Brooklyn Law School Conference Considers Corporate Liability for Grave Breaches of International Law
I had the good fortune to attend, and participate in, Brooklyn Law School’s conference yesterday on Corporate Liability for Grave Breaches of International Law. It was good to have a chance, for instance, to argue with Professors Bill Dodge and Beth Stephens one more time about what exactly Sosa v. Alvarez Machain means this time with respect to corporations. But it was also illuminating to hear from scholars outside the foreign relations field, and especially from outside the United States, on other mechanisms for regulating corporations for severe international crimes.
My bottom line take from the conference: The primary U.S. system for holding corporations liable for grave breaches of international law is the Alien Tort Statute. Now I don’t think the ATS is supposed to be used to expand international law liability to corporations, and to develop and explore different conceptions of aiding and abetting liability of corporations, or to lead the development of U.S. policy on various norms of customary international law. But it is being used that way, without any explicit consent from Congress. This strikes me as improper.
But more importantly, the conference reinforced for me that the unique mechanism created by the ATS — the imposition of civil tort liability for (and only for) extremely serious international crimes under legal standards largely developed by courts — is out of line with developments in foreign countries. Other countries permit criminal prosecutions of individuals and perhaps corporations for serious international crimes, and most usually rely on statutory law to develop standards for the imposition of corporate liability. Only the U.S. maintains this strange civil international tort system in order to punish serious international crimes.
It may not matter that the U.S. is an outlier in the ATS arena. But it is certainly interesting, nonetheless.