Responses on Non-American Views of the ATS, and Marko Milanovic’s Response to Eric Posner

Eric Posner picks up on Marko Milanovic’s very interesting comments in response to my question below about the views of non American international lawyers of the ATS.  I’m going to pull up interesting responses to my question into this separate post – currently from Marko, Francisco Forrest Martin, and I’ll update if others add things to the bottom of the post.  (I have also included below Marko’s response to Eric in comments at Volokh, as Marko was not entirely happy with Eric’s riff.)  But here is a bit of what Eric comments on Marko’s comment; Eric discusses Koh’s views of transnationalism, but I want to pull away from Koh’s views back to the more general question of the ATS as seen by non-American international lawyers and legal scholars:

[F]oreigners do not approve of ATS litigation. Foreign countries do not have their own ATS-style litigation and indeed shudder at American tort litigation of any type.

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals. When Americans tire of using tanks to inflict their ideology on foreigners, they use lawyers. On the foreigners’ view, if international criminals are to be punished, they should face criminal, not tort, liability meted out by an international court (ideally) or, in some cases, a domestic criminal court that has a proper basis of jurisdiction in international law. International law, grounded as it is in the consent of states, supports no other outcome.

I should add that the usual response when I have questioned the ATS as a sort of parochial version of international law is to say that it is not ‘international law’ at all.  It is, rather, US tort law in which the starting gate is a question of international law; it is irrelevant whether it imposes tort liability or enterprise liability at the end of this entirely US process because although it uses international law as a trigger, it is not international law in substance or process.  I think that is not really correct as a characterization, and I’ll come back to that on a separate occasion, but leaving that aside, the point remains that even its usage in this American tort process, if that’s what it truly is, filters and alters the content of the ‘law of nations’ through a thoroughly American lens.  

Moreover, as Eric notes, the imposition of liability according to these American rules – whether they used international law as a trigger or not, simply the way in which they assert jurisdiction over parties – itself is arguably a violation of international law, a view that is, I believe but certainly can’t offer any evidence for but private conversations, widespread among non-American international lawyers.  In other words, there are several different ways in which one might object to the ATS as problematic from the standpoint of international law – its use as a trigger, the effects the cumulative use of that trigger has on the ‘international’ law filtered through American litigation process, but also, quite separately, the jurisdictional assertions made by non-American plaintiffs over non-American defendant enterprises in apparently unrelated American courts. The former are issues of international law and its usage in an American process; the latter is an objection to an American long arm statute, originally to protect foreigners from biased US state courts in diplomatic questions, but today dressed up as a quasi-question of universal jurisdiction.

But now, let me put here Marko’s comments and also Francisco Forrest Martin’s briefer remarks.  I’ll add more if received.  Marko:

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.

Marko also responds to Eric in the comments at Volokh:

Dear Prof. Posner, 

Though I am of course as happy as ever for you or any other scholar of note to reference one of my posts, I must also say that I honestly do not appreciate the way that you’ve used my answer to Ken Anderson’s question at OJ to launch yet another of these endless attacks on Harold Koh. I had no intention to imply – as you have basically made it seem – that all US lawyers, Koh being one of them, who support ATS litigation are fundamentally dishonest about it and don’t show ‘decent respect for the opinions of mankind.’ 

I happen to think that they are wrong in their interpretation of international law, and that at least a part of the unwillingness to consider the wrongness of their position is a product of ideological conflicts raging within the US academia and society as whole. That does not mean that there is no room for reasonable disagreement. Nor does this mean that all who participate in this ideologically skewed debate, on one side or the other, are by definition some sort of political hacks. Most, if not all, of the most controversial issues in contemporary US legal scholarship, e.g. originalism in constitutional interpretation, are similarly politically and ideologically polarized, yet this does not render all contributions in such debates worthless (far from it), nor every contributor dishonest. It is just that it makes outsiders, such as myself, wary of engaging with them. 

At any rate, I hope that you and your readers appreciate the irony in using a post by someone lamenting the adverse impact ideology can have on a rational debate to launch an ideological and political attack against somebody else. I would really, really appreciate it if you could update your post so that it reflects my profound disagreement with, well, everything else that you’ve said. Many thanks, and kind regards, 

Marko Milanovic

And Francisco Forrest Martin:

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.

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.”

(Thanks to our commenters.  I will add more if I receive more.)

Let me add something else, particularly if students are surfing here looking for quick directional pointers for research.  I have been asking mostly about the views of non-American international lawyers and international law scholars.  I’m also interested in the question of what foreign courts or international tribunals have said in reference to the ATS or comments by foreign governments, but what I was curious about here was mostly about scholarly or practicing international lawyer commentary or analysis from the perspective of ‘outside the US’.  That said, a good place to find discussion of what has been said in litigation over, for example, transnational investment is the excellent article coming out soon (or out?), Michael Ramsey, International Law Limits on Investor Liability in Human Rights Litigation, 50 Harvard International Law Journal (2009), on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307362.  See the footnotes for helpful research directions.  Here is the SSRN abstract:

This Article assesses efforts in U.S. courts, principally under the federal Alien Tort Statute, to hold foreign investors indirectly liable for human rights violations committed by the governments of countries in which they do business. Such claims, though intended as remedies for international law violations, raise substantial tensions with international law in two respects. First, to the extent they purport to regulate the non-U.S. activities of non-U.S. entities, they may conflict with international law principles of prescriptive jurisdiction, which limit a nation’s ability to regulate the extraterritorial activities of non-nationals. Although an exception for universal jurisdiction allows nations to punish a few especially heinous international crimes without regard to territory or citizenship, it seems difficult to establish universal jurisdiction for most indirect investor liability claims, and in any event U.S. courts appear to have lost sight of this limitation. Second, investor liability suits may misconceive the source of customary international law principles. Because customary international law arises from the actual practices of nations followed out of a sense of legal obligation, its content cannot be derived from analogies to nations’ practices in areas that are factually and normatively distinct. The only reliable evidence of nations’ practices is what nations actually have done with respect to investor liability, and there is no consistent practice of imposing indirect liability on investors for host government abuses. While international law allows the United States to impose indirect investor liability upon its own corporations, the United States cannot claim to be doing so as matter of enforcing existing international law, as the Alien Tort Statute appears to require, nor can it-consistent with international law-impose liability upon non-U.S. entities over which it lacks prescriptive jurisdiction.

And as Ed Whelan points out (with alas unnecessary hyperbole), judges on the ICJ, including the human rights scholar Thomas Buergenthal, have expressed some caution about the reach of the ATS:

[T]hree prominent judges on the International Court of Justice—the president of the ICJ, the English barrister Rosalyn Higgins, and the American judge and human-rights law expert Thomas Buergenthal—have criticized the “very broad form of extraterritorial jurisdiction” that American courts exercise in ATS litigation: “While this unilateral exercise of the function of the guardian of international values has been much commented on, it has not attracted the approbation of states generally.”  Democratic Republic of the Congo v. Belgium (Case concerning Arrest Warrant of 11 April 2000)[2002] ICJ Rep 3 at 77 (para 48) (concurring opinion of Judges Higgins, Kooijmans and Buergenthal). Further, the House of Lords has declared ATS litigation “contrary to customary international law.” Jones v. Saudi Arabia, [2006] UKHL 26 (para 99). And, as this Solicitor General’s brief makes clear, Switzerland has condemned the assertion of ATS jurisdiction over its own nationals with regard to their conduct in a third country as “inconsistent with established principles of international law,” and the United Kingdom and Germany have similarly protested that such assertion “infringes the sovereign rights of States to regulate their citizens and matters within their territory.”

That is still a remarkably small body of commentary on so celebrated an American practice with increasingly large implications for non-American plaintiffs, non-American corporate defendants, conduct unrelated except by the reach of the statute to any American territory, party, or conduct.  So my interest has been to wonder why there is not more commentary on it in Europe, for example, among international lawyers and scholars – also wondering if perhaps there is and I just hadn’t heard about it, though that seems doubtful.  The court commentary and filings by governments are easier to come by, I suppose.  I will continue to update this post with things that come to my attention, so that it has links to some of these materials, primarily thinking of people looking for a fast way into a relatively obscure area of comment.