The Alien Tort Statute (ATS) grants U.S. district courts jurisdiction over "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." (1) In Sosa v. Alvarez-Machain, (2) the Supreme Court held that the ATS allows U.S. courts to recognize federal common law causes of actions "based on the present-day law of nations [that] rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized," specifically, infringement of the rights of ambassadors, violations of safe-conducts, and piracy. (3) Sosa involved claims against a natural person. Now, eight years later, in Kiobel v. Royal Dutch Petroleum Co., (4) the Court has taken up the question of whether a corporation can be held liable under the ATS.
In the decision below, the Second Circuit answered "no" to that question. "Because corporate liability is not recognized as a 'specific, universal, and obligatory' norm," the majority concluded, "it is not a rule of customary international law that we may apply under the ATS." (5) In an amicus brief on corporate liability filed with the Supreme Court, the United States argued to the contrary that a corporation can be held liable in a suit under the ATS for violating the law of nations. According to the United States, the Second Circuit approached the international law question in the wrong way. That court should not have "examined the question of corporate liability in the abstract," but should have looked instead to see "whether any of the particular international-law norms [at issue] ... exclude corporations from their scope." (6) It is these fundamentally different ways of looking at corporate liability under customary international law that are the subject of this piece.
From the outset, the Second Circuit majority framed the question of corporate liability under the ATS as turning on "the existence of a norm of corporate liability under customary international law." (7) In concluding that no such norm exists, the court found it "particularly significant ... that no international tribunal of which we are aware has ever held a corporation liable for a violation of the law of nations." (8) The court also observed "that the relatively few international law treaties that impose particular obligations on corporations do not establish corporate liability as a 'specific, universal, and obligatory' norm of customary international law." (9) After noting that the works of publicists are relevant "not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is," (10) the court concluded that "corporate liability is not recognized as a 'specific, universal, and obligatory' norm." (11) As these passages make clear, the Second Circuit majority was searching for a general norm of corporate liability: a trans-substantive rule that would apply regardless of the particular international law violation alleged.
International law does not work that way. It does not contain general norms of liability or non-liability applicable to categories of actors. International law does, of course, include doctrines of immunity. For example, states are generally immune from suit in the courts of other states unless an exception applies, as are certain high-ranking officials (like heads of state) during their tenure in office. However, as the International Court of Justice has reaffirmed only recently in the Jurisdictional Immunities case, "rules of State immunity are procedural" and "do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful." (12) Thus, "immunity can have no effect on whatever responsibility [a state] may have." (13) In other words, a state that is immune from suit is still capable of violating international law and, despite its immunity, remains responsible for such violations. …