Saturday, November 17, 2007

Julian Ku brief note on Brooklyn conference on corporate liability in international law and ATS cases

Julian Ku, over at Opinio Juris, here, mentions a conference at Brooklyn Law School on corporate liability in international law. I share much of Julian's view, briefly expressed in this post. I'd add that in informal discussions with non-US international lawyers, they not infrequently express discomfort at the way in which ATS law in the US is evolving and going its own way - a kind of specialized US version of international law for purposes of ATS litigation. It puts them in a difficult situation, because they frequently like the results but dislike the process and what it suggests for the fragmentation of international law as US courts do their own thing with it. Hence the frequent hesitation to pronounce publicly on the issue.

I do hope the Brooklyn conference will publish something, however; the problem, of course, is that there are lots and lots and lots and lots of academic conferences on this topic, not infrequently organized by my school, consisting of academics and politically committed students announcing a political agenda in the hushed tones of academic international law, and never giving a thought to actual arguments on the other side. Whereas, in these areas, it's not just policy arguments on the other side, there are lots of doctrinal ones, textual ones under international law.

Reaching the conclusions reached by the ATS courts on things like civil liability for corporations in these cases requires unabashedly heroic assumptions. Or else it requires what Judge Weinstein did in his last Agent Orange case: simply a lofty assertion that it would be inconceivable that a US court would avoid imposing tort liability because of the corporate form, but thereby negating the altogether quite conceivable implication, however, because that is the plainest reading of the treaty law, that international law (at least if you get away from what American professors and their students think) does not actually conceive of either corporate liability as such or civil liability for corporations as such. It is an interesting form of the sucker's bet, really: ATS litigation today consists of wanting to have (and mostly getting) all the goodies and none of the burdens of US domestic law in international human rights litigation, while wanting to have all the of the goodies and none of the burdens of international law.