Over at Opinio Juris, the international law professor blog, my colleague Roger Alford (Pepperdine) has a great new post up on amicus briefs being filed by various prominent law professors on the question of corporate liability in Alien Tort Statute cases. Part of the debate is whether there is now a circuit split on fundamental questions of corporate liability in international law, and whether that urges a hearing by the Supreme Court, which did not exactly settle ATS standards with its Delphic Sosa decision a few years ago.
My own views on corporate liability in international generally, and ATS actions particularly, are firmly that, well, there isn't any such thing in positive international law as it currently exists. It wasn't an oversight to be "gap-filled" by the Federal courts, even it such a thing were appropriate - lots of countries have expressed strong views that, for whatever reasons, in various important treaties they did not want to include corporate liability and so they did not. I talked about this as a black letter law issue in an expert declaration I offered for corporate defendants in the last of the Agent Orange cases, downloadable here.
(Update:) (The simplest way I can give to frame the issue is this (I guess one might see this as stacking the deck, but I think this is how judges would frame the question for themselves in the first instance): The ATS requires as a threshold matter that there be a violation of a treaty or the law of nations, understood to mean customary international law. If you don't have that violation, you haven't satisfied the threshold requirements of the ATS. But the ATS suit is directed, in these cases, against corporate actors. In order for there to be a violation of the law of nations within the meaning of the ATS, then, there must not only be some action, it must be undertaken by a 'thing' that is, under international law, capable of violating it - it must be a subject, so to speak, of international law. (The alternative, more ATS-plaintiff friendly way of framing this is to say that the violation is separate from the question of who did it, which would remove the upcoming problem.) Is, therefore, a corporation a subject of international law? Ordinarily, neither individuals nor private entities are 'subjects' of international law - individuals might have rights under international law, but are not subjects of it as such, as states are.)
(There is a large body of exception to this: international criminal law. But it is noteworthy for three features: one, it is limited to a very small area of war crimes and closely related acts of genocide, crimes against humanity, piracy, some others - and that is leaving aside any extra barriers to entry imposed as a matter of US law by the Supreme Court in Sosa. Two, that body of law is criminal; it goes only to criminal and not civil tort behavior as international law; the tort part of this, the civil suit part of this, is entirely a creature of US domestic law. Three, that body of international criminal law goes only to individuals - one can reach, with much argumentation, over whether Nuremberg cases reach to corporate liability (see Jonathan Bush's recent article, for example, for excellent scholarly work on this, despite my disagreement with the conclusion), but the defining treaties today of substantive international criminal law - the ICC statute, for example - not only do not create liability for entities, in the course of negotiation and debate, the possibility was raised and rejected.)
(Now, one may dispute all or parts of this, and many do. But if those propositions are true, the problem for ATS litigation against corporations would turn out to be that irrespective of how the corporate entity acted, "it" is not something that can violate the relevant international laws. No actor that is capable of violating, then no violation at least by the defendant. And if the defendant has not violated the law, then there is no action in tort under the ATS; a violation of international law of a highly particular kind, under Sosa, is mandatory in order to get the ATS tort suit going. Again, one may dispute any or all of that, or substitute a very different approach to this, but that, in a nutshell, is the issue, even if, I grant, stated in a way that makes sense to me but might not to plaintiffs' ATS lawyers.) End update.
But I have found myself fascinated, in a much more academic sense, with the way in which the development of legal standards on an international law question by US courts (required to answer it as a threshold matter in ATS litigation) is part of a general move toward the "fragmentation" of international law into international law as understood and interpreted and pronounced by increasingly "deep" but also increasingly "separated" rhetorical communities of articulation, interpretation and authority. If you are a US lawyer or judge in an ATS case, you have available to you, after all, a now-considerable body of US case law that makes out a number of doctrines on entity liability that must seem quite strange to foreign international lawyers committed to international law, if anything, far more strongly than you, but committed to it through its articulation by a quite different community with differing authority and legitimacy.
The general trend is, quite possibly, toward communities of authority that have ever deeper authority within their own sphere but less and less to say to each other. I put this in a recent European Journal of International Law article (an article that covered many other things as well), which is going to be discussed in the fall at the blog EJILTalk!:
[C]ommunities of interpretation are susceptible of moving gradually off in their own directions, asserting the primacy of their own views and gradually tending to ignore other communities of interpretation. Again, [any one might] be perfectly correct as a matter of substantive law. However, it does press its own hermetic dynamic.
Consider, for example, the very particular sub-community of interpretation of the laws of war by US courts in Alien Tort Statute interpretation. Those courts (constantly citing each other) have gradually built up a hybrid jurisprudence of certain aspects of international criminal law -- war crimes, crimes against humanity, and genocide, for example -- together with other materials drawn from US civil and tort law, such as corporate liability, aiding and abetting, and similar doctrines. The individual terms of the one-sentence Alien Tort Statute (ATS) -- 'in violation of the law of nations or a treaty of the United States', especially -- create idiosyncratic pressures on interpretation. What is the 'law of nations' -- for purposes of US jurisprudence, under US constitutional standards and current Supreme Court interpretation under the Sosa decision? Whatever exactly the law of nations means as an international law term, it means something different in the hands of American courts which, under Sosa, are required to look not strictly to 'traditional' international sources, such as those stated in the ICJ statute, nor strictly to such concepts as jus cogens -- but instead, per Sosa, to a somewhat altered form of original meaning jurisprudence and what the drafters of the statute meant, along with some 'fundamental' matters of the law of nations. In other words, the jurisprudence of the US courts applying the ATS is not merely internationally agreed substantive international law plus some US civil litigation concepts to make the claim out in US tort terms such as enterprise liability. It is, instead, an interpretation of 'international law' filtered through an ancient US statute, with US canons of constitutional interpretation applied to the meaning of the statute and only by extension to the 'international' law underlying it.
The whole process of interpretation, while fairly ordinary in US constitutional adjudication, must look slightly strange to international lawyers. The substantive results, especially as driven by the urgent, overriding need of plaintiffs to prove a law of nations violation, must start to look strange to those international lawyers as well. I suspect -- it is hard to get anyone to say much, frankly -- that many international law experts are, on the one hand, reassured to see American courts involve themselves with substantive international law, gradually drawing it into American jurisprudence and adjudication. On the other hand, I suspect many of them are also privately unhappy with the actual content of that law, thinking that it is evolving within its closed community in ways which are not consistent with the 'authoritative' interpretation of international law in the international community and which are, in a word, weird. But who wants to be the 'international lawyer' to tell a US District Court that?
Is this ATS law 'international criminal law'? Not in the sense of international criminal law as established by international tribunals. But it is a form of international criminal law as far as US courts are concerned, even if others in the world think that it perhaps deserves its own special appellation -- 'ATS-international law', maybe -- to distinguish that parochialism from the genuinely universal 'real thing'.
Will any of these non-US international lawyers come forward with a critique of where ATS litigation is carrying - willy-nilly, one might be inclined to think - huge matters of international law, without any input from the rest of the 'international community' in the form, for example, of a treaty negotiation? Hard to say. Meanwhile, here is Roger's conclusion on the state of the ATS debate within US courts:
Regardless of one's views about corporate liability in the ATS context, there is little doubt that the federal circuits are in disarray and that Supreme Court guidance would greatly assist in the development of the law.
The Pfizer case is a particularly good vehicle to develop the law because it so clearly departs from the direction of other circuits regarding the state action requirement. The facts also are particularly unusual, with the alleged corporate misconduct almost completely divorced from any government conduct, or even knowledge of the misconduct. Contrast that with the South African apartheid case of Khulamani v. Barclays where the principal bad actor was the South African government and the corporate misconduct appeared to be peripheral.
Eventually the Court must consider corporate liability in the ATS context. With a circuit split, great counsel on both sides, and highly unusual facts that almost beg for clarification on the proper standard, Pfizer may be the ideal case.