The Volokh Conspiracy

A look at the legislative history does not support the notion of a subjective, political exemption for politically-motivated pirates.

Kevin Jon Heller’s argument that political motives are excluded from piracy rests less on the Law of the Sea Treaty itself than on its intellectual predecessors, the League of Nations Report of 1927 and the Harvard Draft Convention of 1932. The ILC Commentary to the Law of Sea Treaty specifically endorses the latter, saying that “in general” it agrees with the Draft Convention (it does not provide such deference to the former.

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the
citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best supports his position does not come from the commentary on “private ends,” or indeed from the definition of piracy at all (contained in Art. 3). Rather, it comes from the commentary on Art. 14, which is not defining, or even discussing piracy at all, but rather the authority of states with traditional jurisdiction to apply non-piracy law.

Having looked further through the Committee’s work, I see no hint of an exclusion of political motives, and several pieces of evidence suggesting it was included.

The Commission’s final Commentary to the definition of piracy explained: “The intention to rob (animus furandi) is not required. Acts of piracy may be prompted by feelings of hatred or revenge, and not merely by the desire for gain.” The argument for Sea Shepherd is that they are not motivated by negative feelings, but by positive ones. Of course “hatred and revenge” are only illustrative – and quite typical of political violence. The language about “hatred and revenge” borrows from the League of Nations Committee of Experts for the Progressive Codification of International Law had to say in 1927. That document goes on the exclude “purely political motives” from piracy. Notably the ILC Commentary does not reference or endorse that second limitation. Quoting part of the 1927 report but not other relevant parts suggests the exclusion of the latter.

Let us now consider the proceedings leading up to the final text. At the May 8, 1956 meeting, Sir Gerald Fitzmaurice and others expressed some concern that “merchant vessels” could in wartime “seeking to acquire, quite inadmissibly, the status of warships by hoisting a naval flag in order to board, capture, or sink other vessels, after which they would revert to their former status of merchant ships.” Thus the general immunity of warships, and their exemption from piracy, had to strictly be limited to real, regularly constituted warships. The relevant point for our purpose is that if political purposes were enough to create immunity for a private vessels, a merchant vessel would have no need to redress itself to raid enemy commerce in wartime; such acts are by definition political. Yet in the view that piracy is the lack of public status, such concerns make sense.

The key aspect of private ends is the lack of public authority As Fitzmaurice commented at the May 9, 1956 meeting of the Commission: “The Commission’s conception had been that piracy was essentially an act committed by a ship’s company or persons acting on their own authority, thereby excluding warships.” He thus supported extending the piracy exemption to government ships other than war ships, since they also operated under public authority.

On a side note, I should add that I’m quite surprised and amused by the intensity of feeling on this issue. I wish there was as much sympathy for Ali, a guy who may spend his life in federal prison for something that isn’t piracy.) I must admit, I don’t have a TV, and do not know anything about the heroic depiction of Sea Shepherd. But Ali got a very sympathetic turn in Stolen Seas.

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.

The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

The strongest refutation of the district court’s reasoning are opinions finding that attacks by rebel or guerilla groups that had not become recognized belligerents (i.e., de facto state actors) constitute mere piracy. See The Ambrose Light, 25 F. 408
(D.C. N.Y. 1885). Indeed, Confederate privateers would have been treated as pirates had it not been for a political (i.e., executive) decision not to do so. Obviously no such decision has been made in favor of Sea Shepard, which is essentially waging “private war” – or rather, “private Whale Wars.”

Indeed, Judge Story in The Marianna Flora (1822) made it clear there not be any intent for pecuniary gain:

[N]or do I conceive that it is indispensable to constitute piracy, that there should be an intent of private gain, for if a piratical burning or sinking of a ship or murder of her crew should take place by freebooters on the sea, it would be as genuine piracy as if the primary object were immediate plunder. The act would exhibit a piratical and felonious intent, an intent to despoil the owner of his property.

The necessity for this rule is clear. Motives are often mixed and not transparent. The Irish pirates of prior centuries attacked British ships for gain, but also for politics. Similarly, British pirates against the Spanish in the early 1700s stole – and had political motives. Today’s Somali pirates are said to be motivated in part by foreign overfishing in Somali waters; some pirate bands have manifestly political names (National Volunteer Coast Guard of Somalia). (Ironically, Greenpeace argues that the foreign fishing fleets are the real “pirates,” who have caused the problem in Somalia.) Yet in not one of the dozens of Somali pirate trials around the world has this been even considered as even potentially defeating liability.

Indeed, even saving the whales is not clearly political: it could be selfish, in the sense that some people, like the defendants, are happier knowing there are whales in the world, some people are no. Indeed, redistribution from the rich is itself a political agenda, and such a political motive would make all pirates mere Robin Hoods.

Some may chafe at the notion that Sea Shepherd, which they see as a wonderful group devoted to a noble purpose, should be deemed pirates. But there is a valuable lesson here: one should not mistake the rules of international law with those of morality or decency or environmentalism; sometimes they coincide, sometimes they don’t. If one does not like the result, it means one thinks the international rule is bad. I do not know if this is a good rule in a grander sense, but it is certainly the best one that nations could have actually agreed on.

For thoughts on what this means for ATS litigation overall, see my previous post.

The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected with piracy practice and caselaw. In this post, I’ll discuss the relevance of the decision to Alien Tort Statute issues, and in a subsequent one, I’ll examine the merits.

The Japanese whalers brought suit under the ATS, and the case is notable in two other ways relevant to the Supreme Court’s upcoming decision in Kiobel. First, it shows that the ATS can have both liberal and conservative uses, as I’ve noted before. It is true that there have been few conservative uses, but there weren’t any uses of any kind for 200 years, until Filartiga inspired a wave of human rights litigation. Thus a ruling narrowing the ATS in Kiobel cannot be simply interpreted as “conservative” decision.

Second, it shows that even the narrowest possible ruling in Kiobel – finding the statute to not apply on foreign territory or create corporate liability – cannot be said to close the door to all ATS litigation, or read the statute so narrowly as to make it a dead letter. This case, for example, would clearly survive the narrowest possible post-Sosa view of the ATS.

I am less sure that the ATS applies to piracy at all, though the Ninth Circuit was safe to assume this, as it was assumed by both parties and the Supreme Court in Sosa. I have criticized that that assumption:

It is not clear that Sosa was right about Congress’s belief that the ATS would be a vehicle for piracy suits. Although piracy was one of the three offenses incorporated into common law, it stood on very different remedial footing than the other two. Civil remedies against pirates were almost exclusively in rem. While damages actions were possible, it is hard to find any evidence of such suits, and they would likely have been far too marginal to command Congress’s solicitude. (pg. 107)

Today’s ruling was just on a preliminary injunction. Hopefully on remand, the defendants will take the opportunity to inquire why anyone would thing Congress would have added a supplemental damages remedy to the standard in rem recovery against pirates – to say nothing of an equitable remedy!

The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international law.

Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.

The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:

The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court also suggested that Congress could not define international “conduct beyond the scope of the [international legal] definition” of offenses, as I argued in this forthcoming paper.

The standard for determining law of nations violations. Because Congress did not define attempts as part of the piracy prohibition, the Court looked to international law. The Law of the Sea Treaty – just as the Senate began to debate it again this week – was an important starting point, because it provides an easy-to-refer-to definition of piracy. By its terms, the Law of the Sea definition seems to include attempts. But the Fourth Circuit did not stop there, but continued to examine how courts in prior cases in other countries had ruled, including a famous Privy Council decision from the 1930s, and rulings of the Kenyan courts that have taken a leading role in prosecuting Somali pirates today, and an U.S. case.

Thus there has been actual state judicial practice establishing “attempts” as part of piracy; the Court didn’t just read this off a treaty that had never been applied in any case. Indeed, the decision could have gone the other way if the court was asked to be the first to “apply” such a theoretical norm: the opinion noted the “necessity of looking to… case law from other countries” to find that a putative norm exists. Slip op. at 19.

This has immediate relevance for the ATS, and Kiobel. (Indeed, the court borrowed freely from ATS decisions.) The existence of relevant judicial precedents is of course what is missing in several kinds of ATS claims, and especially for corporate liability.

Perhaps later I’ll say some more about how I think the decision may have been a bit too broad, or cavalier about Congress’s failure to “define.”

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS suits with rather opposite political valences, none of which involve corporate liability or foreign-cubed situations:

• Japanese whalers are suing Sea Shepherd Conservation Society in federal court for acts of piracy, violations of the SUA Treaty other navigational safety charters. The case raises interesting issues about the availability of injunctions under the ATS, as well as the meaning of “private ends” in the definition of piracy. (H/T: Other Eugene.)

• In recent weeks the Center for Constitutional Rights, which pioneered ATS litigation in Filartiga and many subsequent cases, filed suit against a U.S. preacher for encouraging the Ugandan government to criminalize homosexuality.

An interesting question this case raises is whether the Noerr-Pennington doctrine applies to the ATS generally, and whether it applies extraterritorially. One would think that those who argue corporate liability in ATS cases should be governed by federal common law would find Noerr-Pennington, based as it is on First Amendment considerations, fully applicable in this context. Noerr-Pennington has been extended to a variety of torts and to RICO actions, why not ATS?

One answer could be that antitrust violations are simply not violations when done by governments: indeed, much of what progressive economic policies entail is cartelizing workers and industries. Human rights violations, however, specifically are human rights violations when done by governments. But this just brings us back to the crossroads: do U.S. common law or international norms govern secondary legal issues in ATS cases?

Passover approaches, and with it the end of my rotation here. It has been a pleasure, and thanks to Eugene for having me here.

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.

UPDATE: This just gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:

[T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a “sufficiently close connection” to the U.S. is entirely absent.

I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows “can dish it out, but ...can’t take it no more,” to quote Edward G. Robinson’s Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NORTHWESTERN UNIVERSITY LAW REVIEW 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 NORTHWESTERN UNIVERSITY LAW REVIEW __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are gain reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

[Cross-posted on OpinioJuris]

[Cross-posted on OpinioJuris]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign-cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability.  The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law.  I – along with the foreign governments filing amicus briefs – would beg to differ.  There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.

A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law.  It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally.  The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric.  They require that “international law” be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today’s international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what “international law” is available for deployment; use American concepts of civil and corporate liability to fill in “gaps” in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.

That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world.  It is also what a legal system does when what matters to it is its “internal” legitimacy – its fidelity to its own hierarchy of authority and interpretation.  I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the “doctrine of sources,” even in a loose sense, operates in international law.  And while I’m not un-attracted by US hegemony, to be sure, and while I’m also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse “hegemonic law” with “international law.”

A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline.  (“Ne serait-ce point une Amerique lasse de son metier?” as Stendhal (might have) put it.)  Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China’s corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I’m all for American hegemony, but in today’s world, even I think it a bridge too far – and quite ungrounded in international law as such.

How one gets that concern in front of the Supreme Court, I have not the faintest idea.  But I do think it is the overarching intellectual and political question at stake.