As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability. The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.
The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)
Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs. (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)
Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.) The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.” The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law. I – along with the foreign governments filing amicus briefs – would beg to differ. There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.
A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law. It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally. The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric. They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.
That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world. It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation. I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law. And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”
A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline. (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.) Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.
How one gets that concern in front of the Supreme Court, I have not the faintest idea. But I do think it is the overarching intellectual and political question at stake.
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