Bleg: What Do Non-US Legal Scholars Think about ATS Doctrines?

by Kenneth Anderson

I am fundamentally in agreement with the Bradley-Goldsmith view that Julian and Kevin discuss in the two previous posts.  However, I want to post up a related question.  It is not so much about the ATS itself or its implications for US law or its politics.  It is, rather, about the substance of the legal positions produced in ATS cases and the US-centric methods by which they are produced, and whether non-US international lawyers and legal scholars think that they are right as a matter of international law, the substance of international law.  (UPDATE:  I have put up a new post with substantive comments received, including Marko Milanovic and others, as well as some further discussion and Eric Posner’s comments from Volokh.)

As I point out in a short essay coming out soon in the European Journal of International Law that Joe Weiler was kind enough to solicit (adv.) (but it is certainly not an observation original with me):

Consider, for example, the very particular sub-community of interpretation of international law by US courts in Alien Tort Statute interpretation. Those courts (constantly citing to each other) have gradually built up a self-referential, hybrid jurisprudence of certain aspects of international criminal law – war crimes, crimes against humanity, and genocide, for example – together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the Alien Tort Statute – “in violation of the law of nations or a treaty of the United States,” especially – create idiosyncratic pressures on interpretation. What is the ‘law of nations’ – for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the ‘law of nations’ means as an international law term, it means something different in the hands of American courts that, under Sosa, are required to look not strictly to “traditional” international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens – but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, or anyway what was meant in their times, along with some “fundamental” matters of the law of nations.

I do not mean to get hung up on differences among contested doctrines of US ‘originalism’ in interpretation – on the contrary, the fact that we might get hung up on such things tells you something about how distinctive this community of “international law” interpretation is.  In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of “international law” filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute, Sosa atop of that (Sosa, while (predictably) not producing predictable outcomes, nonetheless introduces a distinctly US set of interpretive issues) and only by extension to the “international” law underlying it.

The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding, absolute need of plaintiffs to show a law of nations violation merely to get into US court, must start to look strange to those international lawyers as well. What does it mean when the function of the law of nations is to establish a threshold by which to get into court, rather than being the core issue of the litigation – litigation in tort, not a category of international law as such at all?  Doesn’t this inevitably affect the way in which the law of nations is interpreted?  I suspect – it is hard to get anyone to say much, frankly – that many non-American international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways that are not consistent with the “authoritative” interpretation of international law in the international community and that are, in a word, weird. But who wants to be the non-American “international lawyer” to tell a US District Court that?

This is from the unedited draft; it will all be polished up in the final.  But my basic question stands.  I have had conversations with several prominent European legal scholars who have expressed exactly such private reservations about the interpretive filter through which international law flows in ATS cases as well as private reservations about the substantive results.  They also have never wanted to make such criticism publicly, because overall they favor American courts getting involved, presumably – the discussions didn’t go that far – because they hoped, as American transnationalists often hope, to use the American courts for (as John Bolton or I might put it) an end-run around the will of the American political branches.  

But I would be exceedingly curious to know if there were discussion by non-American legal scholars of the process and substance of American ATS cases – whether favorably or unfavorably disposed.  I have searched over the years, but don’t find so much – especially criticism of the kind that I have heard in private discussion.  The closest things to criticism I can think of are the expert declarations offered a few years ago by Christopher Greenwood and James Crawford in Talisman in which there were at least some discreet, indirect criticisms offered of US court interpretations of international law.  But I might be over-remembering.  

So my question is, does anyone know of expert commentary by non-US international lawyers or scholars in this area?  Either for or against the way in which US ATS litigation interprets as a matter of method as well as substantive conclusions of international law?  I would be grateful if you could point me toward such commentary.

(I should add that I have occasionally done expert declaration work on ATS cases.)

6 Responses

  1. Ken,

    Like you, I am unaware of much non-US scholarship on US ATS jurisprudence (with one or two major exceptions, to which I’ll turn later). Again, like you, I can only offer anecdotal evidence, as well as my own views on the matter (which I think that most non-US scholars share, but of course I have no way of proving that).

    So, to my mind at least, the whole theory that that there is such a thing as tort responsibility of individuals or non-state actors in international law is completely unsupported. If I commit a crime against humanity and incur individual criminal responsibility at the international level, that does not mean that I have simultaneously incurred civil or tort responsibility at the international level towards the victims of my crimes. International law has historically not regulated such private relationships, and even individual criminal responsibility – where the offense is committed against the international community as a whole – is of fairly recent extraction. The idea that such tort responsibility existed two hundred years ago when the ATS was drafted is (with all due respect, etc., etc.) completely bonkers.

    I must emphasize that I don’t think that this is so because of some orthodox grand theory of international legal personality or subjecthood that excludes individuals. There is in principle no conceptual obstacle to having tort responsibility at the international level – if criminal responsibility of individuals can exist at the international level, so can civil. It’s just that there is no or very little evidence, save for US ATS case law, that such responsibility exists.

    Now, this is my impression what the mainstream position is in non-US academia. As a purely normative matter, I also think that most non-US scholars think that having tort responsibility at the international level would be too chaotic, too unilateral and potentially disruptive to offset the little practical use that it would have (correct me if I’m wrong, but it’s not as if victims of atrocities have actually managed to obtain much in the way of actual cash from ATS litigation so far).

    So, to sum up, to most non-US scholars what the US does through ATS litigation is not seen as an actual application of international law, but more as an exercise of some sort of universal civil jurisdiction to prescribe domestic tort law.

    As for your question why non-US scholars are not actively engaged in debunking (what we see) as an improper interpretation of international law in US courts and the mainstream US legal academia, perhaps a part of that answer is the one that you suggest, namely that we don’t want to interfere with some sort of ‘socialization’ of the US with international law.

    However, I think that on the whole the more weighty reason for not engaging with this issue is that most non-US scholars think that, well, this wouldn’t be worth the effort. Legal scholarship is by definition an exercise in persuasion, and I doubt that the generally favorably disposed (liberal majority of the) US legal academia towards the whole ATS stuff would be persuaded to the contrary by external scholarship any more than it is by its conservative counterparts. (The same goes for endless debates within the US re the status of international law in the US legal system, etc.) Thus, the general attitude is live and let live – if international law is what US scholars think that they are doing with this whole ATS stuff, then so be it.

    Again, this is my own impression of the mainstream views in the non-US legal academia. That doesn’t mean that there are no dissenting views on the matter. Perhaps it would be of use to consult Andrew Clapham’s work on the human rights obligations of non-state actors, which is certainly of major importance – though I (and most people, I think) remain respectfully skeptical of it. If I recall correctly, he does indeed discuss the US ATS jurisprudence at some length to support his main argument.

    Hope this was of help.

  2. Marko, thanks for that generous response.

  3. The law of nations historically has governed the relations between private individuals and recognized civil remedies for law of nations violations.  For example, the lex mercatoria was one of the earliest bodies of international law.  And, the law of nations governing piracy recognized that private persons could seize piratical vessels and receive the proceeds from the sale of such vessels as a prize award. The idea that international law recognized rights and duties for private individuals is certainly not “bonkers,” as Prof. Milanovic put it.  I don’t know where this idea that international law historically never governed the relations between private persons came from.  It’s just not true.

  4. Actually, the idea that the law of nations only governs relations between states probably came from Bentham, who first coined the phrase “international law” and limited the law of nations to relations between states.  James Wilson appears to have corrected him in his lecture “On the Law of Nations.”

  5. Ken,

    I might have something that could be of interest to you. A friend of mine wrote his dissertation on “Corporate Responsibility under the Alien Tort Statute — Enforcement of International Law through US Torts Law”. Michael Koebele, a German national, practices international law and is now based in Brussels.

    To my knowledge, he not only examines the validity of ATS claims from the perspective of public international law in greater detail (international criminal law, international labor law, human rights, environmental protection) but also analyzes the tests and methods used by US courts to determine those rules of international law that are actionable based on ATS.

    The book is slated to come out soon – and can surely be found through the usual channels.


  6. Markus, thanks for that tip!  I’ll ask my library to get on it.

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