absence of evidence it intended that those violations be committed.

65. Hurst v. Socialist People’s Libyan Arab Jamahiriya, 474 F.Supp.2d 19 (D.D.C. 2007): “In their Opposition, Plaintiffs assert for the first time a claim by Mulroy under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, on the grounds that they asserted jurisdiction under the statute in their complaint, and they seek leave to amend if the claim was not sufficiently pleaded. The ATS does not provide jurisdiction over foreign states.”

66. Hoang Van Tu v. Koster, 364 F.3d 1196 (10th Cir. 2004). 10-year statute of limitations adopted from TVPA to bar claims.

67. Rojas Mamani v. Sanchez Berzain, 636 F.Supp.2d 1326 (S.D.Fla. 2009). TVPA claim — dismissed for failure to exhaust all remedies.

68. Turedi v. Coca-Cola Co., 343 Fed.Appx. 623 (2nd Cir. 2009): Dismissed for forum non conveniens.

-Susan

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — has led many defendants to settle ATS claims prior to trial. Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade), and the Supreme Court in its entire history has decided only one ATS case.

Although much of this statement is subjectively wrong, the last line is outright false. Sosa was not the first — O’Reilly De Camara v. Brooke, 209 U.S. 45 (1908) was the first case brought under the Alien Tort Statute to make its way to the Supreme Court. Although the case was not particularly significant, it is notable in that it “perhaps implies that an unjustified seizure of an alien’s property in a foreign country by a United States officer would come within it.” See Khedivial Line, S. A. E. v. Seafarers’ Intern. Union, 278 F.2d 49 (2d. Cir. 1960).

The rest of that paragraph from the Kiobel decision is also dubious.

ATS cases “often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances.” The Second Circuit is abusing the meaning of “unique,” here. Events that took place abroad and in chaotic or troubled circumstances are in fact frequently litigated in US courts, albeit usually involving fact patterns that are different from the typical ATS case.

The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts — Juries may be capable of awarding multibillion-dollar verdicts in ATS cases, but that is true for all sorts of cases. The only case the Second Circuit cites to is Karadzic, which was a default judgment. Moreover, a jury decision on the merits in favor of a plaintiff in a corporate defendant case has happened exactly once in any ATS case ever, in Chowdhury v. Worldtel Bangladesh Holding, Ltd., 588 F. Supp.2d 375 (E.D.N.Y. 2008). Just once. That is hardly grounds for invoke the specter of “juries awarding multibillion-dollar verdicts.”

… has led many defendants to settle ATS claims prior to trial. Wait, don’t courts consider it a good thing when cases settle before trial? And wait a second here — “many defendants” is quite a stretch. I am only aware of seven ATS cases ever that resulted in a settlement. I’m willing to assume there are a few out there that I’ve missed, but not many. The Second Circuit itself lists only two. There have been, by an extremely conservative estimate, maybe three hundred ATS cases in total that were “legitimate.” By legitimate, I mean not jail-mail and not filed by obviously crazy people. Of these three hundred or so cases, under a dozen have ever resulted in a settlement. So at the extreme, a mere 3% of ATS cases wind up settling. The average settlement rate for torts in federal courts is around 67%. I therefore find it absolutely ridiculous that the Second Circuit is using the threat that “many defendants settle before trial” as a reason for why the ATS is ‘dangerous’ or ‘unpredictable.’

There are other errors in Kiobel that are more significant, and are legal errors rather than factual ones, but these mischaracterizations are telling. The court was not simply adjudicating the merits of the plaintiffs’ claims — obviously the court found that its fears of what the ATS was capable of doing to be significant enough to include in its opinion. But these fears were based on stilted facts, not on the actual record.

-Susan

What would you say to those that agree with Kiobel – to those that say there should not be any corporate liability under international law?

None?  Ever?  What if a corporation takes over a state, de facto, although none of their people are nominally holding the major government positions?  What if Nauru still had phosphate and essentially sold all major state operations off to a mining company?

An interesting question.

I just don’t see the whole bright line supposedly created by being a “corporation.” If individuals can integrate with a state and violate international law, or if instrumentalities of states or international organizations can violate international law, why the hell can’t a corporation?  I mean, branches of states have been held to violate international law, but responsibility always cuts back to the sovereign. My only point is the idea that a non-individual can be in violation of international law is not as far out crazy as it’s being made out to be. Heck, even the East India Company had to abide by international law. Well. Not that it did.

Really?  Was the corporate entity ever held responsible, or just the people running it?

Well, the problem with the early corporate cases is that it’s all sorta piratey stuff…. which is always kinda its own brand of international law.  But come on, corporations basically invented law of the sea. Why do you think Grotius wrote his treatise on the law of capture? ‘Cause a corporation paid him to. Seriously. He wrote Mare Liberum as an advocacy piece for the Dutch East India Co.

So . . . why isn’t it enough to impose individual liability given that corporations are legal fictions anyway?

Well, that’s kinda the point. Corporations are made up doohickeys, they don’t actually exist. But the law of nations, old school international law, basically understood them to be domestic constructs, and they sure as hell didn’t let states or entities weasel out of violations of international law because some state told them “oh hey you’re incorporated.” (1) Because enterprise liability is a recognized concept under international law, (2) those individuals are liable themselves but they are merely agents of a legal construct, (3) and corporations are created to funnel their profits to a diversified source. So [under the opposing view], a state entity can create a complicated legal structure that allows people to invest and profit in violations of international law, and they can recover their investment because they were deliberately and carefully shielded from actual knowledge.

Can’t you create some type of willful blindness liability? That an individual who invests in a corporate structure with full knowledge that it is intended to shield the individual from knowledge of violations of international law has a sufficiently culpable state of mind to impose individual liability?

But see, international law has never ever gone there before. Willful blindness liability is a totally new concept. Why not just use corporations? Corporations have never been given unique immunity status under international law until recent times. Also come on. Most stocks are owned by other corporations. And also states will NEVER allow their citizens to be found guilty of genocide because they happened to have the wrong stock picked out by their adviser for their 401K.

But you’re taking money from stockholders because the corporate entity committed an independent act.

So what? They invested their money in something that broke the law. This is not an uncommon occurrence. Companies are fined for breaking the law allllll the time. Including international law, albeit not customary international law. Plus: ATS cases can be brought under treaties. Some treaties do regulate corporate behavior. The 2nd Circuit opinion would, unintentionally I think, ’cause problems there too.

Interesting.

I guess my ultimate point is, a unilateral domestic act — the creation of corporations — cannot create a blanket financial immunity for its citizens/self for violations of international law. If corporations didn’t exist — say, Shell was just a business, all in one dude’s name — all that money would be recoverable. So why can England/Holland immunize that money by taking a slip of paper and writing “Articles of Incorporation” on it?

-Michael

*I also noted an issue that has since been raised by Kevin Jon Heller over at Opinio Juris: it seems like corporate acts can still violate international law, it’s just that there is no jurisdiction to impose liability for those violations.  Susan doesn’t think that distinction has any relevance, but I think it remains to be seen whether that is an important distinction.