Kiobel v. Royal Dutch Petroleum Co.

06-4800-cv, 06-4876-cv

Kiobel v. Royal Dutch Petroleum

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2008

(Argued: January 12, 2009 Decided: September 17, 2010)

Docket Nos. 06-4800-cv, 06-4876-cv

ESTHER KIOBEL , individually and on behalf of her late husband, DR . BARINEM KIOBEL , BISHOP

AUGUSTINE NUMENE JOHN -MILLER, CHARLES BARIDORN WIWA, ISRAEL PYAKENE NWIDOR,

KENDRICKS DORLE NWIKPO , ANTHONY B. KOTE -WITAH , VICTOR B. WIFA, DUMLE J. KUNENU ,

BENSON MAGNUS IKARI, LEGBARA TONY IDIGIMA , PIUS NWINEE , KPOBARI TUSIMA , individually and

on behalf of his late father, CLEMENT TUSIMA ,

Plaintiffs-Appellants-Cross-Appellees,

v.

ROYAL DUTCH PETROLEUM CO ., SHELL TRANSPORT AND TRADING COMPANY PLC,

Defendants-Appellees-Cross-Appellants,

SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA , LTD .,

Defendant.

Before: JACOBS, Chief Judge, LEVAL, and CABRANES, Circuit Judges.

Plaintiffs assert claims for aiding and abetting violations of the law of nations against

defendants—all of which are corporations—under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350,

a statute enacted by the first Congress as part of the Judiciary Act of 1789. We hold, under the

precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits

alleging violations of customary international law, the scope of liability—who is liable for what—is

determined by customary international law itself. Because customary international law consists of

only those norms that are specific, universal, and obligatory in the relations of States inter se, and

1

because no corporation has ever been subject to any form of liability (whether civil or criminal)

under the customary international law of human rights, we hold that corporate liability is not a

discernable—much less universally recognized—norm of customary international law that we may

apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of

subject matter jurisdiction.

The order of the United States District Court for the Southern District of New York (Kimba

M. Wood, Judge) is AFFIRMED insofar as it dismissed plaintiffs’ claims against the corporate

defendants and REVERSED insofar as it declined to dismiss plaintiffs’ claims against the corporate

defendants.

Judge Leval concurs only in the judgment of the Court dismissing the complaint and files a

separate opinion.

PAUL L. HOFFMAN , Schonbrun DeSimone Seplow Harris &

Hoffman, LLP, Venice, CA (Stephen A. Whinston,

Carey R. D’Avino, Keino R. Robinson, Berger &

Montague, P.C., Philadelphia, PA, on the brief), for

Plaintiffs-Appellants-Cross-Appellees.

ROWAN D. WILSON (Rory O. Millson, Thomas G. Rafferty,

Michael T. Reynolds, on the brief), Cravath, Swaine &

Moore LLP, New York, NY, for Defendants-Appellees-

Cross-Appellants.

Jeffrey J. Keyes, Briggs and Morgan, P.A., Minneapolis, MN

(Mark Girouard, Halleland Lewis Nilan & Johnson,

Minneapolis, MN, on the brief), for amici curiae

International Law Professors in support of Plaintiffs-

Appellants.

Naomi Roht-Arriaza, San Francisco, CA, for amici curiae

International Law Scholars Cherif Bassiouni, et al. in support

of Plaintiffs-Appellants.

Judith Brown Chomsky (Jennifer M. Green, on the brief),

Center for Constitutional Rights, New York, NY

(Marcos Simons, Richard Herz, Earthrights

International, Washington, DC, on the brief), for amici

curiae Wiwa Plaintiffs in support of Plaintiffs-Appellants.

2

William Aceves, California Western School of Law, San

Diego, CA, for amici curiae International Law Scholars in

support of Plaintiffs-Appellants.

JOSÉ A. CABRANES, Circuit Judge:

Once again we consider a case brought under the Alien Tort Statute (“ATS”), 28 U.S.C.

§ 1350,1 a jurisdictional provision unlike any other in American law and of a kind apparently

unknown to any other legal system in the world. Passed by the first Congress in 1789, the ATS laid

largely dormant for over 170 years. Judge Friendly called it a “legal Lohengrin”—“no one seems to

know whence it came.”2 Then, in 1980, the statute was given new life, when our Court first

recognized in Filartiga v. Pena-Irala that the ATS provides jurisdiction over (1) tort actions,

(2) brought by aliens (only), (3) for violations of the law of nations (also called “customary

international law”3) including, as a general matter, war crimes and crimes against humanity—crimes

in which the perpetrator can be called “hostis humani generis, an enemy of all mankind.”4

Since that time, the ATS has given rise to an abundance of litigation in U.S. district courts.

For the first fifteen years after Filartiga—that is, from 1980 to the mid-1990s—aliens brought ATS

suits in our courts only against notorious foreign individuals; the first ATS case alleging, in effect, that

1

“The district courts shall have original jurisdiction of 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.” 28 U.S.C. § 1350.

2

IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.), abrogated on other grounds by Morrison v. Nat’l

Austl. Bank Ltd., 130 S. Ct. 2869 (2010).

3

In this opinion we use the terms “law of nations” and “customary international law” interchangeably. See

Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2 (2d Cir. 2003) (explaining that, in the context of ATS jurisprudence,

“we have consistently used the term ‘customary international law’ as a synonym for the term the ‘law of nations’”); see also

The Estrella, 17 U.S. (4 Wheat.) 298, 307 (1819) (referring to non-treaty-based law of nations as the “the customary . . .

law of nations”).

4

Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25, 732

(2004) (Souter, J.) (quoting this reference in Filartiga with approval and identifying that case as the “birth of the modern

line of [ATS] cases”). In light of the universal recognition of Filartiga as the font of ATS litigation— including by Judge

Leval, see Concurring Op. 2 (“Since Filartiga . . . was decided in 1980, United States courts, acting under the Alien Tort

Statute . . . have been awarding compensatory damages to the victims of human rights abuses committed in violation of

the law of nations.”)— we do not understand Judge Leval’s assertion that our decision conflicts with “two centuries” of

precedent. Concurring Op. 86.

3

a corporation (or “juridical” person) was an “enemy of all mankind” apparently was brought as

recently as 1997.5

Such civil lawsuits, alleging heinous crimes condemned by customary international law, often

involve a variety of issues unique to ATS litigation, not least the fact that the events took place

abroad and in troubled or chaotic circumstances. The resulting complexity and

uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding

multibillion-dollar verdicts6—has led many defendants to settle ATS claims prior to trial.7 Thus, our

Court has published only nine significant decisions on the ATS since 1980 (seven of the nine

coming in the last decade),8 and the Supreme Court in its entire history has decided only one ATS

case.9

Because appellate review of ATS suits has been so uncommon, there remain a number of

unresolved issues lurking in our ATS jurisprudence—issues that we have simply had no occasion to

address in the handful of cases we have decided in the thirty years since the revival of the ATS. This

5

The first ATS case brought against a corporate defendant appears to have been Doe v. Unocal Corp., 963 F.

Supp. 880 (C.D. Cal. 1997), aff’d in part and rev’d in part, 395 F.3d 932 (9th Cir. 2002).

6

In one ATS case, for example, a jury considering damages after a default judgment returned a $4.5 billion

verdict against Radovan Karadzic, former president of the self-proclaimed Bosnian-Serb republic of Srpska, for “acts of

genocide . . . committed in Bosnia-Herzegovina by individuals under [his] command and control.” Doe v. Karadzic, No.

93 Civ. 0878, 2001 U.S. Dist. LEXIS 12928, at *1-2 (S.D.N.Y. Aug. 28, 2001).

7

See, e.g., Lisa Girion, Unocal to Settle Rights Claims, L.A. Times, Dec. 14, 2004, at A1; Jad Mouawad, Shell Agrees to

Settle Abuse Case for Millions, N.Y. Times, June 9, 2009, at B1.

8

We count among the significant ATS cases decided by our Court: Filartiga, 630 F.2d 876; Kadic v. Karadžiæ, 70

F.3d 232 (2d Cir. 1995), Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Bigio v. Coca-Cola Co., 239 F.3d 440

(2d Cir. 2000); Flores, 414 F.3d 233; Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007); Viet. Assoc. for

Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008); Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009);

Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009).

9

Sosa, 542 U.S. 692.

4

case involves one such unresolved issue: Does the jurisdiction granted by the ATS extend to civil

actions brought against corporations under the law of nations?10

Plaintiffs are residents of Nigeria who claim that Dutch, British, and Nigerian corporations

engaged in oil exploration and production aided and abetted the Nigerian government in

committing violations of the law of nations. They seek damages under the ATS, and thus their suit

may proceed only if the ATS provides jurisdiction over tort actions brought against corporations

under customary international law.

A legal culture long accustomed to imposing liability on corporations may, at first blush,

assume that corporations must be subject to tort liability under the ATS, just as corporations are

generally liable in tort under our domestic law (what international law calls “municipal law”).11 But

the substantive law that determines our jurisdiction under the ATS is neither the domestic law of the

10

The question of corporate liability has been identified as recently as 2009 in Presbyterian Church as an open

question in our Circuit. See 582 F.3d at 261 n.12 (“We will also assume, without deciding, that corporations . . . may be

held liable for the violations of customary international law that plaintiffs allege.”). Others have also acknowledged,

either explicitly or implicitly, that the question remains unanswered. See, e.g., Khulumani, 504 F.3d at 282-83 (Katzmann,

J., concurring) (noting that, because defendants did not raise the issue, the Court need not reach the question of

corporate liability); id. at 321-25 (Korman, J., concurring in part and dissenting in part) (expressing the view that

corporations cannot be held liable under the ATS); Brief of the United States as Amicus Curiae in Opposition to the

Petition for a Writ of Certiorari 9 n.2, Pfizer Inc. v. Abdullahi, No. 09-34 (May 28, 2010) (urging the Supreme Court not to

“grant certiorari in this case to consider whether suits under the ATS can be brought against private corporations”

because “[t]hat question was not addressed by the court below” and was not “fairly included in the scope of . . . the

questions presented” (internal quotation marks omitted)). And at least one district court in another circuit has recently

held that there is no corporate liability under the ATS. Doe v. Nestle, No. CV 05-5133, slip op. at 120-60 (C.D. Cal. Sept.

8, 2010).

We decline to address several other lurking questions, including whether the ATS applies “extraterritorially,” see

Conditional Cross-Petition for a Writ of Certiorari 14-17, Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 09-1418

(May 20, 2010), or whether exhaustion of domestic remedies is required for claims that arise in a foreign forum, see Sosa,

542 U.S. at 733 n.21 (noting that the Supreme Court “would certainly consider this requirement in an appropriate case”).

We do not reach those questions here because we conclude that we lack jurisdiction over plaintiffs’ claims insofar as they

are asserted only against corporations.

11

The idea that corporations are “persons” with duties, liabilities, and rights has a long history in American

domestic law. See, e.g., N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 492 (1909) (rejecting the

argument that, “owing to the nature and character of its organization and the extent of its power and authority, a

corporation cannot commit a crime”). See generally Leonard Orland, Corporate Criminal Liability § 2.03-2.04 (2006)

(discussing the policy behind, and history of, corporate criminal liability). It is an idea that continues to evolve in

complex and unexpected ways. See, e.g., Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The history of

corporate rights and obligations under domestic law is, however, entirely irrelevant to the issue before us— namely, the

treatment of corporations as a matter of customary international law.

5

United States nor the domestic law of any other country. By conferring subject matter jurisdiction

over a limited number of offenses defined by international law, the ATS requires federal courts to look

beyond rules of domestic law—however well-established they may be—to examine the specific and

universally accepted rules that the nations of the world treat as binding in their dealings with one

another.12 As Judge Friendly carefully explained, customary international law includes only “those

standards, rules or customs (a) affecting the relationship between states or between an individual and

a foreign state, and (b) used by those states for their common good and/or in dealings inter se.”13

Our recognition of a norm of liability as a matter of domestic law, therefore, cannot create a

norm of customary international law. In other words, the fact that corporations are liable as juridical

persons under domestic law does not mean that they are liable under international law (and,

therefore, under the ATS). Moreover, the fact that a legal norm is found in most or even all

“civilized nations” does not make that norm a part of customary international law. As we explained

in Filartiga:

[T]he mere fact that every nation’s municipal [i.e., domestic] law may prohibit theft

does not incorporate “the Eighth Commandment, ‘Thou Shalt not steal’ . . . into the

law of nations.” It is only where the nations of the world have demonstrated that

the wrong is of mutual, and not merely several, concern, by means of express

international accords, that a wrong generally recognized becomes an international

law violation within the meaning of the [ATS].14

Accordingly, absent a relevant treaty of the United States—and none is relied on here—we must ask

whether a plaintiff bringing an ATS suit against a corporation has alleged a violation of customary

international law.

12

See Sosa, 542 U.S. at 732 (quoting with approval the statement of a lower court that rules of customary

international law must be “specific, universal, and obligatory” (internal quotation marks omitted)); Flores, 414 F.3d at 248

(“[C]ustomary international law is composed only of those rules that States universally abide by, or accede to, out of a

sense of legal obligation and mutual concern.”).

13

Vencap, 519 F.2d at 1015 (internal quotation marks omitted).

14

630 F.2d at 888 (quoting Vencap, 519 F.2d at 1015) (alteration omitted).

6

The singular achievement of international law since the Second World War has come in the

area of human rights, where the subjects of customary international law—i.e., those with

international rights, duties, and liabilities—now include not merely states, but also individuals. This

principle was most famously applied by the International Military Tribunal at Nuremberg. As

Justice Robert H. Jackson, chief prosecutor for the United States at Nuremberg, explained:

[The Nurnberg trials] for the first time made explicit and unambiguous what was

theretofore, as the Tribunal has declared, implicit in International Law, namely, that

to prepare, incite, or wage a war of aggression . . . and that to persecute, oppress, or

do violence to individuals or minorities on political, racial, or religious grounds in

connection with such a war, or to exterminate, enslave, or deport civilian

populations, is an international crime, and that for the commission of such crimes individuals

are responsible.

Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes Trial (1946)

(emphasis added), reprinted in 20 Temp. L.Q. 338, 342 (1946).15

From the beginning, however, the principle of individual liability for violations of

international law has been limited to natural persons—not “juridical” persons such as

corporations—because the moral responsibility for a crime so heinous and unbounded as to rise to

the level of an “international crime” has rested solely with the individual men and women who have

perpetrated it. As the Nuremberg tribunal unmistakably set forth in explaining the rationale for

individual liability for violations of international law: “Crimes against international law are

committed by men, not by abstract entities, and only by punishing individuals who commit such

crimes can the provisions of international law be enforced.” The Nurnberg Trial (United States v.

Goering), 6 F.R.D. 69, 110 (Int’l Military Trib. at Nuremberg 1946) (rejecting the argument that only

states could be liable under international law).

15

See also Brigadier General Telford Taylor, U.S.A., Chief of Counsel for War Crimes, Final Report to the Secretary

of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 109 (1949) (“[T]he major legal

significance of the [Nuernberg] judgments lies, in my opinion, in those portions of the judgments dealing with the area of

personal responsibility for international law crimes.” (emphasis in original)).

7

After Nuremberg, as new international tribunals have been created, the customary

international law of human rights has remained focused not on abstract entities but on the individual

men and women who have committed international crimes universally recognized by the nations of

the world. This principle has taken its most vivid form in the recent design of the International

Criminal Court (“ICC”). Although there was a proposal at the Rome Conference to grant the ICC

jurisdiction over corporations and other “juridical” persons, that proposal was soundly rejected, and

the Rome Statute, the ICC’s constitutive document, hews to the tenet set forth in Nuremberg that

international norms should be enforced by the punishment of the individual men and women who

violate them.16

In short, because customary international law imposes individual liability for a limited

number of international crimes—including war crimes, crimes against humanity (such as genocide),

and torture—we have held that the ATS provides jurisdiction over claims in tort against individuals

who are alleged to have committed such crimes. As we explain in detail below, however, customary

16

See The Rome Statute of the International Criminal Court (“Rome Statute”) art. 25(1), opened for signature July

17, 1998, 37 I.L.M. 1002, 1016 (limiting the ICC’s jurisdiction to “natural persons”); see also Albin Eser, Individual Criminal

Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 778-79 (Antonio Cassese et al. eds., 2002).

The United States has not ratified the Rome Statute. Under the Clinton Administration, the U.S. delegation

voted against the text adopted in Rome in 1998, in part because of concerns that the treaty “could inhibit the ability of

the United States to use its military to meet alliance obligations and participate in multinational operations, including

humanitarian interventions.” Diane F. Orentlicher, Unilateral Multilateralism: United States Policy Toward the International

Criminal Court, 36 Cornell Int’l L.J. 415, 419 (2004) (quoting the testimony, before the Senate Foreign Relations

Committee, of David J. Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. delegation at the

Rome Conference). Despite those concerns, the United States signed the Rome Statute on December 31, 2000, the last

day it was open for signature, under the outgoing Clinton Administration. Id. at 421. See generally Flores, 414 F.3d at 256

(explaining the meaning and significance of signing an international agreement); United States v. Yousef, 327 F.3d 56, 94

n.28 (2d Cir. 2003) (same). On May 6, 2002, the Bush Administration notified the United Nations that the United States

did not intend to become a party, an act popularly referred to as “unsign[ing].” Orentlicher, ante, at 421; see also Press

Release, U.S. Dep’t of Def., Secretary Rumsfeld Statement on the ICC Treaty (May 6, 2002) (noting the United States’

concern about “the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of

the U.N. Security Council’s authority over international criminal prosecutions; and the lack of an effective mechanism to

prevent politicized prosecutions of American servicemembers and officials”). However limited the value of the Rome

Statute in determining what customary international law is, a demonstrated lack of consensus amongst its signatories

about a particular norm is valuable evidence of what customary international law is not. See Sosa, 542 U.S. at 732 (quoting

with approval the statement that rules of international law must be “specific, universal, and obligatory” (emphasis added)

(internal quotation marks omitted)).

8

international law has steadfastly rejected the notion of corporate liability for international crimes,

and no international tribunal has ever held a corporation liable for a violation of the law of nations.

We must conclude, therefore, that insofar as plaintiffs bring claims under the ATS against

corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside

the limited jurisdiction provided by the ATS.

We emphasize that the question before us is not whether corporations are “immune” from

suit under the ATS: That formulation improperly assumes that there is a norm imposing liability in

the first place.17 Rather, the question before us, as the Supreme Court has explained, “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.”18 Looking to

international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every

international tribunal of which we are aware, that offenses against the law of nations (i.e., customary

international law) for violations of human rights can be charged against States and against individual

men and women but not against juridical persons such as corporations. As a result, although

international law has sometimes extended the scope of liability for a violation of a given norm to

individuals, it has never extended the scope of liability to a corporation.19

* * *

We pause briefly to acknowledge and reply to the separate opinion of our colleague, Judge

Leval. As an initial matter, we are perplexed by Judge Leval’s repeated insistence that there is no

“basis” for our holding because “[n]o precedent of international law endorses” it. See, e.g.,

Concurring Op. 3. In an ATS suit, we may apply only those international norms that are “specific,

17

Thus it is equally misleading to say that we are giving “a free pass” to corporations. Concurring Op. 11.

18

Sosa, 542 U.S. at 732 n.20

19

Our use of the term “corporation”— and our holding— is limited to private juridical entities such as

defendants.

9

universal, and obligatory.”20 As a result, the responsibility of establishing a norm of customary

international law lies with those wishing to invoke it, and in the absence of sources of international

law endorsing (or refuting) a norm, the norm simply cannot be applied in a suit grounded on

customary international law under the ATS. Thus, even if there were, as Judge Leval claims, an

absence of sources of international law addressing corporate liability,21 that supposed lack of

authority would actually support our holding. By contrast, to support Judge Leval’s proposed rule,

there would need to be not only a few, but so many sources of international law calling for

corporate liability that the norm could be regarded as “universal.” As it happens, no corporation has

ever been subject to any form of liability under the customary international law of human rights, and

thus the ATS, the remedy Congress has chosen, simply does not confer jurisdiction over suits

against corporations.22

Although Judge Leval condemns our holding, he in fact agrees with much of our opinion.

He concedes, for example, that “[i]t is true that international law, of its own force, imposes no

20

Sosa, 542 U.S. at 732 (quoting with approval the statement of a lower court) (internal quotation marks

omitted). See generally Part II, post.

21

In fact, as we discuss below, there are ample sources of international law explicitly rejecting corporate liability.

See generally Part II, post.

22

As we explain in detail below, see generally Part II, post, every international tribunal to confront the question of

whether the liability of non-state actors for violations of customary international law should extend to both natural and

juridical persons has considered and rejected corporate liability. We do not rest our analysis of customary international

law on the district court ATS decisions on which Judge Leval relies. Concurring Op. 23 n.14. Indeed, even if we were

to accord those district court cases the merit Judge Leval seems to believe they deserve, the opinions of domestic courts

citing domestic courts alone for propositions of customary international law do not constitute evidence of a “specific,

universal, and obligatory” norm of the kind necessary to impose judgment under the ATS. Sosa, 542 U.S. at 732.

Moreover, contrary to Judge Leval’s claim that the Nuremberg “tribunals found that corporations violated the

law of nations,” see Concurring Op. 55 & n.36 (emphasis added) (citing 6 Trials of War Criminals Before the Nuernberg

Military Tribunals Under Control Council Law No. 10 (“The Flick Case”) (1952); 7, 8 Trials of War Criminals Before the Nuernberg

Military Tribunals Under Control Council Law No. 10 (“The Farben Case”) (1952); 9 Trials of War Criminals Before the Nuernberg

Military Tribunals Under Control Council Law No. 10 (“The Krupp Case”) (1950)), no tribunal at Nuremberg had the

jurisdiction to charge— let alone impose judgment on— a corporation. As Judge Leval correctly points out, this

jurisdictional bar did not inhibit the tribunals’ ability to bring individual criminal defendants to justice for atrocities

committed in violation of the customary international law of human rights. Id.

10

liabilities on corporations or other private juridical entities.” Concurring Op. 67; see also id.

(explaining that it “is entirely accurate” that “international law imposes no liabilities on private

juridical persons”); id. (“[I]t is absolutely correct that the rules of international law . . . do not

provide for any form of liability of corporations.”). He similarly has “no quarrel” with the “premise[

]” that international law is “the place to look” to determine whether corporations can be held liable

for violations of international law. Id. at 45-46. He concludes, however, that international law does

not supply an answer to that question. In his view, the question of corporate liability is merely a

matter of “remedy” that “international law leaves . . . to the independent determination of each

State.” Id. at 48.

We agree with Judge Leval that whether to enact a civil remedy for violations of

international law is a matter to be determined by each State; the United States has done so in

enacting the ATS. But the ATS does not specify who is liable; it imposes liability only for a

“violation of the law of nations,” 28 U.S.C. § 1350, and thus it leaves the question of the nature and

scope of liability—who is liable for what—to customary international law. As we explain in detail

below, therefore, whether a defendant is liable under the ATS depends entirely upon whether that

defendant is subject to liability under international law. It is inconceivable that a defendant who is

not liable under customary international law could be liable under the ATS.

We will not embark on a lengthy tangent in response to Judge Leval’s many “hypothetical

cases,” Concurring Op. 18, in which corporations would not, under our holding, be liable under the

ATS. We note only that nothing in this opinion limits or forecloses suits under the ATS against the

individual perpetrators of violations of customary international law—including the employees,

managers, officers, and directors of a corporation—as well as anyone who purposefully aids and

abets a violation of customary international law. Nor does anything in this opinion limit or

foreclose criminal, administrative, or civil actions against any corporation under a body of law other

11

than customary international law—for example, the domestic laws of any State. And, of course, nothing

in this opinion limits or forecloses legislative action by Congress.

* * *

Lastly, we wish to note that we do not take lightly the passion with which Judge Leval

disagrees with our holding. We are keenly aware that he calls our reasoning “illogical” on nine

separate occasions. See Concurring Op. 4, 5, 9, 30, 31 n.18, 36, 28, 46, 68, 69. Nor is it lost on us

that he calls our conclusions “strange,” id. at 3, 57, 59,23 or that he repeatedly criticizes our analysis

as “internally inconsistent,” id. at 6, 7, 46.24 We must, however, leave it to the reader to decide

whether any of Judge Leval’s charges, individually or in combination, are a fair reading of our

23

Although Judge Leval calls our holding “strange” and “illogical,” Concurring Op. 3-4, it is, in fact, neither

novel nor eccentric. Rather, it appears to be the same rule adopted by Congress in enacting the Torture Victim

Protection Act of 1991 (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350 note). The TVPA

creates a civil damages remedy against “[a]n individual, who, under actual or apparent authority, or color of law, of any

foreign nation . . . subjects an individual to torture . . . or . . . extrajudicial killing.” Id. § 2(a)(1)-(2) (emphases added);

Bowoto v. Chevron Corp., — F.3d — , No. 09-15641, 2010 WL 3516437, at *9 (9th Cir. Sept. 10, 2010) (holding that “the

TVPA does not apply to corporations”). Indeed, as Judge Korman observed in his separate opinion in Khulumani:

Under the TVPA, the term “individual” describes both those who can violate its proscriptions against

torture, as well as those who can be victims of torture. . . . “[B]oth from context and common sense

only natural persons can be the ‘individual’ victims of acts that inflict ‘severe pain and suffering.’

Because the TVPA uses same term ‘individual’ to identify offenders, the definition of ‘individual’

within the statute appears to refer to a human being, suggesting that only natural persons can violate the

Act.”

504 F.3d at 323-24 (Korman, J., concurring in part and dissenting in part) (emphasis added) (citation omitted) (quoting In

re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 56 (E.D.N.Y. 2005)); accord Mujica v. Occidental Petroleum Corp., 381 F.

Supp. 2d 1164, 1176 (C.D. Cal. 2005) (holding that corporations are not “individuals” under the TVPA); cf. 1 U.S.C. § 1

(“In determining the meaning of any Act of Congress, unless context indicates otherwise . . . the word[ ] ‘person’ . . . include[s]

corporations . . . as well as individuals . . . .” (emphasis added)).

24

Suggesting the panel majority is in league with leading opponents of the modern ATS jurisprudence, Judge

Leval even goes so far as to attempt an increasingly popular rhetorical ploy among legal scholars of a certain school of

thought: what might be called the “reductio ad Borkum.” See Concurring Op. 2 (quoting Tel-Oren v. Libyan Arab Republic,

726 F.2d 774, 805 (D.C. Cir. 1984) (Bork, J., concurring)); cf. Leo Strauss, Natural Right and History 42-43 (1950) (“[W]e

must avoid the fallacy that in the last decades has frequently been used as a substitute for the reductio ad absurdum: the

reductio ad Hitlerum. A view is not refuted by the fact that it happens to have been shared by Hitler.”). We do not adhere

to any school of thought on the ATS. In any event, we have faith that our readers will understand that a view is not

refuted by the fact that it happens to have been shared by The Honorable Robert H. Bork, sometime Alexander M.

Bickel Professor of Law at Yale Law School, Solicitor General of the United States, and United States Circuit Judge for

the District of Columbia Circuit.

12

opinion. In so doing we are confident that if our effort is misguided, higher judicial authority is

available to tell us so.

BACKGROUND

These cross-appeals come to us from the United States District Court for the Southern

District of New York (Kimba M. Wood, Judge). At this stage of the proceedings, we accept as true

all nonconclusory factual allegations relevant to this decision. See Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949-50 (2009).

I. Factual Background

Plaintiffs, who are, or were, residents of the Ogoni Region of Nigeria, allege that defendants

Royal Dutch Petroleum Company (“Royal Dutch”) and Shell Transport and Trading Company PLC

(“Shell”), through a subsidiary named Shell Petroleum Development Company of Nigeria, Ltd.

(“SPDC”), aided and abetted the Nigerian government in committing human rights abuses directed

at plaintiffs. Royal Dutch and Shell are holding companies incorporated respectively in the

Netherlands and the United Kingdom.25 SPDC is incorporated in Nigeria. All defendants are

corporate entities—that is, “juridical” persons, rather than “natural” persons.

SPDC has been engaged in oil exploration and production in the Ogoni region of Nigeria

since 1958. In response to SPDC’s activities residents of the Ogoni region organized a group named

the “Movement for Survival of Ogoni People” to protest the environmental effects of oil

exploration in the region. According to plaintiffs, in 1993 defendants responded by enlisting the aid

of the Nigerian government to suppress the Ogoni resistance. Throughout 1993 and 1994, Nigerian

military forces are alleged to have shot and killed Ogoni residents and attacked Ogoni

villages—beating, raping, and arresting residents and destroying or looting property—all with the

25

Because of changes in corporate form, Shell Petroleum N.V. and Shell Transport and Trading Company, Ltd.

are the successors to the named defendants Royal Dutch and Shell.

13

assistance of defendants. Specifically, plaintiffs allege that defendants, inter alia, (1) provided

transportation to Nigerian forces, (2) allowed their property to be utilized as a staging ground for

attacks, (3) provided food for soldiers involved in the attacks, and (4) provided compensation to

those soldiers.

Plaintiffs brought claims against defendants under the ATS for aiding and abetting the

Nigerian government in alleged violations of the law of nations. Specifically plaintiffs brought

claims of aiding and abetting (1) extrajudicial killing; (2) crimes against humanity; (3) torture or cruel,

inhuman, and degrading treatment; (4) arbitrary arrest and detention; (5) violation of the rights to

life, liberty, security, and association; (6) forced exile; and (7) property destruction.

II. Procedural History

Plaintiffs commenced this lawsuit by filing a putative class action complaint in September

2002, which was amended in May 2004. They alleged that defendants aided and abetted, or were

otherwise complicit in, violations of the law of nations by the Nigerian government. Relying on the

Supreme Court’s June 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), defendants

moved to dismiss.

In September 2006, the District Court dismissed plaintiffs’ claims for aiding and abetting

property destruction; forced exile; extrajudicial killing; and violations of the rights to life, liberty,

security, and association. The District Court reasoned that customary international law did not

define those violations with the particularity required by Sosa. See Kiobel v. Royal Dutch Petroleum Co.,

456 F. Supp. 2d 457, 464-65, 467 (S.D.N.Y. 2006). The District Court denied defendants’ motion to

dismiss with respect to the remaining claims of aiding and abetting arbitrary arrest and detention;

crimes against humanity; and torture or cruel, inhuman, and degrading treatment. See id. at 465-67.

Recognizing the importance of the issues presented and the substantial grounds for difference of

14

opinion, the District Court certified its entire order for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b). See id. at 467-68.

DISCUSSION

We review de novo a District Court’s dismissal for failure to state a claim, see Fed. R. Civ. P.

12(b)(6), assuming all well-pleaded, nonconclusory factual allegations in the complaint to be true.

See Iqbal, 129 S. Ct. at 1949-50; Selevan v. N.Y. Thruway Auth., 584 F.3d 82, 88 (2d Cir. 2009). We

also review questions of subject matter jurisdiction de novo. See Bank of N.Y. v. First Millennium, Inc.,

607 F.3d 905, 920 (2d Cir. 2010); Flores v. S. Peru Copper Corp., 414 F.3d 233, 241 (2d Cir. 2003).

As we have explained above, this appeal presents a question that has been lurking for some

time in our ATS jurisprudence. Since our first case upholding claims brought under the ATS in

1980, see Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), our Court has never directly addressed

whether our jurisdiction under the ATS extends to civil actions against corporations, see Presbyterian

Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 261 n.12 (2d Cir. 2009) (assuming, without

deciding, that corporations may be liable for violations of customary international law); Khulumani v.

Barclay Nat’l Bank Ltd., 504 F.3d 254, 282-83 (2d Cir. 2007) (Katzmann, J., concurring) (noting that,

because defendants did not raise the issue, the Court need not reach the question of whether

corporations may be liable for violations of customary international law); id. at 321-25 (Korman, J.,

concurring in part and dissenting in part) (expressing the view that corporations cannot be held

liable under the ATS). We have, in the past, decided ATS cases involving corporations without

addressing the issue of corporate liability. See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir.

2009), cert. denied, --- S. Ct. ---, No. 09-34, 2010 WL 2571888 (June 29, 2010); Flores, 414 F.3d 233;

Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000). But that fact does not foreclose

consideration of the issue here. As the Supreme Court has held, “when questions of jurisdiction have

been passed on in prior decisions sub silentio,” the Court “has never considered itself bound when a

15

subsequent case finally brings the jurisdictional issue before [it].” Hagans v. Lavine, 415 U.S. 528, 533

n.5 (1974) (emphasis added); see also Webster v. Fall, 266 U.S. 507, 511 (1925) (“Questions which

merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be

considered as having been so decided as to constitute precedents.”); Garay v. Slattery, 23 F.3d 744,

745 n.2 (2d Cir. 1994) (finding it necessary to address jurisdictional challenge despite prior cases

assuming jurisdiction). The same rule applies here.

In answering the question presented we proceed in two steps. First, we consider which body

of law governs the question—international law or domestic law—and conclude that international

law governs.26 Second, we consider what the sources of international law reveal with respect to

whether corporations can be subject to liability for violations of customary international law. We

conclude that those sources lead inescapably to the conclusion that the customary international law

of human rights has not to date recognized liability for corporations that violate its norms.

I. Customary International Law Governs Our Inquiry

The ATS grants federal district courts jurisdiction over claims “by an alien for a tort only,

committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.27

In 2004, the Supreme Court held in Sosa that the ATS is a jurisdictional statute only; it creates no

cause of action, Justice Souter explained, because its drafters understood that “the common law

would provide a cause of action for the modest number of international law violations with a

potential for personal liability at the time.” 542 U.S. at 724. Indeed, at the time of its adoption, the

26

The Supreme Court has long recognized that “where there is no treaty and no controlling executive or

legislative act or judicial decision,” customary “[i]nternational law is part of our law.” The Paquete Habana, 175 U.S. 677,

700 (1900). In Sosa, the Court explained that the ATS was enacted “on the understanding that the common law would

provide a cause of action for the modest number of international law violations with a potential for personal liability.”

542 U.S. at 724 (emphasis added).

27

The statute originally provided that the federal district courts “shall . . . have cognizance, concurrent with the

courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in

violation of the law of nations or a treaty of the United States.” Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77. The

Supreme Court has attributed no significance to its subsequent amendment. See Sosa, 542 U.S. at 713 n.10.

16

ATS “enabled federal courts to hear claims in a very limited category defined by the law of nations

and recognized at common law.” Id. at 712. These included “three specific offenses against the law

of nations addressed by the criminal law of England [and identified by Blackstone]: violation of safe

conducts, infringement of the rights of ambassadors, and piracy”—each a rule “binding individuals

for the benefit of other individuals[, which] overlapped with the norms of state relationships.” Id. at

715 (citing 4 W. Blackstone, Commentaries on the Laws of England 68 (1769)).

The Supreme Court did not, however, limit the jurisdiction of the federal courts under the

ATS to those three offenses recognized by the law of nations in 1789. Instead, the Court in Sosa

held that federal courts may recognize claims “based on the present-day law of nations” provided

that the claims rest on “norm[s] of international character accepted by the civilized world and

defined with a specificity comparable to the features of the 18th-century paradigms [the Court had]

recognized.” Id. at 725.

The Supreme Court cautioned that “the determination whether a norm is sufficiently

definite to support a cause of action should (and, indeed, inevitably must) involve an element of

judgment about the practical consequences of making that cause available to litigants in the federal

courts.” Id. at 732-33 (footnote omitted). The Court also observed that “a related consideration 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 an individual.” Id.

at 732 n.20 (emphasis added). We conclude—based on international law, Sosa, and our own

precedents—that international law, and not domestic law, governs the scope of liability for

violations of customary international law under the ATS.

A. International Law Defines the Scope of Liability for Violations of Its Norms

International law is not silent on the question of the subjects of international law—that is,

“those that, to varying extents, have legal status, personality, rights, and duties under international law

17

and whose acts and relationships are the principal concerns of international law.” Restatement

(Third) of the Foreign Relations Law of the United States (“Restatement (Third)”), pt. II, at 70

introductory note (emphasis added); see 1Oppenheim’s International Law § 33, at 119 (Sir Robert

Jennings & Sir Arthur Watts eds., 9th ed. 1996) (“An international person is one who possesses legal

personality in international law, meaning one who is a subject of international law so as itself to enjoy

rights, duties or powers established in international law, and, generally, the capacity to act on the

international plane . . . .” (emphasis added) (footnotes omitted)). Nor does international law leave to

individual States the responsibility of defining those subjects. Rather, “[t]he concept of international

person is . . . derived from international law.” 1 Oppenheim’s International Law § 33, at 120; see also

Restatement (Third), pt. II, at 70 introductory note (“[I]ndividuals and private juridical entities can

have any status, capacity, rights, or duties given them by international law or agreement . . . .” (emphasis

added)).28

That the subjects of international law are determined by international law, and not individual

States, is evident from the International Military Tribunal at Nuremberg (“Tribunal”) in the

aftermath of the Second World War. The significance of the judgment of the Tribunal—and of the

judgments of the tribunals established pursuant to Allied Control Council Law No. 10—was not

simply that it recognized genocide and aggressive war as violations of international law. The

defining legal achievement of the Nuremberg trials is that they explicitly recognized individual

liability for the violation of specific, universal, and obligatory norms of international human rights.

In its judgment the Tribunal noted that the defendants had argued that “international law is

28

The Restatement observes that “[i]ndividuals may be held liable for offenses against international law, such as

piracy, war crimes, or genocide” and that “[c]orporations frequently are vehicles through which rights under international

economic law are asserted.” Restatement (Third), pt. II., at 71 introductory note (emphasis added); cf. 1 Oppenheim’s

International Law § 33, at 120 (“[T]he subjects of law in any legal system are not necessarily identical in their nature or in

the extent of their rights, and their nature depends upon the needs of the community; an international person need not

possess all the international rights, duties and powers normally possessed by states.” (footnote omitted) (internal

quotation marks omitted)). It goes without saying that the question we are dealing with here is whether corporations are

subjects of the customary international law of human rights, not whether they are subjects of treaty-based “international

economic law.” See generally Part II.B, post.

18

concerned with the actions of sovereign states, and provides no punishment for individuals.” The

Nurnberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int’l Military Trib. at Nuremberg 1946).

The Tribunal rejected that view, however, declaring that “international law imposes duties and

liabilities upon individuals as well as upon states” and that “individuals can be punished for

violations of international law.” Id. (emphasis added).

The significance of that aspect of the Tribunal’s judgment was not lost on observers at the

time. Justice Jackson, who served as chief prosecutor for the United States for the trial before the

Tribunal, explained in his final report to President Truman that “[the Nurnberg trials] for the first

time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in

International Law,” namely, that the conduct of the leaders of Nazi Germany violated international

law, “and that for the commission of such crimes individuals are responsible.” Robert H. Jackson, Final Report to

the President Concerning the Nurnberg War Crimes Trial (1946) (emphasis added), reprinted in 20 Temp.

L.Q. 338, 342 (1946) (emphasis added). General Telford Taylor, chief prosecutor for the United

States for the trials conducted under Allied Control Council Law No. 10, similarly noted in his final

report to the Secretary of the Army that “the major legal significance of the Law No. 10 judgments

lies . . . in those portions of the judgments dealing with the area of personal responsibility for

international law crimes.” Brigadier General Telford Taylor, U.S.A., Chief of Counsel for War

Crimes, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council

Law No. 10, at 109 (1949); see also note 36, post.29

29

Under Judge Leval’s approach, the extension of the scope of liability to individuals at Nuremberg was not a

detectable advance of international law. That is because, in his view, international law merely “establishe[s] . . . norms of

prohibited conduct” and leaves individual States to determine the scope of liability. Concurring Op. 6. That view finds

no support in international law.

19

B. So s a and Our Precedents Require Us to Look to International Law to

Determine the Scope of Liability

In Sosa the Supreme Court instructed the lower federal courts to consider “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 (emphasis added). That language requires that we look to international law to determine our

jurisdiction over ATS claims against a particular class of defendant, such as corporations.30 That

conclusion is reinforced by Justice Breyer’s reformulation of the issue in his concurring opinion:

“The norm [of international law] must extend liability to the type of perpetrator (e.g., a private actor) the

plaintiff seeks to sue.” See id. at 760 (Breyer, J., concurring) (emphasis added) (citing id. at 732 n.20

(majority opinion)).

The Supreme Court’s instruction to look to international law to determine the scope of

liability under the ATS did not involve a revolutionary interpretation of the statute—in fact, it had

long been the law of this Circuit. In Filartiga, we had looked to international law to determine our

jurisdiction and to delineate the type of defendant who could be sued. See 630 F.2d at 889 (“[T]he

question of federal jurisdiction under the Alien Tort Statute . . . requires consideration of the law of

nations.”); id. at 880 (“In light of the universal condemnation of torture in numerous international

agreements, and the renunciation of torture as an instrument of official policy by virtually all of the

nations of the world (in principle if not in practice), we find that an act of torture committed by a state

official against one held in detention violates established norms of the international law of human

rights, and hence the law of nations.” (emphasis added)); see also Khulumani, 504 F.3d at 269

(Katzmann, J., concurring) (“We have repeatedly emphasized that the scope of the [ATS’s]

jurisdictional grant should be determined by reference to international law.”). Likewise, in Kadic v.

30

Although the text of the ATS limits only the category of plaintiff who may bring suit (namely, “aliens”), its

requirement that a claim be predicated on a “violation of the law of nations” incorporates any limitation arising from

customary international law on who properly can be named a defendant. See 28 U.S.C. § 1350.

20

Karadžiæ, 70 F.3d 232 (2d Cir. 1995) (Newman, J.), and in Judge Harry T. Edwards’s notable

concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (Edwards,

J., concurring)—both cited with approval by the Supreme Court in Sosa—international law provided

the rules by which the court decided whether certain conduct violated the law of nations when

committed by non-state actors. In Kadic, we held that a private actor could be liable under the law of

nations for genocide, war crimes, and crimes against humanity, 70 F.3d at 239-241, but in Tel-Oren,

Judge Edwards expressed the view that a private actor could not be liable for torture under the ATS,

726 F.2d at 791-95 (Edwards, J., concurring); see also, e.g., Flores, 414 F.3d at 254-66 (looking to

customary international law for the applicable norms).

Since Sosa, we have continued to adhere to the method prescribed in Sosa footnote 20 by

looking to customary international law to determine both whether certain conduct leads to ATS

liability and whether the scope of liability under the ATS extends to the defendant being sued. As

recently as our decision of 2009 in Presbyterian Church, this same panel (including Judge Leval)

declared that “footnote 20 of Sosa, while nominally concerned with the liability of non-state actors,

supports the broader principle that the scope of liability for ATS violations should be derived from

international law.” 582 F.3d at 258 (footnote omitted); see also id. at 261 n.12 (noting that the court

“need not reach . . . the question of ‘whether international law extends the scope of liability’ to

corporations” (quoting Sosa, 542 U.S. at 732 n.20)). In Presbyterian Church, we looked to international

law to determine the circumstances in which aiders and abettors could be liable for violations of the

customary international law of human rights. Id. at 258-59. We did so because “[r]ecognition of

secondary liability is no less significant a decision than whether to recognize a whole new tort in the

first place.” Id. at 259. Thus, our holding today is consistent with Presbyterian Church, where we

looked to international law to determine not only what conduct is cognizable under the ATS, but

21

also the identity of the persons to whom that conduct is attributable (in that case, aiders and

abettors).31

Our interpretation of Sosa is also consistent with Judge Katzmann’s separate opinion in

Khulumani, 504 F.3d at 264 (Katzmann, J., concurring), which this same panel (including Judge

Leval) adopted as the law of the Circuit in Presbyterian Church, see 582 F.3d at 258 (“This opinion

draws substantially from Judge Katzmann’s concurring opinion, and adopts his proposed rule as the

law of this Circuit.”). In Khulumani, Judge Katzmann observed that aiding and abetting

liability—much like corporate liability—“‘does not constitute a discrete criminal offense but only

serves as a more particularized way of identifying the persons involved’ in the underlying offense.”

504 F.3d at 280 (Katzmann, J., concurring) (quoting United States v. Smith, 198 F.3d 377, 383 (2d Cir.

1999) (some internal quotation marks omitted)). Judge Katzmann further explained that “[w]hile

[footnote 20 of Sosa] specifically concerns the liability of non-state actors, its general principle is

equally applicable to the question of where to look to determine whether the scope of liability for a

violation of international law should extend to aiders and abettors.” Id. at 269. He therefore

31

Judge Leval’s assertion that we quote Sosa out of context and distort the Supreme Court’s reasoning is

unwarranted. We interpret Sosa here exactly the way we did in Presbyterian Church, 582 F.3d at 258, 261 n.12. We

acknowledge that the Court in Sosa was not addressing the question of corporate liability under the ATS. Thus, the

Court in footnote 20 had no occasion to draw a distinction between natural persons and juridical persons. That fact

does not obscure footnote 20’s fundamental point: courts must look to customary international law to determine the

“scope” of liability under the ATS. That is true not only when a court is questioning whether the scope of liability under

the ATS includes private actors (as opposed to state actors), but also when a court is questioning whether the scope of

liability under the ATS includes juridical persons (as opposed to natural persons). The proposition that we are required

to look to international law to determine whether corporations can be held liable under the ATS is not only compelled by

Sosa and consistent with our precedent, it is also a proposition with which Judge Leval does not disagree. Concurring

Op. 45-46 (explaining that he has “no quarrel” with the premise that “[t]o determine whether a corporation can be held

civilly liable for a violation of international law, the place to look is to international law” (emphasis added)); see also id. at 46

(“[I]f we found that international law in fact exempts corporations from liability for violating its norms, we would be

forced to accept that answer whether it seems reasonable to us or not.”).

Not only does Judge Leval agree that we must look to customary international law in resolving the question before

us, but he also agrees that the customary international law of human rights imposes no liability on corporations.

Concurring Op. 67 (“It is true that international law, of its own force, imposes no liabilities on corporations or other

private juridical entities.”). Yet beyond those significant points of agreement our analyses diverge. We believe that the

absence of a norm of corporate liability in international law ends our inquiry and deprives us of jurisdiction to consider

plaintiffs’ claims against corporate defendants. Under Judge Leval’s approach, the absence of the relevant norm in

international law merely permits a court to proceed a step further, to domestic law, in search of that norm. We

respectfully submit that it is Judge Leval’s approach, and not our own, that is utterly lacking in support in precedent.

22

concluded that “to assure itself that it has jurisdiction to hear a claim under the [ATS], [a court]

should first determine whether the alleged tort was in fact ‘committed in violation of the law of

nations,’ 28 U.S.C. § 1350, and whether this law would recognize the defendants’ responsibility for that

violation.” Id. at 270 (emphasis added); see also id. at 281 (“Because aiding and abetting is a generally

applicable means of identifying who should be held responsible for a particular act, . . . it is . . . reasonable

to consider whether the theory is accepted as a general principle of customary international law . . . .”

(emphases added)).32

Significantly, it was only because we looked to international law that we were able to

recognize a norm of aiding and abetting liability under the ATS. In Khulumani, Judge Katzmann

declined to rely on the usual presumption against aiding and abetting liability that applies in the

interpretation of domestic statutes. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver,

N.A., 511 U.S. 164, 182 (1994) (“[W]hen Congress enacts a statute under which a person may sue

and recover damages from a private defendant for the defendant’s violation of some statutory norm,

there is no general presumption that the plaintiff may also sue aiders and abettors.”). Instead, Judge

Katzmann concluded that Central Bank had no bearing on aiding and abetting liability under the ATS

because, “[u]nder the [ATS] the relevant norm is provided not by domestic statute but by the law of nations,

and that law extends responsibility for violations of its norms to aiders and abettors.” 504 F.3d at 282

(Katzmann, J., concurring) (emphases added).33

32

Judge Leval suggests that Judge Katzmann’s approach in Khulumani requires a court to look only to whether a

defendant’s conduct violated customary international law. Concurring Op. 66-67. But that is only the first step of Judge

Katzmann’s approach. As Judge Katzmann carefully explained: “[T]o assure itself that it has jurisdiction to hear a claim

under the [ATS], [a court] should first determine whether the alleged tort was in fact ‘committed in violation of the law

of nations,’ 28 U.S.C. § 1350, and whether this law would recognize the defendants’ responsibility for that violation.” Khulumani, 504

F.3d at 270 (emphasis added). In asserting that his views are consistent with his endorsement of Judge Katzmann’s

concurring opinion in Khulumani, Judge Leval simply ignores the second step of Judge Katzmann’s approach.

33

Judge Katzmann declined to reach the question of corporate liability in his concurring opinion in Khulumani

because that question was “not raised by the defendants on appeal and therefore the issue was not briefed by the

parties.” Id. at 282. Judge Katzmann observed, however, that our Court had repeatedly assumed that corporations can

be liable under the ATS because private individuals are liable under the statute, see id. (citing Bigio v. Coca-Cola, 239 F.3d

440, 447 (2d Cir. 2000); Flores, 414 F.3d at 244), and he suggested that the Supreme Court may have done the same, id. at

283 (noting that Sosa classified both corporations and individuals as private actors (citing Sosa, 542 U.S. at 732 n.20)).

23

* * *

In sum, we have little difficulty holding that, under international law, Sosa, and our three

decades of precedent, we are required to look to international law to determine whether corporate

liability for a “violation of the law of nations,” 28 U.S.C. § 1350, is a norm “accepted by the civilized

world and defined with a specificity” sufficient to provide a basis for jurisdiction under the ATS,

Sosa, 542 U.S. at 725. We have looked to international law to determine whether state officials, see

Filartiga, 630 F.2d at 880, private individuals, see Kadic, 70 F.3d at 239-41, and aiders and abettors, see

Presbyterian Church, 582 F.3d at 258-59, can be held liable under the ATS. There is no principled

basis for treating the question of corporate liability differently. Like the issue of aiding and abetting

liability, whether corporations can be liable for alleged violations of the law of nations “is no less

significant a decision than whether to recognize a whole new tort in the first place.” Presbyterian

Church, 582 F.3d at 259. It is, therefore, a decision properly made only by reference to customary

international law.

Having concluded that international law controls our inquiry, we next consider what the

sources of international law reveal with respect to the existence of a norm of corporate liability

under customary international law.

II. Corporate Liability Is Not a Norm of Customary International Law

To attain the status of a rule of customary international law, a norm must be “specific,

universal, and obligatory.” Sosa, 542 U.S. at 732 (quoting with approval the statement of a lower

court) (internal quotation marks omitted); see also Flores, 414 F.3d at 248 (“[C]ustomary international

law is composed only of those rules that States universally abide by, or accede to, out of a sense of

legal obligation and mutual concern.”); Restatement (Third) § 102(2) (“Customary international law

Nonetheless, whatever Judge Katzmann’s view on the ultimate question of corporate liability under the ATS, his

reasoning in Khulumani leads to the inescapable conclusion that customary international law governs the question. We

adopted that reasoning in Presbyterian Church in deciding the standards for aiding and abetting liability and we employ the

same reasoning today in deciding whether corporations can be liable under the ATS.

24

results from a general and consistent practice of states followed by them from a sense of legal

obligation.”). Defining such norms “is no simple task,” as “[c]ustomary international law is

discerned from myriad decisions made in numerous and varied international and domestic arenas.”

Flores, 414 F.3d at 247. The sources consulted are therefore of the utmost importance. As the

Supreme Court re-emphasized in Sosa, we look to “those sources we have long, albeit cautiously,

recognized”:

“[W]here there is no treaty, and no controlling executive or legislative act or judicial

decision, resort must be had to the customs and usages of civilized nations; and, as

evidence of these, to the works of jurists and commentators, who by years of labor,

research and experience, have made themselves peculiarly well acquainted with the

subjects of which they treat. Such works are resorted to by judicial tribunals, not for

the speculations of their authors concerning what the law ought to be, but for

trustworthy evidence of what the law really is.”

542 U.S. at 733-34 (emphasis added) (quoting The Paquete Habana, 175 U.S. at 700); see also United

States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61 (1820) (Story, J.) (identifying “the general usage and

practice of nations[;] . . . judicial decisions recognising and enforcing that law[;]” and “the works of

jurists, writing professedly on public law” as proper sources of customary international law); cf.

United States v. Yousef, 327 F.3d 56, 100 n.33 (2d Cir. 2003) (explaining that, “in the parlance of

international law,” “jurists” and “publicists” are used as synonyms for “scholars”). Agreements or

declarations that are merely aspirational, and that “do[ ] not of [their] own force impose obligations

as a matter of international law,” are of “little utility” in discerning norms of customary international

law. Sosa, 542 U.S. at 734 (discussing the limited utility of the Universal Declaration of Human

Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948)).34

34

Our holding in Flores is consistent with the Supreme Court’s rejection of the proposition that the Universal

Declaration of Human Rights is an authoritative source of customary international law. 414 F.3d at 259-62 (explaining

that the Universal Declaration of Human Rights is “not [a] proper source[ ] of customary international law because [it is]

merely aspirational and [was] never intended to be binding on member States of the United Nations”). And it is

consistent with the views of several of our sister Circuits. See, e.g., Igartúa-De La Rosa v. United States, 417 F.3d 145, 150

(1st Cir. 2005) (en banc) (“The Universal Declaration of Human Rights is precatory: that is, it creates aspirational goals

but not legal obligations, even as between states.”); Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 816 n.17 (D.C. Cir. 1987)

(noting that the Universal Declaration of Human rights “is merely a nonbinding resolution, not a treaty, adopted by the

United Nations General Assembly”).

25

In this Circuit we have long recognized as authoritative the sources of international law

identified in Article 38 of the Statute of the International Court of Justice (“ICJ Statute”).35 See

Filartiga, 630 F.2d at 880-81 & n.8 (describing Article 38 as consistent with the Supreme Court’s

historical approach to sources of international law); see also J.L. Brierly, The Law of Nations 56 (Sir

Humphrey Waldock ed., 6th ed. 1963) (referring to Article 38 as “a text of the highest authority”);

Restatement (Third) § 103 (describing similar sources as evidence of international law). Article 38

provides in relevant part:

1. The Court, whose function is to decide in accordance with international law such

disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings

of the most highly qualified publicists [i.e., scholars or “jurists”] of the

various nations, as subsidiary means for the determination of rules of law.

ICJ Statute, art. 38, June 26, 1945, 59 Stat. 1055, 1060, 33 U.N.T.S. 993 (emphasis added). With

those principles in mind, we consider whether the sources of international law reveal that corporate

liability has attained universal acceptance as a rule of customary international law.

A. International Tribunals

Insofar as international tribunals are established for the specific purpose of imposing liability

on those who violate the law of nations, the history and conduct of those tribunals is instructive.

35

The ICJ Statute is an integral part of the United Nations Charter, a treaty ratified by the United States in

1945. See Flores, 414 F.3d at 250 n.24 (discussing the United States’ ratification of the United Nations Charter). Article

38 sets forth the sources relied upon by the International Court of Justice (“ICJ”) to determine international law. See

Yousef, 327 F.3d at 100. As we explained in Flores, “the [ICJ] is a multinational [judicial] body charged with discerning

and applying international law.” 414 F.3d at 250 n.24; see also id. at 251 n.25 (noting that, under Article 59 of the ICJ

statute, a “decision of the [ICJ] has no binding force except between the parties and in respect of that particular case”).

26

We find it particularly significant, therefore, that no international tribunal of which we are aware has

ever held a corporation liable for a violation of the law of nations.

1. The Nuremberg Tribunals

The Charter of the International Military Tribunal, commonly known as the “London

Charter,” authorized the punishment of the major war criminals of the European Axis following the

Second World War. See Agreement for the Prosecution and Punishment of the Major War

Criminals of the European Axis (the “London Charter”), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S.

279. The London Charter and the trials at Nuremberg that followed are collectively the single most

important source of modern customary international law concerning liability for violations of

fundamental human rights.36 As Justice Jackson explained, the London Charter “is a basic charter in

36

Before the Second World War, international law provided few protections of the human rights of individuals.

Hersch Lauterpacht, An International Bill of the Rights of Man 47 (1945). Such modest recognition of human rights as

existed before the First World War involved assertions of a right of humanitarian intervention for the protection of

oppressed religious groups. See Louis B. Sohn & Thomas Buergenthal, International Protection of Human Rights 137-211

(1973); see also Brierly, ante, at 291-92. In the period after that war the League of Nations undertook for the first time an

international regime to protect racial, religious, or linguistic minorities. See Sohn & Buergenthal, ante, at 213-335; Brierly,

ante, at 292. As an authoritative work on the travaux preparatoire, or “legislative history,” of the 1998 Rome Statute of the

International Criminal Court has observed:

[T]he first instrument providing general requirements for individual responsibility in a binding manner

was the Charter of the International Military Tribunal (IMT) in Nuremberg: aside from establishing

individual responsibility for certain crimes against peace, war crimes, and crimes against humanity

(Article 6), it partially covered the early stages of planning and preparation and certain types of

complicity, declared the official position of defendants, including Heads of State or other government

officials, as not freeing them from responsibility (Article 7) and recognized superior orders, if at all, as

mitigating circumstances at most (Article 8).

Albin Eser, Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 774-75 (Antonio

Cassese et al. eds., 2002) (emphasis added) (footnote omitted).

We rely here on the “teachings of the most highly qualified publicists of the various nations.” ICJ Statute, ante,

art. 38; see note 35, ante; note 47, post. Professor Cassese, co-editor of a multi-volume work on the history of the Rome

Statute, is Professor of International Law at the University of Florence and former President of the International

Criminal Tribunal for the former Yugoslavia. Professor Brierly was the Chichele Professor of International Law in the

University of Oxford. Sir Hersch Lauterpacht was the Whewell Professor of Public International Law in the University

of Cambridge and later would serve as a Judge of the International Court of Justice. See Lauterpacht Centre for

International Law, Sir Hersch Lauterpacht, 1897-1960, http://www.lcil.cam.ac.uk/about_the_centre/sir_hersch_

lauterpacht.php (last visited Aug. 20, 2010). Louis B. Sohn was the Bemis Professor of International Law and the John

Harvey Gregory Lecturer in International Organization at the Harvard Law School. Thomas Buergenthal was a

Professor of International Law at the Law School of the State University of New York (Buffalo) and the George

Washington University and now serves as a Judge of the International Court of Justice. Sir Humphrey Waldock, editor

of the sixth edition of Brierly’s The Law of Nations, was at the time of publication the Chichele Professor of Public

International Law in the University of Oxford and a member of the International Law Commission. See Sir Humphrey

27

the International Law of the future,” and the Nuremberg trials took great strides in “ma[king]

explicit and unambiguous” the human rights norms that had “theretofore . . . [been] implicit in

International Law.” Jackson, Final Report, ante, at 342. And as Judge Katzmann noted in Khulumani:

“[C]ourts, international bodies, and scholars have recognized that the principles set out in the

London Charter and applied by the International Military Tribunal are significant not only because

they have garnered broad acceptance, but also because they were viewed as reflecting and

crystallizing preexisting customary international law.” 504 F.3d at 271 (Katzmann, J., concurring).

It is notable, then, that the London Charter, which established the International Military

Tribunal at Nuremberg, granted the Tribunal jurisdiction over natural persons only. See London

Charter, ante, art. 6, 59 Stat. at 1547 (granting the tribunal jurisdiction to “try and punish persons . . .

whether as individuals or as members of organizations”—i.e., natural persons (emphases added)); see also

Charter of the International Military Tribunal for the Far East, art. 5, Jan. 19, 1946, amended Apr.

26, 1946, 4 Bevans 20, 22 (granting the tribunal jurisdiction over “war criminals who as individuals or

as members of organizations are charged with offenses” (emphases added)).

The London Charter also granted the International Military Tribunal the authority to declare

organizations “criminal”—and several German government and military organizations, such as the

SS and the Gestapo, were, in fact, indicted. London Charter, ante, art. 9, 59 Stat. at 1548 (“At the

trial of any individual member of any group or organization the Tribunal may declare . . . that the

group or organization of which the individual was a member was a criminal organization.”); Ann

Tusa & John Tusa, The Nuremberg Trial 425 (1983) (describing the indictment of six organizations).

See generally The Nurnberg Trial, 6 F.R.D. at 136-43 (describing the structure of the SS and the Gestapo

and the criminal activities of their members). Such a declaration following indictment, however, did

Waldock, 77; Head of International Court, N.Y. Times, Aug. 18, 1981, at B19. He previously served as president of the

European Commission on Human Rights and later became a judge and president of the International Court of Justice.

Id.

28

not result in the organization being punished or having liability assessed against it. Rather, the effect

of declaring an organization criminal was merely to facilitate the prosecution of individuals who were

members of the organization. See London Charter, ante, art. 10, 59 Stat. at 1548 (“In cases where a

group or organization is declared criminal by the Tribunal, the competent national authority of any

Signatory shall have the right to bring individuals to trial for membership therein before national,

military or occupation courts. In any such case the criminal nature of the group or organization is considered

proved and shall not be questioned.” (emphasis added)).

Echoing the London Charter’s imposition of liability on natural persons only, the

subsequent United States Military Tribunals, established under Control Council Law No. 10,

prosecuted corporate executives for their role in violating customary international law during the Second

World War, but not the corporate entities themselves. See generally Control Council Law No. 10,

Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, in 1

Enactments and Approved Papers of the Control Council and Coordinating Committee, Allied Control Authority

Germany 306 (1945), available at http://www.loc.gov/rr/frd/Military_Law/Enactments/

Volume-I.pdf.37 This approach to liability can be seen most clearly in the tribunal’s treatment of the

notorious I.G. Farben chemical company (“I.G. Farben”).

The refusal of the military tribunal at Nuremberg to impose liability on I.G. Farben is not a

matter of happenstance or oversight. This corporation’s production of, among other things, oil,

rubber, nitrates, and fibers was harnessed to the purposes of the Nazi state, and it is no exaggeration

to assert that the corporation made possible the war crimes and crimes against humanity perpetrated

by Nazi Germany, including its infamous programs of looting properties of defeated nations, slave

labor, and genocide:

37

Control Council Law No. 10 was enacted “[i]n order to give effect to the terms of . . . the London Agreement

of 8 August 1945, and the Charter issued pursuant thereto [i.e., the London Charter] and in order to establish a uniform

legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the

International Military Tribunal.” Control Council Law No. 10, preamble, ante (emphasis added).

29

The depth of the partnership [between the Nazi state and I.G. Farben] was reached

at Auschwitz, the extermination center [in Poland], where four million human beings

were destroyed in accordance with the “Final Solution of the Jewish Question,”

Hitler’s plan to destroy an entire people. Drawn by the almost limitless reservoir of

death camp labor, I.G. [Farben] chose to build a great industrial complex at

Auschwitz for the production of synthetic rubber and oil.

Joseph Borkin, The Crime and Punishment of I.G. Farben 2-3 (1978). Auschwitz was an I.G. Farben

slave camp where millions were exterminated by Zyklon B, an insecticide knowingly and

intentionally manufactured and provided by I.G. Farben and affiliated corporate entities for a new

and lethal use as an asphyxiating agent in the gas chambers at Auschwitz. Id. at 122-23.

Twenty-four executives of Farben were charged, inter alia, with “Planning, Preparation,

Initiation, and Waging of Wars of Aggression and Invasions of Other Countries”; “Plunder and

Spoliation”; and “Slavery and Mass Murder.” See 7 Trials of War Criminals Before the Nuernberg Military

Tribunals Under Control Council Law No. 10 (“The Farben Case”) 11-60 (1952); see also Borkin, ante, at

137 (discussing the indictment of I.G. Farben executives). But the I.G. Farben corporate entity was

not charged, nor was it named in the indictment as a criminal organization. In issuing its judgment,

the tribunal pointedly observed that “the corporate defendant, Farben, is not before the bar of this

Tribunal and cannot be subjected to criminal penalties in these proceedings.” 8 The Farben Case, ante,

at 1153. The Tribunal emphasized:

We have used the term “Farben” as descriptive of the instrumentality of cohesion in

the name of which the enumerated acts of spoliation were committed. But

corporations act through individuals and, under the conception of personal individual

guilt . . . the prosecution, to discharge the burden imposed upon it in this case, must

establish by competent proof beyond a reasonable doubt that an individual defendant

was either a participant in the illegal act or that, being aware thereof, he authorized

or approved it.

30

Id. (emphases added).38 Those statements parallel the oft-cited passage of the Nuremberg judgment,

made in response to the argument that international law is concerned only with the actions of

sovereign states: “Crimes against international law are committed by men, not by abstract entities,

and only by punishing individuals who commit such crimes can the provisions of international law

be enforced.” The Nurnberg Trial, 6 F.R.D. at 110.

In declining to impose corporate liability under international law in the case of the most

nefarious corporate enterprise known to the civilized world, while prosecuting the men who led I.G.

Farben, the military tribunals established under Control Council Law No. 10 expressly defined

liability under the law of nations as liability that could not be divorced from individual moral

responsibility. It is thus clear that, at the time of the Nuremberg trials, corporate liability was not

recognized as a “specific, universal, and obligatory” norm of customary international law. See Sosa,

542 U.S. at 732 (internal quotation marks omitted).

We turn now to international tribunals convened since Nuremberg to determine whether

there is any evidence that the concept corporate liability has coalesced into a “specific, universal, and

obligatory” norm.

2. International Tribunals Since Nuremberg

Since Nuremberg, international tribunals have continually declined to hold corporations

liable for violations of customary international law. For example, the charters establishing both the

International Criminal Tribunal for the former Yugoslavia, or “ICTY,” and the International

Criminal Tribunal for Rwanda, or “ICTR,” expressly confined the tribunals’ jurisdiction to “natural

persons.” See International Criminal Tribunal for the Former Yugoslavia Statute, S.C. Res. 827,

38

The tribunal also noted that “one may not utilize the corporate structure to achieve an immunity from

criminal responsibility for illegal acts.” Id. Accordingly, “where private individuals, including juristic persons, proceed to

exploit the military occupancy by acquiring private property against the will and consent of the former owner, such

action . . . is in violation of international law.” Id. at 1132. In other words, individuals who commit violations of

customary international law do not immunize themselves from liability by acting through the corporate form.

31

U.N. Doc. S/RES/827 (May 25, 1993), adopting The Secretary-General, Report Pursuant to

Paragraph 2 of Security Council Resolution 808 (“Report of the Secretary-General”), art. 6, U.N.

Doc. S/25704 (May 3, 1993) (“The International Tribunal shall have jurisdiction over natural persons

. . . .”); Statute of the International Tribunal for Rwanda, art. 5, S.C. Res. 955, U.N. Doc.

S/RES/955 (Nov. 8, 1994) (same); cf. Khulumani, 504 F.3d at 274 (Katzmann, J., concurring) (“[T]he

ICTY Statute is particularly significant because the ‘Individual Criminal Responsibility’ section of

that statute was intended to codify existing norms of customary international law.”).

The commentary contained in the Report of the Secretary-General of the United Nations on

the ICTY reveals that jurisdiction over corporations was considered but expressly rejected: “[T]he

ordinary meaning of the term ‘persons responsible for serious violations of international

humanitarian law’ would be natural persons to the exclusion of juridical persons.” Report of the Secretary-

General, ante, ¶ 50. Moreover, unlike the International Military Tribunal at Nuremberg, the ICTY

lacked the authority to declare organizations “criminal.” Id. ¶ 51 (“The question arises . . . whether a

juridical person, such as an association or organization, may be considered criminal as such and thus

its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal.

The Secretary-General believes that this concept should not be retained in regard to the

International Tribunal. The criminal acts set out in this statute are carried out by natural persons

. . . .”); cf. London Charter, ante, art. 9, 59 Stat. at 1548. Thus, to the extent that the International

Military Tribunal at Nuremberg possessed some limited authority to declare corporations

criminal—which, as explained above, operated merely as an evidentiary rule for later trials imposing

liability on individuals—subsequent tribunals have not retained that procedure.

More recently, the Rome Statute of the ICC also limits that tribunal’s jurisdiction to “natural

persons.” See The Rome Statute of the International Criminal Court (“Rome Statute”) art. 25(1),

opened for signature July 17, 1998, 37 I.L.M. 1002, 1016; see also Albin Eser, Individual Criminal

32

Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 778 (Antonio Cassese et al.

eds., 2002) (“[W]hen reading paragraphs (1), (2), and (3) of Article 25 of the ICC Statute together,

there can be no doubt that by limiting criminal responsibility to individual natural persons, the Rome

Statute implicitly negates—at least for its own jurisdiction—the punishability of corporations and

other legal entities.”). Significantly, a proposal to grant the ICC jurisdiction over corporations and

other “juridical” persons was advanced by the French delegation, but the proposal was rejected. See

Eser, ante, at 779. As commentators have explained, the French proposal was rejected in part

because “criminal liability of corporations is still rejected in many national legal orders” and thus

would pose challenges for the ICC’s principle of “complementarity.”39 Id.; see also Draft Report of the

Intersessional Meeting from 19 to 30 January 1998 [Held] in Zuthphen, The Netherlands, in The Statute of the

International Criminal Court: A Documentary History 221, 245 n.79 (M. Cherif Bassiouni ed., 1998)

(“There is a deep divergence of views as to the advisability of including criminal responsibility of

legal [i.e., juridical] persons in the statute.”); Andrew Clapham, The Question of Jurisdiction Under

International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal

Court, in Liability of Multinational Corporations Under International Law 139, 157 (Menno T. Kamminga &

Saman Zia-Zarifi eds., 2000) (“This proposal was finally withdrawn by the French delegation when it

became clear that there was no possibility that a text could be adopted by consensus. . . . For some

delegations the whole notion of corporate criminal responsibility was simply ‘alien’, raising problems

of complementarity.” (emphasis added)). The history of the Rome Statue therefore confirms the

absence of any generally recognized principle or consensus among States concerning corporate

liability for violations of customary international law.

39

“Complementarity” is the principle, embodied in the Rome Statute, by which the ICC declines to exercise

jurisdiction over a case that is simultaneously being investigated or prosecuted by a State having jurisdiction over it. See

Rome Statute, ante, art. 17.

33

In sum, modern international tribunals make it abundantly clear that, since Nuremberg, the

concept of corporate liability for violations of customary international law has not even begun to

“ripen[ ]” into a universally accepted norm of international law. Cf. The Paquete Habana, 175 U.S. at

686 (explaining that a practice can “gradually ripen[ ] into a rule of international law” through “usage

among civilized nations”).

B. International Treaties

Treaties “are proper evidence of customary international law because, and insofar as, they

create legal obligations akin to contractual obligations on the States parties to them.” Flores, 414 F.3d

at 256. Although all treaties ratified by more than one State provide some evidence of the custom

and practice of nations, “a treaty will only constitute sufficient proof of a norm of customary international

law if an overwhelming majority of States have ratified the treaty, and those States uniformly and

consistently act in accordance with its principles.” Id. (second emphasis added). Moreover, as one

distinguished scholar of international law has explained:

The ordinary treaty by which two or more states enter into engagements with one

another for some special object can very rarely be used even as evidence to establish

the existence of a rule of general law; it is more probable that the very reason of the

treaty was to create an obligation which would not have existed by the general law,

or to exclude an existing rule which would otherwise have applied.

Brierly, ante, at 57 (emphases added). That a provision appears in one treaty (or more), therefore, is

not proof of a well-established norm of customary international law.

One district court in our Circuit erroneously overvalued the importance of a number of

international treaties in finding that corporate liability has attained the status of customary

international law. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 316-17

(S.D.N.Y. 2003) (denying defendants’ motion to dismiss). But see Presbyterian Church of Sudan v.

Talisman Energy, Inc., 453 F. Supp. 2d 633 (S.D.N.Y. 2006) (granting summary judgment to

defendants on different grounds), affirmed by 582 F.3d 244 (2d Cir. 2009). None of the treaties relied

34

upon in the district court’s 2003 Presbyterian Church opinion has been ratified by the United States,

and most of them have not been ratified by other States whose interests would be most profoundly

affected by the treaties’ terms.40 Cf. Flores, 414 F.3d at 256-57 (explaining that a treaty’s evidentiary

value is dependent, in part, on the number and “relative influence . . . in international affairs” of the

States that have ratified it). Those treaties are therefore insufficient—considered either individually

or collectively—to demonstrate that corporate liability is universally recognized as a norm of

customary international law.

Even if those specialized treaties had been ratified by an “overwhelming majority” of states,

id. at 256—as some recent treaties providing for corporate liability have been, see, e.g., Convention

Against Transnational Organized Crime, art. 10(1), adopted Nov. 15, 2000, S. Treaty Doc. 108-16;

Convention on Combating Bribery of Foreign Public Officials in International Business

Transactions, art. 2, done Dec. 17, 1997, S. Treaty Doc. No. 105-43—the fact that those treaties

impose obligations on corporations in the context of the treaties’ particular subject matter tells us

nothing about whether corporate liability for, say, violations of human rights, which are not a subject

of those treaties, is universally recognized as a norm of customary international law. Significantly, to

find that a treaty embodies or creates a rule of customary international law would mean that the rule

applies beyond the limited subject matter of the treaty and to nations that have not ratified it. See 1

Oppenheim’s International Law § 626, at 1261. To construe those treaties as so-called “law-making”

40

The district court relied on the following treaties: (1) Convention Concerning the Application of the

Principles of the Right to Organise and to Bargain Collectively, adopted July 1, 1949, 96 U.N.T.S. 257 (not ratified by the

United States); (2) Convention on Third Party Liability in the Field of Nuclear Energy, done July 29, 1960, amended Jan.

28, 1964, 956 U.N.T.S. 263 (not ratified by the United States, China, the Soviet Union, or Germany); (3) International

Convention on Civil Liability for Oil Pollution Damage, done Nov. 29, 1969, 973 U.N.T.S. 3 (not ratified by the United

States, China, or the Soviet Union)); (4) Vienna Convention on Civil Liability for Nuclear Damage, done May 21, 1963,

1063 U.N.T.S. 265 (not ratified by the United States, China, France, Germany, or the United Kingdom); (5) Convention

Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, done Dec. 17, 1971, 974 U.N.T.S. 255

(not ratified by the United States, China, the Soviet Union, or the United Kingdom); and (6) Convention on Civil

Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources, done

Dec. 17, 1976, reprinted at 16 I.L.M. 1450 (signed by six States but ratified by none). Presbyterian Church, 244 F. Supp. 2d at

317.

35

treaties—that is, treaties that codify existing norms of customary international law or crystalize an

emerging rule of customary international law—would be wholly inappropriate and without

precedent. See id. § 583, at 1203-04 (discussing “law-making” treaties).

As noted above, there is no historical evidence of an existing or even nascent norm of

customary international law imposing liability on corporations for violations of human rights. It

cannot be said, therefore, that those treaties on specialized questions codify an existing, general rule

of customary international law. Nor can those recent treaties, in light of their limited number and

specialized subject matter, be viewed as crystalizing an emerging norm of customary international

law. See id. § 583, at 1204 (explaining that “relatively extensive participation in a treaty, coupled with

a subject matter of general significance and stipulations which accord with the general sense of the

international community, do establish for some treaties an influence far beyond the limits of formal

participation in them” (footnote omitted)). Furthermore, even if, as a general rule, treaties on a

specialized subject matter could be viewed as crystalizing a norm of customary international law

(which they generally cannot), it would be inappropriate to do so in this case in light of the recent

express rejection in major multilateral treaties of a norm of corporate liability in the context of human

rights violations. See, e.g., Rome Statute, ante, art. 25.

Finally, the few specialized treaties imposing liability on corporations have not had such

influence that a general rule of corporate liability has become a norm of customary international law.

The ICJ in 1969 described the process by which that might occur in the well-known North Sea

Continental Shelf Cases. There, Denmark and the Netherlands had argued that the Federal Republic of

Germany was bound by a particular provision of a treaty, which Germany had not ratified, because

the rule embodied in the multilateral treaty had become a norm of customary international law.

According to the ICJ, accepting that view would require

treating [a particular provision of the 1958 Geneva Continental Shelf Convention] as

a norm-creating provision which has constituted the foundation of, or has generated

36

a rule which, while only conventional or contractual in its origin, has since passed

into the general corpus of international law, and is now accepted as such by the opinio

juris, so as to have become binding even for countries which have never, and do not,

become parties to the Convention. There is no doubt that this process is a perfectly

possible one and does from time to time occur: it constitutes indeed one of the

recognized methods by which new rules of customary international law may be

formed. At the same time this result is not lightly to be regarded as having been

attained.

North Sea Continental Shelf Cases, [1969] 8 I.L.M. 340, 373-74. For a treaty provision to attain the status

of a norm of customary international law, the ICJ explained, “[i]t would in the first place be necessary

that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character

such as could be regarded as forming the basis of a general rule of law.” Id. at 374 (emphasis added).

Provisions on corporate liability in a handful of specialized treaties cannot be said to have a

“fundamentally norm-creating character.” Moreover, as the history of the Rome Statute

demonstrates, “still unresolved controversies as to the exact meaning and scope of this notion” of

corporate liability “raise further doubts as to the potentially norm-creating character of the rule.” Id.

Accordingly, provisions imposing corporate liability in some recent specialized treaties have not

established corporate liability as a norm of customary international law.

In reaching the contrary conclusion in Presbyterian Church, the judge to whom the case was

originally assigned in the district court acknowledged that “most treaties do not bind corporations” but

reasoned that “[i]f corporations can be liable for unintentional torts such as oil spills or nuclear

accidents, logic would suggest that they can be held liable for intentional torts such as complicity in

genocide, slave trading, or torture.” Presbyterian Church, 244 F. Supp. 2d at 317 (emphases added). In

addition to the reasons discussed above, the district court’s conclusion was flawed by its use of an

improper methodology for discerning norms of customary international law: customary international

law does not develop through the “logical” expansion of existing norms. Cf. Yousef, 327 F.3d at 103-

04 (“The strictly limited set of crimes subject to universal jurisdiction cannot be expanded by drawing

an analogy between some new crime . . . and universal jurisdiction’s traditional subjects.”). Rather, as

37

the Supreme Court has explained, it develops, if at all, through the custom and practice “among

civilized nations . . . gradually ripening into a rule of international law.” Sosa, 542 U.S. at 715 (quoting

The Paquete Habana, 175 U.S. at 686).41

It bears underscoring that the purpose of the ATS was not to encourage United States courts

to create new norms of customary international law unilaterally. Sosa, 542 U.S. at 728 (explaining that

federal courts have “no congressional mandate to seek out and define new and debatable violations

of the law of nations”). Instead, the statute was rooted in the ancient concept of comity among

nations and was intended to provide a remedy for violations of customary international law that

“threaten[ ] serious consequences in international affairs.” Id. at 715 (noting that this concern “was

probably on the minds of the men who drafted the ATS”). Unilaterally recognizing new norms of

customary international law—that is, norms that have not been universally accepted by the rest of the

civilized world—would potentially create friction in our relations with foreign nations and, therefore,

would contravene the international comity the statute was enacted to promote.42

41

Another district court in our Circuit has similarly allowed claims against corporate defendants to proceed

under the ATS despite acknowledging the “strength of authority supporting” the argument that corporate liability is not

recognized as a norm of customary international law. In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 56

(E.D.N.Y. 2005) (Weinstein, J.); id. at 57 (noting that “in the Nuremberg trials, this point of lack of corporate liability

appeared to have been explicitly stated”). Judge Weinstein rejected the argument that corporations cannot be liable

under the ATS because, among other things, “[l]imiting civil liability to individuals while exonerating the corporation . . .

makes little sense in today’s world,” and “[d]efendants present[ed] no policy reason why corporations should be uniquely

exempt from tort liability under the ATS,” and “even if it were not true that international law recognizes corporations as

defendants” they could still be sued under the ATS because “an ATS claim is a federal common law claim and it is a

bedrock tenet of American law that corporations can be held liable for their torts.” Id. at 58, 59 (emphases added).

Customary international law, however, is developed through the customs and practices of States, not by what

“makes . . . sense” to a judge, by the “policy reason[s]” recognized by a judge, or by what a judge regards as “a bedrock

tenet of American law.” See Sosa, 542 U.S. at 738 (refusing to accept plaintiff’s argument because “in the present,

imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require”);

accord Nestle, No. CV 05-5133, slip op. at 135 (“Sosa prohibits courts from substituting abstract aspirations— or even

pragmatic concerns— in place of specific international rules.”).

Nor is customary international law developed through “parity of reasoning,” as some scholars have suggested.

See Harold Hongju Koh, Separating Myth from Reality About Corporate Responsibility Litigation, 7 J. Int’l Econ. L. 263, 265

(2004) (suggesting that because corporations may have some “rights” under international law, “by parity of reasoning,

they must have duties as well”).

42

As the Supreme Court recognized in Sosa, some ATS litigation has already threatened international comity by

prompting objections from foreign governments. 542 U.S. at 733 n.21 (noting that the government of South Africa had

objected to litigation against “various corporations alleged to have participated in, or abetted, the regime of apartheid

38

We conclude, therefore, that the relatively few international treaties that impose particular

obligations on corporations do not establish corporate liability as a “specific, universal, and

obligatory” norm of customary international law. Id. at 732 (internal quotation marks omitted).

Although those treaties suggest a trend towards imposing corporate liability in some special contexts, no

trend is detectable outside such narrow applications in specialized treaties, and there is nothing to

demonstrate that corporate liability has yet been recognized as a norm of the customary international

law of human rights.43

C. Works of Publicists

Although the works of publicists (i.e., scholars or “jurists”) can be a relevant source of

customary international law, “[s]uch works are resorted to by judicial tribunals, not for the

that formerly controlled South Africa”); see also Khulumani, 504 F.3d at 297 (Korman, J., concurring in part and dissenting

in part) (noting that the governments of the United Kingdom and Canada had also expressed “profound concern” over

the apartheid litigation).

43

A few words on “general principles of law” are in order. See ICJ Statute, ante, art. 38(1)(c) (identifying

“general principles of law recognized by civilized nations” as a source of customary international law); Restatement

(Third) § 102 cmt. l. (“General principles are a secondary source of international law, resorted to for developing international

law interstitially in special circumstances.” (emphasis added)); see also Steven R. Ratner, Corporations and Human Rights: A

Theory of Legal Responsibility, 111 Yale L.J. 443, 451 (2001) (“[D]omestic legal principles matter only to the extent they are

shared by many different legal systems and, even then, are subsidiary to treaties and customary law.” (emphasis added)). As

one leading authority on the subject has observed, for much of the twentieth century corporate criminal liability was a

unique feature of American law, with most European legal systems subscribing to the view that “guilt is personal, not

vicarious, and that penal sanctions should be directed at culpable corporate people, not the corporate entity.” See

Leonard Orland, Corporate Criminal Liability § 5.03[A] (2006) (explaining that the “traditional French model [which was

influential throughout Europe] declared that a corporation is incapable of committing a crime— a principle derived from

humanitarian concerns of personal criminal liability established during the French Revolution.” (emphasis added)). The fact

that corporate criminal liability has recently obtained greater acceptance in Europe, see id. § 5.03[C]— although interesting

as a matter of comparative law— does not demonstrate that corporate liability has attained the status of a norm customary

international law, see Filartiga, 630 F.2d at 888 (explaining that customary international law consists of norms that are “of

mutual, and not merely several, concern”); Vencap, 519 F.2d at 1015 (explaining that international law concerns the

dealings of states “inter se” and that “[w]e cannot subscribe to the view that the Eighth Amendment ‘Thou shalt not steal’

is part of the law of nations” simply because “every civilized nation doubtless has this as a part of its legal system” (some

internal quotation marks omitted)); see also Flores, 414 F.3d at 249 (“Even if conduct is universally proscribed by States in

their domestic law, that fact is not necessarily significant or relevant for purposes of customary international law.”).

We recognize, of course, that customary international law is not a “static” body of law incapable of evolution or

growth. As we explained thirty years ago in Filartiga, “courts must interpret international law not as it was in 1789, but as

it has evolved and exists among the nations of the world today.” 630 F.2d at 881 (emphasis added). Nevertheless, “[t]he

requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent

one.” Id. For the reasons stated by Judge Friendly in Vencap, 519 F.2d at 1015, the movement towards imposing

criminal liability on corporations as a matter of domestic law does not, on its own, create a norm of customary international

law— particularly in light of the “express international accords,” Filartiga, 630 F.2d at 888, which categorically reject

imposing liability on corporations, see, e.g., Rome Statute, ante, art. 25.

39

speculations of their authors concerning what the law ought to be, but for trustworthy evidence of

what the law really is.” Sosa, 542 U.S. at 734 (quoting The Paquete Habana, 175 U.S. at 700); see also ICJ

Statute, ante, art. 38(1)(d), 59 Stat. at 1060 (directing the ICJ to apply “judicial decisions and the

teachings of the most highly qualified publicists of the various nations, as subsidiary means for the

determination of rules of law.” (emphasis added)); see note 47, post.44

44

Judge Leval makes much out of two “venerable” opinions of Attorneys General of the United States in which

the Attorney General appears to have assumed that corporations can sue or be sued under the ATS. See Concurring Op.

24-25. Our reasons for placing little weight on those opinions should be apparent on their face. Most importantly,

neither opinion does anything more than baldly declare that a corporation can sue under the ATS (in the case of the 1795

opinion of Attorney General William Bradford) or that a corporation can be sued under the ATS (in the case of the 1907

opinion of Attorney General Charles L. Bonaparte). Unlike the works of publicists on which we have relied as a

secondary source of customary international law, neither opinion gives any basis for its assumptions about customary

international law.

The 1907 opinion of Attorney General Bonaparte declares (again, without any analysis or citation of authority)

that the ATS would “provide a forum and a right of action” against a corporation. 26 Op. Att’y Gen. 250, 253 (1907). It is,

therefore, directly at odds with the Supreme Court’s decision in Sosa, which held that the ATS is jurisdictional only and

does not create any kind of right of action. Sosa, 542 U.S. at 713-14. In light of that conflict with Sosa, the opinion of

Attorney General Bonaparte is a dubious authority on which to rely in interpreting the ATS. Cf. Sosa, 542 U.S. at 721

(citing the 1795 opinion of Attorney General Bradford because Bradford— unlike, apparently, Attorney General

Bonaparte— “understood the ATS to provide jurisdiction over what must have amounted to common law causes of

action”).

The 1795 opinion of Attorney General Bradford, furthermore, concludes only that a “company” can bring suit

against an individual under the ATS. See 1 Op. Att’y Gen. 57, 58-59 (1795) (opining that “the Sierra Leone Company,”

which maintained the “colony of Sierra Leone,” could bring suit under the ATS against “certain American citizens

trading to the coast of Africa” for their actions in “join[ing] . . . a French fleet in attacking the settlement, and plundering

or destroying the property of British subjects on that coast”). As an initial matter, it is far from clear that the Attorney

General’s conclusions in 1795 about the “Sierra Leone Company” necessarily apply to modern juridical entities. Even if

they do, the question addressed by Attorney General Bradford is whether a “company” could bring suit against certain

individuals. We agree that ATS suits can be brought against individuals, and we have no occasion here to determine

whether a “company” is an “alien” that can bring such a suit. See 28 U.S.C. § 1350. (“The district courts shall have

original jurisdiction of 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.” (emphasis added)). We hold only that, regardless of who brings it, when a suit is brought for “a tort

. . . committed in violation of the law of nations,” we lack subject matter jurisdiction insofar as the suit is brought against

a corporation.

In any event, we doubt that Judge Leval truly believes that we should rely on the opinion of Attorney General

Bradford, for his interpretation of the ATS could be read to prohibit any ATS suit seeking compensation for violations

of international law committed on foreign soil. In concluding that the Sierra Leone Company could bring suit against

the American individuals involved in the French attack on the colony, Attorney General Bradford circumscribes his

opinion, appearing to conclude that the Company could not bring suit for the actions taken by the Americans in a foreign

country, but rather, could sue only for the actions taken by the Americans on the “high seas.” See 1 Op. Att’y Gen. at 58

(“So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within

the cognizance of our courts . . . . But crimes committed on the high seas are within the jurisdiction of the district and

circuit courts of the United States . . . .”). We need not address here the open issue of whether the ATS applies

“extraterritorially.” See note 10, ante. Were we to take up that issue, however, and were we to adopt Judge Leval’s

approach and follow the opinion of Attorney General Bradford, we very well could conclude that the ATS does not apply

extraterritorially, and thus we would dismiss this and the vast majority of recent ATS suits on the ground that the

violations of customary international law alleged by plaintiffs “originated or took place in a foreign country.” 1 Op. Att’y

40

In light of the evidence discussed above, it is not surprising that two renowned professors of

international law, Professor James Crawford45 and Professor (now Judge) Christopher Greenwood,46

forcefully declared in litigation argued before this panel on the same day as this case, that customary

international law does not recognize liability for corporations that violate its norms. According to

Professor Crawford, “no national court [outside of the United States] and no international judicial

tribunal has so far recognized corporate liability, as opposed to individual liability, in a civil or criminal

context on the basis of a violation of the law of nations or customary international law.” See

Declaration of James Crawford ¶ 10, Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016

(2d Cir. Jan. 22, 2009) (emphasis added); see also Second Declaration of Christopher Greenwood ¶ 13,

Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882 (S.D.N.Y. July 10, 2002) (“[T]here

is not, and never has been, any assertion of the criminal liability of corporations in international

law.”); Michael Koebele, Corporate Responsibility Under the Alien Tort Statue 196 (2009) (“[D]espite trends

to the contrary, the view that international law primarily regulates States and in limited instances such

as international criminal law, individuals, but not [transnational corporations], is still the prevailing

one among international law scholars.”).47 Even those who favor using the ATS as a means of

Gen. at 58. Again, we doubt that Judge Leval truly endorses Attorney General Bradford’s approach.

45

Professor Crawford is the Whewell Professor of International Law in the University of Cambridge, England,

Director of the Lauterpacht Centre for International Law at Cambridge, and co-editor of a preeminent peer-reviewed

international law journal, The British Yearbook of International Law. He was a member of the International Law Commission

(“ILC”) of the United Nations from 1992-2001 and served as its Special Rapporteur on State Responsibility. He was

principally responsible for the ILC Draft Statute for an International Criminal Court in 1994. See Declaration of James

Crawford, ante, ¶¶ 2-4; Lauterpacht Centre for International Law, Professor James Crawford, Director, http://www.

lcil.cam.ac.uk/people/professor_james_crawford.php (last visited Aug. 20, 2010); note 47, post.

46

At the time of making his declaration, Professor Greenwood was a professor of international law at the

London School of Economics. He has since been appointed as a judge of the ICJ. Judge Greenwood’s prior experience

includes serving as counsel before the ICJ, the European Court of Human Rights, and the ICTY. See note 47, post.

47

In relying on the affidavits of Professor Crawford and Professor Greenwood, as well as on treatises or other

works of “publicists,” see Yousef, 327 F.3d at 100 n.33, we are mindful that such works are, in the nature of things,

“subsidiary” or secondary sources of international law, “useful in explicating or clarifying an established legal principle or

body of law,” by “shed[ding] light on a particular question of international law,” id. at 101, or on the primary sources of

international law, which are “the documents or acts proving the consent of States to its rules.” Clive Parry, The Sources

and Evidences of International Law 2 (1965), quoted with approval in Flores, 414 F.3d at 252, and Yousef, 327 F.3d at 101. It is

indisputable that the works of the publicists on which we have relied accurately describe the primary sources of the

41

holding corporations accountable for human rights violations reluctantly acknowledge that “the

universe of international criminal law does not reveal any prosecutions of corporations per se.”

Ratner, note 43, ante, at 477.48

relevant customary international law— the relevant customs and practices of States. In other words, we have relied on

these sources “for trustworthy evidence of what the law really is” and “not for the speculations of their authors

concerning what the law ought to be.” The Paquete Habana, 175 U.S. at 700.

Judge Leval criticizes us for relying on the affidavits of Professor Crawford and Professor Greenwood because

both were expert witnesses hired by the defendants in another case. Yet we fail to see how statements made in an

affidavit, under penalty of perjury, are any less reliable than published works whose accuracy is confirmed only by efforts

of the student staff of law journals.

We note, moreover, that Judge Leval relies on “Beth Stephens, et al., International Human Rights Litigation in U.S.

Courts 310 (2d ed. 2008),” in support of his contention that corporations can be liable for violations of customary

international law under the ATS. Concurring Op. 66. The remaining authors of that text are Judith Chomsky, Jennifer

Green, Paul Hoffman, and Michael Ratner. Paul Hoffman happens to be lead counsel to plaintiffs in this very appeal.

Judith Chomsky and Jennifer Green have submitted an amicus brief on behalf of plaintiffs in this case and, together with

Beth Stephens, have directly represented different plaintiffs pursuing ATS claims against Royal Dutch Petroleum (the

defendants here) before this court. See Wiwa v. Royal Dutch Petroleum, 226 F.3d 88, 91 (2d Cir. 2000).

Judge Leval also relies on a publication of the International Commission of Jurists. Concurring Op. 65. That,

however, is an advocacy organization, in some respects like Amnesty International or Human Rights Watch. See Int’l

Comm. of Jurists, Corporate Complicity & Legal Accountability, at ii (2008), available at http://icj.org/IMG/Volume_1.pdf

(“The International Commission of Jurists . . . is a non-governmental organization devoted to promoting the

understanding and observance of the rule of law and the legal protection of human rights throughout the world.”); id. at

vii (explaining that members of the “steering group” for the “Corporate Complicity & Legal Accountability” project

included representatives from, among other organizations, Amnesty International and Human Rights Watch); see also

http://www.icj.org (follow “About Us” link) (last visited Aug. 20, 2010) (“Through pioneering activities, including

inquiry commissions, trial observations, fact-finding missions, public denunciations and quiet diplomacy, the

[International Commission of Jurists] has been a powerful advocate for justice.”).

In the words of Judge Leval, we think “[i]t is not self-evident” that the works of such advocates are “what the

Supreme Court had in mind in Paquete Habana when it gave cautious approval to consultation of ‘the works of jurists and

commentators.’” Concurring Op. 59 n.39 (emphasis omitted) (quoting The Paquete Habana, 175 U.S. at 700).

In any event, Judge Leval’s criticism of our reliance on the affidavits of Professor Crawford and Professor

Greenwood is irrelevant because Judge Leval agrees that “international law, of its own force, imposes no liabilities on

corporations or other private juridical entities.” Concurring Op. 67.

48

Tellingly, most proponents of corporate liability under customary international law discuss the subject as

merely a possibility or a goal, rather than an established norm of customary international law. See, e.g., Menno T.

Kamminga & Saman Zia-Zarifi, Introduction to Liability of Multinational Corporations Under International Law, ante, at 1, 8

(acknowledging “the unsatisfactory state of international law regarding the status of [multinational corporations] and

their impact” but asserting that “[i]t now seems possible, indeed highly probable, that a regime of international legal

liability for [multinational corporations] can and will be developed” (emphasis added)); Ratner, note 43, ante, at 449 (“This

Article posits a theory of corporate responsibility for human rights protection. Building upon the traditional paradigm whereby

international law generally places duties on states and, more recently, individuals, I consider whether and how the

international legal process might provide for human rights obligations directly on corporations. My thesis is that

international law should and can provide for such obligations . . . .” (emphases added)); Beth Stephens, The Amorality of

Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Int’l L. 45, 46 (2002) (“Over the fifty years since the

Holocaust, the international community has recognized that governments can be held liable for abuses directed at both

their own citizens and foreigners, during war and when at peace— and that individuals can be held accountable as well.

42

* * *

Together, those authorities demonstrate that imposing liability on corporations for violations

of customary international law has not attained a discernible, much less universal, acceptance among

nations of the world in their relations inter se. Because corporate liability is not recognized as a

“specific, universal, and obligatory” norm, see Sosa, 542 U.S. at 732 (internal quotation marks

omitted), it is not a rule of customary international law that we may apply under the ATS.

Accordingly, insofar as plaintiffs in this action seek to hold only corporations liable for their conduct

in Nigeria (as opposed to individuals within those corporations), and only under the ATS, their

claims must be dismissed for lack of subject matter jurisdiction.

III. The Concurring Opinion

Judge Leval concedes that “international law, of its own force, imposes no liabilities on

corporations or other private juridical entities.” Concurring Op. 67. In other words, despite his

perplexing but forceful contentions otherwise, Judge Leval does not disagree with Part II of our

opinion. What he disputes is our conclusion in Part I that customary international law supplies the

rule of decision.

Judge Leval admits that international law is “the place to look” to “determine whether a

corporation can be held civilly liable for a violation of international law,” id. at 45, but he maintains

that we must accept corporate liability based on principles of domestic law unless “the law of

Today, the abuses of the Holocaust are contributing to the development of new approaches to human rights accountability, this

time focusing on corporate human rights violations . . . .” (emphases added)); id. at 47 (“Both domestic governments and

international organizations have danced around [the topic of corporate liability], urging voluntary codes of conduct rather than

seeking to impose binding rules of law.” (emphasis added)).

Others rely on improper sources of customary international law to find a norm of corporate liability. See e.g.,

Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, 25 Brook. J. Int’l L. 17, 25 (1999) (“Every

individual and every organ of society excludes no one, no company, no market, no cyberspace. The Universal

Declaration applies to them all.”); cf. Sosa, 542 U.S. at 734 (explaining that the Universal Declaration of Human Rights

“does not of its own force impose obligations as a matter of international law” and, therefore, is of “little utility” in

discerning norms of customary international law); note 34, ante.

43

nations [has] spoke[n] on the question [and] provid[ed] that acts of corporations are not covered by

the law of nations,” id. at 46. He then contends that the law of nations has not, in fact, spoken on

the question and that corporate liability is therefore a matter of “remedy” that “international law

leaves . . . to the independent determination of each State.” Id. at 48. In doing so Judge Leval

dismisses as a source of authoritative guidance the fact that no international tribunal has ever been

accorded jurisdiction over corporations because those tribunals have been charged only with the

prosecution of crimes. Id. at 30-38. Finally, Judge Leval accuses us of rejecting corporate civil

liability under the ATS merely because there is no norm of corporate civil liability in customary

international law, and he argues that this reasoning is inconsistent with our endorsement of

individual liability under the ATS. Id. at 6-7.

Judge Leval’s criticisms distort our holding and betray several fundamental

misunderstandings of customary international law. First, Judge Leval attempts to shift to us the

burden of identifying a norm of customary international law that supports our “rule.” But it is

entirely inappropriate to begin, as Judge Leval apparently begins, with a presumption that a violation

of customary international law can be attributed to any defendant unless, and until, a norm of

customary international law declares otherwise. This reasoning turns customary international law on

its head. Customary international law arises from the customs and practices “among civilized

nations . . . gradually ripening into a rule of international law.” Sosa, 542 U.S. at 715 (quoting The

Paquete Habana, 175 U.S. at 686). Accordingly, the responsibility lies with those who seek to

demonstrate that “international law extends the scope of liability for a violation of a given norm to

the perpetrator being sued.” Id. at 732 n.20. Judge Leval produces no evidence that international

law extends the scope of liability to corporations, and, in fact, he concedes that it does not.

Concurring Op. 64 (“It is true that international law, of its own force, imposes no liabilities on

corporations or other private juridical entities.”). In any event, although it is not our burden, we

44

have little trouble demonstrating the absence of a norm of corporate liability in customary

international law. See Part II, ante.

Second, Judge Leval dismisses the fact that international tribunals have consistently declined

to recognize corporate liability as a norm of customary international law; he does so by inventing a

distinction between civil and criminal liability in customary international law that is contrary to our

ATS jurisprudence. As Judge Katzmann explained in his separate opinion in Khulumani, “[t]his

distinction finds no support in our case law, which has consistently relied on criminal law norms in

establishing the content of customary international law for purposes of the [ATS].” 504 F.3d at 270

n.5. Unlike U.S. domestic law, “international law does not maintain [a] kind of hermetic seal

between criminal and civil law.” Id. (citing Sosa, 542 U.S. at 762-63 (Breyer, J., concurring)). Indeed,

Judge Katzmann was able to conclude that the scope of customary international law reaches those

who aid and abet violations of international law only by looking to the charters of—and the law

applied by—the very same international tribunals that Judge Leval ignores. Id. at 270 (observing

that liability for aiders and abettors was “applied by the war crimes trials following the Second

World War” and “has been repeatedly recognized in numerous international treaties, most notably

the Rome Statute of the International Criminal Court, and in the statutes creating the International

Criminal Tribunal for the Former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for

Rwanda (‘ICTR’)”); see also Presbyterian Church, 582 F.3d at 257 n.7 (“[C]ustomary international law

norms prohibiting genocide, war crimes, and crimes against humanity have been developed largely in

the context of criminal prosecutions rather than civil proceedings.” (internal quotation marks

omitted)). Judge Leval explicitly endorsed Judge Katzmann’s reasoning in Khulumani by joining the

unanimous panel opinion in Presbyterian Church, which expressly adopted Judge Katzmann’s rule as

the law of our Circuit. Presbyterian Church, 582 F.3d at 258. Apparently, Judge Leval would have us

look to international criminal tribunals only when they supply a norm with which he agrees.

45

Third, Judge Leval distorts our analysis by claiming that we hold “that the absence of a

universal practice among nations of imposing civil damages on corporations for violations of

international law means that under international law corporations are not liable for violations of the

law of nations.” Concurring Op. 5 (emphasis added). That is not our holding. We hold that

corporate liability is not a norm that we can recognize and apply in actions under the ATS because the

customary international law of human rights does not impose any form of liability on corporations

(civil, criminal, or otherwise).

Finally, and most importantly, Judge Leval incorrectly categorizes the scope of liability under

customary international law—that is, who can be liable for violations of international law—as

merely a question of remedy to be determined independently by each state. Id. at 48. As we

explained above, see Part I.A, ante, the subjects of international law have always been defined by

reference to international law itself. Judge Leval is therefore wrong to suggest that “international

law takes no position” on the question of who can be liable for violations of international law. Id. at

5.49

Although international law does (as Judge Leval explains) leave remedial questions to States,

id. at 43, the liability of corporations for the actions of their employees or agents is not a question of

remedy.50 Corporate liability imposes responsibility for the actions of a culpable individual on a

49

Judge Leval relies on the works of Oscar Schachter and Louis Henkin for a general and undisputed

proposition: “‘There is no general requirement in international law that States provide [civil remedies to private persons].

By and large, international law leaves it to them to meet their obligations in such ways as the State determines.’”

Concurring Op. 42 (quoting Oscar Schachter, International Law in Theory and Practice 240 (1991)); see also id. at 42 n.30

(“The international system requires that a State meet its international obligations, but ordinarily the law has not required

that a state meet those obligations in a particular way or through particular institutions or laws.” (emphasis omitted)

(quoting Louis Henkin, International Law: Politics, Values and Functions 88 (1990))). We agree, of course, that nothing in

international law prohibits the United States from providing a civil remedy against corporations for violations of the law

of nations (nor could it). The Congress of the United States has simply not chosen to do so, opting instead to provide a

civil remedy— by conferring jurisdiction over torts committed in violation of the law of nations— but leaving the

question of who can be sued to the law of nations. See 28 U.S.C. § 1350.

50

Even in our domestic law, the question of the scope of liability— that is, who can be held liable for wrongful

conduct— is not a question of remedy. Remedies refer to “precisely what the plaintiff may recover after resorting to the

law.” Edward D. Re & Joseph R. Re, Remedies 2 (6th ed. 2005) (emphasis added) (internal quotation marks omitted).

46

wholly new defendant—the corporation. In the United States, corporate liability is determined by a

body of rules determining which actions of an employee or agent are to be imputed to the

corporation.51 In this important respect, corporate liability is akin to accessorial liability, which is a

subject of international law not left to individual States. See Presbyterian Church, 582 F.3d at 259

(holding that “Sosa and our precedents send us to international law to find the standard for

accessorial liability” and rejecting the argument that international law relies on domestic law to

supply the standard, as a means of enforcement).

The potential for civil damages under the ATS arises only if customary international law

recognizes that a particular class of defendant is a subject of international law in the first place. See

28 U.S.C. § 1350 (providing jurisdiction over “torts . . . committed in violation of the law of nations”

(emphasis added)). Contrary to Judge Leval’s suggestion, therefore, individual liability under the ATS

is wholly consistent with our holding today. Congress chose in the ATS to grant jurisdiction over

torts committed “in violation of the law of nations,” id., and since the Nuremberg trials, customary

international law has recognized individual liability for the violation of international human rights.

Thus, the ATS merely permits courts to recognize a remedy (civil liability) for heinous crimes

universally condemned by the family of nations against individuals already recognized as subjects of

international law. To permit courts to recognize corporate liability under the ATS, however, would

require, at the very least, a different statute—one that goes beyond providing jurisdiction over torts

Whether a plaintiff is entitled to money damages, declaratory relief, an injunction, or specific performance are all

questions of remedy. See generally id. at xi-xiii. Whether a particular remedy— money damages, an injunction, etc.— can

be enforced against a certain individual or entity is not a question of remedy; it is a question of the scope of liability.

51

We note that, even within our federal system, there are a variety of approaches to determining how the courts

are to impute to a corporation the conduct and intent of its employees or agents. See, e.g., 7 U.S.C. § 2(a)(1)(B) (adopting

respondeat superior principles for regulatory actions brought by the Commodity Exchange Commission); Kolstad v. Am.

Dental Ass’n, 527 U.S. 526 (1999) (limiting applicability of respondeat superior in civil claims for punitive damages under

Title VII); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (limiting applicability of respondeat superior in civil actions for

sexual harassment); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (same). Yet, in arguing that corporate liability

exists under the ATS, Judge Leval does not even explain where that norm of liability derives from (federal statute,

federal common law, state law perhaps?), much less attempt to specify which among the different standards of corporate

liability courts should apply in ATS cases.

47

committed “in violation of the law of nations” to authorize suits against entities that are not subjects

of customary international law.

CONCLUSION

The ATS provides federal district courts jurisdiction over a tort, brought by an alien only,

alleging a “violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. When

an ATS suit is brought under the “law of nations,” also known as “customary international law,”

jurisdiction is limited to those cases alleging a violation of an international norm that is “specific,

universal, and obligatory.” Sosa v. Alvarez-Machain, 542 U.S. 692, 732 (2004) (quoting with approval

the statement of a lower court); see also Flores v. S. Peru Copper Corp., 414 F.3d 233, 238 (2d Cir. 2003)

(“[C]ustomary international law is composed only of those rules that States universally abide by, or

accede to, out of a sense of legal obligation and mutual concern.”).

No corporation has ever been subject to any form of liability (whether civil, criminal, or

otherwise) under the customary international law of human rights. Rather, sources of customary

international law have, on several occasions, explicitly rejected the idea of corporate liability. Thus,

corporate liability has not attained a discernable, much less universal, acceptance among nations of

the world in their relations inter se, and it cannot not, as a result, form the basis of a suit under the

ATS.

Acknowledging the absence of corporate liability under customary international law is not a

matter of conferring “immunity” on corporations. It is, instead, a recognition that the States of the

world, in their relations with one another, see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975)

(Friendly, J.), abrogated on other grounds by Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010),

have determined that moral and legal responsibility for heinous crimes should rest on the individual

whose conduct makes him or her “‘hostis humani generis, an enemy of all mankind.’” Sosa 542 U.S. at

732 (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)). Nothing in this opinion limits

48

or forecloses suits under the ATS against a corporation’s employees, managers, officers, directors, or

any other person who commits, or purposefully aids and abets, violations of international law.

Moreover, nothing in this opinion limits or forecloses corporate liability under any body of law other

than the ATS—including the domestic statutes of other States—and nothing in this opinion limits or

forecloses Congress from amending the ATS to bring corporate defendants within our jurisdiction.

Corporate liability, however, is simply not “accepted by the civilized world and defined with a

specificity comparable to the features of the 18th-century paradigms” recognized as providing a

basis for suit under the law prescribed by the ATS, customary international law. Sosa, 542 U.S. at

725.

We do not know whether the concept of corporate liability will “gradually ripen[ ] into a rule

of international law.” Id. at 715 (quoting The Paquete Habana, 175 U.S. 677, 700 (1900)). It can do

so, however, only by achieving universal recognition and acceptance as a norm in the relations of

States inter se. For now, and for the foreseeable future, the Alien Tort Statute does not provide

subject matter jurisdiction over claims against corporations.

To summarize, we hold as follows:

(1) Since Filartiga, which in 1980 marked the advent of the modern era of litigation for

violations of human rights under the Alien Tort Statute, all of our precedents—and the Supreme

Court’s decision in Sosa, 542 U.S. at 732 n.20—require us to look to international law to determine

whether a particular class of defendant, such as corporations, can be liable under the Alien Tort

Statute for alleged violations of the law of nations.

(2) The concept of corporate liability for violations of customary international law has not

achieved universal recognition or acceptance as a norm in the relations of States with each other.

See Vencap, 519 F.2d at 1015. Inasmuch as plaintiffs assert claims against corporations only, their

complaint must be dismissed for lack of subject matter jurisdiction.

49

Accordingly, the September 29, 2006 order of the District Court is AFFIRMED insofar as

it dismissed some of plaintiffs’ claims against the corporate defendants and REVERSED insofar as

it declined to dismiss plaintiffs’ remaining claims against the corporate defendants.

50

Docket Nos. 06-4800-cv, 06-4876-cv

1 LEVAL, Circuit Judge, concurring only in the judgment:

2 The majority opinion deals a substantial blow to international law and its undertaking to

3 protect fundamental human rights. According to the rule my colleagues have created, one who

4 earns profits by commercial exploitation of abuse of fundamental human rights can successfully

5 shield those profits from victims’ claims for compensation simply by taking the precaution of

6 conducting the heinous operation in the corporate form. Without any support in either the

7 precedents or the scholarship of international law, the majority take the position that

8 corporations, and other juridical entities, are not subject to international law, and for that reason

9 such violators of fundamental human rights are free to retain any profits so earned without

10 liability to their victims.

11 Adoption of the corporate form has always offered important benefits and protections to

12 business – foremost among them the limitation of liability to the assets of the business, without

13 recourse to the assets of its shareholders. The new rule offers to unscrupulous businesses

14 advantages of incorporation never before dreamed of. So long as they incorporate (or act in the

15 form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary

16 armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s

17 political opponents, or engage in piracy – all without civil liability to victims. By adopting the

18 corporate form, such an enterprise could have hired itself out to operate Nazi extermination

19 camps or the torture chambers of Argentina’s dirty war, immune from civil liability to its victims.

20 By protecting profits earned through abuse of fundamental human rights protected by

1

Docket Nos. 06-4800-cv, 06-4876-cv

1 international law, the rule my colleagues have created operates in opposition to the objective of

2 international law to protect those rights.

3 Since Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), was decided in 1980, United

4 States courts, acting under the Alien Tort Statute (ATS),1 which was passed by the First Congress

5 in 1789, have been awarding compensatory damages to victims of human rights abuses

6 committed in violation of the law of nations. Many supporters of the cause of human rights have

7 celebrated the Filartiga line of cases as an important advance of civilization. Not all, however,

8 have viewed those cases with favor. Some see them as unwarranted meddling by U.S. judges in

9 events that occurred far away, applying a body of law that we did not make, in circumstances

10 carrying a potential, furthermore, to interfere with the President’s conduct of foreign affairs. See,

11 e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 805 (D.C. Cir. 1984) (Bork, J.,

12 concurring). In 2004, a substantial minority of the Supreme Court, in Sosa v. Alvarez-Machain,

13 542 U.S. 692, would have essentially nullified the ATS and overturned the Filartiga line, by

14 ruling that the ATS did no more than give courts jurisdiction, and that, absent further legislation

15 establishing a legal claim, courts acting under ATS had no authority to grant any substantive

16 relief. The majority of the Supreme Court, however, rejected that argument. The Court ruled

17 that under the ATS, federal courts could award damages for violations of the law of nations. For

18 those who believe the Filartiga-Sosa line represents a meaningful advance in the protection of

1

“The district courts shall have original jurisdiction of 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.” 28

U.S.C. § 1350.

2

Docket Nos. 06-4800-cv, 06-4876-cv

1 human rights, the majority’s decision here marks a very bad day.

2 To understand this controversy, it is important to understand exactly what is the

3 majority’s rule, how it functions, and in what circumstances. To begin, their rule relates to the

4 most abhorrent conduct – those acts that violate norms of the international law of human rights.

5 The ATS gives U.S. courts jurisdiction to award tort damages to aliens who are victims of such

6 atrocities. According to the majority, in cases where the norms of the law of nations were

7 violated by a corporation (or other juridical entity), compensatory damages may be awarded

8 under the ATS against the corporation’s employees, natural persons who acted in the

9 corporation’s behalf, but not against the corporation that commanded the atrocities and earned

10 profits by committing them. The corporation, according to my colleagues, has not violated

11 international law, and is indeed incapable of doing so because international law does not apply to

12 the conduct of corporations. Accordingly, a corporation which has earned profits by abuse of

13 fundamental human rights – as by slave trading – is free to retain those profits without liability.

14 While my colleagues see nothing strange or problematic in this conclusion, their position

15 is that in any event they have no responsibility for it. They invoke the rule simply because, in

16 their contention, it is commanded by the law of nations.

17 But there is no basis for this contention. No precedent of international law endorses this

18 rule. No court has ever approved it,* nor is any international tribunal structured with a

*

Since the writing of this opinion, in the few days before filing, a California district court

dismissed an ATS action in part on the basis of its acceptance of the majority’s view that

customary international law does not apply to corporations. Doe v. Nestle, S.A., No. CV 05-5133

3

Docket Nos. 06-4800-cv, 06-4876-cv

1 jurisdiction that reflects it. (Those courts that have ruled on the question have explicitly rejected

2 it.) No treaty or international convention adopts this principle. And no work of scholarship on

3 international law endorses the majority’s rule. Until today, their concept had no existence in

4 international law.

5 The majority contend, nevertheless, that unambiguous jurisprudence “lead[s]

6 inescapably” to their conclusion. Maj. Op. 17. However, the reasoning that supports the

7 majority’s argument is, in my view, illogical, misguided, and based on misunderstandings of

8 precedent.

9 The argument depends on its observation that international criminal tribunals have been

10 established without jurisdiction to impose criminal punishments on corporations for their

11 violations of international law. From this fact the majority contend an inescapable inference

12 arises that international law does not govern corporations, which are therefore free to engage in

13 conduct prohibited by the rules of international law with impunity.

14 There is no logic to the argument. The reasons why international tribunals have been

15 established without jurisdiction to impose criminal liability on corporations have to do solely

16 with the theory and the objectives of criminal punishment, and have no bearing on civil

17 compensatory liability. The view is widely held among the nations of the world that criminal

SVW (JTLx), slip op. at 120 (C.D. Cal. Sept. 8, 2010). To the extent I note in various places

throughout this opinion that no court has ever spoken favorably of the majority’s proposition that

corporations are exempt from the rules of international law, I modify that statement to except the

opinion filed last week in California.

4

Docket Nos. 06-4800-cv, 06-4876-cv

1 punishments (under domestic law, as well as international law) are inappropriate for

2 corporations. This view derives from two perceptions: First, that criminal punishment can be

3 theoretically justified only where the defendant has acted with criminal intent – a condition that

4 cannot exist when the defendant is a juridical construct which is incapable of having an intent;

5 and second, that criminal punishments are pointless and counterproductive when imposed on a

6 fictitious juridical entity because they fail to achieve the punitive objectives of criminal

7 punishment. For these reasons many nations in their domestic laws impose criminal punishments

8 only on natural persons, and not on juridical ones. In contrast, the imposition of civil liability on

9 corporations serves perfectly the objective of civil liability to compensate victims for the wrongs

10 inflicted on them and is practiced everywhere in the world. The fact that international tribunals

11 do not impose criminal punishment on corporations in no way supports the inference that

12 corporations are outside the scope of international law and therefore can incur no civil

13 compensatory liability to victims when they engage in conduct prohibited by the norms of

14 international law.

15 The majority next contend that international law does not distinguish between criminal

16 and civil liability. This is simply incorrect. International law distinguishes clearly between them

17 and provides differently for the different objectives of criminal punishment and civil

18 compensatory liability.

19 The majority then argue that the absence of a universal practice among nations of

20 imposing civil damages on corporations for violations of international law means that under

5

Docket Nos. 06-4800-cv, 06-4876-cv

1 international law corporations are not liable for violations of the law of nations. This argument is

2 as illogical as the first and is based on a misunderstanding of the structure of international law.

3 The position of international law on whether civil liability should be imposed for violations of its

4 norms is that international law takes no position and leaves that question to each nation to resolve.

5 International law, at least as it pertains to human rights, consists primarily of a sparse body of

6 norms, adopting widely agreed principles prohibiting conduct universally agreed to be heinous

7 and inhumane. Having established these norms of prohibited conduct, international law says little

8 or nothing about how those norms should be enforced. It leaves the manner of enforcement,

9 including the question of whether there should be private civil remedies for violations of

10 international law, almost entirely to individual nations. While most nations have not recognized

11 tort liability for violations of international law, the United States, through the ATS, has opted to

12 impose civil compensatory liability on violators and draws no distinction in its laws between

13 violators who are natural persons and corporations. The majority’s argument that national courts

14 are at liberty to award civil damages for violations of international law solely against natural

15 persons and not against corporations has no basis in international law and, furthermore, nullifies

16 the intention of international law to leave the question of civil liability to be decided separately by

17 each nation.

18 The majority’s asserted rule is, furthermore, at once internally inconsistent and

19 incompatible with Supreme Court authority and with our prior cases that awarded damages for

20 violations of international law. The absence of a universally accepted rule of international law on

6

Docket Nos. 06-4800-cv, 06-4876-cv

1 tort damages is true as to defendants who are natural persons, as well as to corporations. Because

2 international law generally leaves all aspects of the issue of civil liability to individual nations,

3 there is no rule or custom of international law to award civil damages in any form or context,

4 either as to natural persons or as to juridical ones. If the absence of a universally accepted rule for

5 the award of civil damages against corporations means that U.S. courts may not award damages

6 against a corporation, then the same absence of a universally accepted rule for the award of civil

7 damages against natural persons must mean that U.S. courts may not award damages against a

8 natural person. But the majority opinion concedes (as it must) that U.S. courts may award

9 damages against the corporation’s employees when a corporation violates the rule of nations.

10 Furthermore, our circuit and others have for decades awarded damages, and the Supreme Court in

11 Sosa made clear that a damage remedy does lie under the ATS. The majority opinion is thus

12 internally inconsistent and is logically incompatible with both Second Circuit and Supreme Court

13 authority.

14 If past judges had followed the majority’s reasoning, we would have had no Nuremberg

15 trials, which for the first time imposed criminal liability on natural persons complicit in war

16 crimes; no subsequent international tribunals to impose criminal liability for violation of

17 international law norms; and no judgments in U.S. courts under the ATS, compensating victims

18 for the violation of fundamental human rights.

19 The rule in cases under the ATS is quite simple. The law of nations sets worldwide norms

20 of conduct, prohibiting c

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