International Law, Law of the Hegemon, the ATS, and Kiobel

Peter beat me to the punch in commenting on Samuel Moyn’s interesting take on the ATS and Kiobel in Foreign Affairs, but I’m going to add a somewhat different point from Peter’s about what the body of ATS law has meant over the past few decades. I didn’t intervene in the earlier discussion about Kiobel because that discussion seemed to me properly focused mostly on the internal legal aspects of the decision – everything from jurisdiction to state courts, and much else besides.  I want to raise something external to Kiobel and the ATS as “law” – the distinction between international law and what (in various postings here and there) I’ve referred to as the “law of the hegemon.”

One way of looking at the ATS, including the body of cases built up over the years, is that it is “international law.”  Of course that’s not literally true; it is a domestic statute that refers to international law as the basis of some form of liability; violations of treaties or the law of nations.  But in a broader sense – the sense in which its supporters have long seen it – the ATS offers a domestic law vehicle by which to work out, interpret, express and, perhaps most important, make effective the requirements of international law.

This is surely the sense that, for example, Judge Jack Weinstein had when he opened the ATS hearing in the Agent Orange case ten years ago – this court sits, he said, in some fashion as an international court.  Sitting in the courtroom, it was entirely plain that he both took seriously and took real pleasure in seeing this District Court as sitting in judgment on the same types of crimes as raised at Nuremberg. There are several practical problems for this broader view, of course – how to figure out the relationship between the domestic law piece of the statute and the international law piece, for one.

Another, however, is that if this is supposed to be the working out in some broad sense of “international law” in American courts and using the tools available to American law, how does one keep the link between international law and its sources, processes, standards of interpretation, etc., as they exist in the international arena – and the application of this in an American law setting that has its own sources of authority, standards of interpretation, etc.  It’s fine to say that the ATS is the working out of international law in US courts, but international law is made in the international framework and evolves according to things that are different from and quite alien to the American legal system.  A telling example of the problem is found simply in the status of US court cases interpreting the ATS and, in the process, interpreting features of international law in ways that bear little relationship to how the international community might do it, now or in the future.  Yet in an American domestic law system, those distinctively US cases have greater authority than the international authorities.

One can say that this is precisely the problem of the American court system in dealing with human rights cases; it ought to recognize the international law sources and authorities as such, rather than privileging its own processes.  But this is hard, given that plaintiffs want simultaneously to reach to the special features of the US litigation system to achieve their aims; those special features of the US litigation system include many things, such as civil liability, corporate liability, etc., that don’t obviously exist in the international system.  It isn’t likely that one can pick and choose in the most favorable way – whether one is the plaintiff or the defendant – and if you go with the American system, you take its doctrine of sources, methods of interpretation, and much else besides, even as it applies to international law questions.  But those don’t match up very well with how the “international” actors in international law see those fundamental questions.  The questions are not substantive or procedural in the usual sense – they are, rather, the fundamental doctrines of authority, precedent, methods of interpretation.

A better way of seeing the law of the ATS, it has long seemed to me, is to treat it not as a particular state’s working out of international law in its courts, but rather a quite different category.  It seems to me best understood as the hegemonic power working out the law of the hegemon in ways that are intended to be somewhat parallel to “international law” on these issues.  There is a shared impulse rooted in morality, but what the hegemon does is within the terms of its own legal system.  It depends in large part upon the extent to which the hegemonic power is willing to allow the capital of its power to be exercised roughly to these ends – and the extent to which other important actors are willing to go along as a sort of rough way of getting international law actually enforced.

I’ve written about the US as loose hegemon and the “law of the hegemon” in my book on US-UN relations, Living With the UN: American Responsibilities and International Order (Hoover Press 2012).  (It’s cheap on Amazon, $13 new and $10 on Kindle; also, you can download the first four chapters at SSRN in pdf for free – I haven’t broadcast sufficiently that these chapters, plus one of the last ones, on human rights and the UN-of-Values, is also available free at SSRN – if anyone wants it as a reading for classes, etc.)  It seems to me the best way to explain the growth and expansion of the ATS cases – and especially the way in which they gradually embraced the foreign-cubed cases and everything short of that.  It explains for me the frustrations of America’s European friends and the amicus briefs they filed, objecting that the ATS was not really doing “international law,” sympathetic as they were to the underlying moral issues.  What they were complaining about was America-the-hegemon using its courts and law to press things that couldn’t be captured under international law as it is.

The theory of hegemony in international relations and law is explored in a terrific book, Hegemony in International Society, by Ian Clark. My own view, explored in Chapters 2-4 of Living With the UN, observes that hegemony is more than just power.  It is power transformed by legitimacy – the perception by other state actors that the hegemon acts in some legitimate way according to a broader set of interests, including theirs.  It is power transformed by legitimacy into authority.  In a period of rising US hegemony – approximately, and not coincidentally, the period that coincides with the cementing of human rights as the “apex” value of the international system, the 1990s – the ATS is able to expand. Sosa’s language sometimes reflects that; in some ways, Sosa seems to anticipate a world in which American hegemony will underwrite universal human rights and international law – though it will do so through American judicial concepts.

Unfortunately, hegemony does require a hegemon with power, and in the period that follows, the concern is that America is the hegemon-in-decline – gradually becoming just another powerful player, still the most powerful player on most measures, but no longer the hegemonic power in the specific sense of that term.  The ATS is not an expression of international law – but instead the continued expansion of a paradigm on judicial autopilot, even as the fundamental terms of the hegemony underlying it are under serious question.  It expresses itself for a judge, presumably, in having to contemplate what happens when a Chinese corporation is sued under the ATS for behavior involving no US actor, territory, any of the traditional bases of jurisdiction.  Is America really sufficiently the hegemon today, or tomorrow, to make that work out successfully?

It seems to me that the fear of a hegemon-in-decline, giving way to a world of much more aggressive and less deferential great powers, with often opposed interests both geopolitically and economically, is a fundamental framing device for judges here, at least at the Supreme Court where such considerations have to matter.  The non-law, external explanation for the Kiobel decision lies in the general sensibility of the Court that it was no longer sustainable or appropriate for the ATS to be a vehicle for hegemonic law styling itself as international law.  That does not tell you where the Court might have drawn the line, but it seems to me a good, external fit for explaining the movement from expansion to contraction.  None of this, to be sure, is located in actual law; it is a purely external account.  But I think it does explain quite a lot – especially about the position taken by Justices Bryer and Kagan.