Doe v. Exxon Mobil Corp.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2011 Decided July 8, 2011

No. 09-7125

JOHN DOE VIII, ET AL.,

APPELLANTS

v.

EXXON MOBIL CORPORATION, ET AL.,

APPELLEES

Consolidated with 09-7127, 09-7134, 09-7135

Appeals from the United States District Court

for the District of Columbia

(No. 1:07-cv-01022)

(No. 1:01-cv-01357)

Agnieszka Fryszman argued the cause for appellants on

State Claims. Paul Hoffman argued the cause for appellants on

Federal Claims. With them on the briefs were Kathleen M.

Konopka, Maureen E. McOwen, Terrence P. Collingsworth, and

Piper M. Hendricks. Charles J. Ogletree Jr. and Joseph M.

Sellers entered appearances.

Marco B. Simons was on the brief for amicus curiae

EarthRights International (ERI) in support of appellants.

2

Jennifer M. Green was on the brief for amici curiae

University of Minnesota Law School, et al. in support of

appellants.

William J. Aceves was on the brief for amici curiae

International Law Scholars in support of appellants.

Muneer I. Ahmad was on the brief for amici curiae Arthur

Miller, Erwin Chemerinsky, and Professors of Federal

Jurisdiction and Legal History in support of appellants.

Sri Srinivasan argued the cause for appellees/cross-

appellants. With him on the brief were Walter Dellinger, Anton

Metlitsky, Theodore V. Wells Jr., Alex Young K. Oh, Nikhil

Singhvi, Martin J. Weinstein, and Patrick J. Conlon.

Robin S. Conrad, Alan E. Untereiner, and Mark T. Stancil

were on the brief for amicus curiae The Chamber of Commerce

of the United States of America in support of appellees.

Jeffrey A. Lamken and Robert K. Kry were on the brief for

amici curiae National Foreign Trade Council, Inc. et al. in

support of appellees.

Daniel J. Popeo and Richard A. Samp were on the brief for

amici curiae Washington Legal Foundation, et al. in support of

appellees.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Opinion dissenting in part by Circuit Judge KAVANAUGH.

3

ROGERS, Circuit Judge: Pursuant to a contract with the

Indonesian government, Exxon Mobil Corporation, a United

States corporation, and several of its wholly owned subsidiaries

(hereinafter “Exxon”) operated a large natural gas extraction and

processing facility in the Aceh province of Indonesia in

2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers

from the Aceh territory. Eleven villagers filed a complaint in

2001 alleging that Exxon’s security forces committed murder,

torture, sexual assault, battery, and false imprisonment in

violation of the Alien Tort Statute (“ATS”) and the Torture

Victim Protection Act (“TVPA”), and various common law

torts. (The Doe I complaint.) Four other Aceh villagers alleged

in 2007 that Exxon committed various common law torts. (The

Doe VIII complaint.) All plaintiffs-appellants allege that Exxon

took actions both in the United States and at its facility in the

Aceh province that resulted in their injuries. The district court

dismissed the statutory claims, see Doe I v. Exxon Mobil Corp.,

393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on

the tort claims.1 Those claims, however, were subsequently

dismissed for lack of prudential standing. See Doe VIII v. Exxon

Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs-

appellants challenge the dismissals of their complaints and

Exxon filed a cross-appeal, inter alia raising for the first time

that as a corporation it was immune from liability under the

ATS.2

1

In an interlocutory appeal filed in 2005, this court held that

it lacked jurisdiction to address Exxon’s contention that the complaint

should be dismissed pursuant to the political question doctrine and that

Exxon had failed to meet the standard for issuance of a writ of

mandamus. See Doe I v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.

2007).

2

For purposes of these appeals it is unnecessary to

distinguish between the two complaints. Plaintiffs-appellants appeal

the dismissal of the statutory claims in 2005 by Judge Oberdorfer and

4

For the reasons that follow, we conclude that aiding and

abetting liability is well established under the ATS. We further

conclude under our precedent that this court should address

Exxon’s contention on appeal of corporate immunity and,

contrary to its view and that of the Second Circuit, we join the

Eleventh Circuit in holding that neither the text, history, nor

purpose of the ATS supports corporate immunity for torts based

on heinous conduct allegedly committed by its agents in

violation of the law of nations. We affirm the dismissal of the

TVPA claims in view of recent precedent of this court. We

conclude, however, that Exxon’s objections to justiciability are

unpersuasive and that the district court erred in ruling that

appellants lack prudential standing to bring their non-federal tort

claims and in the choice of law determination. Finally, we

conclude that Exxon’s challenge to the diversity of parties in the

Doe VIII complaint is to be resolved initially by the district

court. Therefore, we affirm the dismissal of plaintiffs-

appellants’ TVPA claims, reverse the dismissal of the ATS

claims at issue in this appeal, along with plaintiffs-appellants’

non-federal tort claims, and remand the cases to the district

court.

I.

Accepting the allegations of the complaints as true, and

construing the complaints in favor of plaintiffs-appellants, as we

must, see Warth v. Seldin, 422 U.S. 490, 501 (1975), the

plaintiffs claim that Exxon’s security forces were comprised of

members of the Indonesian military and that Exxon and its

subsidiaries, which were incorporated at the time of the filing of

the first complaint in New Jersey and Delaware, Doe I Compl.

¶¶ 17, 20, 23, retained these soldiers as guards for its natural

the dismissal of the common law torts in 2009 on prudential standing

grounds by Chief Judge Lamberth.

5

gas facility even though Exxon was aware that the Indonesian

army had committed human rights abuses in the past, id. ¶¶

39–47; Doe I Am. Compl. ¶¶ 55–66; Doe VIII Compl. ¶¶ 39–59,

and knew that performance of the security contract would lead

to human rights violations by Indonesian soldiers against the

residents of Aceh. Doe I Compl. ¶¶ 64, 71; Doe I Am. Compl.

¶¶ 60, 66, 125; Doe VIII Compl. ¶¶ 51–53, 79. The human

rights abuses alleged included genocide, extrajudicial killing,

torture, crimes against humanity, sexual violence, and

kidnaping. Doe I Compl. ¶ 64. In addition to extrajudicial

killings of some of the plaintiffs-appellants’ husbands as part of

a “systematic campaign of extermination of the people of Aceh

by [d]efendants’ [Indonesian] security forces,” id. ¶ 65, the

plaintiffs-appellants were “beaten, burned, shocked with cattle

prods, kicked and subjected to other forms of brutality and

cruelty” amounting to torture, id. ¶ 66, as well as forcibly

removed and detained for lengthy periods of time, id. ¶ 67.

Plaintiffs-appellants claim that Exxon or its agents, by decisions

made in the United States, id. ¶¶ 30, 32–33, and at its Aceh

plant, id. ¶¶ 55–57, “committed acts that had the intent and the

effect of grossly humiliating and debasing” either them or their

deceased husbands by “forcing them to act against their will and

conscience, inciting fear and anguish, and breaking their

physical and/or moral resistance” by actions that constitute

“inhuman or degrading treatment in violation of the law of

nations.” Id. ¶ 68.

According to the complaints, these actions of the Indonesian

military could be attributed to Exxon because they were

committed by a unit dedicated only to Exxon’s Aceh facility and

Exxon had the authority “to control and direct[]” the soldiers’

actions. Id. ¶ 40. Plaintiffs-appellants claim Exxon was aware

of the atrocities committed by the Indonesian military in Aceh,

as confirmed by public reports including reports of atrocities

committed by Exxon’s dedicated unit, and that Exxon

6

nonetheless provided logistical and material support to the

military by hiring mercenaries to provide advice, training,

intelligence, and equipment to the unit while Exxon profited

from the operation of its Aceh facility. Id. ¶¶ 39–41, 46. By

acting together with Indonesian security forces, the plaintiffs-

appellants claim that Exxon acted under color of Indonesian law.

Id.

On October 1, 2001, Exxon moved to dismiss the

complaint, and after a hearing on the motion the district court

requested the Office of Legal Adviser of the Department of State

to inform the court whether the Department deemed adjudication

of the case to affect adversely the interests of the United States.

On July 29, 2002, the Office of Legal Adviser filed a statement

of interest and attached a statement of the Indonesian

Ambassador to the United States. Thereafter, the district court

dismissed the statutory claims. It ruled that aiding and abetting

was not actionable under the ATS, Doe I, 393 F. Supp. 2d at 24,

that “sexual violence” is not sufficiently recognized as a

violation of the law of nations to be actionable under the ATS,

and that Exxon could not be liable for genocide and crimes

against humanity because adjudication of such claims would “be

an impermissible intrusion in Indonesia’s internal affairs.” Id.

at 25. Although concluding that “resolving claims of complicity

in arbitrary detention, torture, and extrajudicial killing pose[d]

less of a threat of infringing Indonesia’s sovereignty,” id., the

district court ruled that the plaintiffs could not assert such claims

against Exxon because color-of-law jurisprudence developed in

lawsuits under 42 U.S.C. § 1983 was inapplicable in view of

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Doe I, 393 F.

Supp. 2d at 25–26. The district court also ruled that joint action

with the Indonesian military was not sufficiently alleged, but

even if it were the required inquiry would raise justiciability

concerns, and to the extent state action could be alleged under

a proximate cause theory, that theory was not sufficiently

7

alleged in the complaint. Id. at 26–27. The district court

declined to hold, as Exxon urged, that the ATS claims must be

dismissed due to plaintiffs-appellants’ failure to exhaust

remedies in Indonesia because it was apparent that such efforts

would be futile. Id. at 24–25.

On appeal, plaintiffs-appellants challenge the dismissal of

their ATS and TVPA claims based on prohibitions of

extrajudicial killing, torture, and prolonged arbitrary detention,

but do not appeal the dismissal of their claims of genocide,

crimes against humanity, or sexual violence. They contend, and

Exxon does not dispute, that extrajudicial killing, torture, and

prolonged arbitrary detention are clearly established norms of

international law.3 They also contend, but Exxon disputes, that

the district court erred in ruling that aiding and abetting liability

is unavailable under the ATS, in view of subsequent case law in

the circuit courts of appeals, and in ruling that color-of-law

jurisprudence may not be applied in ATS cases. Responding to

Exxon’s new contention on appeal that it is entitled to corporate

immunity because customary international law does not

recognize corporate liability for human rights violations,

appellants contend that Exxon has conflated Sosa’s analysis for

norms in a manner that is inconsistent with a well-established

distinction in international law, and alternatively it has

inaccurately recounted customary international law. Appellants

maintain that corporations may be liable directly and also for

aiding and abetting under the ATS and the TVPA.

Finally, appellants challenge the dismissal of their non-

federal tort claims, contending that history demonstrates that

3

This relieves the court from the task, in which our dissenting

colleague unnecessarily engages, see Dis. Op. at 4 n.2, of identifying

the universe of international norms capable of giving rise to causes of

action in ATS lawsuits. See Oral Arg. Tr. at 64:9–12.

8

there is no per se bar on non-resident alien standing and that

they meet the traditional zone-of-interests test for prudential

standing. Exxon maintains that appellants cannot meet the zone-

of-interests test because the alleged torts occurred on foreign

soil and that any state law claims would be subject to foreign

affairs preemption, and even if those claims survive, Indonesian

law ought to apply. Exxon also raises three justiciability

objections: the complaint should be dismissed in deference to

the foreign policy views of the Executive Branch; the claims

interfere with a peace agreement supported by the United States;

and the claims threaten international comity with Indonesia.

Exxon further maintains the Doe VIII complaint must be

dismissed for lack of diversity jurisdiction.

In Part II, we address aiding and abetting liability under the

ATS, concluding that it is well established. In Part III, we

examine Exxon’s claim of corporate immunity, concluding that

corporations can be held liable under the ATS. In Part IV, we

affirm the dismissal of appellants’ claims under the TVPA in

view of precedent issued by this court after oral argument in

these cases. In Part V, we consider Exxon’s contentions that the

complaints should be dismissed on justiciability grounds and

find them unpersuasive. In Part VI, we resolve appellants’

challenge to the dismissal of their common law claims for lack

of prudential standing, concluding that they have such standing;

we agree, however, with Exxon that the district court erred in its

choice of law determination and that Indonesian law applies

under the District of Columbia choice of law rule to appellants’

non-federal tort claims. In Part VII, we remand to the district

court questions raised by Exxon with regard to the existence of

diversity jurisdiction in Doe VIII.

We conclude that none of the four reasons offered by our

dissenting colleague for reaching a different conclusion about

the reach of the ATS withstand analysis. The dissent’s first

9

objection relates to extraterritoriality when that issue is not

presented and, as the historical context makes clear, the ATS

reaches harm occurring outside of the United States. The

dissent’s objection to corporate liability is based on a

misstatement of the definition of customary international law

and of Supreme Court precedent, and disregards both a

fundamental distinction between causes of action based on

conduct that violates the law of nations or treaties and the

remedy under domestic law, and a source of international law.

The dissent’s third objection that the TVPA precludes the

court’s conclusions regarding the ATS is contrary to the

Supreme Court’s conclusion about the effect of the TVPA on the

ATS and inappropriately addresses an argument forfeited by

Exxon. Finally, the dissent’s justiciability objection selectively

characterizes not only the complaints but also the State

Department’s expression of interest in this litigation.

II.

The ATS stood largely dormant for nearly two centuries

after its enactment in 1789. Two district courts invoked

jurisdiction under the ATS. See Adra v. Clift, 195 F. Supp. 857

(D. Md. 1961)); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795)

(No. 1,607). The first appellate court to uphold a claim under

the ATS did so in 1980 when the Second Circuit held in

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that

deliberate torture perpetrated under color of official authority

violated universally accepted norms of international law on

human rights and that the ATS provided federal jurisdiction

over a claim by a resident alien against a Paraguayan official for

the death of his son in Paraguay. The Supreme Court in Sosa

described Filartiga as “the birth of the modern line of [ATS]

cases.” 542 U.S. at 724–25. Even after Filartiga, however,

courts and commentators continued to disagree as to the proper

interpretation of the ATS, resulting in the exchange between

10

Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab

Republic, 726 F.2d 774 (D.C. Cir. 1984). The Supreme Court

in Sosa settled this disagreement, adopting an approach

consistent with both Filartiga and Judge Edwards’ separate

opinion in Tel-Oren.

The issue in Sosa was whether a Mexican citizen (Alvarez-

Machain) could bring a claim under the ATS against Mexican

nationals hired by the U.S. Drug Enforcement Administration

(“DEA”) for an alleged violation of the law of nations arising

from his “arbitrary arrest.” DEA agents had obtained an arrest

warrant from a U.S. district court and hired Mexican nationals

(including Sosa) to abduct Alvarez-Machain and bring him to

the United States to be arrested. 542 U.S. at 698. The Supreme

Court, although concluding the ATS was “intended as

jurisdictional,” id. at 714, and “creat[ed] no new causes of

action,” id. at 724, held that “[t]he jurisdictional grant is best

read as having been 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 at the time,” id. Further, the Court concluded

that “Congress has not in any relevant way amended § 1350 or

limited civil common law power by another statute.” Id. at 725.

The Court went on to observe, as we discuss in Part V, that

“there are good reasons for a restrained conception of the

discretion a federal court should exercise in considering a new

cause of action of this kind.” Id.

Upon considering the history and purpose of the ATS, the

Supreme Court instructed that “courts should require any claim

based on the present-day law of nations to rest on a norm of

international character accepted by the civilized world and

defined with a specificity comparable to the features of the

18th-century paradigms we have recognized,” id., referencing

violation of safe conducts, infringement of the rights of

11

ambassadors, and piracy, id. at 724. The Court recognized that

“a judge deciding in reliance on an international norm will find

a substantial element of discretionary judgment in the decision,”

id. at 726, but admonished that “federal courts should not

recognize private claims under federal common law for

violations of any international law norm with less definite

content and acceptance among civilized nations than the

historical paradigms familiar when § 1350 was enacted,” id. at

732. Appellants’ aiding and abetting contention meets this test.

In dismissing appellants’ statutory claims, the district court

relied principally on In re South African Apartheid Litigation,

346 F. Supp. 2d 538, 549–51 (S.D.N.Y. 2004), which held that

private actors who did not engage in state action committed no

violation remediable under the ATS. That authority was

overruled in Khulumani v. Barclay National Bank Ltd., 504 F.3d

254 (2d Cir. 2007), aff’d for lack of en banc quorum sub nom.

Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008); see

also Presbyterian Church of Sudan v. Talisman Energy, Inc.,

582 F.3d 244, 256 (2d Cir. 2009), cert. denied, 131 S. Ct. 79

(2010). The district court also ruled that there was no liability

for aiding and abetting under the ATS, applying the rule of

statutory construction in Central Bank of Denver v. First

Interstate Bank of Denver, 511 U.S. 164, 181–82 (1994),

superseded in part by statute, 15 U.S.C. § 78t(e), that there is no

general presumption in favor of aiding and abetting liability.

Doe I, 393 F. Supp. 2d at 24.

Appellants persuasively contend that aiding and abetting

liability exists under the ATS. Virtually every court to address

the issue, before and after Sosa, has so held, recognizing

secondary liability for violations of international law since the

founding of the Republic. Appellants cite as examples Talbot

v. Jansen, 3 U.S. (3 Dall.) 133, 167–68 (1795) (Iredell, J.), The

Amiable Nancy, 1 F. Cas. 765, 768 (C.C.D.N.Y. 1817) (No.

12

331), and Henfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa. 1793)

(No. 6,360). Further, they note that aiding and abetting liability

was a common feature of Founding-era statutes addressing

international law offenses, see Crimes Act of 1790, ch. 9, § 10,

1 Stat. 112, 114 (1790) (deeming “an accessary [sic] to . . .

piracies” anyone who “knowingly and willingly aided” piracy).

Exxon maintains, however, that there is no aiding and abetting

liability under the ATS because of the presumption against

extraterritorial application established at the time of the ATS’s

enactment, and the Supreme Court’s instruction in Central

Bank, 511 U.S. at 181–82, that although “aiding and abetting is

an ancient criminal law doctrine,” id. at 181, “when 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,” id. at 182. For the

following reasons, we hold that there is no extraterritoriality bar

as Exxon suggests, that the principle of aiding and abetting

liability is well established in customary international law, and

that the mens rea and actus reus requirements are those set out

by the Nuremberg Tribunals and the international courts created

by the United Nations, which reflect the standard under federal

common law.

A.

The issue of extraterritoriality, although briefed,4 was not

decided in Sosa, and it has yet to be decided by a circuit court

of appeals. One judge of this court discussed the issue in Tel-

Oren, looking to the then-tentative draft Restatement of the

Foreign Relations Law of the United States, 726 F.2d at 781 n.7,

788 (Edwards, J., concurring), which in its final version states

4

Brief for the United States as Respondent Supporting

Petitioner 47–50, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No.

03-339), 2004 WL 182581.

13

that a nation has universal jurisdiction to define and prescribe

punishment for certain egregious crimes regardless of any

territorial considerations, RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE UNITED STATES § 404, and otherwise

a nation may prescribe law as to conduct occurring or having an

effect in its territory and “the activities, interests, status, or

relations of its nationals outside as well as within its territory,”

id. § 402(1)–(2); see also Sosa, 542 U.S. at 761 (Breyer, J.,

concurring) (citing RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE UNITED STATES § 401(1)–(2)). The

two other judges in Tel-Oren and our recent decision in Ali

Shafi v. Palestinian Authority, ___ F.3d ___. 2011 WL 2315028

(D.C. Cir. June 14, 2011), relied on other grounds for

dismissing the ATS claims, notwithstanding that both involved

claims of harms occurring outside of the United States, as did

the claims in Sosa and Filartiga.

The Supreme Court, however, recently reaffirmed the

“presumption against extraterritoriality” in Morrison v. National

Australia Bank Ltd., 130 S. Ct. 2869 (2010), holding that

“[r]ather than guess anew in each case, we apply the

presumption in all cases, preserving a stable background against

which Congress can legislate with predictable effects.” Id. at

2881. “This principle represents a canon of construction, or a

presumption about a statute’s meaning.” Id. at 2877. “When a

statute gives no clear indication of an extraterritorial

application, it has none.” Id. at 2878.

The ATS provides in full:

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.

14

28 U.S.C. § 1350. The ATS was enacted as part of the Judiciary

Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (1789), and its content

has not been materially amended since its enactment.5 Its terms

are “jurisdictional,” the Supreme Court held in Sosa,

“enabl[ing] federal courts to hear claims in a very limited

category defined by the law of nations and recognized at

common law.” 542 U.S. at 712. At the time of enactment of

the ATS, the Court observed, “torts in violation of the law of

nations were understood to be within the common law.” Id.

And although the Supreme Court has fundamentally altered the

breadth and understanding of federal common law since the

ATS’s enactment, see id. at 729 (citing Erie R.R. Co. v.

Tompkins, 304 U.S. 604 (1938)), the Court noted in Sosa that in

5

The ATS has been amended three times. In 1874, as part of

the first official codification of the Acts of Congress when the grants

of jurisdiction were listed, the ATS was amended to read: “The district

courts shall have jurisdiction . . . [o]f all suits brought by any alien for

a tort only in violation of the law of nations, or of a treaty of the

United States.” Rev. Stat. § 563 (1st ed. 1875). In the 1911

codification of the Judiciary Act, a comma was added after the phrase

“tort only” and a comma was removed after the phrase “law of

nations”; neither change appears to have had any practical effect. Act

of Mar. 3, 1911, ch. 231, § 24, 36 Stat. 1087, 1093 (1911). In the

1948 revision of the Judicial Code, the term “civil action” was

substituted for “suits” to conform with Rule 2 of the Federal Rules of

Civil Procedure, which provided that “there shall be one form of

action to be known as a ‘civil action.’” Act of June 25, 1948, ch. 646,

§ 1350, 62 Stat. 869, 934 (1948) (codified at 28 U.S.C. § 1350). The

word “committed” was added, but no party has cited a case or

scholarly work suggesting the addition has any significance or that

Congress had any particular intent in adding it. See Tel-Oren, 726

F.2d at 779 n.3 (Edwards, J., concurring). Also in the 1948 Act, the

term “any alien” reverted to “an alien,” consistent with the original

1789 language, and the word “original” was inserted before

“jurisdiction.” 62 Stat. at 934.

15

certain areas federal common law will prevail either because of

express congressional authorization to devise a body of law, see

id. at 726 (citing Textile Workers v. Lincoln Mills of Ala., 353

U.S. 448 (1957)), or by way of judicial decision “to create

federal common law rules in interstitial areas of particular

federal interest,” id. (citing United States v. Kimbell Foods, Inc.,

440 U.S. 715, 726–27 (1979)). The Court concluded that the

ATS was enacted on the basis of a “congressional assumption”

that courts would develop common law claims “derived from

the law of nations,” thus ensuring that any common lawmaking

authority as to actionable conduct would, at least, be cabined by

the law of nations. Id. at 731 n.19.

Citing Morrison, Exxon contends that a “strong

presumption . . . against extending [federal statutes] to

encompass conduct in foreign territory” militates against

recognizing a common law aiding and abetting claim based on

human rights violations committed in a foreign country.

Appellees’ Br. 37. Exxon posits a novel form of the canon, for

it appears beyond debate that piracy is contemplated by the

ATS, see Sosa, 542 U.S. at 719; Tel-Oren, 726 F.2d at 779

(Edwards, J., concurring) (citing 4 BLACKSTONE’S

COMMENTARIES *67); id. at 813–14 (Bork, J., concurring), and

piracy can occur outside of the territorial bounds of the United

States, see generally United States v. Hasan, 747 F. Supp. 2d

599 (E.D. Va. 2010), and, the Supreme Court has held, also

within the territorial waters of another nation, see United States

v. Furlong, 18 U.S. (5 Wheat.) 184, 200–01 (1820). Morrison

and other Supreme Court cases hold, in contrast to Exxon’s

canon, “that legislation of Congress, unless a contrary intent

appears, is meant to apply only within the territorial jurisdiction

of the United States.” 130 S. Ct. at 2877 (quoting EEOC v.

Arabian Am. Oil Co. (“ARAMCO”), 499 U.S. 244, 248 (1991));

see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949);

Blackmer v. United States, 284 U.S. 421, 437 (1932); United

16

States v. Bowman, 260 U.S. 94, 98–99 (1922). It is at least

arguable that none of the modern cases cited by Exxon (and our

dissenting colleague, Dis. Op. at 7–10) interpret statutes having

obvious extraterritorial reach, as the dissent concedes is true of

the ATS, see Dis. Op. at 14–15.

“This principle [of a presumption against extraterritorial

reach of a statute] represents a canon of construction . . . rather

than a limit upon Congress’s power to legislate.” Morrison, 130

S. Ct. at 2877. Exxon’s characterization of the presumption

against extraterritoriality is incomplete at best, stating the

presumption is “against extending [federal statutes] to

encompass conduct in foreign territory.” Appellees’ Br. 37.

Exxon has cited no authority supporting the existence of a

presumption that a statute applies to the high seas (e.g., piracy)

but not to foreign territory; indeed, Exxon cites two Supreme

Court cases supporting the contrary: The Apollon, 22 U.S. (9

Wheat.) 362, 370 (1824), and Rose v. Himely, 8 U.S. (4 Cranch)

241, 279 (1808). In The Apollon the Court held that “[t]he laws

of no nation can justly extend beyond its own territories, except

so far as regards its own citizens,” 22 U.S. at 370 (emphasis

added), and in Rose v. Himely “that the legislation of every

country is territorial; that beyond its own territory, it can only

affect its own subjects or citizens,” 8 U.S. at 279 (emphasis

added).6 To the extent Exxon maintains that the ATS is only

6

In Rose v. Himely the Court went on to hold that “a seizure

of a person not a subject, or of a vessel not belonging to a subject,

made on the high seas, for the breach of a municipal regulation, is an

act which the sovereign cannot authorize,” 8 U.S. at 279, indicating

that the background principle at work at the time was one where

extraterritoriality was based on a national sovereignty principle rather

than a special high-seas exception. Such a principle remains a part of

international law today. See RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE UNITED STATES § 402(2); Sosa, 542 U.S. at

17

partially extraterritorial, it advocates a novel canon of statutory

construction, and not one of the settled “background canons of

interpretation of which Congress is presumptively aware” when

it legislates. Lockhart v. United States, 546 U.S. 142, 148

(2005).

Our dissenting colleague would bifurcate the canon by

requiring a separate query with respect to the high seas and

foreign countries. The dissent posits that because piracy by

definition occurs on the high seas, application of the canon

against extraterritoriality — as that canon has been consistently

defined by the Supreme Court for over two hundred years —

creates a statutory outcome that is at odds with congressional

intent that the ATS grant federal courts jurisdiction over aliens’

piracy-related torts. Dis. Op. at 14–16. Finding the existing

canon of no avail, the dissent mutates both the canon and the

precedent into a new canon that produces the desired result. To

the extent that a canon of construction draws its persuasiveness

in large measure from the fact that Congress is “presumptively

aware,” Lockhart, 546 U.S. at 148, of such canons of

outstanding vintage when it legislates and thus “preserv[es] a

stable background against which Congress can legislate with

predictable effects,” Morrison, 130 S. Ct. at 2878, a newly

minted canon fashioned in a dissenting opinion more than two

hundred years after the First Congress provides no such

benefit.7

761 (Breyer, J., concurring).

7

To the extent a presumption existed at the time of the First

Congress, it differed materially from that suggested by Exxon and the

dissent. Appellees’ Br. 37; Dis. Op. at 7–9. In Furlong, the Supreme

Court interpreted the reach of the piracy and other provisions in the

Crimes Act of 1790. 18 U.S. at 200. Stating that a court ought to

consider the statute by “reference to the punishing powers” of

18

Further, a technical but nonetheless important point sheds

light on Exxon’s contentions: appellants are not asking this

court to apply the ATS itself extraterritorially. In Sosa, the

Supreme Court held that the ATS is a jurisdictional statute that

provides U.S. district courts with jurisdiction over civil actions

brought by aliens seeking relief for torts committed in violation

of the law of nations, and does not itself create causes of action.

542 U.S. at 713–14; 28 U.S.C. § 1350. As a jurisdictional

statute, it would apply extraterritorially only if Congress were

to establish U.S. district courts in foreign countries. To say that

a court is applying the ATS extraterritorially when it hears an

action such as appellants have brought makes no more sense

Congress and then apply a “reasonable presumption” that Congress

did not intend to exceed those powers, and conversely that “general

words . . . ought not . . . be restricted so as to exclude any cases within

their natural meaning,” the Court held that “it was reasonable to

conclude[] that Congress intended to legislate, unless [the] express

language shall preclude that conclusion.” Id. at 196. The powers of

Congress applied in Furlong were those identified in The Apollon, 22

U.S. at 370, and Rose v. Himely, 8 U.S. at 279, namely that Congress

may legislate with respect to acts within U.S. territory and with respect

to its own citizens. Thus, in Furlong, the Court affirmed the

convictions for piracy of two U.S. citizens under the 1790 Act where

the crimes had been committed in the territorial waters of Portugal,

i.e., in a roadstead near the islands of Boa Vista and Maio, off the

western coast of Africa. 18 U.S. at 200–01; see also U.S. DEP’T OF

STATE, BACKGROUND NOTE: CAPE V ERDE, available at

http://www.state.gov/r/pa/ei/bgn/2835.htm (last visited June 21,

2011); John H. Knox, A Presumption Against Extrajurisdictionality,

104 AM. J. INT’L L. 351, 364 (2010). The dissent argues that

“[c]haracteristically [piracy] has been regarded as an offense of the

open seas,” Dis. Op. at 16 n.8 (quoting Edwin D. Dickinson, Is the

Crime of Piracy Obsolete?, 38 HARV. L. REV. 334, 336–37 (1925)),

but in Furlong the Supreme Court has made patently clear that the

First Congress intended the term “high seas” to include at least some

territory of foreign states, see 18 U.S. at 200–01.

19

than saying that a court is applying 28 U.S.C. § 1331, the

federal question statute, extraterritorially when it hears a TVPA

claim brought by a U.S. citizen based on torture in a foreign

country.

Thus, the question here is not whether the ATS applies

extraterritorially but is instead whether the common law causes

of action that federal courts recognize in ATS lawsuits may

extend to harm to aliens occurring in foreign countries. One

might hope to resolve this question by considering whether the

First Congress would have understood federal courts to have the

authority to recognize such causes of action. Unfortunately, the

historical record with respect to this question is sparse and has

been characterized as ambiguous. The authority most on point

is a 1795 legal opinion by U.S. Attorney General William

Bradford. See Breach of Neutrality, 1 Op. Att’y Gen. 57

(1795). In the midst of the war between Britain and France that

followed the French Revolution, U.S. citizens participated in a

French privateer fleet’s attack and plunder of the British colony

of Sierra Leone in 1794. See id. at 58.8 Responding to a protest

from the British Ambassador, Attorney General Bradford

expressed “some doubt” as to whether the U.S. citizens could be

prosecuted in U.S. courts. See id. at 58–59. But Bradford had

“no doubt that the company or individuals who ha[d] been

injured by the[] acts of hostility ha[d] a remedy by a civil suit in

the courts of the United States” since Congress in the ATS had

granted federal courts “jurisdiction . . . in all cases where an

8

See also William R. Casto, The Federal Courts’ Protective

Jurisdiction over Torts Committed in Violation of the Law of Nations,

18 CONN. L. REV. 467, 502–03 (1986) (hereinafter “Casto, Law of

Nations”) (citing CHRISTOPHER FYFE, A HISTORY OF SIERRA LEONE,

59–61 (1962)), cited by the Supreme Court in Sosa, 542 U.S. at 713,

717, 718, 719 n.13, 721.

20

alien sues for a tort only, in violation of the laws of nations, or

a treaty of the United States.” Id. at 59 (emphasis in original).

Bradford’s opinion, however, is not a model of clarity. The

paragraph containing Bradford’s discussion of the ATS opens

by stating, “So far . . . as the transactions complained of

originated or took place in a foreign country, they are not within

the cognizance of our courts . . . .” Id. at 58. In context, this

statement might be best read as applying only to the scope of

the U.S. courts’ criminal jurisdiction. The majority in the

Second Circuit, however, interpreted the statement more

broadly, citing it as support for the proposition that at the time

of its enactment, the ATS was not understood to grant federal

courts jurisdiction over international law violations committed

within the territorial jurisdiction of foreign nations but “only for

the actions taken by Americans on the high seas.” See Kiobel

v. Royal Dutch Petroleum Co., 621 F.3d 111, 142 n.44 (2d Cir.

2010).9 In Sosa the Supreme Court viewed the Attorney

9

The cases on which Exxon relies, which seek to invoke

early piracy cases for the proposition of non-extraterritoriality, are

inapposite. For instance, in United States v. Palmer, 16 U.S. (3

Wheat.) 610 (1818), the Supreme Court interpreted the Crimes Act of

1790 not to extend to situations where a non-citizen attacked a vessel

under foreign flag bearing citizens of a foreign state. Exxon fails,

however, to account for United States v. Klintock, 18 U.S. (5 Wheat.)

144 (1820), where the Supreme Court backed away from Palmer,

stating that although Palmer could be “understood to indicate the

opinion that the whole act must be limited in its operation to offences

committed by, or upon, the citizens of the United States,” that issue

was not before the Court in Palmer. Id. at 152. The Court held that

so long as the piracy was committed by persons on board a vessel not

“belonging to the subjects of any foreign power . . . in possession of

a crew acting in defiance of all law, and acknowledging obedience to

no government whatever,” id., or in other words, a vessel having no

nationality, the piracy provisions of the Crimes Act of 1790 would

21

General’s opinion as “clear that a federal court was open for the

prosecution of a tort action growing out of the episode,” 542

U.S. at 721, but noted uncertainty about whether Bradford

assumed there had been a violation of a treaty and concluded

that “it appears likely Bradford understood the ATS to provide

jurisdiction over what must have amounted to common law

causes of action,” id.

Extraterritorial application of the ATS would reflect the

contemporaneous understanding that, by the time of the

Judiciary Act of 1789, a transitory tort action arising out of

activities beyond the forum state’s territorial limits could be

tried in the forum state. See Stoddard v. Bird, 1 Kirby 65, 68

reach the conduct. This “description happens to fit pirates to a tee.”

Eugene Kontorovich, The “Define and Punish” Clause and the Limits

of Universal Jurisdiction, 103 NW. U. L. REV. 149, 189 (2009) (citing

4 BLACKSTONE’S COMMENTARIES *71). Further, Exxon fails to

address developments in response to Palmer, namely that in 1819

Congress amended the Crimes Act of 1790 to provide:

That if any person or persons whatsoever, shall, on the high

seas, commit the crime of piracy, as defined by the law of

nations, . . . every such offender or offenders shall . . . be

punished with death.

Act of March 3, 1819, ch. 77, § 5, 3 Stat. 510 (1819) (emphasis

added). The 1819 Act was indefinitely extended, Act of May 15,

1820, ch. 113, § 2, 3 Stat. 600 (1820), and the crime of piracy today

is “nearly identical,” Hasan, 747 F. Supp. 2d at 614 (citing 18 U.S.C.

§ 1651 and, inter alia, United States v. Corrie, 25 F. Cas. 658, 663

(C.C.D.S.C. 1860) (No. 14,869)). Other cases, such as The Apollon,

22 U.S. at 370, and Rose v. Himely, 8 U.S. at 279, on which Exxon (a

U.S. citizen) relies, and the prize court cases on which amici

Washington Legal Foundation and Allied Educational Foundation

rely, do not advance their extraterritorial objection.

22

(Conn. Super. Ct. 1786) (Ellsworth, J.); Mostyn v. Fabrigas,

(1774) 98 Eng. Rep. 1021 (K.B.) 1025–26; Casto, Law of

Nations, supra note 8, at 503–04 & n.205. It also would reflect

an understanding that a violation of the law of nations could

occur within the territorial jurisdiction of a foreign country and

be civilly remediable in the United States courts. As early as

1781, Lord Mansfield held in Lindo v. Rodney, 2 Doug. 614

(K.B.), reprinted in Le Caux v. Eden, (1781) 99 Eng. Rep. 375

(K.B.), that “[b]y the law of nations, and treaties, every nation

is answerable to the other for all injuries done, by sea or land,

or in fresh waters, or in port,” id. at 389 n.1, and that “every

reason which created a Prize Court as to things taken upon the

high seas, holds equally when they are thus taken at land,” id.,

citing treaties as old as 1498, id. at 389, and parliamentary acts

from the reign of King George II, id. at 392. Congress adopted

this definition of “piracy” in the Act of May 15, 1820, ch. 3,

§ 3, 3 Stat. 600 (1820).

Chancellor Kent, “the great commentator on American

law,” Holy Trinity Church v. United States, 143 U.S. 457, 470

(1892), and then “the country’s foremost legal scholar,”

Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 278 n.13

(1977), in “his landmark work,” Sun Oil Co. v. Wortman, 486

U.S. 717, 726 (1988), described both Lindo and the piracy

statute as “only declaratory of the law of nations.” 1 JAMES

KENT, COMMENTARIES ON AMERICAN LAW 189 (New York 8th

ed. 1854) (hereinafter “KENT’S COMMENTARIES”). The Crimes

Act of 1790 had similarly contemplated violations of the law

against piracy committed on land.10 Id. at 187–89. The dissent,

10

The Crimes Act of 1790 provided punishment for

every person who shall, either upon the land or the seas,

knowingly and wittingly aid and assist, procure, command,

counsel, or advise any person or persons, to do or commit . . .

23

in maintaining that the ATS ought to apply wherever piracy can

occur, see Dis. Op. at 14–16, makes no attempt to reconcile its

view with early definitions of piracy that are not limited to the

high seas.

True, the 1790 Act did not provide for primary liability for

actions taken on the land of another nation, instead providing

punishment as a principal only for crimes of piracy committed

“upon the high seas, or in any river, basin or bay, out of the

jurisdiction of any particular [U.S.] state,” ch. 9, § 8, 1 Stat. at

113–14; Furlong, 18 U.S. at 200–01. Moreover, amici suggest

that the provisions were never invoked by prosecutors in cases

involving actions taken within the territory of another nation,

Brief of Washington Legal Foundation and Allied Educational

Foundation as Amici Curiae in Support of Defendants-

Appellees (“Wash. Legal Found. Br.”) 11 n.8, although the facts

of Furlong, see supra note 7, weaken this point. Consequently,

the historical record, clear on the notion that U.S. courts at the

nation’s founding could exercise jurisdiction over at least some

international law violations committed beyond our domestic

shores and in the territorial waters of another nation, Furlong,

18 U.S. at 200–01, is nonetheless ambiguous regarding whether

piracy . . . on the seas, [and that] all and every such person so

as aforesaid, aiding, assisting, procuring, commanding,

counselling [sic] or advising the same, either upon the land

or the sea, shall be, and they are hereby declared, deemed and

adjudged to be accessary [sic] to such piracies before the fact,

and every such person being thereof convicted shall suffer

death.”

§ 10, 1 Stat. at 114 (emphasis added).

24

jurisdiction could be exercised over law of nations violations

occurring on the land of another nation.11

To the extent the historical record is inconclusive, two

modern developments convince us that it is entirely appropriate

to permit appellants to proceed with their aiding and abetting

claims even though much of the conduct relating to the

international law violations alleged in their complaint occurred

in Indonesia. First, modern ATS litigation has primarily

focused on atrocities committed in foreign countries, and

Congress in enacting the TVPA expressly endorsed federal

courts’ exercise of jurisdiction over such lawsuits. The Report

of the Senate Committee on the Judiciary states that the “TVPA

would establish an unambiguous basis for a cause of action that

has been successfully maintained” in ATS lawsuits such as

Filartiga, explaining that in that case “two citizens of Paraguay

alleged that a former Paraguayan inspector general of police had

tortured and killed a member of their family in Paraguay.” S.

REP. NO. 102-249, at 4 (1991).12 The TVPA thus “enhance[d]

11

The complaints at issue concern aiding and abetting

liability where at least some of the conduct causing harm to the

plaintiffs in Indonesia occurred in the United States. The district

court, in denying in part Exxon’s motion for summary judgment on

the non-federal tort claims, found that the plaintiffs had presented

sufficient evidence of corporate control within the United States to go

to trial. Doe I v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 31–32

(D.D.C. 2008).

12

The Legal Advisor of the State Department supported

adjudication of the claims in Filartiga, participating as amicus curiae

and stating that:

The . . . international law of human rights . . . endows

individuals with the right to invoke international law, in a

competent forum and under appropriate circumstances. . . . As

25

the remedy already available under” the ATS by extending that

civil remedy also to U.S. citizens who may have been tortured

abroad. Id. at 5. Expressing approval for the ATS, the Senate

Committee report thus noted that “[c]onsequently, that statute

should remain intact.” Id. The Report of the House Committee

on the Judiciary is to the same effect. See H.R. REP. NO. 102-

367, at 3 (1991). Second, although the United States argued in

Sosa that the ATS in no way “applies to alleged torts, such as

the one [at issue in Sosa – arbitrary detention], that occur

outside of the United States,” Brief for United States at 8, Sosa,

542 U.S. 692 (2004) (No. 03-339); see also id. at 46–50; Reply

Brief for United States at 19–20, Sosa, 542 U.S. 692 (2004)

(No. 03-339), no Justice indicated agreement with the United

States’ position, cf. Sosa, 542 U.S. at 762–63 (Breyer, J.,

concurring). Given Congress’s ratification of ATS lawsuits

involving foreign conduct and the Supreme Court’s failure to

disapprove of such lawsuits in Sosa, we conclude that the

extraterritoriality canon does not bar appellants from seeking

relief based on Exxon’s alleged aiding and abetting of

international law violations committed in Indonesia.

The arguments of our dissenting colleague offer no basis

for a contrary conclusion. First, the dissent notes that injuries

of the sort alleged here, by aliens occurring abroad, could be

remedied “by foreign sovereigns under their countries’ laws.”

Dis. Op. at 12. Perhaps so, but the unchallenged finding by the

a result, in nations such as the United States where

international law is part of the law of the land, an individual’s

human rights are in certain cases directly enforceable in

domestic courts.

Memorandum for the United States as Amicus Curiae at 20, Filartiga

v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), reprinted

in 19 I.L.M. 585, 602–03 (1980).

26

district court is that the plaintiffs could not litigate their claims

in Indonesia, even assuming, as Exxon argued before the district

court, that international law required exhaustion of local

remedies, because they had demonstrated such efforts would be

futile, an exception to prudential exhaustion. Doe I, 393 F.

Supp. 2d at 25 (citing Hammontree v. NLRB, 925 F.2d 1486,

1517 (D.C. Cir. 1991); Rasoulzadeh v. Assoc. Press, 574 F.

Supp. 854, 861 (S.D.N.Y. 1983), aff’d without op. 767 F.2d 908

(2d Cir. 1985)). In Sosa, the Supreme Court referenced the

exhaustion argument by amicus European Commission but

noted that it need not reach the question although stating it

“would certainly consider this requirement in an appropriate

case.” 542 U.S. at 733 n.21. Since then the only circuit to

address the question concluded that “certain ATS claims are

appropriately considered for exhaustion under both domestic

prudential standards and core principles of international law,”

Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824 (9th Cir. 2008) (en

banc), noting that “[u]nder international law, ordinarily a state

is not required to consider a claim by another state for an injury

to its national until that person has exhausted domestic

remedies, unless such remedies are clearly sham or inadequate,

or their application is unreasonably prolonged,” id. at 829

(quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW

OF THE UNITED STATES § 713 cmt. f, and citing id. § 703 cmt. d,

and Interhandel (Switz. v. U.S.), 1959 I.C.J. 6, 26 (Mar. 29));

the Ninth Circuit also recognized the futility exception applied

by the district court here, id. at 830. Because Exxon has not

challenged the district court’s finding of futility, this court has

no occasion to decide the question. To the extent Exxon

suggests subsequent events in Indonesia may have rendered the

finding outdated, that issue may be addressed on remand, see

infra Part V.C.13

13

The dissent’s satisfaction with foreign domestic remedies

and use of extradition, Dis. Op. at 12 n.5, 14 n.7, undoes the First

27

Second, in deeming “very odd” that the First Congress

would be interested in protecting “a Frenchman injured in

London,” Dis. Op. at 12, the dissent ignores that the calculus

can change where a U.S. citizen is a cause of the harm.14 E.g.,

The Apollon, 22 U.S. 362; Furlong, 18 U.S. at 200–01; Rose, 8

U.S. 241. “Congress in prescribing standards of conduct for

American citizens may project the impact of its laws beyond the

territorial boundaries of the United States,” Steele v. Bulova

Watch Co., 344 U.S. 280, 282–83 (1952), especially where a

defendant engaged in acts here that “were essential steps in the

course of business consummated abroad,” id. at 287. The

Supreme Court has not found an extraterritorial bar when a

federal statute provided for criminal or civil liability for a

Congress’s decision that federal courts should be empowered to

provide a remedy for aliens suffering torts in violation of the law of

nations. Relying on foreign domestic remedies, the dissent assumes

such harms occur in the territory of the offended country and not in

the territory of a third disinterested country. Furthermore, neither

party nor amici describe the status of extradition treaties prior to the

passage of the Judiciary Act of 1789. By way of example, the Jay

Treaty with the United Kingdom permitted extradition only in cases

of murder and forgery, see Treaty of Amity, Commerce, and

Navigation, U.S.-Gr. Brit., art. XXVII, Nov. 19, 1794, 8 Stat. 116,

129, and appeared to exclude violations of the law of nations such as

piracy, see id. art. XX, 8 Stat. at 126–27.

14

The objections in some respects echo the minority views

in the Senate Committee report accompanying the TVPA, which

expressed concerns about “over-extendind[ing] Congress’s

constitutional authority” in that statute. S. REP. NO. 102-249, at 13.

But the dissent ignores the fact that both the minority and the majority

views agreed no such concern existed in a case where the “connection

to the United States . . . is clear,” id. at 14, as in Verlinden B.V. v.

Central Bank of Nigeria, 461 U.S. 480 (1983), where a foreign

defendant used a U.S. corporation as an instrumentality of a breach of

contract, id.

28

scheme devised and executed in the United States intended to

inflict harm abroad, e.g., to a Frenchman in London.15 See

Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d

909, 921–22 (D.C. Cir. 1984); cf. Pasquantino v. United States,

544 U.S. 349, 371–72 (2005). Here, appellants claim that

Exxon engaged in acts in the United States that were part and

parcel of the harm they suffered. Considering the identity of the

person causing harm to the Frenchman in London further

illuminates the First Congress’s intent. After all,

where the individuals of any state violate this general

law [of nations], it is then the interest as well as duty

of the government, under which they live, to

animadvert upon them with a becoming severity, that

the peace of the world may be maintained. For in vain

would nations, in their collective capacity, observe

these universal rules, if private subjects were at liberty

to break them at their own discretion, and involve the

two states in a war. It is therefore incumbent upon the

nation injured, first, to demand satisfaction and justice

to be done on the offender, by the state to which he

belongs; and, if that be refused or neglected, the

15

The dissent finds fault with this citation of Steele and

Pasquantino, misinterpreting their citation. The court is not, as the

dissent suggests, reading Steele “to permit application of a

nonextraterritorial statute whenever conduct in the United States

contributes to a violation abroad,” Morrison, 130 S. Ct. at 2886 n.11

(emphasis supplied). Dis. Op. at 8 n.4. Rather, the court starts with

the ATS text and history and concludes that the ATS, like the statute

at issue in Steele, grants federal courts jurisdiction over at least some

forms of extraterritorial conduct. The court cites Pasquantino only as

support for the proposition that where, as here, plaintiffs may

ultimately prove that Exxon provided substantial practical assistance,

see infra Part II.C, from its offices in the United States, jurisdiction

over extraterritorial harm is all the more appropriate.

29

sovereign then avows himself an accomplice or abettor

of his subject’s crime, and draws upon his community

the calamities of foreign war.

4 BLACKSTONE’S COMMENTARIES *67–68. Blackstone’s

representation that a foreign country could deem the United

States an “accomplice or abettor,” id. at *68, of a violation of

the law of nations if it does not censure a U.S. citizen who has

violated that law makes the First Congress’s judgment hardly

“odd” at all.

B.

The rule of statutory construction set forth in Central Bank

does not preclude recognition of aiding and abetting liability for

claims under the ATS. In Central Bank, the Supreme Court held

that although § 10(b) of the Securities and Exchange Act, 15

U.S.C. § 78j, did not prohibit aiding and abetting liability, “the

private plaintiff may not bring a 10b-5 suit against a defendant

for acts not prohibited by the text of § 10(b),” 511 U.S. at 173.

The Court declined to create a presumption against aiding and

abetting liability, but instructed that when Congress enacts a

statute, there is no presumption in favor of aiding and abetting

liability. Id. at 182. Our conclusion that there is aiding and

abetting liability under the ATS is not based on a presumption

in favor of aiding and abetting liability.

The ATS provides jurisdiction for the federal courts to hear

lawsuits regarding torts “committed in violation of the law of

nations.” 28 U.S.C. § 1350. Congress thus directed that the

courts derive the rule of law from the law of nations, and that

law extends responsibility for conduct violating its norms to

aiders and abettors. The “Supreme Court’s instruction in

Central Bank that ‘when 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

30

general presumption that the plaintiff may also sue aiders and

abettors,’ is thus inapposite.” Khulumani, 504 F.3d at 282

(Katzmann, J., concurring) (quoting Central Bank, 511 U.S. at

182) (internal citation omitted); see also id. at 288 n.5 (Hall, J.,

concurring); William R. Casto, The New Federal Common Law

of Tort Remedies for Violations of International Law, 37

RUTGERS L.J. 635, 650 (2006) (hereinafter “Casto, Federal

Common Law”).

Ample authority supports the conclusion that the First

Congress considered aiding and abetting itself to be a violation

of the law of nations. All three branches of government had

addressed the subject and were in accord. Congress in 1790

enacted a piracy law providing for aiding and abetting liability.

Crimes Act of 1790, § 10, 1 Stat. at 114. President George

Washington, in response to the state of hostilities in Europe

following the French Revolution, issued the Proclamation of

Neutrality in 1793, warning “the citizens of the United States

carefully to avoid all acts and proceedings” that would

contravene that neutrality and “mak[ing] known that” citizens

would render themselves “liable to punishment or forfeiture

under the law of nations by committing, aiding, or abetting

hostilities against any” power involved in the general conflict

“or by carrying to any of them those articles which are deemed

contraband by the modern usage of nations.” Proclamation No.

3 (1793), reprinted in 11 Stat. 753 (1859) (emphasis added). So

too, the 1795 opinion of Attorney General Bradford stated that

civil recovery could be had in federal court against U.S. citizens

who “aided and abetted” the French privateer fleet in its plunder

of Sierra Leone. 1 U.S. Op. Att’y Gen. at 58; see also Sosa, 542

U.S. at 721. An early decision of the Supreme Court upheld

aiding and abetting liability for the unlawful capture of a neutral

31

ship. See Talbot, 3 U.S. at 167–68; see also Henfield’s Case, 11

F. Cas. 1099.16

Because aiding and abetting liability implicates the

character of the “specific conduct allegedly committed by the

defendants sued,” Khulumani, 504 F.3d at 269 (Katzmann, J.

concurring), adopted in Presbyterian Church of Sudan, 582 F.3d

at 258, the conduct must represent a violation of an international

16

Henfield’s Case involved a U.S. citizen accused of illegally

enlisting with a French privateer. Chief Justice John Jay, sitting on

circuit, instructed the grand jury that: (1) “the laws of the United

States” consisted of treaties, the law of nations, and the Constitution

and statutes of the United States, 11 F. Cas. at 1100–01; (2)

“circumstances and considerations now unite in urging the people of

the United States to be particularly exact and circumspect in observing

the obligation of treaties, and the laws of nations, which . . . form a

very important part of the laws of our nation,” id. at 1102; (3)

President Washington’s proclamation had been “exactly consistent

with and declaratory of . . . the law of nations,” id.; (4) if a nation

“let[s] loose the reins of [its] subjects against foreign nations, these

will behave in the same manner to [it],” id. at 1103; and (5) those

“who commit, aid, or abet hostilities against” the European nations in

violation of neutrality must be punished, id. at 1104 (emphasis added),

and “[w]hat acts amount to committing, or aiding, or abetting

hostilities, must be determined by the laws and approved practice of

nations, and by the treaties and other laws of the United States relative

to such cases,” id. (emphasis added). The grand jury charge was

apparently published to explain the effect of the 1793 Proclamation at

home and abroad. See Casto, Law of Nations, supra note 8, at 502 &

n.193 (citing Ralph Lerner, The Supreme Court as Republican

Schoolmaster, 1967 SUP. CT. REV. 127; FRANCIS WHARTON, STATE

TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF

WASHINGTON AND ADAMS (hereinafter “WHARTON’S STATE TRIALS”)

49 n.* (1849); JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT

OF THE UNITED STATES, ANTECEDENTS AND BEGINNINGS TO 1801, at

623–24 (1971)).

32

law norm with at least as “definite content and acceptance

among civilized nations [as] the historical paradigms familiar”

in 1789, Sosa, 542 U.S. at 732. To the extent the district court

in Doe I, 393 F. Supp. 2d at 24, concluded that aiding and

abetting liability would be an “‘innovative interpretation[ ]’ of

the Alien Tort Statute” that could result in “collateral

consequences and possible foreign relations repercussions,” the

Second Circuit has since held that there can be aiding and

abetting liability under the ATS, see Presbyterian Church of

Sudan, 582 F.3d at 258–59; Khulumani, 504 F.3d at 260 (per

curiam). The Eleventh Circuit has also held that aiding and

abetting liability is available under the ATS. See Sinaltrainal v.

Coca-Cola Co., 578 F.3d 1252, 1258 n.5 (11th Cir. 2009);

Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir.

2008); Aldana v. Del Monte Fresh Produce N.A., 416 F.3d 1242,

1248 (11th Cir. 2005). Both courts reached this conclusion upon

looking to customary international law, see Presbyterian Church

of Sudan, 582 F.3d at 258; Aldana, 416 F.3d at 1247–48, to

which we now turn.

Decisions of the courts established by the U.N. Security

Council, the International Military Tribunal at Nuremberg

established in the Agreement for the Prosecution and

Punishment of the Major War Criminals of the European Axis,

Aug. 8, 1945, U.N.T.S. 280 (hereinafter “London Charter”), and

the several Nuremberg tribunals are recognized as an

authoritative source of customary international law. See, e.g.,

Flores v. S. Peru Copper Corp., 414 F.3d 233, 244 n.18 (2d Cir.

2003); United States v. Yousef, 327 F.3d 56, 105 nn.39–40 (2d

Cir. 2003); cf. Hamdan v. Rumsfeld, 548 U.S. 557, 610 & n.40

(2006); Princz v. Federal Republic of Germany, 26 F.3d 1166,

1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995). See

generally Theodor Meron, Reflections on the Prosecution of

War Crimes by International Tribunals, 100 AM. J. INT’L L. 551,

559 (2006). The General Assembly of the United Nations has

33

unanimously affirmed the principles of international law

recognized by the London Charter and the Nuremberg tribunals.

See Affirmation of the Principles of International Law

Recognized by the Charter of the Nürnberg Tribunal, G.A. Res.

95(I), U.N. Doc. A/236 (Dec. 11, 1946) (“Nuremberg Principles

Resolution I”). Exxon does not dispute that the London Charter

and the cases prosecuted thereunder constitute sources of

customary international law.

“[C]riminal responsibility of those who aid and abet

violations of international law” has been “accepted as one of the

core principles of the post-World War II war crimes trials.”

Khulumani, 504 F.3d at 273 (Katzmann, J., concurring). The

London Charter extended responsibility for crimes to

“accomplices participating in the formulation or execution of a

common plan or conspiracy to commit” any of the crimes triable

by the Tribunal. London Charter art. 6, 82 U.N.T.S. 282. At the

direction of the U.N. General Assembly, the International Law

Commission (“ILC”) in 1950 formulated “principles recognized

in the Charter . . . and in the judgment of the Tribunal,” as a

codification of certain legal principles applied by the Nuremberg

tribunals. See Nuremberg Principles Resolution I; see also

Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber

Judgement, ¶ 526 (Sept. 2, 1998); Prosecutor v. Milosevic, Case

No. IT-02-54, Trial Chamber Decision on Preliminary Motions,

¶¶ 29–30 (Nov. 8, 2001). Principle VII provided that

“[c]omplicity in the commission of a crime against peace, a war

crime, or a crime against humanity . . . is a crime under

international law.” ILC, Principles of International Law

Recognized in the Charter of the Nürnberg Tribunal and in the

Judgment of the Tribunal, G.A.O.R., 5th session, Supp. No. 12,

U.N. Doc. A/1316, Principle VII (1950) (“ILC Principles”).

Implementing the London Charter, the joint Allied body

coordinating the governance of postwar Germany promulgated

Control Council Law No. 10 to impose criminal liability on

34

whomever was “an accessory to the commission of any such

crime or ordered or abetted the same.” Allied Control Council

Law No. 10, art. II, § 2 (Dec. 20, 1945) (“Control Council Law

No. 10”), in 1 ENACTMENTS AND APPROVED PAPERS OF THE

CONTROL COUNCIL AND COORDINATING COMMITTEE 306 (1945)

(“ENACTMENTS”); see Khulumani, 504 F.3d at 272 (Katzmann,

J., concurring); Flick v. Johnson, 174 F.2d 983, 985–86 (D.C.

Cir. 1949).

The U.N. Security Council resolutions establishing the

International Criminal Tribunal for the Former Yugoslavia

(“ICTY”) and the International Criminal Tribunal for Rwanda

(“ICTR”) likewise imposed liability on any “person who

planned, instigated, ordered, committed or otherwise aided and

abetted in the planning, preparation or execution” of a crime.

Statute of the International Criminal Tribunal for the Former

Yugoslavia, art. 7, U.N. Doc. S/25704 annex (May 3, 1993)

(“ICTY Statute”), adopted in S.C. Res. 827, U.N. Doc.

S/RES/827 (May 25, 1993); Statute of the International Criminal

Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc.

S/RES/955 annex (Nov. 8, 1994) (“ICTR Statute”). The

Secretary General of the United Nations explained that “in

assigning to the International Tribunal the task of prosecuting

persons responsible for serious violations of international

humanitarian law, the Security Council would not be creating or

purporting to ‘legislate’ that law. Rather, the International

Tribunal would have the task of applying existing international

humanitarian law.” Report of the Secretary-General Pursuant to

Paragraph 2 of Security Council Resolution 808, ¶ 29, U.N. Doc.

S/25704 (May 3, 1993) (“Sec’y General ICTY Report”). The

ICTY’s jurisdiction was limited to “rules of international

humanitarian law which are beyond any doubt part of customary

[international] law.” Id. ¶ 34; see Khulumani, 504 F.3d at 275

(Katzmann, J., concurring) (citing Prosecutor v. Furundzija,

Case No. IT-95-17/1 Trial Chamber Judgement, ¶¶ 249, 275

35

(Dec. 10, 1998); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial

Chamber Opinion and Judgement, ¶¶ 689–92, 730, 735, 738

(May 7, 1997)). The ICTY emphasized that it was required to

determine “the objective basis for such individual responsibility

as a matter of customary international law . . . since the

International Tribunal is only empowered to apply international

humanitarian law that is ‘beyond any doubt customary law.’”

Tadic, Trial Chamber Opinion and Judgement, ¶ 662 (quoting

Sec’y General ICTY Report ¶ 34). The ICTR has a similar

mandate to that of the ICTY but also encompasses several

treaties. See Report of the Secretary-General Pursuant to

Paragraph 5 of the Security Council Resolution 955, ¶ 12, U.N.

Doc. S/1995/134 (Feb. 13, 1995).

Federal courts have, in turn, relied on international criminal

law norms in establishing the content of the law of nations. See,

e.g., Khulumani, 504 F.3d at 270 (Katzmann, J., concurring);

Kadic, 70 F.3d at 241–43; see also Sosa, 542 U.S. at 762–63

(Breyer, J., concurring).17 These authorities and sources confirm

that aiding and abetting liability is clearly established in the law

of nations and consequently such liability is available under the

ATS.

17

As the Seventh Circuit has pointed out:

Crimes and torts frequently overlap. In particular, most

crimes that cause definite losses to ascertainable victims are

also torts: the crime of theft is the tort of conversion; the

crime of assault is the tort of battery . . . . [In] a much earlier

era of Anglo-American law, . . . criminal and tort

proceedings were not clearly distinguished.

United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999) (citing, inter

alia, David J. Seipp, The Distinction Between Crime and Tort in the

Early Common Law, 76 B.U. L. REV. 59, 81 (1996)).

36

C.

The question remains what intent must be proved for aiding

and abetting liability under the ATS. Appellants suggest that the

federal common law standard for aiding and abetting —

knowing assistance that has a substantial effect on the

commission of the human rights violation — is well established

and that the standard under customary international law is

essentially the same. Exxon urges the court to follow the

Second Circuit in Presbyterian Church of Sudan, 582 F.3d at

259, by requiring proof that the defendant acted with the purpose

of committing the alleged human rights violation, maintaining

that “[i]f a federal common law aiding and abetting cause of

action is to be recognized under the ATS, then Sosa requires that

the scope of the federal common law rule derive from

international law.” Appellees’ Br. 40.

In Sosa, the Supreme Court stated that the ATS’s

“jurisdictional grant is best read as having been enacted on the

understanding that the common law would provide a cause of

action.” 542 U.S. at 724. From this statement appellants draw

the conclusion that federal common law provides the standard

for aiding and abetting liability. Judge Edwards similarly

observed in Tel-Oren, 726 F.2d at 777–78, that “the law of

nations never has been perceived to create or define the civil

actions to be made available by each member of the community

of nations; by consensus, the states leave that determination to

their respective municipal laws.” Appellants also cite the United

States’ amicus brief in the Second Circuit urging that the

“validity of a federal-common-law claim under Sosa should

generally be treated as a merits question, with the ATS

conferring subject-matter jurisdiction so long as the allegations

of a violation of customary international law are not plainly

insubstantial.” Brief for the United States as Amicus Curiae at

20, Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (Nos.

05-48630-cv & 05-6768-cv). Appellants suggest that “[t]he

37

application of domestic common law standards is essential

because international law does not ordinarily provide for the

means of its own enforcement in domestic courts,” Appellants’

Br. 33, and in their view, the Supreme Court in Sosa, 542 U.S.

at 731, “endorsed Judge Edwards’ view that domestic rules

govern the litigation of ATS claims in U.S. courts,” Appellants’

Br. 33–34.

The history of the ATS examined by the Supreme Court in

Sosa, 542 U.S. at 731, indicated the First Congress’s

understanding that federal common law would supply the rules

in ATS cases. Amici law professors in Sosa noted that when the

ATS was enacted there was no clear distinction between

common law and customary international law. See Brief of

Professors of Federal Jurisdiction and Legal History as Amici

Curiae in Support of Respondents, Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) (No. 03-339), reprinted in 28 HASTINGS

INT’L & COMP. L. REV. 99, 109 (2004) (“Sosa Legal History

Amicus Br.”). Courts routinely treated causes of action arising

under international law as they did other common law torts – by

applying general common law principles. See, e.g., Talbot, 3

U.S. (3 Dall.) at 155–58 (Paterson, J.); id. at 161 (Iredell, J.); id.

at 169 (Rutledge, C.J.); United States v. Benner, 24 F. Cas. 1084,

1087 (C.C.E.D. Pa. 1830) (No. 14,568). Appellants maintain

that the application of common law rules to ATS cases is

consistent with the way in which federal courts implement other

federal statutes. See, e.g., United States v. Kimbell Foods, Inc.,

440 U.S. 715, 727 (1979); see also Tex. Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981). The Eleventh Circuit

has adopted this approach, holding that a knowledge standard

applies because that is the standard under federal common law.

See Cabello v. Fernandez-Larios, 402 F.3d 1148, 1157–60 (11th

Cir. 2005); cf. Doe v. Islamic Salvation Front, 257 F. Supp. 2d

115, 120 n.12 (D.D.C. 2003).

38

That a particular cause of action cognizable under the ATS

is to be recognized as a federal common law claim, however,

does not identify the source of law to which the court must look

for a standard. The Supreme Court in Sosa mandated that courts

recognize only “a narrow set of common law actions derived

from the law of nations.” 542 U.S. at 721. In so doing, a court

must identify a norm for conduct of no less “definite content and

acceptance among civilized nations than the historical paradigms

familiar when § 1350 was enacted,” id. at 732, to which the

international community expresses approbation or

disapprobation.18 Aiding and abetting liability, while

supplemental to some other alleged tort liability, is based on

conduct distinct from the conduct of the principal actor.

Consistent with Sosa, the question is whether the international

community would express definite disapprobation toward aiding

and abetting conduct only when based on a particular standard.

The court therefore looks to customary international law to

determine the standard for assessing aiding and abetting liability,

much as we did in addressing availability of aiding and abetting

liability itself. Important sources are the international tribunals

18

“A norm prescribes or permits a certain human behavior,”

HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 6 (1966); it

determines what “ought” to happen or, the meaning of conduct, that

is, whether one ought or ought not engage in particular behavior,

HANS KELSEN, GENERAL THEORY OF NORMS 2 (1991). International

law embraces the concept of a peremptory norm, one that is “accepted

and recognized by the international community of states as a whole

and from which no derogation is permitted and which can be modified

only by a subsequent norm of general international law having the

same character.” Art. 53, Vienna Convention on the Law of Treaties,

May 23, 1969, 1155 U.N.T.S. 331; see also RESTATEMENT (THIRD) OF

FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. k; 1

OPPENHEIM’S INTERNATIONAL LAW § 2 (Sir Robert Jennings & Sir

Arthur Watts, eds., 9th ed. 1996); Prosper Weil, Towards Relative

Normativity in International Law, 77 AM. J. INT’L L. 413, 421 (1983).

39

mandated by their charter to apply only customary international

law. Two such tribunals, the International Criminal Tribunals

for the Former Yugoslavia and Rwanda, are considered

authoritative sources of customary international law. See, e.g.,

Hamdan, 548 U.S. at 611 n.40; Abagninin v. AMVAC Chem.

Corp., 545 F.3d 733, 739 (9th Cir. 2008); Ford ex rel. Estate of

Ford v. Garcia, 289 F.3d 1283, 1293 (11th Cir. 2002). They

have declared the knowledge standard suffices under customary

international law.19

The ICTY, in addressing whether the accomplice20 must

“share the mens rea of the principal or whether mere

knowledge” will suffice, concluded that “the latter will suffice.”

Furundzija, Trial Chamber Judgement, ¶ 236. It is not necessary

that the aider and abettor “shares the mens rea of the perpetrator,

in the sense of positive intention to commit the crime,” provided

he “ha[s] knowledge that his actions will assist the perpetrator

19

The knowledge standard appears to conform with the

standard for aiding and abetting liability in many other countries,

including France, Germany, England, Canada, Australia, and

Switzerland. See Krstic, Appeals Judgement, ¶¶ 140–41; Brief of

Amici Curiae International Law Scholars in Support of Plaintiffs-

Appellants Seeking Reversal (“Int’l Law Scholars Amicus Br.”)

16–17.

20

The ICTY and the ICTR opinions refer to “accomplice”

and “aiding and abetting” liability interchangeably, e.g., Furundzija,

Trial Chamber Judgement, ¶¶ 190–249, and that understanding is

reflected in the London Charter and the opinions of the Nuremberg

tribunals, see Khulumani, 504 F.3d at 272 (Katzmann, J., concurring).

40

in the commission of the crime.” Id. ¶ 245.21 The Trial

Chamber’s judgment states:

[T]he actus reus [of aiding and abetting] consists of

practical assistance, encouragement, or moral support

which has a substantial effect on the perpetration of the

crime. The mens rea required is the knowledge that

these acts assist the commission of the offense.

Id. ¶ 249; see also id. ¶¶ 238–40, 245–46 (citing inter alia, In re

Tesch, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93);

Prosecutor v. Krstic, Case No. IT-98-33-A, Appeals Judgement,

¶¶ 139–41 (Apr. 19, 2004); Prosecutor v. Delalic, Case No. IT-

96-21-I, Trial Chamber Judgement, ¶¶ 325–29 (Nov. 16, 1998);

Tadic, Trial Chamber Judgement, ¶¶ 674, 692. The ICTR is in

agreement. See Prosecutor v. Ntakirutimana, Case No. ICTR-

96-13-I, Appeals Judgement, ¶ 501 (Dec. 13, 2004); Prosecutor

v. Musema, Case No. ICTR-96-13-I, Trial Chamber Judgement,

¶¶ 180–82 (Jan. 27, 2000). The parties do not suggest that the

21

The Trial Chamber in Furundzija further emphasized that

the knowledge standard:

is particularly apparent from all the cases in which persons

were convicted for having driven victims and perpetrators to

the site of an execution. In those cases the prosecution did

not prove that the driver drove for the purpose of assisting in

the killing, that is, with an intention to kill. It was the

knowledge of the criminal purpose of the executioners that

rendered the driver liable as an aider and abettor.

Consequently, if it were not proven that a driver would

reasonably have known that the purpose of the trip was an

unlawful execution, he would be acquitted.

Id.

41

approach of the ICTY and the ICTR is inconsistent with the

federal standard for aiding and abetting liability.

In Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983),

which the Supreme Court described as “a comprehensive

opinion on the subject [of aiding and abetting],” Central Bank,

511 U.S. at 181, this court defined the scope of aiding and

abetting for tort liability in the civil context as follows:

(1) the party whom the defendant aids must perform a

wrongful act that causes an injury; (2) the defendant

must be generally aware of his role as part of an overall

illegal or tortious activity at the time that he provides

the assistance; (3) the defendant must knowingly and

substantially assist the principal violation.

705 F.2d at 477 (citing, inter alia, RESTATEMENT (SECOND) OF

TORTS § 876 (1979), which provides: “For harm resulting to a

third person from the tortious conduct of another, one is subject

to liability if he . . . (b) knows that the other’s conduct

constitutes a breach of duty and gives substantial assistance or

encouragement to the other so to conduct himself.”). In

Halberstam, the court cited five factors relevant in determining

whether the defendant’s assistance was sufficiently substantial:

“‘the nature of the act encouraged, the amount of assistance

given by the defendant, his presence or absence at the time of

the tort, his relation to the other [tortfeasor] and his state of

mind.’” Id. at 478 (alteration in original) (quoting

RESTATEMENT (SECOND) OF TORTS § 876 cmt. d). The Eleventh

Circuit has adopted the Halberstam standard in ATS and TVPA

litigation. See Cabello, 402 F.3d at 1158–59 (citing Halberstam,

705 F.2d at 481, 487). To the extent that the federal common

law and the customary international law standards do not differ,

a court may, for purposes of applying the actus reus and mens

42

rea standards, turn to the federal common law knowledge

standard in addressing claims under the ATS.

The Second Circuit, in Presbyterian Church of Sudan, 582

F.3d at 259, nonetheless held that the aider and abettor must

share the same purpose as the principal actor, relying on the

Rome Statute of the International Criminal Court (“Rome

Statute”), July 17, 1998, 2187 U.N.T.S. 90, and United States v.

von Weizsaecker (“The Ministries Case”), in 14 TRIALS OF WAR

CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS

UNDER CONTROL COUNCIL LAW NO. 10, at 308, 622 (1997)

(“TRIALS OF WAR CRIMINALS”); see also Khulumani, 504 F.3d

at 276 (Katzmann, J., concurring). Under that standard, “the

defendant (1) provides practical assistance to the principal which

has a substantial effect on the perpetration of the crime, and (2)

does so with the purpose of facilitating the commission of that

crime.” Khulumani, 504 F.3d at 277 (Katzmann, J., concurring).

The Second Circuit reasoned that whether to recognize “aiding

and abetting liability is no less significant a decision than

whether to recognize a whole new tort in the first place,”

Presbyterian Church of Sudan, 582 F.3d at 259, and consistent

with Sosa’s command about the definiteness of new norms, it

concluded from those two sources that “no such [international]

consensus exists for imposing liability on individuals who

knowingly (but not purposefully) aid and abet a violation of

international law,” id.

Although we agree with the Second Circuit’s premise that

aiding and abetting must be embodied in a norm of customary

international law, amici international law scholars point out why

its conclusion was flawed. The Rome Statute, which created the

International Criminal Court (“ICC”), is properly viewed in the

nature of a treaty and not as customary international law. See

Int’l Law Scholars Amicus Br. 19–20 (citing Rome Statute, art.

10; Leila Nadya Sadat, Custom, Codification and Some

43

Thoughts About the Relationship Between the Two: Article 10 of

the ICC Statute, 49 DEPAUL L. REV. 909, 911 & n.11, 917

(2000); Otto Triffterer, Article 10, in COMMENTARY ON THE

ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 317

(Otto Triffterer ed., 1999)). It specifically provides in Article 10

that it is not to “be interpreted as limiting or prejudicing in any

way existing or developing rules of international law.” This

acknowledges that the Rome Statute was not meant to affect or

amend existing customary international law. See Int’l Law

Scholars Amicus Br. 19. As a treaty, the Rome Statute binds

only those countries that have ratified it, see Military and

Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 175

(June 27), and the United States has not,22 see U.S. CONST. art.

II, § 2, cl. 2; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869);

Abagninin, 545 F.3d at 738; see also Statute of the International

Court of Justice (“ICJ Statute”), June 26, 1945, art. 38(1)(a), 59

Stat. 1055, 1060, 832 U.S.T.S. 993. 23 The

22

President Clinton signed the Rome Statute stating: “I will

not, and do not recommend that my successor submit the Treaty to the

Senate for advice and consent.” White House Office of

Communications, Statement by President on Signature of the ICC

Treaty (Jan. 2, 2001), available at 2001 WL 6008. On May 6, 2002,

President Bush withdrew the signature of the United States from the

Statute. See Letter of John R. Bolton, Under Sec’y of State for Arms

Control and Int’l Sec., to Kofi Annan, Sec’y Gen. of the United

Nations (May 6, 2002). By contrast, the United States Representative

to the United Nations voted in the U.N. Security Council to create

both the ICTY and the ICTR; the votes were unanimous, except for

the vote of the representative from Rwanda against creation of the

ICTR. Laura Bingham, Strategy or Process? Closing the

International Criminal Tribunals for the Former Yugoslavia and

Rwanda, 24 BERKELEY J. INT’L L. 687, 695 (2006).

23

Article 38 of the ICJ Statute, which “embodies the

understanding of States as to what sources offer competent proof of

44

the content of customary international law,” Flores, 414 F.3d at 251,

provides:

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. . . . 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.

ICJ Statute, art. 38; see also RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE UNITED STATES §§ 102(1), 103(2).

Our dissenting colleague incorrectly implies that the definition

of customary international law is synonymous with the law of nations.

Dis. Op. at 1, 26 n.10. Rather, as the ICJ Statute indicates, customary

international law is one of the sources for the law of nations. The

misconception appears also in Kiobel, 621 F.3d at 116, and Flores,

414 F.3d at 237 & n.2, where the cited authorities for treating the “law

of nations” as a synonym for “customary international law” do not

support the proposition. Nor did the Supreme Court in Sosa treat as

equivalent customary international law and the law of nations

generally. In Sosa the notion of customary international law is not

discussed until Part IV.C, where the Court addresses whether Alvarez-

Machain’s abduction and arrest could be considered a violation of an

international norm of a sufficiently specific character to be cognizable

under the ATS. 542 U.S. at 735–37. By contrast, where the Supreme

Court reaches a general conclusion it refers to “international law” or

the “law of nations” without modification. See, e.g., id. at 712, 714,

45

ICC has recognized that the Rome Statute does not necessarily

represent customary international law. Prosecutor v. Germain

Katanga and Mathieu Ngudjolo Chui, Case No. ICC-

01/14/01/07, Decision on the Confirmation of Charges, ¶¶

507–08 (Sept. 30, 2008).24

715 (quoting The Paquette Habana, 175 U.S. 677, 686 (1900)). The

Court’s rejection of Alvarez-Machain’s claim because the defendant’s

conduct “violate[d] no norm of customary international law so well

defined as to support the creation of a federal remedy,” id. at 738,

necessarily requires for liability to exist under the ATS, a finding that

the defendant either violated a norm of customary international law or

a treaty to which the United States is a party. This follows not from

the fact that the “law of nations” is synonymous with “customary

international law.” Countless sources of international law

conclusively demonstrate otherwise, see generally LOUIS HENKIN,

RICHARD CRAWFORD PUGH & OSCAR SCHACHTER, INTERNATIONAL

LAW 51–149 (3d ed. 1993), and this court ought not assume that the

Court misstated international law, cf. Murray v. The Schooner

Charming Betsy, 8 U.S. (4 Cranch) 241, 279 (1808). Rather, in stating

that courts must engage in some form of common lawmaking subject

to “vigilant doorkeeping,” Sosa, 542 U.S. at 729, the Court

emphasized that the violation of a norm of customary international law

is a necessary condition to the recognition under federal common law

of a plaintiff’s claim. This by no means indicates that customary

international law constitutes the entire corpus of international law or

that this court, in exercising its common law authority to decide

interstitial and technical questions appurtenant to the substantive norm

of primary conduct, which is governed by customary international law,

may not look to guidance from other sources of international law.

24

Appellants direct the court to the amicus brief filed by

David J. Scheffer, former U.S. Ambassador-at-Large for War Crimes

Issues and head of the U.S. delegation involved in negotiating the

Rome Statute. Brief of David J. Scheffer, Director of the Center for

International Human Rights, as Amicus Curiae in Support of the

Issuance of a Writ of Certiorari, Presbyterian Church of Sudan v.

46

Even were we to agree that the Rome Statute reflects

customary international law, the Second Circuit’s interpretation

in Khulumani, 504 F.3d at 276 (Katzmann, J., concurring), and

Presbyterian Church of Sudan, 582 F.3d at 259, appears

inconsistent with its provisions. Article 25(3)(c) of the Rome

Statute provides for liability if an individual, “[f]or the purpose

of facilitating the commission of such a crime, aids, abets or

otherwise assists in its commission or its attempted commission,

including providing the means for its commission.” Rome

Statute, art. 25(3)(c) (emphasis added). Article 25(3)(d)

provides liability for an individual who “contributes to the

commission or attempted commission of such a crime by a

group of persons acting with a common purpose” where such

contribution is “intentional” and either “made with the aim of

furthering the criminal activity or criminal purpose of the group”

or “made in the knowledge of the intention of the group to

commit the crime.” Id. art. 25(3)(d) (emphasis added). Article

30 provides that “a person has intent where . . . [i]n relation to a

consequence, that person means to cause that consequence or is

aware that it will occur in the ordinary course of events.” Id. art.

30(2)(b) (emphasis added). Although the text of Article

25(3)(c) appears to require proof of “purpose,” the text of

Article 25(3)(d) requires no more than “knowledge.” Given that

Exxon is alleged to have aided and abetted the Indonesian

military forces, which in turn are alleged to have committed

Talisman Energy, Inc. (May 20, 2010) (No. 09-1262), cert. denied,

131 S. Ct. 79 (2010). Ambassador Scheffer states that the provisions

on accessorial liability were a “negotiated compromise among mostly

common law and civil law governments after years of talks leading to

the Rome Statute and [were] not finalized to express a rule of

customary law.” Id. at 3; see also id. at 7, 9–13; David J. Scheffer &

Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency

of Corporate Liability Under the Alien Tort Statute and the Case for

a Counterattack Strategy in Compliance Theory, 29 BERKELEY J.

INT’L L. 334, 348–51 (2011) (hereinafter “Scheffer & Kaeb”).

47

violations of the law of nations against appellants, were the

Rome Statute to apply it appears that Article 25(3)(d) and its

mens rea of “knowledge” would apply. Cf. Prosecutor v.

Thomas Lubanga Dyilo, Case No. ICC/01/04-01/06, Pre-Trial

Chamber Decision on the Confirmation of Charges (Jan. 29,

2007) (applying a “knowledge” standard under Article 25(3)(a)

to international law violations by co-perpetrator). To the same

effect are decisions applying Article 30, which defines the mens

rea requirement of intent to include “knowledge,” such as

Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui,

Case No. ICC-01/14-01/07, Decision on the Confirmation of

Charges, ¶¶ 528, 530 (Sept. 30, 2008), Prosecutor v. Jean-Pierre

Bemba Gombo, ICC-01/05-01/08, Decision on the Confirmation

of Charges, ¶ 359 (June 15, 2009), and Prosecutor v. Abdallah

Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus,

ICC-02/05-03/09, Decision on the Confirmation of Charges, ¶¶

156–57 (Mar. 7, 2011). The ICTY has also observed that the

Rome Statute embraces a knowledge standard of mens rea for

aiding and abetting. See Furundzija, Trial Chamber Judgement,

¶ 243–44 & n.266.25

Finally, focusing only on The Ministries Case overlooks the

fact that in numerous decisions of the Nuremberg tribunals

defendants were convicted as aiders and abettors based on a

mens rea of knowledge and not purpose. See Int’l Law Scholars

Amicus Br. 21. Amici cite as examples United States v.

Ohlendorf, in 4 TRIALS OF WAR CRIMINALS 568–70 (defendant

“was aware that the people listed would be executed when

found”); United States v. Flick, 6 TRIALS OF WAR CRIMINALS

1217, 1222 (defendant knowingly contributed money to an

organization even though it was “unthinkable” he would

“willingly be a party” to atrocities); In re Tesch, 13 INT’L L. REP.

250 (1947) (defendant acted “with knowledge” that gas would

25

See Scheffer & Kaeb, supra note 24, at 251–57.

48

be used to kill prisoners). See Int’l Law Scholars Amicus Br.

21. These cases are not addressed by the Second Circuit in

either Presbyterian Church of Sudan or Judge Katzmann’s

concurring opinion in Khulumani. But see Khulumani, 504 F.3d

at 290 (Hall, J., concurring).

Instead, the Second Circuit considered only one of the

decisions rendered in the multi-defendant prosecution in The

Ministries Case. In Presbyterian Church of Sudan, 582 F.3d at

251, and Khulumani, 504 F.3d at 276 (Katzmann, J.,

concurring), that court examined the case of Karl Rasche, the

Chairman of Dresdner Bank, who was acquitted of war crimes

and crimes against humanity on an aiding and abetting theory,

14 TRIALS OF WAR CRIMINALS 622, although convicted on other

charges, id. at 784. Yet in the same proceeding the Tribunal

convicted Emil Puhl, deputy to the president of the German

Reichsbank, based on the same charge and theory, where he

knowingly took part in disposing of gold, including gold teeth

and crowns and other valuables looted from Holocaust victims,

even though he did not share the intent of the Holocaust

perpetrators and did not “originate[ ] the matter [that] was

probably repugnant to him.” Id. at 621. The Tribunal concluded

that Puhl had no part in the actual extermination of concentration

camp inmates, and that it had “no doubt that he would not, even

under orders, have participated in that part of the program.” Id.

at 620–21. The distinction for the Tribunal appears to have been

not that Rasche had mere knowledge of the activities of the

German Nazis whereas Puhl had purpose; both had knowledge

only. Instead the actus reus was the critical distinction relied on

by the Tribunal.26 Rasche’s activities never went beyond his

26

The Tribunal stated, with respect to Rasche,

[t]he real question is, is it a crime to make a loan, knowing or

having good reason to believe that the borrower will us[e] the

49

routine duties as a banker and, thus, he had not committed an

actus reus sufficient to convict. By contrast, Puhl had engaged

in activities beyond his routine banking duties in order to assist

the primary perpetrators. The Second Circuit never considered

the implications of Puhl’s conviction for the scope of aiding and

funds in financing enterprises which are employed in using

labor in violation of either national or international law?

Does he stand in any different position than one who sells

supplies or raw materials to a builder building a house,

knowing that the structure will be used for an unlawful

purpose? A bank sells money or credit in the same manner as

the merchandiser of any other commodity. It does not

become a partner in enterprise, and the interest charged is

merely the gross profit which the bank realizes from the

transaction, out of which it must deduct its business costs, and

from which it hopes to realize a net profit. Loans or sale of

commodities to be used in an unlawful enterprise may well be

condemned from a moral standpoint and reflect no credit on

the part of the lender or seller in either case, but the

transaction can hardly be said to be a crime. Our duty is to try

and punish those guilty of violating international law, and we

are not prepared to state that such loans constitute a violation

of that law, nor has our attention been drawn to any ruling to

the contrary.

Id. at 622. By contrast, with respect to Puhl, the Tribunal concluded:

His part in this transaction was not that of a mere messenger

or businessman. He went beyond the ordinary range of his

duties to give directions that the matter be handled secretly by

the appropriate departments of the bank. . . . [W]ithout doubt

he was a consenting participant in part of the execution of the

entire plan, although his participation was not a major one.

Id. at 620–21.

50

abetting liability in reaching a conclusion about the proper

standard.

Accordingly, we hold that aiding and abetting liability is

available under the ATS because it involves a norm established

by customary international law and that the mens rea and actus

reus requirements are those established by the ICTY, the ICTR,

and the Nuremberg tribunals, whose opinions constitute

expressions of customary international law. The Rome Statute

does not constitute customary international law. Its mens rea

requirements contemplate, in any event, a “knowledge”

standard. The discussion of the aiding and abetting charge

against Rasche in The Ministries Case does not support a

“purpose” standard when considered in conjunction with the

charges against Puhl, also part of The Ministries Case, and other

cases heard at Nuremberg that establish that “knowledge”

suffices to meet the mens rea requirement for aiding and

abetting liability. The decisions of the ICTY and ICTR adopt a

“knowledge” mens rea and a showing for actus reus of acts that

have a substantial effect in bringing about the violation. For all

practical purposes, we agree with appellants that the standard

under federal common law applies inasmuch as the parties

suggest no differences between it and the standard under

customary international law.27

III.

Exxon contends, for the first time on appeal, that the ATS

does not recognize corporate liability. The district court

27

Because Exxon is subject to ATS liability on an aiding and

abetting theory, the court need not address appellants’ alternative

contention, which Exxon challenges, that Exxon is subject to ATS

liability as a state actor acting under color of Indonesian law.

51

dismissed appellants’ ATS claims for failing adequately to plead

joint action or causation under a color of law theory of liability,

having ruled that aiding and abetting liability was unavailable.

See Doe I, 393 F. Supp. 2d at 24–27. Appellants contend that,

therefore, this court should not address Exxon’s new argument,

but they have responded to the argument on the merits and an

addendum to their reply brief contains amicus briefs on

corporate liability under the ATS that were lodged with the

Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 06-

4800-cv (Oct. 14 & 15, 2010) (en banc).

A.

In urging the court to address the question of corporate

liability although it is raised for the first time on appeal, Exxon

suggests the question is “jurisdictional.” See Sosa, 542 U.S. at

712–14. Exxon’s jurisdictional theory may, however, run afoul

of Herero People’s Reparations Corp. v. Deutsche Bank, A.G.,

370 F.3d 1192 (D.C. Cir. 2004). In that case, this court held that

subject matter jurisdiction under the ATS existed where a

corporate defendant was alleged to have violated international

law, stating the question as whether the “federal common law

. . . provide[s] a private cause of action for violations of

customary international law,” id. at 1195, which mimics what

the Supreme Court concluded in Sosa, 542 U.S. at 711, 721, 731

n.19; see also Saleh v. Titan Corp., 580 F.3d 1, 14 (D.C. Cir.

2009), cert. denied, __ S. Ct. __, 2011 WL 2518834 (June 27,

2011).

It is unnecessary to decide whether Herero settles the

jurisdictional question after Sosa because, as Exxon alternatively

maintains, “[c]ourts of appeals are not rigidly limited to issues

raised in the tribunal of first instance; they have a fair measure

of discretion to determine what questions to consider and resolve

for the first time on appeal.” Roosevelt v. E.I. Du Pont de

Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (citing,

52

inter alia, Hormel v. Helvering, 312 U.S. 552, 555–59 (1941)).

Although such review is usually confined to “exceptional

circumstances,” id., the court in Roosevelt gave as examples of

such circumstances “uncertainty in the state of the law,” id.

(citing Proctor v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308,

325–26 (D.C. Cir.), cert. denied, 459 U.S. 839 (1982)), and a

“novel, important, and recurring question of federal law,” id.

(citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247,

255–57 (1981)). The issue of corporate liability under the ATS

is all of the above, and it “does not depend on any additional

facts not considered by the district court.” Id.; see also Time

Warner Entm’t Co., L.P. v. FCC, 93 F.3d 957, 974–75 (D.C. Cir.

1996). Because appellants do not suggest they are prejudiced by

not having had an opportunity to present their position on the

merits in the district court and they have fully addressed the

issue on appeal, including attaching amici briefs, and because

the question is one of law, we conclude that addressing whether

there is corporate liability under the ATS is both a fair and

efficient way to proceed inasmuch as the Doe I complaint was

filed more than a decade ago.

B.

Appellants contend that there is no basis for corporate

immunity in either the text or the history of the ATS or

international law, and that the question of corporate liability is

to be decided either pursuant to federal common law or general

principles of international law. They observe, as the Eleventh

Circuit held in Romero, 552 F.3d at 1315, that the text of the

ATS places no limit on who can be a defendant, by contrast with

who can be a plaintiff, and the phrase “any civil action”

undermines any implied limitations not contained in the text.

They also observe that the codified statute’s use of “any civil

action,” see supra note 5, does not alter its meaning, citing the

Brief of Amici Curiae Professors of Federal Jurisdiction and

Legal History in Support of Plaintiffs-Appellants Seeking

53

Petition for Rehearing En Banc at 2 n.3, Kiobel v. Royal Dutch

Petroleum Co., __F.3d __, 2011 WL 338048 (2d Cir. Feb. 4,

2011) (No. 06-4800-cv) (“Kiobel Legal History Amicus Br.”).

Consistent with Sosa’s emphasis on history, 542 U.S. at 712–24,

appellants maintain that the textual and historical evidence

indicates that the First Congress would have considered juridical

entities such as corporations to be proper defendants under the

ATS.

Our analysis begins by recognizing that corporate liability

differs fundamentally from the conduct-governing norms at

issue in Sosa, and consequently customary international law

does not provide the rule of decision. Then we establish that

corporate liability is consistent with the purpose of the ATS,

with the understanding of agency law in 1789 and the present,

and with sources of international law. Our conclusion differs

from that of the Second Circuit in Kiobel v. Royal Dutch

Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reh’g en banc

denied, __ F.3d __, 2011 WL 338048 (Feb. 4, 2011), because its

analysis conflates the norms of conduct at issue in Sosa and the

rules for any remedy to be found in federal common law at issue

here; even on its own terms, its analysis misinterprets the import

of footnote 20 in Sosa and is unduly circumscribed in examining

the sources of customary international law. Finally, we

conclude that Exxon’s other arguments for corporate immunity

are unpersuasive.

1. In Sosa, the Supreme Court set forth the standard by

which federal courts derive common law causes of action for

violations of international law norms, 542 U.S. at 728–29, and

that standard is to be applied where a norm relating to the

conduct of an actor is at issue. Sosa addressed whether federal

courts should recognize under federal common law “new

cause[s] of action,” 542 U.S. at 713, 724, 725, 727, 732, or a

new common law “claim,” id. at 712, 714, 720, 725, 731 n.19,

54

731–32, 733. The Court instructed that when “accepting a cause

of action subject to jurisdiction under § 1350,” a court “should

not recognize private claims under federal common law for

violations of any international law norm with less definite

content and acceptance among civilized nations than the

historical paradigms familiar when § 1350 was enacted.” Id. at

732. The Court also counseled a “restrained conception of the

discretion a federal court should exercise in considering a new

cause of action” of the kind urged by the plaintiff in Sosa. Id. at

725. Because the question presented in Sosa was whether the

alleged illegal arrest and brief detention (of less than 24 hours)

could support a cause of action — i.e., whether a substantive

norm of conduct existed to support the claim — the Court

looked to customary international law.

Corporate liability presents a conceptually different

question. By way of example, in legal parlance one does not

refer to the tort of “corporate battery” as a cause of action. The

cause of action is battery; agency law determines whether a

principal will pay damages for the battery committed by the

principal’s agent. Here the court may assume that individuals

acting as agents of a corporation violated substantive

international law norms. The question is whether a corporation

can be made to pay damages for the conduct of its agents in

violation of the law of nations. Sosa did not address this

question and “at best lends Delphian guidance,” Khulumani, 504

F.3d at 286 (Hall, J., concurring), on what law supplies the rules

governing “the technical accoutrements to [a cause of] action,”

Tel-Oren, 726 F.2d at 778 (Edwards, J., concurring).

Sosa instructs that the substantive content of the common

law causes of action that courts recognize in ATS cases must

have its source in customary international law. It is clear from

the fact that the law of nations, outside of certain treaties, see

Dreyfus v. Von Finck, 534 F.2d 24, 31 (2d Cir. 1976), creates no

55

civil remedies and no private right of action that federal courts

must determine the nature of any remedy in lawsuits alleging

violations of the law of nations by reference to federal common

law rather than customary international law. Professor Louis

Henkin, a leading authority on international law, explained the

distinction:

[T]hough international law is part of the law of United

States . . . , except as otherwise provided by treaty or

by special doctrine . . . , international law establishes

rights, duties, and remedies for states against states . .

. . International law itself . . . does not require any

particular reaction to violations of law . . . . Whether

and how the United States should react to such

violations are domestic, political questions: the court

will not assume any particular reaction, remedy, or

consequence.

LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES

CONSTITUTION 245–46 (2d ed. 1996). Judge Edwards

elaborated in Tel Oren, specifically addressing ATS claims:

The law of nations . . . permits countries to meet their

international duties as they will. In some cases states

have undertaken to carry out their obligations in

agreed-upon ways, as in a United Nations Genocide

Convention, which commits states to make genocide a

crime, or in bilateral or multilateral treaties.

Otherwise, states may make available their municipal

laws in the manner they consider appropriate. As a

result, the law of nations never has been perceived to

create or define the civil actions to be made available

by each member of the community of nations; by

consensus, the states leave that determination to their

respective municipal laws. Indeed, given the existing

56

array of legal systems within the world, a consensus

would be virtually impossible to reach — particularly

on the technical accoutrements to an action — and it is

hard even to imagine that harmony ever would

characterize this issue.

726 F.2d at 778 (Edwards, J., concurring) (citations omitted);

accord Dreyfus, 534 F.2d at 31; RESTATEMENT (THIRD) OF

FOREIGN RELATIONS LAW OF THE UNITED STATES § 906 & cmt.

b; 1 OPPENHEIM’S INTERNATIONAL LAW § 19. That the ATS

provides federal jurisdiction where the conduct at issue fits a

norm qualifying under Sosa implies that for purposes of

affording a remedy, if any, the law of the United States and not

the law of nations must provide the rule of decision in an ATS

lawsuit.

Consequently, the fact that the law of nations provides no

private right of action to sue corporations addresses the wrong

question and does not demonstrate that corporations are immune

from liability under the ATS. There is no right to sue under the

law of nations; no right to sue natural persons, juridical entities,

or states. Customary international law — defined as the

“[p]ractice of states,” RESTATEMENT (THIRD) OF FOREIGN

RELATIONS LAW OF THE UNITED STATES § 102(2) & cmt. b, i.e.,

that law “made over time by widespread practice of

governments acting from a sense of legal obligation,” LOUIS

HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 33

(2d ed. 1979), 1 OPPENHEIM’S INTERNATIONAL LAW § 10, and

“gradually ripening into a rule of international law,” The

Paquette Habana, 175 U.S. 677, 686 (1900); see also North Sea

Continental Shelf (Ger. v. Den.), 1969 I.C.J. 3, ¶ 77 (Feb. 20);

Asylum (Colom. v. Peru), 1950 I.C.J. 266, 276 (Nov. 20);

RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE

UNITED STATES, § 102(2) & cmts. b, c, k; 1 OPPENHEIM’S

INTERNATIONAL LAW §§ 16–17; 1 CHARLES CHENEY HYDE,

57

INTERNATIONAL LAW § 6 (1922) — does not “partake of the

prolixity of a legal code,” cf. M’Culloch v. Maryland, 17 U.S. (4

Wheat.) 316, 407 (1819). Although customary international law

provides rules for determining whether international

disapprobation attaches to certain types of conduct, such as

torture, extrajudicial killing, prolonged arbitrary detention, or

aiding and abetting the same, one could not expect, as Judge

Edwards has written, the widespread practice of states out of “a

sense of legal obligation,” to produce detailed rules of procedure

and evidence on matters like res judicata, burdens of proof, and

respondeat superior.

2. Ordinarily our statutory analysis would begin with the

text of the ATS, and end with the text if it is clear. See, e.g.,

Hawaii v. Office of Hawaiian Affairs, __ U.S. __, 129 S. Ct.

1436, 1443 (2009). Appellants have made such points as can be

made about the plain text: the phrase “any civil action” is

inclusive and unrestricted. The Supreme Court has observed

that the ATS “by its terms does not distinguish among classes

of defendants.” Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428, 438 (1989). Given the brevity of the text

of the ATS and the absence of a formal legislative history,28 see

Sosa, 542 U.S. at 718–19, the court, as in Sosa, looks to the

historical context, and it suggests that the purpose of the ATS

supports the availability of corporate liability.

28

Little is known of the origins of the ATS. See Sosa, 542

U.S. at 718. The debates in the House of Representatives “contain no

reference to the” ATS, In re Estate of Ferdinand E. Marcos Human

Rights Litig., 978 F.2d 493, 498 (9th Cir. 1992), and the debates in the

Senate were not recorded, Tel-Oren, 726 F.2d at 812 (Bork, J.,

concurring); see also Sosa, 542 U.S. at 718–19; Wiwa v. Royal Dutch

Petroleum Co., 226 F.3d 88, 104 n.10 (2d Cir. 2000).

58

As the Supreme Court observed in Sosa, under the Articles

of Confederation, the federal government lacked authority to

remedy or prevent violations of the law of nations.29 Id. at 716.

The need to address and enforce the law of nations at the federal

level was among the concerns that motivated abandoning the

Articles and convening the Constitutional Convention. James

Madison complained:

The[ ] articles [of confederation] contain no provision

for the case of offenses against the law of nations; and

consequently leave it in the power of any indiscreet

member to embroil the Confederacy with foreign

nations.

THE FEDERALIST NO. 42, at 258, 260 (James Madison) (Henry

Cabot Lodge ed., 1888). The Continental Congress struggled

to respond to violations of the law of nations. In 1779 it wrote

to the French Minister Plenipotentiary to assure that the courts

“will cause the law of nations to be most strictly observed: that

if it shall be found, after due trial, that the owners of [ ] captured

vessels have suffered damage from the misapprehension or

violation of the rights of war and neutrality, Congress will cause

reparation to be made . . . .” 14 JOURNALS OF THE CONTINENTAL

CONGRESS 1774–1789, at 635 (Worthington Chauncey Ford ed.,

1909). The promise rang hollow; although the Articles gave the

federal courts authority over “the trial of piracies and felonies

committed on the high seas,” ARTICLES OF CONFEDERATION,

art. 9, § 1, 1 Stat. 4, 6 (1778), the courts lacked authority over

violations of the law of nations on land. In 1781, the

Continental Congress adopted a resolution that “implored the

States to vindicate rights under the law of nations,” Sosa, 542

U.S. at 716, specifically to “provide expeditious, exemplary and

adequate punishment” for violations. 21 JOURNALS OF THE

29

See Sosa Legal History Amicus Br. 102–03.

59

CONTINENTAL CONGRESS 1774–1789, at 1136–37 (Gaillard Hunt

ed., 1912).

The 1781 resolution is acknowledged to be “the direct

precursor of the alien tort provision in the First Judiciary Act.”

Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act

of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 477 (1989);

see also William S. Dodge, The Historical Origins of the Alien

Tort Statute: A Response to the “Originalists,” 19 HASTINGS

INT’L & COMP. L REV. 221, 226–29 (1996); Casto, Law of

Nations, supra note 8, at 490–91. The resolution requested that

each state, “in words that echo Blackstone,” Sosa, 542 U.S. at

716, establish remedies for the “violation of safe conducts or

passports,” for “the commission of acts of hostility against such

as are in amity, league or truce with the United States, or who

are within the same, under a general implied safe conduct,” for

“the infractions of the immunities of ambassadors and other

public ministers,” for “infractions of treaties and conventions to

which the United States are a party,” and for “offences against

the law of nations, not contained in the foregoing enumeration.”

21 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at

1136–37. In letters to the states, the Continental Congress

pointed out that “a prince, to whom it may be hereafter

necessary to disavow any transgression of that law by a citizen

of the United States, will receive such disavowal with reluctance

and suspicion, if regular and adequate punishment shall not have

been provided against the transgressor.” Id. at 1136.30

30

In response, for example, Connecticut in 1782 enacted a

law criminalizing violations of the law of nations, as well as “any

other Infractions or Violations of, or Offenses against the known,

received and established Laws of civilized Nations, agreeable to the

Laws of this State, or the Laws of Nations,” and creating a tort remedy

for injuries caused by violation of the law of nations. ACTS AND LAWS

OF THE STATE OF CONNECTICUT, IN AMERICA 82, 83 (1784).

60

Two examples illustrate concerns underlying the 1781

Resolution and enactment of the ATS. Sosa, 542 U.S. at

716–17. In May 1784, the Chevalier De Longchamps, a French

citizen, assaulted Francis Barbe Marbois, the French Consul

General, on a street in Philadelphia, Pennsylvania. See

Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 111 (O.T.

Phila. 1784). The French Ambassador complained to the

Continental Congress and the Dutch Ambassador threatened to

leave the State if action was not taken. Id. (citing Casto, Law of

Nations, supra note 8, at 491–92 & n.138). Although the

Pennsylvania state court tried and convicted De Longchamps for

an offense against the law of nations, which the Court of Oyer

and Terminer termed “in its full extent, . . . part of the law of”

Pennsylvania, De Longchamps, 1 U.S. (1 Dall.) at 116, the

events laid bare the impotence of the young nation. The

Continental Congress and the Secretary of Foreign Affairs

struggled to respond to an international incident over which the

federal government had no authority.31

31

“The Marbois Affair was a national sensation that attracted

the concern of virtually every public figure in America.” Sosa Legal

History Amicus Br. 105 (quoting Casto, Law of Nations, supra note

8, at 492). The Continental Congress could only require the Secretary

for Foreign Affairs John Jay to express the Congress’s “regret” and

“lament” over the incident and explain

the difficulties that may arise on this head from the nature of

a federal union in which each State retains a distinct and

absolute sovereignity [sic] in all matters not expressly

delegated to Congress leaving to them only that of advising in

many of those cases in which other governments decree.

33 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 314

(John C. Fitzpatrick ed., 1933). The Secretary explained that

many allowances are to be made for a nation whose whole

61

In “a reprise of the Marbois affair,” Sosa, 542 U.S. at 717,

in December 1787, during the Constitutional Convention, a New

York constable entered the house of the Dutch Ambassador and

arrested one of his domestic servants. Sosa Legal History

Amicus Br. 105; Curtis A. Bradley, The Alien Tort Statute and

Article III, 42 VA. J. INT’L L. 587, 641 (2002). The Mayor of

New York City arrested the constable, as Secretary of Foreign

Affairs John Jay requested, but he cautioned that “neither

Congress nor our internal Legislature have yet passed any act

respecting a breach of the privileges of Ambassadors” and so the

nature and degree of punishment would depend on whether the

common law would recognize the breach. Bradley, The Alien

Tort Statute and Article III, supra at 641–42 (quoting 3 DEP’T OF

STATE, THE DIPLOMATIC CORRESPONDENCE OF THE UNITED

STATES OF AMERICA 447 (1837)). Secretary Jay reported to the

Continental Congress that “the federal Government does not

appear . . . to be vested with any judicial Powers competent to

the Cognizance and Judgment of such Cases.” 34 JOURNALS OF

THE CONTINENTAL CONGRESS 1774–1789, at 111 (Roscoe R.

Hill ed., 1937).

James Madison lamented at the Constitutional Convention

that “[t]he files of Cong[ress] contain complaints already, from

almost every nation with which treaties have been formed.

Hitherto indulgence has been shewn to us. This cannot be the

permanent disposition of foreign nations.” 1 THE RECORDS OF

attention till the present period has been engaged in the

pursuit of measures which were to determine their existence

as such, even tho they should be found deficient in those wise

provisions which experience has established among older

Nations.

Id.

62

THE FEDERAL CONVENTION OF 1787, at 316 (Max Farrand ed.,

1937) (“FARRAND’S RECORDS”) (statement of James Madison).

Opposing the New Jersey Plan to enhance the power of small

states, Madison asked: “Will it prevent those violations of the

law of nations & of Treaties which if not prevented must involve

us in the calamities of foreign wars? The tendency of the States

to [sic] these violations has been manifested in sundry

instances.” Id.32 Alexander Hamilton noted that “[t]he Union

will undoubtedly be answerable to foreign powers for the

conduct of its members,” THE FEDERALIST NO. 80, at 494, 495

(Alexander Hamilton) (Henry Cabot Lodge ed., 1888), and that

“[a]s the denial or perversion of justice by the sentences of

courts, as well as in any other manner, is with reason classed

among the just causes of war, it will follow that the federal

judiciary ought to have cognizance of all causes in which the

citizens of other countries are concerned,” id. Hamilton

emphasized that such jurisdiction was “not less essential to the

preservation of the public faith, than to the security of the public

tranquility.” Id. at 495–96.

The Judiciary Act of 1789 ensured that there would be no

gap in federal subject matter jurisdiction with regard to torts in

violation of treaties or the law of nations. It provided federal

jurisdiction for lawsuits brought by aliens for torts in violation

of the law of nations without textual limitation. By contrast, it

contained no grant of federal question jurisdiction in civil cases,

see Tel-Oren, 726 F.2d at 779 n.3 (Edwards, J., concurring), and

established diversity jurisdiction in the federal circuit courts

32

See also James Madison, Vices of the Political System of

the United States, reprinted in SELECTED WRITINGS OF JAMES

MADISON 36 (Ralph Ketcham ed., 2006); 2 DOCUMENTARY HISTORY

OF THE RATIFICATION OF THE CONSTITUTION 520 (Merrill Jensen ed.,

1976) (statement of James Wilson); 1 FARRAND’S RECORDS 24–25

(statement of Edmund Randolph), 164 (statement of James Madison).

63

subject to a $500 amount-in-controversy requirement, ch. 20,

§ 11, 1 Stat. at 78–79. As a consequence, aliens alleging

domestic common law or international non-tort claims,

including foreign creditors seeking to collect on debts owed by

U.S. citizens, were forced into state courts unless their suit was

for $500 or more, which had the practical effect of excluding

virtually all domestic tort lawsuits from the federal courts. See

Casto, Law of Nations, supra note 8, at 497–98 & n.168,

507–08. Clearly the Judiciary Act evidences that the First

Congress knew how to limit, or deny altogether, subject matter

jurisdiction over a class of claims and declined to do so with

respect to torts in violations of the law of nations and treaties

when brought by aliens.

Exemplary of a purpose of the ATS is the case of Bolchos

v. Darrel, 3 F. Cas. 810.33 A French privateer, Bolchos, had

sailed a Spanish prize into the harbor at Charleston, South

Carolina. France was then at war with Spain and Great Britain.

The vessel had a cargo of slaves, which were the property of a

Spanish subject who had mortgaged them to a British subject,

Savage. Savage’s agent, Darrel (a person of unknown

citizenship who was in Charleston at or after the time the vessel

made landfall), seized the slaves on behalf of Savage and sold

them. Bolchos filed suit in the U.S. District Court for the

District of South Carolina demanding recompense for the slaves

“as lawful prize,” invoking the Treaty of Amity and Commerce

between France and the United States, U.S.-Fr., Feb. 6, 1778, 8

Stat. 12, which provided that “[i]t shall be lawful for the ships of

war of either party, and privateers, freely to carry whithersoever

they please, the ships and goods taken from their enemies . . . ;

nor shall such prizes be arrested or seized, when they come to

and enter the ports of either party.” Id. art. XVII. Ownership of

33

See Thomas H. Lee, The Safe-Conduct Theory of the Alien

Tort Statute, 106 COLUM. L. REV. 830, 893 (2006).

64

the slaves turned on the validity of the seizure of the Spanish

prize by the French privateer on the high seas. The district

court’s “doubt about admiralty jurisdiction over a suit for

damages . . . was assuaged by assuming that the ATS was a

jurisdictional basis for the court’s action,” Sosa, 542 U.S. at 720,

and the district court in 1795 ruled that the treaty with France

required judgment in favor of the French privateer.

Thus prior to the Constitutional Convention, when the new

nation was at risk of losing respect abroad because it could not

respond to violations of the law of nations, the Founders and the

First Congress recognized that the inability to respond to such

violations could lead to the United States’ entanglement in

foreign conflicts when a single citizen abroad offended a foreign

power by violating the law of nations. The Bradford and

Bolchos opinions are evidence of the realities of this concern.

Attorney General Bradford could abide by the 1793

Proclamation of Neutrality by favoring neither France nor Great

Britain and prevent a U.S. citizen from entangling the United

States in the general conflict in Europe as a result of his

activities abroad, in Sierra Leone. Similarly, in Bolchos the

executive and legislative branches avoided expressing opinions

on the civil dispute between British and Spanish subjects

because the district court and the Supreme Court could

adjudicate such disputes by applying the law of nations.

The historical context, in clarifying the text and purpose of

the ATS, suggests no reason to conclude that the First Congress

was supremely concerned with the risk that natural persons

would cause the United States to be drawn into foreign

entanglements, but was content to allow formal legal

associations of individuals, i.e., corporations, to do so.34

34

“A CORPORATION [] . . . is a collection of many individuals,

united into one body, . . . and vested, by the policy of the law, with

65

Considering as an example the facts of the Sierra Leone affair

involving a U.S. citizen abroad and Attorney General Bradford’s

1795 opinion, nothing would suggest that the First Congress

would have sought to prevent natural persons from causing

entanglements to which the United States was a party by

ransacking and plundering the holdings of the Sierra Leone

Company but been content to fight a war where the privateering

mission was funded or otherwise supported by a U.S.

corporation. Attorney General Bradford did not shy away from

the notion that the Sierra Leone Company could sue under the

ATS, never intimating that a corporation could not be a

defendant or would have to prove its capacity to sue under the

law of nations rather than the common law. 1 U.S. Op. Att’y

Gen. at 58–59. Neither did Congress shy from imposing

punishment for piracy in the early crime acts, referring to the

conduct of defendant “persons,” Crimes Act of 1790, § 10, 1

Stat. at 114; see also Act of May 15, 1820, ch. 3, § 3, 3 Stat. 600

(1820), a term referring both to individual and to corporate

entities, see 1 U.S.C. § 1 (defining “person” to include

corporations); cf. Beaston v. Farmers’ Bank of Del., 37 U.S. (12

Pet.) 102, 134 (1838). Nor did the district court in the Bolchos

case shy from applying the common law of agency (allowing

Bolchos to sue Darrel, an agent of a British citizen, Savage, who

held a mortgage from the actual owner, a Spanish subject).

Thus, the historical context offers no reason to conclude that the

First Congress sought to prevent drawing the United States into

a dispute between Great Britain and France because the

defendant who had taken ownership and sold the ship’s cargo

was a natural person and not a corporation. In the words of

amici professors of federal jurisdiction and legal history:

the capacity of acting, in several respects, as an individual, particularly

. . . of suing and being sued.” 1 STEWART KYD, A TREATISE ON THE

LAW OF CORPORATIONS 13 (1793) (emphasis in original).

66

To remedy the problems identified in the preceding

years, the ATS provided federal courts with

jurisdiction over “all causes” in violation of the law of

nations. The text demonstrates that the ATS was not

limited to criminal conduct and did not exclude

corporate defendants. Congress was focused not on

whether the acts were criminal or the defendant’s

identity but rather on the right that had been violated (a

right under “the law of nations or a treaty of the United

States”) and the plaintiff’s identity (“an alien”).

Together, these two factors defined a class of cases

sufficiently important for Congress to grant jurisdiction

over “all causes where an alien sues for a tort only in

violation of the law of nations or a treaty of the United

States.”

Kiobel Legal History Amicus Br. 6–7 (citations omitted)

(emphasis in original).

3. Corporate immunity also would be inconsistent with the

ATS because by 1789 corporate liability in tort was an accepted

principle of tort law in the United States. As early as 1774, Lord

Mansfield held that a corporation could be liable where it failed

to keep in repair a stream in consequence of which a person was

injured. Mayor of Lynn v. Turner, (1774) 98 Eng. Rep. 980

(K.B.). Early decisions of the several states support this

proposition. In Chesnut Hill & Springhouse Turnpike Co v.

Rutter, 4 Serg. & Rawle 6 (Pa. 1818), the Pennsylvania Supreme

Court considered the question of corporate liability in detail,

citing to Mayor of Lynn as well as the Year Books from the

reigns of Henry VI, Henry VII, and Henry VIII, id. at 17–18, and

concluding that it was “beyond doubt,” id. at 18, that a

corporation could be liable for the torts of its agents. The

Supreme Judicial Court of Massachusetts similarly considered

“ancient law,” including the English Year Books relied on in

67

Chesnut Hill, and concluded that tort actions could be

maintained against corporations. Riddle v. Proprietors of

Merrimack River Locks & Canals, 7 Mass. 169, 186 (1810); see

also Townsend v. Susquehanna Turnpike Road Co., 6 Johns. 90

(N.Y. Sup. Ct. 1810). An 1832 treatise cites Chesnut Hill in

noting that “much learning will be found [in that case] on the

subject” of corporate torts and stating that “from the earliest

times to the present day, corporations have been liable for torts.”

JOSEPH KINNICUT ANGELL & SAMUEL AMES, TREATISE ON THE

LAW OF PRIVATE CORPORATIONS AGGREGATE 222–23 & n.1

(1832).

The notion that corporations could be held liable for their

torts, therefore, would not have been surprising to the First

Congress that enacted the ATS. In Trustees of Dartmouth

College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) (Story, J.),

the Supreme Court held that an “aggregate corporation, at

common law, is a collection of individuals, united into one

collective body, under a special name . . . possess[ing] the

capacity . . . of suing and being sued.” Id. at 667. A corporation

is, in short, an artificial person, existing in

contemplation of law, and endowed with certain

powers and franchises which, though they must be

exercised through the medium of its natural members,

are yet considered as subsisting in the corporation

itself, as distinctly as if it were a real personage.

Id. The Court observed, moreover, that “a great variety of these

corporations exist, in every country governed by the common

law.” Id. at 668; see also 1 BLACKSTONE’S COMMENTARIES

*469. In Cook County, Ill. v. United States ex rel. Chandler, 538

U.S. 119 (2003), the Court assembled sources, including a 1793

treatise on the law of corporations, see supra note 34,

demonstrating the common law understanding that a corporation

68

is a juridical person with the capacity to sue and be sued. See

538 U.S. at 125–26. Thus it appears that the law in 1789 on

corporate liability was the same as it is today: “The general rule

of substantive law is that corporations, like individuals, are

liable for their torts.” White v. Cent. Dispensary & Emergency

Hosp., 99 F.2d 355, 358 (D.C. Cir. 1938); see also Daniels v.

Tearney, 102 U.S. 415, 420 (1880); Lyon v. Carey, 533 F.2d

649, 652–53 (D.C. Cir. 1976).

4. Neither does the law of the nations support corporate

immunity under the ATS where, for example, a corporation

operates as a front for piracy, engages in human trafficking, or

mass-produces poisons for purposes of genocide. The ICTY has

held that a crime against humanity, for example, requires acts

“instigated or directed . . . by any organization or group,” noting

the post-World War II development of customary international

law. Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber

Opinion and Judgement, ¶¶ 654–55 (May 7, 1997). Amici

international law scholars point to numerous international

treaties that explicitly state that juridical entities should be liable

for violations of the law of nations,35 while others do not

35

See, e.g., European Convention on the Prevention of

Terrorism, May 16, 2005, art. 10(1), C.E.T.S. No. 196 (2005);

Convention Against Transnational Organized Crime, Nov. 15, 2000,

art. 10(1), 2225 U.N.T.S. 209; Convention on Combating Bribery of

Foreign Public Officials in International Business Transactions, Dec.

17, 1997, art. 2, S. Treaty Doc. No. 105-43; Basel Convention on the

Control of Transboundary Movements of Hazardous Wasters and

Their Disposal, Mar. 22, 1989, art. 2(14), 1673 U.N.T.S. 57;

International Convention on the Suppression and Punishment of the

Crime of Apartheid, Nov. 3, 1973, art. I(2), 1015 U.N.T.S. 243; see

also Scheffer & Kaeb, supra note 24, at 359.

69

distinguish between natural and juridical individuals.36 See Brief

of Amici Curiae International Law Scholars in Support of

Plaintiffs-Appellants-Cross-Appellees at 7–10, Kiobel v. Royal

Dutch Petroleum Co., __F.3d__ , 2011 WL 338048 (2d Cir. Feb.

4, 2011) (No. 06-4800-cv) (“Kiobel Int’l Law Scholars Br.”).

Amici also point to many authoritative actors and entities in the

United Nations’ human rights establishment concluding that

corporations are responsible for violations of the law of nations.

Id. at 10–11 (citing, for example, the U.N. Human Rights

Committee and the U.N. Committee on the Elimination of All

Forms of Racial Discrimination).

Exxon’s reliance on the Report of the Special

Representative of the Secretary-General on the Issue of Human

Rights and Transnational Corporations and Other Business

Enterprises, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007), is

misplaced. Its selective quotation from the report overlooks the

salient point. See Dis. Op. at 25. The report refers to many

states’ unwillingness to adopt domestic laws providing human

rights standards for corporations. Id. ¶ 44. But elsewhere the

report points to the “extension of responsibility for international

crimes to corporations under domestic law,” id. ¶ 22, and

specifically recognizes that the ATS provides such jurisdiction

against corporations, id. ¶¶ 23, 27.

5. Exxon nonetheless maintains that the question of

corporate liability is to be answered by looking to customary

international law and because, it asserts, that law does not

recognize corporate liability the ATS does not provide a cause

of action against it. It relies principally on the Second Circuit’s

decision in Kiobel, which concluded that corporate liability “has

36

See, e.g., Convention Relative to the Treatment of Prisoners

of War, Feb. 2, 1956, art. 3, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S.

135.

70

not attained a discernible, much less universal, acceptance

among nations of the world in their relations inter se.” 621 F.3d

at 145. Essentially, Exxon adopts the view of the majority in

Kiobel that (1) the moral responsibility for human rights

violations so heinous as to rise to the level of an “‘international

crime’ rest[s] solely with the individual men and women who

have perpetrated it,” id. at 119, and that (2) the absence of

corporate liability has been settled since Nuremberg when

Article 6 of the London Charter limited the military tribunal’s

jurisdiction to “individuals” and “members of organizations.”

Appellees’ Br. 28; see Kiobel, 621 F.3d at 133–34. Exxon also

suggests that the ad hoc international tribunals – the ICTY and

the ICTR – and the ICC have jurisdiction over only natural

persons and that human rights treaties codifying international

human rights norms apply only to natural persons, citing, for

example, the Genocide and Torture Conventions.37

There are a number of problems with the analysis in Kiobel.

Perhaps foremost, the Second Circuit looked to international law

to define who may be a defendant, but see Argentine Republic,

37

Exxon has waived any argument that enactment of the

TVPA preempted torture and extrajudicial killing claims under the

ATS by raising the argument only in a conclusory footnote. See

Appellees’ Br. 32 n.4. But see Dis. Op. at 28 n.11. “We need not

consider cursory arguments made only in a footnote,” Hutchins v.

District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en

banc). “‘It is not enough merely to mention a possible argument in the

most skeletal way, leaving the court to do counsel’s work.’” N.Y.

Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir.

2007) (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C.

Cir. 2005)); see also FED. R. APP. P. 28(a)(9). Arguing as a policy

matter that corporate liability is “improper,” Appellees’ Br. 31–32, is

not the same as addressing whether the TVPA “occup[ies] the field,”

Sosa, 542 U.S. at 731, see also Appellees’ Br. 32 n.4; Dis. Op. at

29–30, to which Exxon devotes a single, conclusory sentence.

71

488 U.S. at 438, in concluding that “[b]ecause corporate liability

is not recognized as a ‘specific, universal, and obligatory’ norm,

it is not a rule of customary international law that we may apply

under the ATS.” Kiobel, 621 F.3d at 145 (quoting Sosa, 542

U.S. at 732) (citation omitted). Sosa neither addressed the

question presented by Exxon’s claim of corporate immunity, nor

provided precise guidance on which body of law a court must

draw to answer questions ancillary to the cause of action itself,

such as corporate liability. See supra Part III.B.1. The Second

Circuit’s approach overlooks the key distinction between norms

of conduct and remedies discussed by Professor Henkin and

Judge Edwards and instead conflates the norms and the rules

(the technical accoutrements) for any remedy found in federal

common law. And in so doing, the majority in Kiobel, id. at

128–29 & n.31, like Exxon, misreads footnote 20 in Sosa, on

which it primarily relies, to state that “whether a particular

defendant can be sued is . . . necessarily a question about the

‘scope of liability for a violation.’” Appellees’ Br. 31 (quoting

Sosa, 542 U.S. at 732 n.20).38

In footnote 20, Sosa noted a consideration raised by a

comparison of Tel-Oren and Kadic v. Karadzic, 70 F.3d 232 (2d

Cir. 1995).39 Each case addressed whether certain forms of

38

See Scheffer & Kaeb, supra note 24, at 364–65.

39

Footnote 20 states in full:

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 individual. Compare Tel–Oren v. Libyan

Arab Republic, 726 F.2d 774, 791–795 (C.A.D.C. 1984)

(Edwards, J., concurring) (insufficient consensus in 1984 that

torture by private actors violates international law), with

Kadic v. Karadzíc, 70 F.3d 232, 239–241 (C.A.2 1995)

72

conduct were violations of international law only when done by

a state actor, or at least under color of state law or jointly with

a state, and not when done by a private actor.40 Nothing in either

opinion suggests that either court considered a dichotomy

between a natural and a juridical person, even though Tel-Oren

involved a juridical defendant, the Palestinian Liberation

Organization. The distinction between private and state actors

exists in international law, and amici international law scholars

point out the distinction has been recognized for centuries. See

Kiobel Int’l Law Scholars Br. 7. For instance, Section 404 of

the Restatement of Foreign Relations Law defines a limited set

of international crimes that are of “universal concern” that can

be committed by an individual, such as piracy, slave-trading, and

hijacking, whereas Section 702 defines those acts that violate

international law where a state as a matter of policy engaged in

them. Compare RESTATEMENT (THIRD) OF FOREIGN RELATIONS

LAW OF THE UNITED STATES § 404, with id. § 702. Footnote 20

appears to reference this dichotomy, which was briefed before

(sufficient consensus in 1995 that genocide by private actors

violates international law).

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

40

In Tel-Oren, Judge Edwards concluded in 1984 that

although torture practiced by a state violated the law of nations, there

was no then-prevailing norm of customary international law that

torture practiced by a private actor with no imprimatur of the state

constituted a violation of the law of nations. Tel-Oren, 726 F.2d at

794–95 (Edwards, J., concurring). In Kadic, the Second Circuit

concluded in 1995 that a sufficient consensus existed that genocide

violated the law of nations regardless of whether it was conducted by

a state actor or a private individual. 70 F.3d at 241–42.

73

the Supreme Court,41 as opposed to an argument about corporate

liability, which was not. As Judge Leval pointed out in Kiobel:

Far from implying that natural persons and

corporations are treated differently for purposes of civil

liability under [the] ATS, the intended inference of the

footnote is that they are treated identically. If the

violated norm is one that international law applies only

against States, then “a private actor [ ] such as a

corporation or an individual,” who acts independently

of a State, can have no liability for violation of the law

of nations because there has been no violation of the

law of nations. On the other hand, if the conduct is of

the type classified as a violation of the norms of

international law regardless of whether done by a State

or a private actor, then “a private actor [ ] such as a

corporation or an individual,” has violated the law of

nations and is subject to liability in a suit under the

ATS. The majority’s partial quotation out of context,

interpreting the Supreme Court as distinguishing

between individuals and corporations, misunderstands

the meaning of this passage.

621 F.3d at 166 (Leval, J., concurring) (emphasis in original).

Corporate liability governs the legal consequences of a

relationship between a principal and an agent, see RESTATEMENT

(THIRD) OF AGENCY § 1.01 (2006), and for the reasons explained

by Professor Henkin and Judge Edwards, and endorsed in Sosa,

542 U.S. at 724, the technical accoutrements to the ATS cause

of action, such as corporate liability and agency law, are to be

41

See Brief of Amicus Curiae the European Commission in

Support of Neither Party at 10, Sosa v. Alvarez-Machain, 542 U.S. 692

(2004) (No. 03-339), 2004 WL 177036.

74

drawn from federal common law, mindful that “in most cases

where a court is asked to state or formulate a common law

principle in a new context, there is a general understanding that

the law is not so much found or discovered as it is either made

or created.” Sosa, 542 U.S. at 725; see also id. at 726 (citing

Textile Workers, 353 U.S. at 456). Although Sosa may not

provide guidance on which particular body of law is to provide

answers to questions ancillary to the conduct underlying the

norm, it recognized that the tort cause of action under the ATS

is derived from federal common law, 542 U.S. at 720–21. In

other words, “[t]he position of international law on whether civil

liability should be imposed for violation of its norms is that

international law takes no position and leaves that question to

each nation to resolve.” Kiobel, 621 F.3d at 152 (Leval, J.,

concurring); see Sosa, 542 U.S. at 724.

But taking the analysis of the majority in Kiobel on its own

terms regarding the proper source of law, it overlooks a source

of international law that would tend to confirm that liability

under the ATS is properly extended to corporate defendants.

Preliminarily it is to be noted that both Exxon and the majority

in Kiobel, 621 F.3d at 133–36, emphasize that German

corporations were not put on trial before the Nuremberg

tribunals following World War II. Asserting that “[t]he absence

of corporate liability for international human rights violations

has been settled since Nuremberg,” Appellees’ Br. 28, Exxon

maintains that although the Nuremberg tribunals charged

executives of I.G. Farbenindustrie A.G. (“I.G. Farben”) with

international crimes, German corporations were not put on trial.

This, however, overlooks an important part of Nuremberg

history.

Amici Nuremberg scholars point out that the history of

Nuremberg is more nuanced than Exxon suggests. Brief of

Amici Curiae Nuremberg Scholars in Support of Plaintiffs-

75

Appellants-Cross-Appellees’ Petition for Rehearing and for

Rehearing En Banc at 3, Kiobel v. Royal Dutch Petroleum Co.,

__ F.3d __, 2011 WL 338048 (2d Cir. Oct. 15, 2010) (No. 06-

4800-cv) (“Kiobel Nuremberg Amicus Br.”). The Allies’

program for defeated Germany at the end of the war, amici note,

“had three components: what to do with the German state upon

defeat of the Third Reich, what to do with natural persons who

committed crimes, and what to do with the German economy

and its industrial cartels.” Id. The Allies (1) partitioned

Germany into zones; (2) dismantled Nazi Germany’s industrial

assets, public and private, and created a system of reparations for

injured individuals and states; and (3) prosecuted major war

criminals under the London Charter before an international

military tribunal constituted at Nuremberg, indicting among

others six Nazi organizations, designating three as criminal.

Kiobel Nuremberg Amicus Br. 4–9. Control Council Law No.

9, ignored by Exxon and the majority in Kiobel, 621 F.3d at

134–35, directed the dissolution of I.G. Farben, and the disposal

of the assets “of what was regarded as the Allies’ principal

economic enemy.” Kiobel Nuremberg Amicus Br. 11. The

preamble to Law No. 9 proclaimed that “I.G. Farben[ ]

knowingly and prominently engaged in building up and

maintaining the German war potential.” Control Council Law

No. 9, Providing for the Seizure of Property Owned by I.G.

Farbenindustrie and the Control Thereof (Nov. 30, 1945),

reprinted in 1 ENACTMENTS 225. Thus, amici Nuremberg

scholars observe, the corporate death penalty enforced against

I.G. Farben was as much an application of customary

international law, on which Control Council Law No. 9 was

based, as the sentences imposed by the tribunals themselves: the

Allies determined that I.G. Farben had committed violations of

76

the law of nations and therefore destroyed it. Kiobel Nuremberg

Amicus Br. 11–12.42

Moreover, the failure to charge the defunct entity with

crimes was not based on the tribunals’ view that I.G. Farben had

not committed violations of international law or that other

corporations were immune from liability:

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, not being expressly justified

. . . , is in violation of international law. . . . Similarly

42

Exxon implicitly suggests that because the Nuremberg era

did not produce tribunal decisions embodying disapprobation of

corporate atrocities, corporate liability under the law of nations cannot

exist or be ascertained. But the doctrine of sources of international

law treats judicial decisions as secondary evidence of the law of

nations, and the conduct of nations as primary evidence. See ICJ

Statute, art. 38; 1 KENT’S COMMENTARIES 18; BIN CHENG, GENERAL

PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND

TRIBUNALS 23 (2006). Exxon flips this doctrine on its head, treating

judicial decisions as primary evidence. Amici Nuremberg Scholars

point out that the Allies also dissolved and liquidated a number of

insurance companies pursuant to Control Council Law No. 57 and

seized the assets of other German corporations, in some instance to

dissolve and liquidate them, pursuant to Control Council Laws Nos.

39 and 47. Kiobel Nuremberg Amicus Br. 14 & n.23. In Control

Council Law No. 2 the Allies abolished the Nazi Party, a non-

corporate juridical entity, declared it illegal, and authorized

confiscation of its assets. Id. at 9. Other evidence indicates that

Nuremberg prosecutors concluded the prosecution of a corporation

was legally permissible. See generally Jonathan A. Bush, The

Prehistory of Corporations and Conspiracy in International Criminal

Law: What Nuremberg Really Said, 109 COLUM. L. REV. 1094 (2009).

77

where a private individual or a juristic person becomes

a party to unlawful confiscation of public or private

property by planning and executing a well-defined

design to acquire such property permanently,

acquisition under such circumstances subsequent to the

confiscation constitutes conduct in violation of

[international law].

The Farben Case, 8 TRIALS OF WAR CRIMINALS 1132–33. The

Tribunal continued:

[W]e find that the proof establishes beyond a

reasonable doubt that offenses against property as

defined in Control Council Law No. 10 were

committed by [I.G.] Farben, and that these offenses

were connected with, and an inextricable part of the

German policy for occupied countries as above

described. . . . The action of [I.G.] Farben and its

representatives, under these circumstances, cannot be

differentiated from acts of plunder or pillage

committed by officers, soldiers, or public officials of

the German Reich.

Id. at 1140.43

43

Former Ambassador Scheffer observes, much as Judge

Leval, that the majority in Kiobel not only misinterprets footnote 20

of Sosa, see Scheffer & Kaeb, supra note 24, at 364–65, but also

“misinterprets the famous statement in the Nuremberg judgment that,

‘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,’” id. at

362. He points out: “The Nuremberg judges were focusing on how to

create a new precedent in international law for prosecuting individuals

for violations of international law rather than rely only on the prior

practice in international law of holding nations responsible for such

78

Additionally, the Kiobel majority overlooked general

principles of international law as a proper source for the content

of international law. Amici state that corporate liability is a

universal feature of the world’s legal systems and that no

domestic jurisdiction exempts legal persons from liability.

Kiobel Int’l Law Scholars Br. 12. Corporate personhood has

been recognized by the ICJ upon considering the “wealth of

practice already accumulated on the subject in municipal law,”

Barcelona Traction, Light & Power Co., 1970 I.C.J. 3, 38–39

(Feb. 20). Legal systems throughout the world recognize that

corporate legal responsibility is part and parcel of the privilege

of corporate personhood. In First National City Bank v. Banco

Para El Comercio Exterior de Cuba, 462 U.S. 611, 628–29 &

nn.19–21 (1983) (citing, inter alia, Barcelona Traction Light &

Power Co., 1970 I.C.J. at 38–39), the Supreme Court upheld a

counterclaim “aris[ing] under international law” against a Cuban

corporation for illegal expropriation, id. at 623 (citing The

Paquete Habana, 175 U.S. at 700), and observed that “the

principles governing this case are common to both international

law and federal common law, which in these circumstances is

necessarily informed both by international law principles and by

articulated congressional policies.” Id.; see Brief of Amici

Curiae Human Rights and Labor Organizations in Support of

Plaintiffs-Appellants’ Petition for Rehearing and for Rehearing

violations.” Id. “There is nothing in the Nuremberg judgment to

suggest that the Nuremberg judges made this statement to the

exclusion of either nations or corporations for purposes of civil

liability for such criminal conduct in violation of international law.”

Id. at 362–63. Additionally, he points out, “the only way that the

Nuremberg prosecutors made their cases against the corporate

executives of Farben and Krupps was to establish that these

corporations had violated international law.” Id. at 363. He

concludes: “The Kiobel majority’s contention that corporations cannot

violate international law thus flies in the face of common sense, logic,

and the reality of the evidence presented at Nuremberg.” Id.

79

En Banc at 13–14, Kiobel v. Royal Dutch Petroleum __ F3d __,

2011 WL 338048 (2d Cir. Oct. 15, 2010) (No. 06-4800-cv)

(“Kiobel Human Rights Amicus Br.”). This understanding of

corporate personhood is directly contrary to the conclusion of

the majority in Kiobel.

Unlike the manner in which customary international law is

recognized through common practice or usage out of a sense of

legal obligation, a general principle becomes international law

by its widespread application domestically by civilized nations.44

See BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY

INTERNATIONAL COURTS AND TRIBUNALS 24 (2006); H.

LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES OF

INTERNATIONAL LAW 33–35 (1927); OSCAR SCHACHTER,

INTERNATIONAL LAW IN THEORY AND PRACTICE 50–55 (1991);

F.A. Mann, Reflections on a Commercial Law of Nations, 33

BRIT. Y.B.I.L. 20, 34–39 (1957). It includes “the principles of

44

General principles of international law, otherwise known

as the jus gentium, were developed by Roman jurists to provide rules

of law for the settlement of civil disputes between Roman citizens and

aliens and between aliens and aliens, because the Roman civil law

was applicable only in disputes between Roman citizens. 1

BLACKSTONE’S COMMENTARIES *44 n.8. Examples include principles

of procedure, the principle of a good-faith defense, and the principle

of res judicata, PERMANENT COURT OF INTERNATIONAL JUSTICE,

ADVISORY COMMITTEE OF JURISTS, PROCÈS-VERBAUX OF THE

PROCEEDINGS OF THE COMMITTEE JUNE 16TH-JULY 24TH, 1920, at

335, as well as statutes of limitations and laches, RESTATEMENT

(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102

cmt. l. See also Souffront v. La Compagnie Des Sucreries de Porto

Rico, 217 U.S. 475, 483–84 & n.† (1910); Banco Nacional de Cuba

v. Chem. Bank N.Y. Trust Co., 822 F.2d 230, 237 (2d Cir. 1987);

Effect of Awards of Compensation Made by United Nations

Administrative Tribunal, 1954 I.C.J. 47, 53 (July 13).

80

private law administered in national courts where these are

applicable to international relations,” for

[p]rivate [domestic] law, being in general more

developed than international law, has always

constituted a sort of reserve store of principles upon

which the latter has been in the habit of drawing . . . for

the good reason that a principle which is found to be

generally accepted by civilized legal systems may

fairly be assumed to be so reasonable as to be

necessary to the maintenance of justice under any

system.

J.L. BRIERLY, THE LAW OF NATIONS 62–63 (6th ed. 1963).

International law “borrow[s] from” the principles of private law

institutions for “an indication of legal policy or principle.” Id. at

63. General principles of international law thus offer further

support that corporate responsibility for the conduct of its agents

under a principle of respondeat superior is recognized in the

This text is long and has been trimmed here. Open the source document for the complete record.