(My thanks to IntLawGrrls for inviting me to contribute this guest post)
My article "Federal Common Law and the Alien Tort Statute: A New Approach", which was recently published as part of a symposium in the Notre Dame Law Review, explains that federal courts faced with Alien Tort Statute cases have applied customary international law to some issues and federal common law to others. This binary approach is analogous in certain respects to a Bivens action, with federal common law creating the cause of action and international law providing the conduct regulating norms.
A better approach, advanced and defended in my article, is to view federal common law as applying to virtually all aspects of Alien Tort Statute litigation, although for some issues federal common law is tightly linked to the content of customary international law. This approach is justified for descriptive, doctrinal, and normative reasons.
The issues in Alien Tort cases are not actually resolved through application of “pure” international law—instead, the law applied is filtered through the particular history and origins of the Alien Tort Statute itself, along with other factors unique to the United States. The overarching standard that the U.S. Supreme Court (above left) set out in Sosa v. Alvarez-Machain (2004) -- universality and clarity – is itself generated by the place of the Alien Tort Statute in U.S. history.
Moreover, many issues that arise in Alien Tort litigation are not clearly addressed by customary international law. Descriptively, the federal common law approach is more accurate. Doctrinally, courts, litigants, and commentators have spent much time and energy choosing between “international” and “domestic” law -- see, for example, the article in which IntLawGrrl guest/alumna Chimène Keitner argues that international law should apply the mens rea standard for accomplice liability. But neither international nor domestic law alone provides a satisfactory resolution of most contested issues.
Normatively, federal courts may avoid (in whole or in part) the charge that they misunderstand customary international law, and they may be in a position to develop some norms of customary international law that are not yet fully developed, depending in part on the intentions of Congress and the Executive Branch.
As one example, the mens rea standard for aiding and abetting liability is often left unspecified in treaties, and is sometimes delegated to domestic implementing bodies or international tribunals. Where it is specified, the standard differs. It is thus incorrect, in my view, for courts in Alien Tort cases to look to international law for a very specific, widely accepted mens rea standard. Instead, they should acknowledge that this standard is developed through a combination of domestic law and international law developed by tribunals themselves: in this context, looking in part to the domestic U.S. standards for the mens rea requirement is fully justified.
The argument that all Alien Tort issues are fundamentally a question of federal common law – except those governed by laws like the Federal Rules of Civil Procedure – follows quite easily from the Court’s opinion in Sosa. But it is likely to have few fans in academic circles, for the reason that it does not fit well into the “modernist” vs. “revisionist” debate that has dominated academic writing on this topic. For a description of the debate authored by revisionist participants, see here.
The so-called “modernists” generally view customary international law as federal common law even in the absence of explicit incorporation by the political branches. But my article argues that implicit congressional authorization is the basis for federal common-lawmaking in the Alien Tort context after Sosa.
The“revisionists” tend to dislike federal common law. Much of the post-Sosa scholarship on the Alien Tort Statute has been a continuation of the modernist vs. revisionist debate, which I think is declining in significance after Sosa.
In any event, this article is, in part, and effort to consider Alien Tort litigation through a different lens.
The article also applies this approach to corporate liability, and briefly addresses prescriptive jurisdiction issues that arise in Alien Tort Statute litigation. It concludes that the Alien Tort Statute is best understood to extend liability to corporations, based on both congressional intent and the unsettled state of international law, and that a knowledge rather than purpose standard should be applied to aiding and abetting claims, in part because international has frequently delegated the mens rea issue to domestic law or to development by courts. The article thus discusses and criticizes the recent decision in Kiobel v. Royal Dutch Petroleum Co., in which, as IntLawGrrls have discussed in posts available here, a panel of the U.S. Court of Appeals for the Second Circuit held that corporations could not be held liable under the Alien Tort Statute. In February, rehearing en banc was denied; however, as discussed here, a second petition for rehearing has now been filed.
Finally, the article argues that courts need to avoid potential violations of international law and that – here my argument runs counter to that of human rights activists and many academics – prescriptive jurisdiction limitations fully apply in Alien Tort Statute cases, and constrain the types of claims and cases that can go forward.