What if ATS Liability has Nothing to do With “Customary” International Law? Part II

by Harlan Cohen

In my prior post, I suggested that the standards for aiding and abetting liability and corporate liability that emerge (or don’t emerge) out of the jurisprudence of international criminal courts are best understood not as customary international law, but instead, as a form of international criminal common law.  One initial reaction to this argument might be if these rules aren’t customary international law, then they should have no role in interpreting and applying the Alien Tort Statute.  I think this reaction is incorrect.

First, nothing in the ATS references customary international law, and the ATS certainly doesn’t codify the high-modern sources doctrine of Lassa Oppenheim.  What the ATS instead references is the “law of nations.”  The goal should be to ascertain what rules actually form part of that law, whatever form they take.  The ATS itself dates back to 1789, a time long before Art. 38, when the list of international law’s sources was considerably more complex, and where many of the rules could be understood, as Blackstone did, to be a matter of a certain type of common law.  (As a note, the law developed by 18th-century Prize courts, perhaps the highest profile law of nations in 1789, often bears a much closer resemblance to the sort of transnational/international common law described in the prior post, than to a modern customary international law described by Oppenheim.)  If international law has developed to include new forms of law, including area-specific common law, then these forms should be as relevant to the ATS as customary international law would be.

More importantly, recognizing that the jurisprudence of international criminal tribunals represents a certain type of international common law should clarify how we think about these precedents in the ATS context.  For one thing, it moves us away from confusing debates about how many states practice/recognize these rules and equally confusing questions about how we would even figure that out.  More specifically though, to the extent the standards developed in various tribunals are common-law gap-fillers, they must be understood as (1) dependant on the explicit or implicit delegated authority of the tribunals to decide the cases before them, and (2) highly keyed to the specific context in which they’re being applied.  They should not be seen as authoritative answers to broader questions about aiding and abetting liability or corporate liability outside the context of the specific tribunal and its charge, let alone outside of international criminal law.  Instead, much in the way domestic courts borrow common law rules from other areas or other jurisdictions, courts should follow these international criminal law rules when they seem to properly and convincingly expound the principles at issue in the cases before then.  In the context of the ATS, this means being very careful about the translation of these rules from the context of certain international crimes to others and from criminal law to tort.

Recognizing that these rules are a type of international common law developed as gap-filler by courts also dovetails well with the view that issues like these have been and continue to be delegated to different courts to resolve according to their own rules and in accordance with their own legal systems.  And to the extent that these issues under the ATS must be resolved via federal common law, as Ingrid Wuerth proposes, it suggests how and why that federal common law might take account of both the jurisprudence of these tribunals and traditional federal common law principles in crafting rules applicable to these cases.  A federal court applying the ATS might, for example, find Nuremberg era decisions about corporate liability too tied to criminal liability and to the specific politics of that moment, and opt for traditional federal common law principles about corporate liability for torts instead.  Or it might mix the two in some way that seems appropriate to the context.


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