Judge Williams’ concurring opinion in Ali Shafi v. the Palestinian Authority, affirming the district court’s dismissal of the plaintiffs’ claims against the Palestinian Authority, is a long overdue attempt to create a new theoretical framework for the recognition of causes of action under Alien Tort Statute — or, more properly speaking, attempts to revive a very old one. His concurrence is an original attempt to link the ATS’ alleged origins in Blackstone’s Commentaries with the statute’s modern revival in Sosa v. Alvarez-Machain. Ultimately, it proposes a new standard all together for judges struggling to vigilantly police the ATS threshold: that the causes of action recognized under the ATS’s jurisdictional grant ought to be those which “protect[] and facilitate[] the system of international relations arising out of the Westphalian view of national sovereignty, particularly with respect to the avoidance and termination of war.”

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