03 Mar One More Kiobel Post: The Importance of Sosa
Here is the final post in my conversation with Prof. David Weissbrodt on Kiobel and corporate liability under the Alien Tort Statute.
It is worth emphasizing why I think the “choice of law” question is so crucial to resolving this case (and why Justice Breyer agrees with me on this point). In its 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were “specific, universal, and obligatory.” In that case, the Court actually rejected the norm of “arbitrary detention” as insufficiently universal as applied to the facts of that case.
The idea behind the Sosa standard, the Court emphasized, is that federal courts should only be allowing lawsuits over norms that are uncontroversial and which other countries would not dispute. Reaching out and creating “disputable” causes of action overstepped the narrow mandate the federal courts have under the Alien Tort Statute, and raised the potential of federal courts causing conflicts with the President and Congress on the one hand, or with foreign countries on the other.
This baseline standard is important to keep in mind when evaluating Professor Weissbrodt’s arguments in favor of a general international law duty for business corporations. Althought Professor Weissbrodt marshals some interesting precedents, I seriously doubt they would satisfy Sosa’s “specific, universal, and obligatory” standard.
Continue reading here and see Prof. Weissbrodt’s post here.
==norms that are uncontroversial and which other countries would not dispute.==
Than is ATS a dead sparrow. One can always find a country that considers torture, extrajudicial killing, and even genocide normal. It’s like making the laws in the US according to the wishes of Al Capone.
Response…
Julian has made two glarring errors in this short statement. First, the Court’s decision with respect to arbitrary detention was set forth with limits — it focused on “brief” arbitrary detention of one day as opposed to the Restatement’s use of the word “prolonged” in connection with the cutomary law at stake, it did not address “cross-border abductions” because of an error of counsel, it focused on a claim that detention was arbitrary “because no applicable [domestic] law authorized it.”
Second, nearly EVERYONE knows that when identifying a customary international legal norm one need only show that there are GENERAL patters of opinio juris. NO ONE who knows about the standards for a customary international legal norm could rightly believe that univeral consensus or universal consent is a requirement for the existence of a universal norm!
1) Jordan, how do you get around Julian’s point that there has to be consent in order to be subject to int’l law? States can bind themselves as well as their citizens but what about corporations? Read Sullivan’s argument in Kiobel – corps are simply not subject to int’l law.
2) In any event, for ATS liability do you need to show that corp liability is a norm of int’l law (as opposed to merely the underlying conduct)?
3) If pls do indeed need to show that corp liab is part of int’l law is that a correct reading of int’l law?
Response… “Consent” is not the standard — it is general patterns of legal expectation or general patterns of opinio juris (expectations that something is legally appropriate or required). One might expect that a norm is law without consenting to it. The majority opinion in Sosa actually stated that “actionable violations … must be of a norm that is specific, universal, and obligatory.” It is the NORM that is universal and obligatory if it is part of customary international law that is based on general patterns of opinio juris because customary international law is universal and obligatory once it exists. Customary international law binds all actors. that’s why, for example, members of al Qaeda who violate the customary laws of war can be prosecuted in any country, why pirates have noticeably been subject to sanctions in any country. Corporations also have a nationality based on the place of incorporation and, therefore, are bound like other nationals by the treaties of the state of their nationality. 2) I would think that one could show in the alternative that corp. liability can exist under domestic law and under international law. In any event, the Supreme Court has already recognized in 20 cases over… Read more »
Jordan, well said in countering the consent argument. Too bad you were not arguing at the Court or part of an amicus filing.
I think this goes to the heart of the argument that some of the more conservative justices were getting at – their view of the lack of legitimacy if you will with respect to imposing liability on “foreign” corps, for acts done overseas against aliens. Sullivan really picked up on that line of thinking and hammered away. Is there anything you would have added if you were arguing for the pls at the Court regarding the “legitimacy” argument?
Nice piece on Kiobel by Jordan over at Jurist at http://www.jurist.org/forum/2012/03/jordan-paust-kiobel.php