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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?

Dilan Esper (mail) (www):
Section 1350 says that an alien has a cause of action, in tort only, for violation of the law of nations. And it was passed in 1787.

So obviously, whatever you want to say about how broad the statute is, the concept that violations of international law could constitute torts is a concept that the framers of the Constitution (many of whom were in the first Congress) believed to be a correct one.

So these mostly unnamed foreign international lawyers have an argument with the drafters of Section 1350, not the lawyers and judges who have given it a natural interpretation.
4.19.2009 10:44pm
martinned (mail) (www):

Koh has long supported a type of litigation that probably breaches international law and in any event universally offends foreign opinion.

I don't think that is quite right. ATS doesn't so much breach international law, as that it offers an enforcement mechanism that is not favoured, much less required. It's not wrong, just unnecessary. (This is also how I read the quote from Milanovic that you started with.)

In civil law countries, tort responsibility is usually stated very generally in the law. For example, the Code Civil establishes tort law as follows:


Art. 1382: Any act whatever of man, which causes damage to another, obliges the one by whose fault it occurred, to compensate it.

Art. 1383: Everyone is liable for the damage he causes not only by his intentional act, but also by his negligent conduct or by his imprudence.

That is it. No rule of Rylands v Fletcher, no tort of deceit, only some additional rules about vicarious liability etc. Under this rule, there is no fundamental reason why a violation of international law could not count as a "fault", giving rise to liability. Based on this logic, the Dutch state got sued over Srebrenica last year, for example. (Cf. this Volokh post.)

Generally, ATS type suits are uncommon outside the US because of stricter rules as to forum and because of a general reluctance of courts to sit on the chair of one of the other branches of government, not because they somehow offend international law.
4.19.2009 11:03pm
A.:

undergoes electroshock therapy and emerges with its shell intact but otherwise unrecognizable—wild-eyed, harboring delusions of grandeur, and babbling a pidgin


What a horrendous misrepresentation of EST.
4.19.2009 11:31pm
martinned (mail) (www):

What a horrendous misrepresentation of EST.

Really?
4.19.2009 11:34pm
Ricardo (mail):
Prof. Posner, how did we get from this statement:

Many (most? all?) foreign international lawyers believe that ATS litigation violates international law.

to this: universally offends foreign opinion

You don't seem very confident in proclaiming that most or all foreign international lawyers think ATS violates international law but somehow we get from this statement to the notion that the law "universally offends foreign opinion" with no other support given for the latter statement.

Aside from the question of elite opinion (and martinned suggests the case here is greatly overstated), I doubt, for instance, the Filipinos who sued Ferdinand Marcos for torturing them under ATS had their opinions "offended." Opinions in the Philippines also seemed divided with some hoping these people might get justice that would be denied to them in their own courts.
4.19.2009 11:40pm
Oren:

Foreign governments believe that ATS litigation infringes on their sovereignty and complain that it punishes multinational corporations for doing business with them.

That's good for a laugh.
4.20.2009 12:03am
BRM:
Does the FCPA also punish multinational corporations for doing business with foreign governments?
4.20.2009 12:07am
Scape:
Man, this is verging on a Kopel-esque post, and normally I love Posner's contributions because they make a very convincing case for the revisionists. But that's definitely not the case here.

Although I guess I do appreciate it for its mixing up of arguments. The normal rallying cry is "we're giving up American values by trying to conform to the freedom hating Europeans!" Now, apparently, it's "other nations disagree with our practices, we should cease them to be better international citizens!"
4.20.2009 12:45am
OrinKerr:
Dilan Esper writes:
Section 1350 says that an alien has a cause of action, in tort only, for violation of the law of nations. And it was passed in 1787.

So obviously, whatever you want to say about how broad the statute is, the concept that violations of international law could constitute torts is a concept that the framers of the Constitution (many of whom were in the first Congress) believed to be a correct one.
I don't know anything at all about the Alien Tort Statute, but I was interested in Dilan's claim. When I read section 1350, though, it seemed pretty different:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
Again, I don't know anything about this statute. But just reading it, it seems to be conferring jurisdiction, not creating a cause of action. Was it understood as generating a statutory cause of action in 1789?
4.20.2009 1:11am
CrazyTrain (mail):
This is a very, very poorly reasoned post. Eric concludes that ATS litigation "<b><i>universally</i></b> offends foreign opinion."

His proof: A comment on a blog by one Serbian lawyer . . . No, seriously, that's it.

Wow! That is not the type of reasoning that the Posner name is famous for. Again: Wow!
4.20.2009 2:01am
AGBates:
"But just reading [the ATS], it seems to be conferring jurisdiction, not creating a cause of action. Was it understood as generating a statutory cause of action in 1789?"

Prof. Kerr's question is a difficult one, and professors have filled volumes of law reviews with their proposed answers. The short answer is that, whatever the understanding might have actually been in 1789, the Supreme Court held in Sosa that the ATS "was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject"; in other words, the ATS "creat[ed] no new causes of action."

Of course, the Supreme Court also held that "the reasonable inference from the historical materials is that the statute was intended to have practical effect the moment it became law. The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time."

Thus, the ATS provides federal subject matter jurisdictional and federal common law provides a cause of action for a limited number of torts.

Even setting the "historical materials" aside, it doesn't seem unreasonable to infer from the language of the ATS that the First Congress believed there to be a pre-existing cause of action "for a tort only, committed in violation of the law of nations or a treaty of the United States."

The more interesting debate, to my mind, is whether Erie erased that cause of action. Justice Scalia argued in his Sosa concurrence that it did, and Bradley &Goldsmith have written several very well-researched articles in support of that position. Of course, the Sosa majority ultimately rejected Scalia's view, so the debate is largely academic at this point.
4.20.2009 2:15am
Dilan Esper (mail) (www):
Again, I don't know anything about this statute. But just reading it, it seems to be conferring jurisdiction, not creating a cause of action. Was it understood as generating a statutory cause of action in 1789?

Sosa holds that it didn't CREATE a cause of action, it creates jurisdiction to hear causes of action. But that's not really my point, Prof. Kerr. Rather, the statute would make no sense at all unless the framers believed that there were causes of action that could be heard under the jurisdictional grant.

In other words, if Prof. Posner were correct, the first Congress granted jurisdiction over claims (tort claims for violations of the law of nations) that by definition could not exist.

Of course, the first Congress did not do that. Rather, they obviously believed that there were tort claims, at least in certain circumstances, for violations of international law. And you don't have to resolve the complicated "cause of action vs. jurisdiction" debate to understand that.

By the way, Posner's claim is also contradicted by the Torture Victim Protection Act, which clearly and expressly creates a cause of action for a violation of international law.
4.20.2009 2:46am
OrinKerr:
The short answer is that, whatever the understanding might have actually been in 1789, the Supreme Court held in Sosa that the ATS "was intended as jurisdictional in the sense of addressing the power of the courts to entertain cases concerned with a certain subject"; in other words, the ATS "creat[ed] no new causes of action."

Ah, thanks, AGBates. Given my job back during in the Term that Sosa was argued and decided, I guess it shows you what kinds of cases I wasn't interested in. ;-)

As for Dilan's comment, I don't know enough 18th century legal history to evaluate it; I assume that whether it makes sense hinge on 18th Century understandings of jurisdiction and the nature of causes of action, which may be different from our understandings today.
4.20.2009 2:58am
Marko Milanovic:
Dear Prof. Posner,

Though I am of course as happy as ever for you or any other scholar of note to reference one of my posts, I must also say that I honestly do not appreciate the way that you've used my answer to Ken Anderson's question at OJ to launch yet another of these endless attacks on Harold Koh. I had no intention to imply - as you have basically made it seem - that all US lawyers, Koh being one of them, who support ATS litigation are fundamentally dishonest about it and don't show 'decent respect for the opinions of mankind.'

I happen to think that they are wrong in their interpretation of international law, and that at least a part of the unwillingness to consider the wrongness of their position is a product of ideological conflicts raging within the US academia and society as whole. That does not mean that there is no room for reasonable disagreement. Nor does this mean that all who participate in this ideologically skewed debate, on one side or the other, are by definition some sort of political hacks. Most, if not all, of the most controversial issues in contemporary US legal scholarship, e.g. originalism in constitutional interpretation, are similarly politically and ideologically polarized, yet this does not render all contributions in such debates worthless (far from it), nor every contributor dishonest. It is just that it makes outsiders, such as myself, wary of engaging with them.

At any rate, I hope that you and your readers appreciate the irony in using a post by someone lamenting the adverse impact ideology can have on a rational debate to launch an ideological and political attack against somebody else. I would really, really appreciate it if you could update your post so that it reflects my profound disagreement with, well, everything else that you've said. Many thanks, and kind regards,

Marko Milanovic
4.20.2009 5:50am
wolfefan (mail):
IANAL but it seems to me that post does reflect, to some degree, the type of reasoning that the Posner name is well-known for, at least among some commenters. It is a regular complaint among some on this blog that Richard Posner starts out with the conclusion and then seeks evidence and reasoning that justify it. Whether this complaint is valid or not regarding Richard Posner I am not qualified to say. Based solely on this post (particularly the ridiculous last paragraph) and the response from Marko Milanovic, it seems to be justified regarding Eric Posner.
4.20.2009 6:31am
Anyglen:
For those interested in why ATS-style suits might violate international law, consider Michael Ramsey's International Law Limits on Investor Liability in Human Rights Litigation, forthcoming in the Harvard Journal of International Law.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1307362
4.20.2009 8:05am
wm13:
I don't quite understand Mr. Milanovic's post. Prof. Posner didn't call Prof. Koh "fundamentally dishonest" or a "political hack." As I read Prof. Posner's post, he is suggesting that most foreign legal scholars don't share Prof. Koh's jurisprudential views, even though they mostly do share his broader (leftist, anti-American) political views.

This tension seems to produce some psychological anguish in Mr. Milanovic, which I presume is why he objects to Prof. Posner quoting him.
4.20.2009 9:27am
MR:
*sigh* There are a number of things I find questionable about this post, and I'm not even sure where to begin. Here goes:

1) I think people tend to overread the types of actions that can legitimately be pursued under the ATS. Just because people are filing actions based on apartheid doesn't mean that those actions are rightfully covered under the statute. Indeed, the Sosa opinion empahsized that claims are only to rest upon "a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" like "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Not exactly a broad reading there.

2) I question your assertion that private liability necessarily "violates" international law. The United Nations Convention on Corruption, for instance, requires states to take measures to provide civil remedies to victims of internationally-wrongful corruption. Many other treaties create direct causes of action as well. (For some discussion on this, see here). Even if these types of actions were not commonplace, it would seem to me that international law would still permit the U.S. to create these types of actions, so long as it can reasonably assert some basis for jurisdiction.

The fact that other nations object to this idea on sovereignty grounds is nothing new. Indeed, I think you could probably say that, at various times for various purposes, "[f]oreign governments believe that almost any international law infringes on their sovereignty." Mere disagreement or derogation from a norm does not defeat the existence of that norm.

3) I'm not sure why you find the American tort system so much more "wild-eyed" than other states that assert universal criminal jurisdiction. That has been seen in a number of states.

*****

Look, I'm not the biggest Koh fan. But I think you're reaching the borders of reasonableness when you begin attacking him for "championing" a relatively well-established concept like the ATS.
4.20.2009 9:53am
martinned (mail) (www):
@Anyglen: Thanks for the article. I'm still reading it, but I'd already like to note that the problem discussed is one of jurisdiction, not causes of action. No one objects to suing for human rights violations in civil courts, the objection is to the possibility of suing in US courts in cases where neither the habitual residence of the plaintiff nor the location of the alleged tort points to the US as a possible forum, and where there is no universal jurisdiction.
4.20.2009 9:58am
byomtov (mail):
So according to Eric Posner, the influence of foreign law on the US is a bad thing except for those situations where Harold Koh opposes it.
4.20.2009 10:24am
wm13:
byomtov, I think Prof. Posner is pointing out that there are unresolvable contradictions in the views of Prof. Koh, whereas his own views are consistent and coherent. That is, you cannot incorporate international legal norms into American tort law when American tort law is itself inconsistent with international legal norms.
4.20.2009 10:31am
Dilan Esper (mail) (www):
So I'm curious: does posner think the torture victim protection act violates international law? Because congress certainly thought it was implementing it, not violating it, when it passed the tvpa.
4.20.2009 10:34am
Dilan Esper (mail) (www):
Prof. Kerr:

I don't see how you need to go into 18th century history to evaluate my point. It's pretty simple-- if you authorize courts to hear tort claims for violations of international law, you must think that such toet claims exist. Otherwise the statute makes no more sense than a law giving unicorns standing to sue.
4.20.2009 10:38am
dmv (mail):
For wm13, who apparently missed the point of Posner's post.

This appears to me to be the structure of Posner's argument in greatly simplified form:

1. Koh "ground[s] his theory of transnational legal process" on "decent respect to the opinions of mankind."

1b. "[T]he opinions of mankind," as referred to in the phrase "decent respect to the opinions of mankind," may be taken to be identical with the mainstream view of "non-American international lawyer[s]." [This is an unstated premise, but it's the only way the logic works out. I have assumed, charitably, that Posner is attempting to make a logically valid argument.]

2. Milanovic, "a respected non-American international lawyer," disagrees with Koh about certain aspects of the ATS.

3. Milanovic's view of the ATS is the mainstream view of "non-American international lawyer[s]."

4. Therefore, the mainstream international legal community disagrees with Koh about ATS. (2, 3)

5. Therefore, Koh's position on ATS does not reflect a "decent respect to the opinions of mankind." (1b, 4)

6. Therefore, Koh is a hypocrite. [This appears to me to be the underlying thrust of Posner's post. I am not alone in so reading the post. See Milanovic's comment above.]

(I omit the cutesy argument that thinking Posner's post is not an attack on Koh would itself not evince a "decent respect to the opinions of mankind," insofar as Milanovic's views have become representative of the mainstream international legal community, per Posner.)
4.20.2009 10:41am
martinned (mail) (www):
That Torture Victim Protection Act is actually kinda interesting, given the recent uproar about Judge Garzon contemplating a criminal case against certain Bush administration officials. Clearly this act reflects the opinion of Congress that there is universal jurisdiction over torture cases. (The same goes for the "original" ATS case of Filártiga v. Peña-Irala, where the court said with so many words that it was assuming universal jurisdiction.) This is a defensible but not inevitable position, but it does beg the question why the US would then be upset about a similar claim by the authorities in Spain.
4.20.2009 10:42am
dmv (mail):
Dilan:

Is this like the difference between legislation authorizing expenditures versus appropriations legislation? [I <3 when Congresspeople argue that their bill authorizing expenditures shouldn't be objected to on fiscal grounds because the authorizing legislation doesn't actually appropriate any money to the account for their special program. Modern Congress, at any rate, does appear to favor giving unicorns standing. ;)]
4.20.2009 10:47am
Hans Bader:
Koh’s appointment would make it even harder to reign in the rampant piracy in the crucial shipping lanes off of Somalia, which has resulted in deaths, kidnappings, and billions of dollars in losses.

Koh argues that unratified treaties like the Law of the Sea Treaty, aka LOST, are binding on the U.S. as “customary international law.” Article 110 of LOST bars naval ships from simply firing on suspected pirates. Instead, they are required to first send over a boarding party to inquire of the pirates whether they are, in fact, pirates. That makes it almost impossible to prevent hostage-taking.

Koh also supports controversial treaties that have been interpreted as restricting free speech and mandating quotas.
4.20.2009 11:27am
byomtov (mail):
I think Prof. Posner is pointing out that there are unresolvable contradictions in the views of Prof. Koh,

"Unresolvable contradictions?" No.

One can believe that it is important to show respect for foreign opinion without concluding that it is necessary to adhere to such opinion on every issue. It's even possible to respect an opinion while disagreeing with it.

This is not Euclidean geometry we're dealing with. General principles are not rigid axioms.

Besides, given the previous attacks on Koh, I'm convinced that had he endorsed the foreign view of this matter, he would also have been criticized by the likes of Posner.
4.20.2009 11:34am
OrinKerr:
Dilan,

That's a possible interpretation, but it hinges on a set of assumptions about what a tort in violation of a treaty or the law of nations would have been understood to be in 1789. I am not ruling out your interpretation: I am just acknowledging that I am not well informed enough to know if it is right. You may disagree, and insist that I am sufficiently informed that I can answer the question, but I have more caution about divining the understanding the intent of a civil jurisdictional statute from over 200 years ago than you do. (This may be a result of my general sense that notions of the source of law of causes of actions and tort law are very different today than in the 18th century; I may be wrong about that, but then I am a criminal law expert, not a tort law expert.)
4.20.2009 11:47am
martinned (mail) (www):
@Hans Bader: While reserving judgement on the specific question you raise, I would like to point out that, according to the preamble of UNCLOS (or, as you call it, LOST), the purpose of that convention is "the codification and progressive development of the law of the sea". The same goes for many other major international treaties as well, they are a mixture of codification of existing customary law and the enactment of new law. (Cf. for example the House of Lords ruling in the Pinochet case, where they struggled with the treaty and customary rules on immunity for former heads of state.)

In addition, there is art. 38 of the Vienna Convention on the Law of Treaties, which says: "Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third State as a customary rule of international law, recognized as such." This refers to the situation where non-signatories to a treaty come to nevertheless adhere to it in practice, (eventually) from a sense of (legal) obligation.

A classic example of both these effects is the Vienna Convention itself. According to the FAQ section of the State Department website:


Is the United States a party to the Vienna Convention on the Law of Treaties?

No. The United States signed the treaty on April 24, 1970. The U.S. Senate has not given its advice and consent to the treaty. The United States considers many of the provisions of the Vienna Convention on the Law of Treaties to constitute customary international law on the law of treaties.

I highly doubt that Dean Koh made a categoric statement about all unratified treaties. If he did, I'd appreciate a cite. But the proposition that unratified treaties can nonetheless be binding is undoubtedly true. How they are binding, however, is a matter of case by case interpretation.
4.20.2009 11:48am
Dilan Esper (mail) (www):
Prof. Kerr:

My point was really based on logic (i.e., that congress must have been authorizing the federal courts to hear some sort of claim) and not the specific history os section 1350. That said, I fully respect your statement that you don't want to opine definitively in this area not having all the information that you think is necessary to render such an opinion. There's nothing at all wrong with caution, a commodity in short supply on the internet.
4.20.2009 12:16pm
Letalis Maximus, Esq. (mail):
Look folks, it is enough to know that Dahlia Lithwick thinks Harold Koh should be confirmed post-haste. So clearly, he must be stopped.
4.20.2009 12:27pm
Connecticut Lawyer (mail):
Where the rubber meets the road with Prof. Koh is the Garzon case. At his confirmation hearings, the Senate must ask Prof. Koh whether he thinks that it would infringe the sovereignity of the United States for the Spanish Government to bring criminal charges in Spanish Courts against former American officials for advice they gave the American president in the course of their official duties, and if so, what he thinks the proper response of the United States Government ought to be. Prof. Koh's views on Spain's assertion of power over the United States are much more directly relevant to his qualifications to be General Counsel of the State Department than his views on whether the Supreme Court ought to care about what foreign lawyers and judges think.
4.20.2009 12:34pm
martinned (mail) (www):

My point was really based on logic (i.e., that congress must have been authorizing the federal courts to hear some sort of claim) and not the specific history os section 1350.

Actually, that's not entirely true. Sosa seems to work from a reading where the statute was enacted based on the assumption that there was a common law cause of action. Given the tendency of the common law to evolve, it is very well possible that no common law cause of action exists anymore even though one did exist when the ATS was enacted, without any intervention by congress.

(I'm not saying that this is, in fact the case, since I am even less competent than prof. Kerr to make any such statement. I'm just pointing to the possibility.)
4.20.2009 12:36pm
Dilan Esper (mail) (www):
Given the tendency of the common law to evolve, it is very well possible that no common law cause of action exists anymore even though one did exist when the ATS was enacted, without any intervention by congress.

That is, of course, possible (though it is in some sense a circular argument-- a Congress that authorizes the courts to hear such suits surely intends that indeed the courts will entertain them, and Scalia and co. are basically saying that Erie not only changed the way federal courts operated but overrode previous congressional directives).

But let's say it is true. I still don't see how that addresses my point with respect to Posner, which is that the Congress in 1789 clearly DID believe that there was such a thing as a tortious violation of international law; they had to believe that or the statute was meaningless. So, Posner is faulting the federal courts for interpreting a statute which PRESUMES the existence of tortious violations of international law as allowing for tort actions to be brought for violations of international law, on the grounds that he doesn't believe that international law authorizes such actions. Were Posner right, the fault wouldn't lie with the courts but with Congress.
4.20.2009 12:46pm
martinned (mail) (www):
@Dilan Esper: Maybe the problem is that Posner didn't explain the alleged conflict between ATS and international law properly. If you look at the article that Anyglen referred to above, for example, or at some of my own modest efforts at clarification above, you'll see that any conflict that may exist isn't over the question of whether a violation of international law can be tortious, but whether the US should exercise jurisdiction over cases like Filártiga v. Peña-Irala that have no connection to the US. In that case, universal jurisdiction was applied, but one can wonder on what basis a US court should exercise jurisdiction over a claim against a non-US company about its activities in apartheid-era South Africa.

(Most countries' forum rules would only allow such a claim in the forum where the company is incorporated, where it has its headquarters, or in South-Africa itself, the location of the alleged tort.)

So an originalist critique of recent ATS case law would be that the writers of the statute certainly assumed that federal common law would furnish a course of action for various breaches of international law, but that they certainly did not intend for US courts to get involved in all sorts of arguments that have no connection to the US.
4.20.2009 12:57pm
Dilan Esper (mail) (www):
martin:

Well, if that's the problem, then why single out the courts or Harold Koh? Even if one doesn't assume that 1350 was intended to reach the conduct of American corporations in foreign countries, the TVPA, the Foreign Corrupt Practices Act, the Foreign Sovereign Immunities Act, and a bevy of extraterritorial laws and regulations certainly do reach such conduct.

Did Posner take what is actually an argument about the permissible scope of extraterritorial jurisdiction and turn it into a typical conservative screed against the courts and Obama's nominees? It sure looks like it.
4.20.2009 1:28pm
martinned (mail) (www):
@Dilan Esper: Fair enough, although I'm not sure why anyone would have a problem with suing American corporations in US court.
4.20.2009 1:34pm
Dilan Esper (mail) (www):
martin:

Having represented several 1350 plaintiffs over the years, I can say with some authority that usually the defendants in these cases are either (1) American corporations or big multinationals who do a lot of business in America or (2) people who conducted or ordered extreme torture or other comparable human rights violations.

So if the concern isn't about category (1), we are left with category (2). And you have a Congress which not only passed Section 1350, which most people believe at the very least was intended to make piracy a tort (conducted by foreigners outside US territory), but also passed the TVPA. It seems to me that, again, the argument is with Congress, not the Courts.
4.20.2009 2:16pm
martinned (mail) (www):
@Dilan Esper: I just applied civil law forum rules to this issue. In so doing, I would make a distinction within your category (1) between (1a) "American corporations", being corporations incorporated under the law of one of the United States or that have their headquarters in the United States and (1b) "big multinationals who do a lot of business in America".

Since it is normally preferred (at least outside criminal law) to sue people in their home forum, suing category 1a in US court is always proper. Under the law of most (civil law) countries, though category 1b defendants should not be sued in the US unless the tort complained of took place there. No matter how much business Shell does in the US, for example, a suit regarding their involvement in apartheid-era South Africa should, by the law of most countries, be brought in the courts of either the UK or the Netherlands. (The company is incorporated under the law of both countries, and also has headquarters in both London and The Hague.) If Shell were to be sued in the US over the apartheid era, the UK and the Netherlands, in their capacity as defenders of Shell in international relations, might legitimately complain about judicial overreaching.

As for your category (2), there is an issue of universal jurisdiction. Applying that doctrine to torture and other war crimes is defensible and in the case of genocide it is essentially undisputed.
4.20.2009 2:50pm
NYTwin81:
Dilan: You say that "if you authorize courts to hear tort claims for violations of international law, you must think that such [tort] claims exist." Isn't it possible to read Section 1350 as authorizing jurisdiction over a certain cause of action that has yet to be established? In other words, the statute could be read to imply that "this section confers original jurisdiction on the district courts over this cause of action, *if and when such cause of action is created by an act of Congress*."

Note that I'm not saying that this is necessarily the proper interpretation of Section 1350. I don't know the historical background or specifically the common law background. If a common law cause of action of this type already existed, the most natural reading would be that Section 1350 was indeed intended to confer jurisdiction over an already-existing cause of action. (Indeed, from what people say of the Sosa case, which I haven't read, it sounds like that may well be the case.) But your argument that the plain language of Section 1350 presumes that a cause of action of this type exists strikes me as incorrect.
4.20.2009 3:12pm
Dilan Esper (mail) (www):
NYTwin:

Even if we assumed that's what 1350 meant, that would still mean that Posner's supposition-- simply that international law never allows tort recovery as a permissible remedy-- would have been rejected by Congress. In other words, at the very, very, very least (and I, of course, think Congress meant more than this), Congress was saying "whatever tort suits we decide we are going to allow for international law violations will be within the jurisdiction of the federal courts", and that means that the "problem" that Posner identifies lies at Congress' feet, not the courts.
4.20.2009 3:28pm
NYTwin81:
Dilan: It seems to me that 1350 is only an authority as to the possible causes of action in American courts (and maybe, though not necessarily, as an authority on what international law allowed in 1787). That is, it would be unreasonable to argue (for example) that creating a cause of action based upon this type of tort is unconstitutional or otherwise inconsistent with the principles of American jurisprudence, because Section 1350 was enacted by the Founding generation. But it would not be unreasonable (or at least, not inconsistent with Section 1350) to argue that international law has evolved to forbid these causes of action. Again, I'm not saying that it has, I'm merely saying that 1350 doesn't decide the issue.
4.20.2009 5:59pm
Dilan Esper (mail) (www):
But it would not be unreasonable (or at least, not inconsistent with Section 1350) to argue that international law has evolved to forbid these causes of action.

That's a claim that would require evidence, though. The "law of nations" in Section 1350 means customary international law. So when did customary international law evolve from permitting such tort claims to forbidding them? Why is the US not a "persistent objector" not bound to such customary international law anyway? And what to make of treaties, like the Convention Against Torture, which seemingly REQUIRE that nations provide remedies for extraterritorial human rights violations? That seems to suggest that customary international law can't really prohibit this.
4.20.2009 7:08pm
Ricardo (mail):
If Shell were to be sued in the US over the apartheid era, the UK and the Netherlands, in their capacity as defenders of Shell in international relations, might legitimately complain about judicial overreaching.

I'm not a lawyer but if someone sues a big multinational that does lots of business in the U.S. in its "home" country of, say, the Netherlands, what happens if much of the company's assets are held in the U.S.? I would imagine courts in the U.S. would have to get involved one way or the other to enforce the judgment although I don't pretend to know any of the procedural or jurisdiction issues that arise here. The fact that many firms has substantial assets in the U.S. helps to make the U.S. an attractive venue for suing, no doubt.
4.20.2009 10:06pm
ReaderY:
The problem of South African apartheid provides an illustrative example, one the 7th Circuit used in interpreting the act narrowly. The people of South Africa made a decision to grant anmesty to foreign regime members in hopes of encouraging a peaceful transition, much as the Czechoslovak government granted anmesty to members of the former regime to encourage social peace and encourage technocrats to cooperate with the new regime.

What right does a peripherally-involved foreign government have to interfere with this social policy by hauling members of the former regime into foreign courts to answer to foreign charges and lawsuits? Foreign govermnents don't have to live with the consequences of their decisions. Why should they be the ones who decide?
4.20.2009 11:46pm
ReaderY:
http://pacer.ca4.uscourts.gov/opinion.pdf/012200.U.pdf

This case is an illustrative example of just how rigid at-will employment is in North Carolina. For nearly a decade, the plaintiff worked in SIngapore under two-year contracts promising a specific position on return to the United States, a condition he bargained for in exchange for agreeing to go. However, shortly before he was to return to the United States, the company asked him to stay until they found a replacement, and gave him a contract extension for an indefinite period. He was terminated shortly after signing it.

The 4th Circuit held that under North Carolina's implementation of employment-at-will, the plaintiff has to prove he worked under a contract for a stated definite term to be eligible to sue for breach of contract: no definite term, no claim. Because the contract in effect at the time of termination didn't have a definite term, it simply didn't matter what the contract promised, and it simply didn't matter that multiple previous contracts had stated definite terms. And since he agreed to work under the contract extension and the law on the subject was clear, he ought to have known the consequences and there was no fraud.
4.21.2009 12:10am
ReaderY:
Oops, wrong thread. Feel free to delete as irrelevant, will repost in correct place.
4.21.2009 12:15am
felix chesterfiedl (mail):
Does anybody have any experience with these North Carolina Lawyers ?
7.17.2009 1:54pm

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