A Question About Kiobel

by Kevin Jon Heller

It’s always dangerous to opine on a judgment you have only skimmed, so I’ll phrase my thought as a question instead.  Here is what the ATS Statute says:

The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

The key expression is “committed in violation of the law of nations.”  Whether an act violates the law of nations is determined by the substantive rules of international law: the definitions of international crimes, the modes of participation available for those international crimes, and the possible defenses to those international crimes. Jurisdictional rules are completely separate from those substantive rules; jurisdictional rules determine who can be prosecuted for a violation of the law of nations, not whether substantive rules have been violated.

Consider, for example, a 12-year-old child soldier who aids-and-abets a war crime during a non-international armed conflict and has no defense for his actions.  International law would not permit an international tribunal to prosecute that child soldier, nor is there a general principle of criminal law that permits prosecuting child soldiers that young.  But we would not say that the child soldier has not committed a “violation of the law of nations.”  He has — he simply cannot be prosecuted for that violation.  So how is the situation in Kiobel any different?



15 Responses

  1. I’ll leave it to others to answer it substantively; I guess I’d say as to the opinion that you precisely identify the dividing line between the Second Circuit holding and the holdings that have gone the other way on this issue.  Viz., is it settled by settled by reference to the domestic court and its rules, or is it a substantive requirement of there being an international law violation itself.  It’s because that question is so basic to what direction ATS litigation goes that I would guess that the Supreme Court will have to say something at some point.  But I do find it striking that this question is logically prior to Sosa; meaning that you only get to all the Sosa criteria and requirements once having answered this still more basic question that Sosa touched in the famous footnote but did not address.

  2. I agree in substance with Kevin.  My take, for what it is worth, is that I think it is far too simplistic to say that international law must identify who may be held responsible for a violation.  That borders on saying that it must create the cause of action in all of its particulars.  That is some of the same foolishness that has plagued self-execution doctrine for treaties in U.S. law.  That is, plain and simple, not how international law of the original ATS era worked.

    The framers of the ATS must have intended to allow the creation of a common law cause of action for tort by granting jurisdiction.  Otherwise, there could be no domestic remedy.  At the time of the original ATS, the law of nations was understood to be binding on a nation and its people.  (See Vattel.)  International law defined only the rights and duties of states and their national remedy (usually war).  It would not, at that time, identify others who could be held responsible for a violation.  That was the solely the function of domestic law in that era.  Blackstone is clear that when the law of nations was received/adopted and applied to individuals, it became purely domestic law.

    The fact that international law has evolved to the point of directly establishing (or maybe better stated, requiring) individual responsibility in some cases should not change this result, at least not unless or until it develops to the point of establishing exclusive responsibility in certain juridical persons and no others.  It does not do that now and probably never will.

  3. I think John makes an excellent point.  I realize that the original intent of the ATS is disputed.  But it seems difficult to argue that those who enacted it intended to determine who could bring an ATS lawsuit by reference to international law, given that — as John notes — the idea that international law created rights enforceable by individuals, as opposed to states, was essentially unknown at the time.  The literal reading of the statute is far more likely to be consistent with the original intent — that as long as an act violates the law of nations, its substantive rules, an ATS lawsuit is possible.

  4. The California District Court opinion address this point a little bit.  I don’t have a copy but it’s worth seeing.

    Essentially the point is that the ATS drafters’ view of domestic law may have included coverture — i.e., joint liability for husband and wife.  But it would be absurd after Sosa to allow ATS courts to apply particular domestic notions of liability (like coverture) without clear indications from international law or congress.

  5. Kevin,

    The lack of close attention to the actual wording of the statute has always puzzled me.

    I’d be tempted to take your argument even further.  Why is it a given that international law must define the mode of participation? Shouldn’t it be sufficient to allege a war crime committed by person X and then use the domestic law of torts to determine whether the defendant (Y) can be held responsible?  In other words, it is not clear to me from the text of the statute that CIL must recognize “aiding and abetting war crimes” in order for the defendant to be liable in tort.

    Incidentally under such a construction, it is not problematic that there is no international law of civil liability as civil liability is entirely a matter of municipal law.

  6. Kevin,

    I substantively agree with Ken in this respect. As I see it, the issue is not jurisdictional in nature, i.e. it is not whether international law creates some sort of forum where individuals (outside the very limited field of international criminal law) or non-state actors can be brought to account for serious violations of human rights or whatever. Rather, the issue is whether international law imposes obligations on these actors, i.e. whether say corporation X has the obligation not to aid state Y which is engaging in serious human rights violations against its population, regardless of whether there’s a forum in which to enforce these obligations or not.

    This is precisely an issue of substantive law, not of jurisdiction. And whatever the drafters of the ATS intended (not that we all have much clue on this), this does not change the fact that international law does not and did not impose civil responsibility on individuals and non-state actors such a corporations. It could do so, mind you – I am not a huge fan of rigid doctrines of subjecthood – but it does not, mainly for reasons of pure practicality. Perhaps it will do so in the future, but it just does not do so today.

    On the other hand, if the ATS were to say “an act which is considered a crime in international law is to be regarded as a tort under US domestic law, under which individuals will be responsible”, I would be fine by that – the source of the civil obligations of individuals would then be US domestic law, which would only look to international law in some kind of renvoi. But this is not what the ATS says, nor has it has been interpreted in such a way by US courts.

  7. Marko,

    But under your reading, the ATS is a literal nullity.  If “international law does not and did not impose civil responsibility on individuals” or on “non-state actors such as corporations,” then aliens should not be permitted to bring ATS lawsuits against natural persons either.  Which means that no one can bring a ATS lawsuit against anyone.  Does that make sense? A far more plausible reading of “violation of the law of nations,” I think, is the literal one: that Congress intended to create an individual right to bring a tort action against any person, natural or juridical, who harmed the plaintiff through an act that, at that particular time, would give rise to state responsibility under international law.

  8. Marko,

    Note also that your argument is inconsistent with Kiobel itself.  The court accepts that ATS lawsuits can be brought against individuals — but it does not argue that international law recognizes the civil responsibility of individuals for violations of the law of nations.  Instead, it claims (p. 47) that international law recognizes criminal responsibility for the violation of the law of nations and that the ATS creates a civil remedy for such violations.  So the court is precisely reading the ATS to say that “an act which is considered a crime in international law is to be regarded as a tort under US domestic law, under which individuals will be responsible.” So why does it not do the same for corporations?  Where in the ATS does it say that violations of the law of nations are only actionable if those violations would be criminal if committed by an individual?  And why would it say that, given that individual criminal responsibility did not exist under international law when the ATS was enacted?

  9. Kevin,

    Note that although I said I agreed with Ken, I did NOT say I agreed with the Kiobel Court in everything that it said. I completely accept your point that the Court’s reasoning (and my own explanation above) would extend to tort claims against individuals. The likely reason the Court did not say so is that it did not want (or maybe it couldn’t – I don’t know whether circuit courts consider themselves bound by their own precedent) to overrule Filartiga and its progeny.

    As for whether my reading would render the ATS into a literal nullity, well, I can happily say that I really don’t care about that! My concern is for the proper interpretation of international law. If the issue is whether international law recognizes the civil responsibility of individuals and corporations, then in my view the clear answer is that it does not. As for the issue whether the ATS could properly be interpreted as in the second option I give above (i.e. that it itself creates civil obligations for individuals), I am generally agnostic, expect to say that this is not how US courts have interpreted it, preferring rather to say that it is a purely jurisdictional statute.

    And if both of these premises are true, i.e. ATS is purely jurisdictional + there is no international tort law = ATS is a literal nullity, well then, so be it. One simply cannot say that international law should be interpreted in a particular way so as not to render ineffective the domestic law of a single state. If I was a US lawyer, I would think that the more fruitful line of inquiry (or attack) would be premise 1, i.e. within the confines of US domestic law, not premise 2.

  10. I believe that the decision and the arguments supporting it are based on an understandable desire to limit ATS jurisdiction.  It is true that it matters whether international law creates obligations for the individuals against whom a remedy is sought.  I just don’t believe that those obligations are always express rather than derivative.  I believe Sosa stated that the norm being enforced must be binding upon individuals for the sake of other individuals.  That certainly does not necessarily mean they are expressly or directly so.

    Additionally, indentifying those entities or individuals that may be held liable is not solely a function of international and domestic laws regarding personal jurisdiction, in my view.  The remedial right being created is domestic common law.  While my thoughts on this are tentative, I believe the implication of that fact is that it is that the subject matter jurisdiction of an ATS suit is limited to acts committed territorially, and perhaps also by U.S. nationals abroad.  The extreme efforts being undertaken to limit ATS suits could be cured, in large part, by recognizing this basic jurisdictional requirement. 

  11. I think that the Kiobel court (and some of our distinguished bloggers) have made some mistakes about international law. First, the law of nations does not only consist of the customary law of nations (aka, customary international law). It also consists of the conventional law of nations (aka treaties), the voluntary law of nations (aka general principles of law recognized by civilized nations), and the natural law of nations. (The reason for the ATS’ apparent bifurcation of U.S. treaties and the law of nations is to allow the federal courts to use a U.S. treaty norm instead of another international legal norm when there is a substantive conflict between the two norms.) Second, a customary international legal norm does not need to be universal. According to the ICJ’s North Continental Shelf Cases, the norm need only be “extensive.” Indeed, the ICJ earlier stated in the Case Concerning Rights of Passage over Indian Territory that a customary international legal norm could exist between as few as two states. Indeed, the Persistent Objector Rule (recognized by the ICJ in the Fisheries and Asylum Cases and the U.S. Supreme Court in The Antelope) could not operate if customary international legal norms must be universal.

  12. Precisely so, Francisco.  I agree with your point regarding non-universal customary law.  For over a century of the ATS’s existence, the customary law this nation observed was that observed by “civilized” nations.

    Additionally, my comment did not intend to discount or ignore treaties, and I agree with your statement regarding the role that they perform relative to customary law (and thus, their bifurcation in the ATS).  This does not change the nature of the remedy provided under the ATS — unless a relevant treaty provided a remedy for individuals.  In that case, the ATS would probably not be needed to create jurisdiction.

    (And on a personal note, thank you for referring to Vattel’s “voluntary law” category.  I will direct my students to your comment to prove that someone other than me pays attention to classic law of nations theory.)

  13. I have a question – assuming that this holding stands, could the campaign organisations’ next step be to sue natural person ultimate shareholders in allegedly complicit companies by establishing direct knowledge/constructive knowledge on the part of these ultimate shareholders?  I would imagine this is not impossible in theory particularly in relation to direct, natual person shareholders and shareholding continues after official/widespread reporting of the complicity. 

  14. How about asking why the ICC decided not to apply the Rome Statute to corporations?  Most likely it is because states (as is typical) were influenced by business in making that decision, and so lame excuses about “lack of time” are supposed to finesse the utter abdication of their duties to protect the human rights of their citizens from encroachment by business.

    As for Nuremberg, another blogger cited language indicating that the tribunal did consider Farben liable, but did not have jurisdiction over them.

    Are corporations to be given all the benefits of personhood and none of the liabilities, while their officials rendered immune by the corporate form?

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