Some Thoughts on the Alien Tort Statute as the Supreme Court Considers Kiobel

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In 2011, the Supreme Court granted certiorari in Kiobel v. Royal Dutch Petroleum Co. (1) to review the Second Circuit's holding that liability is not available under the Alien Tort Statute (ATS) (2) against artificial entities such as corporations because there is no consensus among nations regarding the extension of international human rights norms to such entities. After argument was held in the case, the Court requested additional briefing on a question that had been raised in the briefing and at argument--namely, whether the statute applies to extraterritorial conduct. (3) This Remark addresses three issues relating to the original question presented.

First, some scholars and jurists have asserted that the issue of corporate liability under the ATS is governed by domestic law in the sense that U.S. courts, having identified an international legal norm, may simply shape a cause of action or "remedy" that determines what categories of defendants are covered by that norm. But this facile assertion that domestic law governs the issue is incorrect. The issue of who may be liable is not one of "remedy" to be shaped under domestic law; rather, it defines the scope of substantive liability for the claimed international norm. But even if that were not so, the argument is flawed. Although international law does define certain norms and allows individual nations to incorporate such norms into their domestic laws, that does not mean that United States courts are free to provide the missing elements. Even when international law mandates that nations enforce the norm domestically, the expectation is that any implementation will be effected through the lawmaking body within each nation--normally, each country's legislature. In our nation's tripartite system of government, Congress is the legislative body charged with effecting that implementation, as expressed in its power to "define and punish ... Offences against the Law of Nations." (4) Thus, as the Supreme Court recognized in Sosa v. Alvarez-Machain, (5) where international law calls for domestic implementation, normally it is Congress that is called upon to perform that role.

The judicial role is much narrower. As the Court explained in Sosa, only norms that are so universally agreed-upon and well-defined that they are already understood to give rise to international law obligations may be imported into domestic federal common law and enforced by the courts. Federal common law does not import abstract norms and then allow the courts to create new causes of action; rather, it imports only those norms that already carry "a potential for personal liability," (6) meaning that norms that are already understood to obligate each nation to provide a civil remedy. Although international law allows nations to go beyond international law obligations to create and define new domestic causes of action and remedies for emerging international law norms, our domestic separation-of-powers principles dictate that any such innovative lawmaking power be exercised by Congress, not by the courts.

Second, when one looks to international law to determine whether there is an international consensus of the sort that Sosa requires for judicial action, no such consensus can be found--a point that has been documented extensively elsewhere. A less-explored question is why such a consensus is lacking. This Remark attempts to explain the reluctance within the international community to elevate artificial entities such as corporations to the status of international "persons" or "subjects"--a status that is viewed not only as imposing international law obligations upon such entities, but also as imbuing them with associated powers, including the power to monitor or police the actions of other parties within that territory. Many nations--especially smaller and politically weaker nations--have been wary of any change in law that would deputize multinational corporations with the obligation, and hence, implicitly, the authority, to police compliance with supposed international law obligations within the host nations in which they operate--a development that is seen as potentially infringing on the territorial and political sovereignty of the host nation. …