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Harold Koh, the Alien Tort Statute, and Decent Respect to the Opinions of Mankind: A Puzzle

So, to my mind at least, the whole theory that that there is such a thing as tort responsibility of individuals or non-state actors in international law is completely unsupported. If I commit a crime against humanity and incur individual criminal responsibility at the international level, that does not mean that I have simultaneously incurred civil or tort responsibility at the international level towards the victims of my crimes.

The quotation does not come from a right-wing Koh-critic, but a respected non-American international lawyer, Marko Milanovic, who says (scroll down to the comments section) that he believes that his position reflects (non-American) international legal thinking in general. So do I. His comment was a response to a post by Ken Anderson at Opinio Juris who made just this point. Like Anderson, I have repeatedly heard similar statements from non-American international lawyers and wondered why they have never published their views. Milanovic answers this query (which was posed by Anderson) in this way:

As for your question why non-US scholars are not actively engaged in debunking (what we see) as an improper interpretation of international law in US courts and the mainstream US legal academia, perhaps a part of that answer is the one that you suggest, namely that we don’t want to interfere with some sort of ‘socialization’ of the US with international law.

However, I think that on the whole the more weighty reason for not engaging with this issue is that most non-US scholars think that, well, this wouldn’t be worth the effort. Legal scholarship is by definition an exercise in persuasion, and I doubt that the generally favorably disposed (liberal majority of the) US legal academia towards the whole ATS stuff would be persuaded to the contrary by external scholarship any more than it is by its conservative counterparts…. Thus, the general attitude is live and let live - if international law is what US scholars think that they are doing with this whole ATS stuff, then so be it.

Harold Koh has been a champion of the modern (post-1979) use of the ATS to impose tort liability on international lawbreakers. He has long grounded his theory of transnational legal process—in which ATS litigation plays a central role—in the importance of giving a “decent respect to the opinions of mankind.” Yet foreigners do not approve of ATS litigation. Foreign countries do not have their own ATS-style litigation and indeed shudder at American tort litigation of any type.

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law. They believe that the American tort system is a lunatic asylum in which international law undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin that incorporates strange American legalisms and pieties. Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them. Both groups believe ATS litigation reflects the typically American blend of naiveté, arrogance, and power that ends up tying foreigners to the rack of American ideals. When Americans tire of using tanks to inflict their ideology on foreigners, they use lawyers. On the foreigners’ view, if international criminals are to be punished, they should face criminal, not tort, liability meted out by an international court (ideally) or, in some cases, a domestic criminal court that has a proper basis of jurisdiction in international law. International law, grounded as it is in the consent of states, supports no other outcome.

Koh has long supported a type of litigation that probably breaches international law and in any event universally offends foreign opinion. In what sense does this stance show decent respect to the opinions of mankind?

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