Federal Common Law Suit

A Corporation Can be Held Liable in a Federal Common Law Suit Based on the Alien Tort Statute For Violating the Law of Nations in 2011

United States views on international law (based on the document “Digest of U.S. Practice in International Law”): The second question presented is whether a corporation can be held liable in a suit under the ATS for violating the law of nations. As the court of appeals recognized, a number of other questions, unanswered by this Court, are implicated by this case and other ATS cases. These include: whether or when a cause of action should be recognized for theories of secondary liability such as aiding and abetting, see Aziz, 658 F.3d at 395-401 (citing cases); whether or when a cause of action should be recognized under U.S. common law based on acts occurring in a foreign country, see Sosa v. Alvarez-Machain, 542 U.S. 692, 727-728 (2004); and whether or when congressional legislation such as the Torture Victim Protection Act of 1991 (TVPA), Pub. L. No. 102-256, 106 Stat. 73, should be taken into account in determining the scope and content of common law claims to be recognized under the ATS, cf. Miles v. Apex Marine Corp., 498 U.S. 19, 23-37 (1990). Those questions are important, but they were not decided by the court of appeals in this case and should not be answered by this Court here. And the holding on the issue the court of appeals did decide—that a corporation may not be held liable—is categorical and applies to all suits under the ATS, regardless of the theory of liability, the locus of the acts, the involvement of a foreign sovereign, or the character of the international-law norm at issue.

To isolate the consideration of the court of appeals' holding from those other issues, and to tie the corporate liability issue to the origins of the ATS, consider (for example) a civil suit brought by a foreign ambassador against a U.S. corporation for wrongs committed against the ambassador by the corporation's employees in the United States. Cf. Sosa, 542 U.S. at 716-717 (discussing assault on foreign ambassador to the United States in Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111 (Pa. Oyer & Terminer 1784)). Or consider a suit against a corporation based on piracy committed by the corporation's employees. Cf. id. at 720, 724. Whether a federal court should recognize a cause of action in such circumstances is a question of federal common law that, while informed by international law, is not controlled by it.

Developments

A. Whether A Corporation May Be Held Liable In A Suit Based On The ATS Should Be Determined As A Matter Of Federal Common Law 1. This Court explained in Sosa that, although the ATS “is in terms only jurisdictional,” and does not create a statutory cause of action, “at the time of enactment” it “enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law.” 542 U.S. at 712. At that time, the category encompassed “three primary offenses: violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Id. at 724; see id. at 715, 720. Although the Court concluded that the door had not been closed “to further independent judicial recognition of actionable international norms” dictated by “the present-day law of nations,” id. at 725, 729, it identified certain cautionary factors to be considered in deciding whether to recognize such a claim under federal common law, id. at 725-728. The Court made clear, however, that “[w]hatever the ultimate criteria for accepting a cause of action subject to jurisdiction under [Section] 1350,” one essential criterion is that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than [those] historical paradigms.” Id. at 732. Accordingly, “any claim based on the present-day law of nations” must at least “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of th[ose] 18th-century paradigms.” Id. at 725.

2. Contrary to the court of appeals' conclusion, in determining whether a federal common law cause of action should be fashioned, courts are not required to determine whether “corporate liability for a 'violation of the law of nations' is a norm 'accepted by the civilized world and defined with a specificity' sufficient to provide a basis for jurisdiction under the ATS.” In so holding, the court of appeals confused the threshold limitation identified in Sosa (which does require violation of an accepted and sufficiently defined substantive international-law norm) with the question of how to enforce that norm in domestic law (which does not require an accepted and sufficiently defined practice of international law). That confusion stems in large part from the court's misreading of footnote 20 in the Sosa opinion.

Details

In footnote 20, the Court explained that “[a] related consideration”—i.e., a consideration related to “the determination whether a norm is sufficiently definite to support a cause of action”—”is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Sosa, 542 U.S. at 732 & n.20. The Court then proceeded to compare two cases exemplifying that “consideration.” The first was Judge Edwards' concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 791-795 (D.C. Cir. 1984), cert. denied, 470 U.S. 1003 (1985), in which he found (in this Court's words) an “insufficient consensus in 1984 that torture by private actors violates international law.” Sosa, 542 U.S. at 732 n.20. The second was Kadic v. Karad_i_, 70 F.3d 232, 239-241 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996), in which the court found (again, in this Court's words) a “sufficient consensus in 1995 that genocide by private actors violates international law.” Sosa, 542 U.S. at 732 n.20. In a concurring opinion, Justice Breyer summarized footnote 20 as requiring that “[t]he norm * * * extend liability to the type of perpetrator (e.g., a private actor) the plaintiff seeks to sue.” Id. at 760.

From Sosa's footnote 20, it is clear that “if the defendant is a private actor,” Sosa, 542 U.S. at 732 n.20 (emphasis added), a court must consider whether private actors are capable of violating the international-law norm at issue. The distinction between norms that apply only to state actors and norms that also apply to nonstate actors is well established in customary international law. For example, the Torture Convention defines “torture” as certain conduct done “by or at the instigation or with the consent or acquiescence of a public official or other person acting in an official capacity.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. 4 (1988), 1465 U.N.T.S. 85, 113-114 (Torture Convention). In contrast, genocide and war crimes do not require state involvement. See, e.g., Convention on the Prevention and Punishment of the Crime of Genocide, art. II, adopted Dec. 9, 1948, 102 Stat. 3045, 78 U.N.T.S. 277 (Genocide Convention); Geneva Convention Relative to the Treatment of Prisoners of War, art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 3318, 75 U.N.T.S. 135, 136 (Common Article 3). Because certain international-law obligations do distinguish between state actors and non-state actors, to identify an accepted international-law norm with definite content for Sosa purposes, a court must conduct a norm-by-norm assessment to determine whether the actor being sued is within the scope of the identified norm.

More about the Issue

The court of appeals, however, read Sosa's footnote 20 more broadly in two respects. First, it misread the distinction between state actors and non-state actors—a distinction well recognized in international law—as a basis for drawing a distinction between natural and juridical persons—one that finds no basis in the relevant norms of international law. In fact, the footnote groups all private actors together, referring to “a private actor such as a corporation or individual.” Sosa, 542 U.S. at 732 n.20 (emphasis added). And, notably, the defendant in Kadic was a natural person, 70 F.3d at 236, whereas the defendants in Tel-Oren were not, 726 F.2d at 775.

Second, the court of appeals misread footnote 20 to require not just an international consensus regarding the content of an international-law norm, but also an international consensus on how to enforce a violation of that norm. That reading reflects a misunderstanding of international law which establishes the substantive standards of conduct and generally leaves the means of enforcing those substantive standards to each state. See Louis Henkin, Foreign Affairs and the United States Constitution 245 (2d ed. 1996) (“International law itself * * * does not require any particular reaction to violations of law.”); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1020 (7th Cir. 2011) (same)** That is not to say that international law is irrelevant to all questions of enforcement. And, as discussed in Part II.B.3, infra, international law informs the court's exercise of its federal common law authority in determining whether to recognize a cause of action to remedy a violation of an international-law norm that otherwise meets the Sosa threshold—and in deciding what the contours of that cause of action should be. But that is a different task from satisfying Sosa's threshold requirement of demonstrating the existence of an accepted and well-defined substantive international law norm. Cf. Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, ; Doe [v. Exxon Mobil Corp.], 654 F.3d at 41-42 (same). Once it is established that the international norm applies to conduct by an actor, it is largely up to each state to determine for itself whether and how that norm should be enforced in its domestic law.

423 (1964) (“Although it is, of course, true that United States courts apply international law as part of the U.S. own in appropriate circumstances, the public law of nations can hardly dictate to a country which is in theory wronged how to treat that wrong within its domestic borders.”).

Resources

See Also

• Foreign Relations
• Alien Tort Claims
• Torture Victim Protection

Resources

Notes and References

1. ** Editor's note: In 2011, the U.S. Court of Appeals for the Seventh Circuit also concluded that corporations can be liable under the ATS. Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011). The plaintiffs in the case were Liberian children who alleged that Firestone used hazardous child labor at its rubber plant in Liberia in violation of customary international law. After deciding that corporate liability exists under the ATS, the Flomo court proceeded to determine that the allegations of the plaintiffs did not present an adequate basis for finding a violation of customary international law, leading the court to affirm the district court's dismissal of the case.