Sunday, June 19, 2005

Corporate liability not in international law, but in ATS cases - notes

In an earlier post, I discussed what is the standard, black-letter law view of corporate liability in international law - it does not exist.

That earlier post (noting the latest Talisman decision) discussed the canonical sources of international law, and pointed out that there is neither juridical entity liability nor, for that matter, civil liability. (This was in the context of quoting from an expert affidavit I had prepared for corporate defendants in the latest, and perhaps last, of the Agent Orange cases.) The question is how, given the unpromising and indeed uncompromising nature of such international law materials, US district courts in a several Alien Tort Statute cases have apparently so easily come to the conclusion that of course there is corporate civil liability. I don't think this is right, as a matter of US or international law, but if one were trying to put the arguments in favor of corporate civil liability as a matter of international law, what would they be? What kinds of arguments are made in the court decisions, party and amicus filings, and academic literature?

Synthesizing down from that mass, and leaving aside the objections that I regard as fatal, the arguments in favor come primarily to three:

First, with respect to corporate liability, there is the approach Judge Weinstein takes in the Agent Orange litigation, and one which figures at least as background in many of the other court decisions. Even though Judge Weinstein says early on in his 230 page decision that he must adopt international law standards, by the time he reaches the corporate liability discussion, he nakedly abandons any reliance on international law and simply says that in American law corporations are subject to liability and it would be a socially really bad thing if it were any other way. It's both American-centric and result oriented all at once. it has the virtue, however, of clearly articulating what is going on, and is a sentiment that with greater or lesser forthrightness appears in some other ATS decisions.

Second, with respect to civil liability, the view seems to be that since the ATS speaks of a suit in tort, essentially once you have a violation of the law of nations, then American law will permit you to proceed in civil tort for damages even if the original violation had to be a violation of the law of nations which could not itself have been civil in nature, at least with respect to individuals, since individuals are subject only to criminal liability in narrow circumstances in international law.

This line of argument will work, however, only with certain kinds of cases against individuals under the ATS - for example, a war crimes violation by an individual giving rise to an ATS tort action. But it won't work for such things as alleging violations, even by an individual, consisting of damaging the environment unless one can (improbably) bring them under war crimes, genocide, etc. Much of what is alleged in the environmental field is in effect an effort to invent, under banner of the ATS, an international civil environmental law, a law which is essentially international tort and which can be directed against private juridical entities. But if you can't get the international predicate which, in the case of non-state-actors, and even if you allow that they somehow include corporations and not just individuals, must be criminal under the narrow categories of international criminal law - war crimes, genocide, etc. - then you can't get an ATS case going in the first place, even if it, once going, can proceed in US tort law.

Third, again with respect to corporate liability, the idea seems to be that the ATS is not purporting to establish international law as such, but instead a special body of ATS-international law, that can have its own special standards, limitations, extensions, etc., which lie in the hands of US judges to develop. ATS-international law just is different from international law, thus rendering the bemused stares of foreign legal specialists such as Greenwood irrelevant. It is, on this view, by its nature an amalgam of US and international law - in some respects, substantive international law but US procedures, although that doesn't really account for how US courts behave.

It is true that the ATS takes international law, on its very face, with certain peculiarities - particularly, the statute itself refers not to treaties, but to treaties of the United States, thus limiting in certain ways the body of international law that a court may consider. There is also an important question of the extent to which US federal courts must, whether for reasons of prudence or prudent respect for executive power in foreign policy or even from Constitutional mandate respect the firmly expressed interpretation of the executive as to the content of international law. And there might be an originalism question - one acknowledged even by the majority in Sosa - that the ATS must be limited to the actions contemplated with respect to international law at the time of its enactment - Blackstone's three conditions, and so on.

But those limitations aside, the language of the ATS refers to the law of nations and treaties of the United States as the applicable body of international law. It does not refer to any kind of special judge-created body of special-purpose international law for purposes of ATS cases. There must be a violation of the law of nations or treaties of the United States - subject to these special limitations - in order to get an ATS case going. That means, at a minimum, that the alleged violator of international law must be the kind of thing that can, under the law of nations or treaties of the United States, be a violator of international law.

Even after reading all these cases, pleadings, amicus briefs, and law review articles, I am still having unbridgeable problems in understanding how one leaps over that gap to arrive at the position that because US law has concluded that corporations must be subject to liability, the same must be true when US courts try cases that require as a predicate a violation of international law. This gap simply seems papered over to me in this voluminous literature - and with the growth of US cases that have already made that leap, no one bothers to make the argument de novo, but simply prefer to cite to the (logically flawed) cases that have gone before.

(Update, July 3, 2005: Here, btw, is a google search by someone who wound up on this blog on the topic of corporate liability for war crimes. Not precisely the same issue - if you talk about corporate liability for war crimes, you are speaking more narrowly than what I address in these posts, because you limit yourself to criminal acts, not civil acts. But it is a useful guide especially to what the buzz among the NGOs is about. One of the better articles in that list is this 2002 discussion of the Unocal standard on aider and abettor liability, here. Also this list of academic articles, at, here.)

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