U.S. Second Circuit Court of Appeals: Kiobel V. Royal Dutch Petroleum Co.

Chiménel Keitner

doi:10.5305/intelegamate.49.6.1510

U.S. Second Circuit Court of Appeals: Kiobel V. Royal Dutch Petroleum Co.

Published online by Cambridge University Press: 27 February 2017

Chiménel Keitner

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Chiménel Keitner*: Affiliation:
University of California, Hastings College of the Law.

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Type: International Legal Documents
Information: International Legal Materials , Volume 49 , Issue 6 , December 2010 , pp. 1510 - 1568

DOI: https://doi.org/10.5305/intelegamate.49.6.1510 [Opens in a new window]
Copyright: Copyright © American Society of International Law 2010

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^* This text was reproduced and reformatted from the text available at the Wall Street Journal website (visited Nov. 28,2010) http://online.wsj.com/public/resources/documents/091710atsruling.pdf.

^* Since the writing of this opinion, in the few days before filing, a California district court dismissed an ATS action in part on the basis f its acceptance of the majority’s view that customary international law does not apply to corporations. Doe v. Nestle, S.A., No. CV 05-5133 SVW (JTLx), slip op. at 120 (C.D. Cal. Sept. 8, 2010). To the extent I note in various places throughout this opinion that no court has ever spoken favorably of the majority’s proposition that corporations are exempt from the rules of international law, I modify that statement to except the opinion filed last week in California.

¹ 28 U.S.C. § 1350 (2010). For additional analysis of the Kiobel decision by the same author, see Chimène I. Keitner, Kiobel v. Royal Dutch Petroleum: Another Round in the Fight Over Corporate Liability Under the Alien Tort Statute, 14 ASIL Insights 30 (Sept. 30, 2010), http://www.asil.org/files/insight100930pdf.pdf.

² Settlements were reached in Wiwa et al. v. Royal Dutch Petroleum et al., No. 96 Civ. 8386 (S.D.N.Y.) (settled in June 2009) and Doe v. Unocal Corp., No. CV 96-6959 (C.D. Cal) (settled in Mar. 2005). Juries found in favor of the defendants in Bowoto v. Chevron, No. 3:99-cv-02506 (N.D. Cal.) (verdict reached Dec. 1, 2008) and Estate of Rodriguez v. Drummond, No. CV-03-BE-0575 (N.D. Ala.) (verdict reached July 26, 2007).

³ At the time of writing, the Supreme Court has asked the U.S. Solicitor General to offer an opinion on whether review should be granted in Saleh v. Titan, Order of Oct. 4, 2010, U.S. No. 09-1313, a case involving the liability of private military contractors for abuses at the Abu Ghraib prison in Iraq.

⁴ Human Rights Council, Report of the Special Representative of the Secretary-General, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, ¶ 30, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007) (prepared by John Ruggie).

⁵ Kiobel v. Royal Dutch Petroleum, Nos. 06-4800-CV, 06-4876-CV, 2010 WL 3611392 (2d Cir. Sept. 17, 2010).

⁶ See id. at *4 (listing individuals “including the employees, managers, officers, and directors of a corporation” as potential defendants); see also id. at *24 (same).

⁷ On December 4, 2009, a three-judge panel consisting of Judges Cabranes, Hall, and Livingston spontaneously requested supplemental briefing on this issue in the pending appeal in Balintulo v. Daimler AG, No. 09-2778 (2d Cir.), framing the question as “whether customary international law recognizes corporate criminal liability.” In addition, shortly before the Kiobel decision, a California district court judge concluded that ATS claims cannot be brought against corporations. See Doe I v. Nestle, No. 2:05-CV-05133, at 121-60 (C.D. Cal., Sept. 8, 2010).

⁸ Kiobel, 2010 WL 3611392, at *2.

⁹ Id. at *3.

¹⁰ Id.

¹¹ Presbyterian Church of Sudan v. Talisman Energy, 582 F.3d 244 (2d Cir. 2009), petitions for cert. denied 562 U.S. _ (U.S. Oct. 4, 2010) (Nos. 09-1262, 09-1418).

¹² Id. at 259. Arguably, international law supports a knowledge standard. See Chimène I. Keitner, Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 61 (2008), available at https://www.uchastings.edu/hlj/Archive/vol60/Keitner_60-HLJ-61.pdf.

¹³ Kiobel, 2010 WL 3611392, at *4.

¹⁴ Id. at *50 (Leval, J., concurring).

¹⁵ Id. at *51.

¹⁶ Id. at *28.

¹⁷ Id. at *23 (majority opinion).

¹⁸ Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.20 (2004).

¹⁹ Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980).

²⁰ See Sosa, 542 U.S. at 729 (leaving the door to ATS cases “ajar subject to vigilant doorkeeping”).

²¹ Kiobel, 2010 WL 3611392, at *2.

²² Id. (citing The Nuremberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int’l Mil. Trib. at Nuremberg 1946)) (emphasis added).

¹ “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350.

² IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.), abrogated on other grounds by Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869 (2010).

³ In this opinion we use the terms “law of nations” and “customary international law” interchangeably. See Flores v. S. Peru Copper Corp., 414 F.3d 233, 237 n.2 (2d Cir. 2003) (explaining that, in the context of ATS jurisprudence, “we have consistently used the term ‘customary international law’ as a synonym for the term the ‘law of nations”’); see also The Estrella, 17 U.S. (4 Wheat.) 298, 307 (1819) (referring to non-treaty-based law of nations as the “the customary . . . law of nations”).

⁴ Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 724-25, 732 (2004) (Souter, J.) (quoting this reference in Filartiga with approval and identifying that case as the “birth of the modern line of [ATS] cases”). In light of the universal recognition of Filartiga as the font of ATS litigation—including by Judge Leval, see Concurring Op. 2 (“Since Filartiga . . . was decided in 1980, United States courts, acting under the Alien Tort Statute . . . have been awarding compensatory damages to the victims of human rights abuses committed in violation of the law of nations.”)—we do not understand Judge Leval’s assertion that our decision conflicts with “two centuries” of precedent. Concurring Op. 86.

⁵ The first ATS case brought against a corporate defendant appears to have been Doe v. Unocal Corp., 963 F. Supp. 880 (C.D. Cal. 1997), aff’d in part and rev’d in part, 395 F.3d 932 (9th Cir. 2002).

⁶ In one ATS case, for example, a jury considering damages after a default judgment returned a $4.5 billion verdict against Radovan Karadzic, former president of the self-proclaimed Bosnian-Serb republic of Srpska, for “acts of genocide . . . committed in Bosnia-Herzegovina by individuals under [his] command and control.” Doe v. Karadzic, No. 93 Civ. 0878, 2001 U.S. Dist. LEXIS 12928, at *1-2 (S.D.N.Y. Aug. 28, 2001).

⁷ See, e.g., Lisa Girion, Unocal to Settle Rights Claims, L.A. Times, Dec. 14, 2004, at A1; Jad Mouawad, Shell Agrees to Settle Abuse Case for Millions, N.Y. Times, June 9, 2009, at B1.

⁸ We count among the significant ATS cases decided by our Court: Filartiga, 630 F.2d 876; Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995), Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Bigio v. Coca-Cola Co., 239 F.3d 440 (2d Cir. 2000); Flores, 414 F.3d 233; Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254 (2d Cir. 2007); Viet. Assoc. for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir. 2008); Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009); Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009).

⁹ Sosa, 542 U.S. 692.

¹⁰ The question of corporate liability has been identified as recently as 2009 in Presbyterian Church as an open question in our Circuit. See 582 F.3d at 261 n.12 (“We will also assume, without deciding, that corporations . . . may be held liable for the violations of customary international law that plaintiffs allege.”). Others have also acknowledged, either explicitly or implicitly, that the question remains unanswered. See, e.g., Khulumani, 504 F.3d at 282-83 (Katzmann, J., concurring) (noting that, because defendants did not raise the issue, the Court need not reach the question of corporate liability); id. at 321-25 (Korman, J., concurring in part and dissenting in part) (expressing the view that corporations cannot be held liable under the ATS); Brief of the United States as Amicus Curiae in Opposition to the Petition for a Writ of Certiorari 9 n.2, Pfizer Inc. v. Abdullahi, No. 09-34 (May 28, 2010) (urging the Supreme Court not to “grant certiorari in this case to consider whether suits under the ATS can be brought against private corporations” because “[t]hat question was not addressed by the court below” and was not “fairly included in the scope of . . . the questions presented” (internal quotation marks omitted)). And at least one district court in another circuit has recently held that there is no corporate liability under the ATS. Doe v. Nestle, No. CV 05-5133, slip op. at 120-60 (C.D. Cal. Sept. 8, 2010).

We decline to address several other lurking questions, including whether the ATS applies “extraterritorially,” see Conditional Cross-Petition for a Writ of Certiorari 14-17, Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 09-1418 (May 20, 2010), or whether exhaustion of domestic remedies is required for claims that arise in a foreign forum, see Sosa, 542 U.S. at 733 n.21 (noting that the Supreme Court “would certainly consider this requirement in an appropriate case”). We do not reach those questions here because we conclude that we lack jurisdiction over plaintiffs’ claims insofar as they are asserted only against corporations.

¹¹ The idea that corporations are “persons” with duties, liabilities, and rights has a long history in American domestic law. See, e.g., N.Y. Cent. & Hudson River R.R. Co. v. United States, 212 U.S. 481, 492 (1909) (rejecting the argument that, “owing to the nature and character of its organization and the extent of its power and authority, a corporation cannot commit a crime”). See generally Leonard Orland, Corporate Criminal Liability § 2.03-2.04 (2006) (discussing the policy behind, and history of, corporate criminal liability). It is an idea that continues to evolve in complex and unexpected ways. See, e.g., Citizens United v. Fed. Election Comm’n, 130 S. Ct. 876 (2010). The history of corporate rights and obligations under domestic law is, however, entirely irrelevant to the issue before us—namely, the treatment of corporations as a matter of customary international law.

¹² See Sosa, 542 U.S. at 732 (quoting with approval the statement of a lower court that rules of customary international law must be “specific, universal, and obligatory” (internal quotation marks omitted)); Flores, 414 F.3d at 248 (“[C]ustomary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”).

¹³ Vencap, 519 F.2d at 1015 (internal quotation marks omitted).

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

¹⁵ See also Brigadier General Telford Taylor, U.S.A., Chief of Counsel for War Crimes, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 109 (1949) (“[T]he major legal significance of the [Nuernberg] judgments lies, in my opinion, in those portions of the judgments dealing with the area of personal responsibility for international law crimes.” (emphasis in original)).

¹⁶ See The Rome Statute of the International Criminal Court (“Rome Statute”) art. 25(1), opened for signature July 17, 1998, 37 I.L.M. 1002, 1016 (limiting the ICC’s jurisdiction to “natural persons”); see also Albin Eser, Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 778-79 (Antonio Cassese et al. eds., 2002).

The United States has not ratified the Rome Statute. Under the Clinton Administration, the U.S. delegation voted against the text adopted in Rome in 1998, in part because of concerns that the treaty “could inhibit the ability of the United States to use its military to meet alliance obligations and participate in multinational operations, including humanitarian interventions.” Diane F. Orentlicher, Unilateral Multilateralism: United States Policy Toward the International Criminal Court, 36 Cornell Int’l L.J. 415, 419 (2004) (quoting the testimony, before the Senate Foreign Relations Committee, of David J. Scheffer, Ambassador-at-Large for War Crimes Issues and Head of the U.S. delegation at the Rome Conference). Despite those concerns, the United States signed the Rome Statute on December 31, 2000, the last day it was open for signature, under the outgoing Clinton Administration. Id. at 421. See generally Flores, 414 F.3d at 256 (explaining the meaning and significance of signing an international agreement); United States v. Yousef, 327 F.3d 56, 94 n.28 (2d Cir. 2003) (same). On May 6, 2002, the Bush Administration notified the United Nations that the United States did not intend to become a party, an act popularly referred to as “unsign[ing].” Orentlicher, ante, at 421; see also Press Release, U.S. Dep’t of Def., Secretary Rumsfeld Statement on the ICC Treaty (May 6, 2002) (noting the United States’ concern about “the lack of adequate checks and balances on powers of the ICC prosecutors and judges; the dilution of the U.N. Security Council’s authority over international criminal prosecutions; and the lack of an effective mechanism to prevent politicized prosecutions of American servicemembers and officials”). However limited the value of the Rome Statute in determining what customary international law is, a demonstrated lack of consensus amongst its signatories about a particular norm is valuable evidence of what customary international law is not. See Sosa, 542 U.S. at 732 (quoting with approval the statement that rules of international law must be “specific, universal, and obligatory” (emphasis added) (internal quotation marks omitted)).

¹⁷ Thus it is equally misleading to say that we are giving “a free pass” to corporations. Concurring Op. 11.

¹⁸ Sosa, 542 U.S. at 732 n.20

¹⁹ Our use of the term “corporation”—and our holding—is limited to private juridical entities such as defendants.

²⁰ Sosa, 542 U.S. at 732 (quoting with approval the statement of a lower court) (internal quotation marks omitted). See generally Part II, post.

²¹ In fact, as we discuss below, there are ample sources of international law explicitly rejecting corporate liability. See generally Part II, post.

²² As we explain in detail below, see generally Part II, post, every international tribunal to confront the question of whether the liability of non-state actors for violations of customary international law should extend to both natural and juridical persons has considered and rejected corporate liability. We do not rest our analysis of customary international law on the district court ATS decisions on which Judge Leval relies. Concurring Op. 23 n.14. Indeed, even if we were to accord those district court cases the merit Judge Leval seems to believe they deserve, the opinions of domestic courts citing domestic courts alone for propositions of customary international law do not constitute evidence of a “specific, universal, and obligatory” norm of the kind necessary to impose judgment under the ATS. Sosa, 542 U.S. at 732.

Moreover, contrary to Judge Leval’s claim that the Nuremberg “tribunals found that corporations violated the law of nations,” see Concurring Op. 55 & n.36 (emphasis added) (citing 6 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (“The Flick Case”) (1952); 7, 8 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (“The Farben Case”) (1952); 9 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (“The Krupp Case”) (1950)), no tribunal at Nuremberg had the jurisdiction to charge—let alone impose judgment on—a corporation. As Judge Leval correctly points out, this jurisdictional bar did not inhibit the tribunals’ ability to bring individual criminal defendants to justice for atrocities committed in violation of the customary international law of human rights. Id.

²³ Although Judge Leval calls our holding “strange” and “illogical,” Concurring Op. 3-4, it is, in fact, neither novel nor eccentric. Rather, it appears to be the same rule adopted by Congress in enacting the Torture Victim Protection Act of 1991 (“TVPA”), Pub. L. No. 102-256, 106 Stat. 73 (codified at 28 U.S.C. § 1350 note). The TVPA creates a civil damages remedy against “[a]n individual, who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture . . . or . . . extrajudicial killing.” Id. § 2(a)(1)-(2) (emphases added); Bowoto v. Chevron Corp., —F.3d — , No. 09-15641, 2010 WL 3516437, at *9 (9th Cir. Sept. 10, 2010) (holding that “the TVPA does not apply to corporations”). Indeed, as Judge Korman observed in his separate opinion in Khulumani:

Under the TVPA, the term “individual” describes both those who can violate its proscriptions against torture, as well as those who can be victims of torture. . . . “[B]oth from context and common sense only natural persons can be the ‘individual’ victims of acts that inflict ‘severe pain and suffering.’ Because the TVPA uses same term ‘individual’ to identify offenders, the definition of ‘individual’ within the statute appears to refer to a human being, suggesting that only natural persons can violate the Act.”

⁵⁰⁴ F.3d at 323-24 (Korman, J., concurring in part and dissenting in part) (emphasis added) (citation omitted) (quoting In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 56 (E.D.N.Y. 2005)); accord Mujica v. Occidental Petroleum Corp., 381 F. Supp. 2d 1164, 1176 (C.D. Cal. 2005) (holding that corporations are not “individuals” under the TVPA); cf. 1 U.S.C. § 1 (“In determining the meaning of any Act of Congress, unless context indicates otherwise . . . the word[ ] ‘person’ . . . include[s] corporations . . . as well as individuals . . . .” (emphasis added)).

²⁴ Suggesting the panel majority is in league with leading opponents of the modern ATS jurisprudence, Judge Leval even goes so far as to attempt an increasingly popular rhetorical ploy among legal scholars of a certain school of thought: what might be called the “reductio ad Borkum.” See Concurring Op. 2 (quoting Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 805 (D.C. Cir. 1984) (Bork, J., concurring)); cf. Leo Strauss, Natural Right and History 42-43 (1950) (“[W]e must avoid the fallacy that in the last decades has frequently been used as a substitute for the reductio ad absurdum: the reduction ad Hitlerum. A view is not refuted by the fact that it happens to have been shared by Hitler.”). We do not adhere to any school of thought on the ATS. In any event, we have faith that our readers will understand that a view is not refuted by the fact that it happens to have been shared by The Honorable Robert H. Bork, sometime Alexander M. Bickel Professor of Law at Yale Law School, Solicitor General of the United States, and United States Circuit Judge for the District of Columbia Circuit.

²⁵ Because of changes in corporate form, Shell Petroleum N.V. and Shell Transport and Trading Company, Ltd. are the successors to the named defendants Royal Dutch and Shell.

²⁶ The Supreme Court has long recognized that “where there is no treaty and no controlling executive or legislative act or judicial decision,” customary “[i]nternational law is part of our law.” The Paquete Habana, 175 U.S. 677, 700 (1900). In Sosa, the Court explained that the ATS was enacted “on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability.” 542 U.S. at 724 (emphasis added).

²⁷ The statute originally provided that the federal district courts “shall . . . have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.” Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77. The Supreme Court has attributed no significance to its subsequent amendment. See Sosa, 542 U.S. at 713 n.10.

²⁸ The Restatement observes that “[i]ndividuals may be held liable for offenses against international law, such as piracy, war crimes, or genocide” and that “[c]orporations frequently are vehicles through which rights under international economic law are asserted.” Restatement (Third), pt. II., at 71 introductory note (emphasis added); cf. 1 Oppenheim’s International Law § 33, at 120 (“[T]he subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights, and their nature depends upon the needs of the community; an international person need not possess all the international rights, duties and powers normally possessed by states.” (footnote omitted) (internal quotation marks omitted)). It goes without saying that the question we are dealing with here is whether corporations are subjects of the customary international law of human rights, not whether they are subjects of treaty-based “international economic law.” See generally Part II.B, post.

²⁹ Under Judge Leval’s approach, the extension of the scope of liability to individuals at Nuremberg was not a detectable advance of international law. That is because, in his view, international law merely “establishe[s] . . . norms of prohibited conduct” and leaves individual States to determine the scope of liability. Concurring Op. 6. That view finds no support in international law.

³⁰ Although the text of the ATS limits only the category of plaintiff who may bring suit (namely, “aliens”), its requirement that a claim be predicated on a “violation of the law of nations” incorporates any limitation arising from customary international law on who properly can be named a defendant. See 28 U.S.C. § 1350.

³¹ Judge Leval’s assertion that we quote Sosa out of context and distort the Supreme Court’s reasoning is unwarranted. We interpret Sosa here exactly the way we did in Presbyterian Church, 582 F.3d at 258, 261 n.12. We acknowledge that the Court in Sosa was not addressing the question of corporate liability under the ATS. Thus, the Court in footnote 20 had no occasion to draw a distinction between natural persons and juridical persons. That fact does not obscure footnote 20’s fundamental point: courts must look to customary international law to determine the “scope” of liability under the ATS. That is true not only when a court is questioning whether the scope of liability under the ATS includes private actors (as opposed to state actors), but also when a court is questioning whether the scope of liability under the ATS includes juridical persons (as opposed to natural persons). The proposition that we are required to look to international law to determine whether corporations can be held liable under the ATS is not only compelled by Sosa and consistent with our precedent, it is also a proposition with which Judge Leval does not disagree. Concurring Op. 45-46 (explaining that he has “no quarrel” with the premise that “[t]o determine whether a corporation can be held civilly liable for a violation of international law, the place to look is to international law” (emphasis added)); see also id. at 46 (“[I]f we found that international law in fact exempts corporations from liability for violating its norms, we would be forced to accept that answer whether it seems reasonable to us or not.”).

Not only does Judge Leval agree that we must look to customary international law in resolving the question before us, but he also agrees that the customary international law of human rights imposes no liability on corporations. Concurring Op. 67 (“It is true that international law, of its own force, imposes no liabilities on corporations or other private juridical entities.”). Yet beyond those significant points of agreement our analyses diverge. We believe that the absence of a norm of corporate liability in international law ends our inquiry and deprives us of jurisdiction to consider plaintiffs’ claims against corporate defendants. Under Judge Leval’s approach, the absence of the relevant norm in international law merely permits a court to proceed a step further, to domestic law, in search of that norm. We respectfully submit that it is Judge Leval’s approach, and not our own, that is utterly lacking in support in precedent.

³² Judge Leval suggests that Judge Katzmann’s approach in Khulumani requires a court to look only to whether a defendant’s conduct violated customary international law. Concurring Op. 66-67. But that is only the first step of Judge Katzmann’s approach. As Judge Katzmann carefully explained: “[T]o assure itself that it has jurisdiction to hear a claim under the [ATS], [a court] should first determine whether the alleged tort was in fact ‘committed in violation of the law of nations,’ 28 U.S.C. § 1350, and whether this law would recognize the defendants’ responsibility for that violation.” Khulumani, 504 F.3d at 270 (emphasis added). In asserting that his views are consistent with his endorsement of Judge Katzmann’s concurring opinion in Khulumani, Judge Leval simply ignores the second step of Judge Katzmann’s approach.

³³ Judge Katzmann declined to reach the question of corporate liability in his concurring opinion in Khulumani because that question was “not raised by the defendants on appeal and therefore the issue was not briefed by the parties.” Id. at 282. Judge Katzmann observed, however, that our Court had repeatedly assumed that corporations can be liable under the ATS because private individuals are liable under the statute, see id. (citing Bigio v. Coca-Cola, 239 F.3d 440, 447 (2d Cir. 2000); Flores, 414 F.3d at 244), and he suggested that the Supreme Court may have done the same, id. at 283 (noting that Sosa classified both corporations and individuals as private actors (citing Sosa, 542 U.S. at 732 n.20)). Nonetheless, whatever Judge Katzmann’s view on the ultimate question of corporate liability under the ATS, his reasoning in Khulumani leads to the inescapable conclusion that customary international law governs the question. We adopted that reasoning in Presbyterian Church in deciding the standards for aiding and abetting liability and we employ the same reasoning today in deciding whether corporations can be liable under the ATS.

³⁴ Our holding in Flores is consistent with the Supreme Court’s rejection of the proposition that the Universal Declaration of Human Rights is an authoritative source of customary international law. 414 F.3d at 259-62 (explaining that the Universal Declaration of Human Rights is “not [a] proper source[ ] of customary international law because [it is] merely aspirational and [was] never intended to be binding on member States of the United Nations”). And it is consistent with the views of several of our sister Circuits. See, e.g., Igartúa-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc) (“The Universal Declaration of Human Rights is precatory: that is, it creates aspirational goals but not legal obligations, even as between states.”); Haitian Refugee Ctr. v. Gracey, 809 F.2d 794, 816 n.17 (D.C. Cir. 1987) (noting that the Universal Declaration of Human rights “is merely a nonbinding resolution, not a treaty, adopted by the United Nations General Assembly”).

³⁵ The ICJ Statute is an integral part of the United Nations Charter, a treaty ratified by the United States in 1945. See Flores, 414 F.3d at 250 n.24 (discussing the United States’ ratification of the United Nations Charter). Article 38 sets forth the sources relied upon by the International Court of Justice (“ICJ”) to determine international law. See Yousef, 327 F.3d at 100. As we explained in Flores, “the [ICJ] is a multinational [judicial] body charged with discerning and applying international law.” 414 F.3d at 250 n.24; see also id. at 251 n.25 (noting that, under Article 59 of the ICJ statute, a “decision of the [ICJ] has no binding force except between the parties and in respect of that particular case”).

³⁶ Before the Second World War, international law provided few protections of the human rights of individuals. Hersch Lauterpacht, An International Bill of the Rights of Man 47 (1945). Such modest recognition of human rights as existed before the First World War involved assertions of a right of humanitarian intervention for the protection of oppressed religious groups. See Louis B. Sohn & Thomas Buergenthal, International Protection of Human Rights 137-211 (1973); see also Brierly, ante, at 291-92. In the period after that war the League of Nations undertook for the first time an international regime to protect racial, religious, or linguistic minorities. See Sohn & Buergenthal, ante, at 213-335; Brierly, ante, at 292. As an authoritative work on the travaux preparatoire, or “legislative history,” of the 1998 Rome Statute of the International Criminal Court has observed:

[T]he first instrument providing general requirements for individual responsibility in a binding manner was the Charter of the International Military Tribunal (IMT) in Nuremberg: aside from establishing individual responsibility for certain crimes against peace, war crimes, and crimes against humanity (Article 6), it partially covered the early stages of planning and preparation and certain types of complicity, declared the official position of defendants, including Heads of State or other government officials, as not freeing them from responsibility (Article 7) and recognized superior orders, if at all, as mitigating circumstances at most (Article 8).

Albin Eser, Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 774-75 (Antonio Cassese et al. eds., 2002) (emphasis added) (footnote omitted).

We rely here on the “teachings of the most highly qualified publicists of the various nations.” ICJ Statute, ante, art. 38; see note 35, ante; note 47, post. Professor Cassese, co-editor of a multi-volume work on the history of the Rome Statute, is Professor of International Law at the University of Florence and former President of the International Criminal Tribunal for the former Yugoslavia. Professor Brierly was the Chichele Professor of International Law in the University of Oxford. Sir Hersch Lauterpacht was the Whewell Professor of Public International Law in the University of Cambridge and later would serve as a Judge of the International Court of Justice. See Lauterpacht Centre for International Law, Sir Hersch Lauterpacht, 1897-1960, http://www.lcil.cam.ac.uk/about_the_centre/sir_hersch_lauterpacht.php (last visited Aug. 20, 2010). Louis B. Sohn was the Bemis Professor of International Law and the John Harvey Gregory Lecturer in International Organization at the Harvard Law School. Thomas Buergenthal was a Professor of International Law at the Law School of the State University of New York (Buffalo) and the George Washington University and now serves as a Judge of the International Court of Justice. Sir Humphrey Waldock, editor of the sixth edition of Brierly’s The Law of Nations, was at the time of publication the Chichele Professor of Public International Law in the University of Oxford and a member of the International Law Commission. See Sir Humphrey Waldock, 77; Head of International Court, N.Y. Times, Aug. 18, 1981, at B19. He previously served as president of the European Commission on Human Rights and later became a judge and president of the International Court of Justice. Id.

³⁷ Control Council Law No. 10 was enacted “[i]n order to give effect to the terms of . . . the London Agreement of 8 August 1945, and the Charter issued pursuant thereto [i.e., the London Charter] and in order to establish a uniform legal basis in Germany for the prosecution of war criminals and other similar offenders, other than those dealt with by the International Military Tribunal.” Control Council Law No. 10, preamble, ante (emphasis added).

³⁸ The tribunal also noted that “one may not utilize the corporate structure to achieve an immunity from criminal responsibility for illegal acts.” Id. Accordingly, “where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action . . . is in violation of international law.” Id. at 1132. In other words, individuals who commit violations of customary international law do not immunize themselves from liability by acting through the corporate form.

³⁹ “Complementarity” is the principle, embodied in the Rome Statute, by which the ICC declines to exercise jurisdiction over a case that is simultaneously being investigated or prosecuted by a State having jurisdiction over it. See Rome Statute, ante, art. 17.

⁴⁰ The district court relied on the following treaties: (1) Convention Concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, adopted July 1, 1949, 96 U.N.T.S. 257 (not ratified by the United States); (2) Convention on Third Party Liability in the Field of Nuclear Energy, done July 29, 1960, amended Jan. 28, 1964, 956 U.N.T.S. 263 (not ratified by the United States, China, the Soviet Union, or Germany); (3) International Convention on Civil Liability for Oil Pollution Damage, done Nov. 29, 1969, 973 U.N.T.S. 3 (not ratified by the United States, China, or the Soviet Union)); (4) Vienna Convention on Civil Liability for Nuclear Damage, done May 21, 1963, 1063 U.N.T.S. 265 (not ratified by the United States, China, France, Germany, or the United Kingdom); (5) Convention Relating to Civil Liability in the Field of Maritime Carriage of Nuclear Material, done Dec. 17, 1971, 974 U.N.T.S. 255 (not ratified by the United States, China, the Soviet Union, or the United Kingdom); and (6) Convention on Civil Liability for Oil Pollution Damage Resulting from Exploration for and Exploitation of Seabed Mineral Resources, done Dec. 17, 1976, reprinted at 16 I.L.M. 1450 (signed by six States but ratified by none). Presbyterian Church, 244 F. Supp. 2d at 317.

⁴¹ Another district court in our Circuit has similarly allowed claims against corporate defendants to proceed under the ATS despite acknowledging the “strength of authority supporting” the argument that corporate liability is not recognized as a norm of customary international law. In re Agent Orange Prod. Liability Litig., 373 F. Supp. 2d 7, 56 (E.D.N.Y. 2005) (Weinstein, J.); id. at 57 (noting that “in the Nuremberg trials, this point of lack of corporate liability appeared to have been explicitly stated”). Judge Weinstein rejected the argument that corporations cannot be liable under the ATS because, among other things, “[l]imiting civil liability to individuals while exonerating the corporation . . . makes little sense in today’s world,” and “[d]efendants present[ed] no policy reason why corporations should be uniquely exempt from tort liability under the ATS,” and “even if it were not true that international law recognizes corporations as defendants” they could still be sued under the ATS because “an ATS claim is a federal common law claim and it is a bedrock tenet of American law that corporations can be held liable for their torts.” Id. at 58, 59 (emphases added).

Customary international law, however, is developed through the customs and practices of States, not by what “makes . . . sense” to a judge, by the “policy reason[s]” recognized by a judge, or by what a judge regards as “a bedrock tenet of American law.” See Sosa, 542 U.S. at 738 (refusing to accept plaintiff’s argument because “in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require”); accord Nestle, No. CV 05-5133, slip op. at 135 (“Sosa prohibits courts from substituting abstract aspirations—or even pragmatic concerns—in place of specific international rules.”).

Nor is customary international law developed through “parity of reasoning,” as some scholars have suggested. See Harold Hongju Koh, Separating Myth from Reality About Corporate Responsibility Litigation, 7 J. Int’l Econ. L. 263, 265 (2004) (suggesting that because corporations may have some “rights” under international law, “by parity of reasoning, they must have duties as well”).

⁴² As the Supreme Court recognized in Sosa, some ATS litigation has already threatened international comity by prompting objections from foreign governments. 542 U.S. at 733 n.21 (noting that the government of South Africa had objected to litigation against “various corporations alleged to have participated in, or abetted, the regime of apartheid that formerly controlled South Africa”); see also Khulumani, 504 F.3d at 297 (Korman, J., concurring in part and dissenting in part) (noting that the governments of the United Kingdom and Canada had also expressed “profound concern” over the apartheid litigation).

⁴³ A few words on “general principles of law” are in order. See ICJ Statute, ante, art. 38(1)(c) (identifying “general principles of law recognized by civilized nations” as a source of customary international law); Restatement (Third) § 102 cmt. l. (“General principles are a secondary source of international law, resorted to for developing international law interstitially in special circumstances.” (emphasis added)); see also Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 451 (2001) (“[D]omestic legal principles matter only to the extent they are shared by many different legal systems and, even then, are subsidiary to treaties and customary law.” (emphasis added)). As one leading authority on the subject has observed, for much of the twentieth century corporate criminal liability was a unique feature of American law, with most European legal systems subscribing to the view that “guilt is personal, not vicarious, and that penal sanctions should be directed at culpable corporate people, not the corporate entity.” See Leonard Orland, Corporate Criminal Liability § 5.03[A] (2006) (explaining that the “traditional French model [which was influential throughout Europe] declared that a corporation is incapable of committing a crime—a principle derived from humanitarian concerns of personal criminal liability established during the French Revolution.” (emphasis added)). The fact that corporate criminal liability has recently obtained greater acceptance in Europe, see id. § 5.03[C]—although interesting as a matter of comparative law—does not demonstrate that corporate liability has attained the status of a norm customary international law, see Filartiga, 630 F.2d at 888 (explaining that customary international law consists of norms that are “of mutual, and not merely several, concern”); Vencap, 519 F.2d at 1015 (explaining that international law concerns the dealings of states “inter se” and that “[w]e cannot subscribe to the view that the Eighth Amendment ‘Thou shalt not steal’ is part of the law of nations” simply because “every civilized nation doubtless has this as a part of its legal system” (some internal quotation marks omitted)); see also Flores, 414 F.3d at 249 (“Even if conduct is universally proscribed by States in their domestic law, that fact is not necessarily significant or relevant for purposes of customary international law.”).

We recognize, of course, that customary international law is not a “static” body of law incapable of evolution or growth. As we explained thirty years ago in Filartiga, “courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” 630 F.2d at 881 (emphasis added). Nevertheless, “[t]he requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent one.” Id. For the reasons stated by Judge Friendly in Vencap, 519 F.2d at 1015, the movement towards imposing criminal liability on corporations as a matter of domestic law does not, on its own, create a norm of customary international law—particularly in light of the “express international accords,” Filartiga, 630 F.2d at 888, which categorically reject imposing liability on corporations, see, e.g., Rome Statute, ante, art. 25.

⁴⁴ Judge Leval makes much out of two “venerable” opinions of Attorneys General of the United States in which the Attorney General appears to have assumed that corporations can sue or be sued under the ATS. See Concurring Op. 24-25. Our reasons for placing little weight on those opinions should be apparent on their face. Most importantly, neither opinion does anything more than baldly declare that a corporation can sue under the ATS (in the case of the 1795 opinion of Attorney General William Bradford) or that a corporation can be sued under the ATS (in the case of the 1907 opinion of Attorney General Charles L. Bonaparte). Unlike the works of publicists on which we have relied as a secondary source of customary international law, neither opinion gives any basis for its assumptions about customary international law.

The 1907 opinion of Attorney General Bonaparte declares (again, without any analysis or citation of authority) that the ATS would “provide a forum and a right of action” against a corporation. 26 Op. Att’y Gen. 250, 253 (1907). It is, therefore, directly at odds with the Supreme Court’s decision in Sosa, which held that the ATS is jurisdictional only and does not create any kind of right of action. Sosa, 542 U.S. at 713-14. In light of that conflict with Sosa, the opinion of Attorney General Bonaparte is a dubious authority on which to rely in interpreting the ATS. Cf. Sosa, 542 U.S. at 721 (citing the 1795 opinion of Attorney General Bradford because Bradford—unlike, apparently, Attorney General Bonaparte—”understood the ATS to provide jurisdiction over what must have amounted to common law causes of action”).

The 1795 opinion of Attorney General Bradford, furthermore, concludes only that a “company” can bring suit against an individual under the ATS. See 1 Op. Att’y Gen. 57, 58-59 (1795) (opining that “the Sierra Leone Company,” which maintained the “colony of Sierra Leone,” could bring suit under the ATS against “certain American citizens trading to the coast of Africa” for their actions in “join[ing] . . . a French fleet in attacking the settlement, and plundering or destroying the property of British subjects on that coast”). As an initial matter, it is far from clear that the Attorney General’s conclusions in 1795 about the “Sierra Leone Company” necessarily apply to modern juridical entities. Even if they do, the question addressed by Attorney General Bradford is whether a “company” could bring suit against certain individuals. We agree that ATS suits can be brought against individuals, and we have no occasion here to determine whether a “company” is an “alien” that can bring such a suit. See 28 U.S.C. § 1350. (“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” (emphasis added)).We hold only that, regardless of who brings it, when a suit is brought for “a tort . . . committed in violation of the law of nations,” we lack subject matter jurisdiction insofar as the suit is brought against a corporation.

In any event, we doubt that Judge Leval truly believes that we should rely on the opinion of Attorney General Bradford, for his interpretation of the ATS could be read to prohibit any ATS suit seeking compensation for violations of international law committed on foreign soil. In concluding that the Sierra Leone Company could bring suit against the American individuals involved in the French attack on the colony, Attorney General Bradford circumscribes his opinion, appearing to conclude that the Company could not bring suit for the actions taken by the Americans in a foreign country, but rather, could sue only for the actions taken by the Americans on the “high seas.” See 1 Op. Att’y Gen. at 58 (“So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts . . . . But crimes committed on the high seas are within the jurisdiction of the district and circuit courts of the United States . . . .”). We need not address here the open issue of whether the ATS applies “extraterritorially.” See note 10, ante. Were we to take up that issue, however, and were we to adopt Judge Leval’s approach and follow the opinion of Attorney General Bradford, we very well could conclude that the ATS does not apply extraterritorially, and thus we would dismiss this and the vast majority of recent ATS suits on the ground that the violations of customary international law alleged by plaintiffs “originated or took place in a foreign country.” 1 Op. Att’y Gen. at 58. Again, we doubt that Judge Leval truly endorses Attorney General Bradford’s approach.

⁴⁵ Professor Crawford is the Whewell Professor of International Law in the University of Cambridge, England, Director of the Lauterpacht Centre for International Law at Cambridge, and co-editor of a preeminent peer-reviewed international law journal, The British Yearbook of International Law. He was a member of the International Law Commission (“ILC”) of the United Nations from 1992-2001 and served as its Special Rapporteur on State Responsibility. He was principally responsible for the ILC Draft Statute for an International Criminal Court in 1994. See Declaration of James Crawford, ante, ¶¶ 2-4; Lauterpacht Centre for International Law, Professor James Crawford, Director, http://www.lcil.cam.ac.uk/people/professor_james_crawford.php (last visited Aug. 20, 2010); note 47, post.

⁴⁶ At the time of making his declaration, Professor Greenwood was a professor of international law at the London School of Economics. He has since been appointed as a judge of the ICJ. Judge Greenwood’s prior experience includes serving as counsel before the ICJ, the European Court of Human Rights, and the ICTY. See note 47, post.

⁴⁷ In relying on the affidavits of Professor Crawford and Professor Greenwood, as well as on treatises or other works of “publicists,” see Yousef, 327 F.3d at 100 n.33, we are mindful that such works are, in the nature of things, “subsidiary” or secondary sources of international law, “useful in explicating or clarifying an established legal principle or body of law,” by “shed[ding] light on a particular question of international law,” id. at 101, or on the primary sources of international law, which are “the documents or acts proving the consent of States to its rules.” Clive Parry, The Sources and Evidences of International Law 2 (1965), quoted with approval in Flores, 414 F.3d at 252, and Yousef, 327 F.3d at 101. It is indisputable that the works of the publicists on which we have relied accurately describe the primary sources of the relevant customary international law—the relevant customs and practices of States. In other words, we have relied on these sources “for trustworthy evidence of what the law really is” and “not for the speculations of their authors concerning what the law ought to be.” The Paquete Habana, 175 U.S. at 700.

Judge Leval criticizes us for relying on the affidavits of Professor Crawford and Professor Greenwood because both were expert witnesses hired by the defendants in another case. Yet we fail to see how statements made in an affidavit, under penalty of perjury, are any less reliable than published works whose accuracy is confirmed only by efforts of the student staff of law journals.

We note, moreover, that Judge Leval relies on “Beth Stephens, et al., International Human Rights Litigation in U.S. Courts 310 (2d ed. 2008),” in support of his contention that corporations can be liable for violations of customary international law under the ATS. Concurring Op. 66. The remaining authors of that text are Judith Chomsky, Jennifer Green, Paul Hoffman, and Michael Ratner. Paul Hoffman happens to be lead counsel to plaintiffs in this very appeal. Judith Chomsky and Jennifer Green have submitted an amicus brief on behalf of plaintiffs in this case and, together with Beth Stephens, have directly represented different plaintiffs pursuing ATS claims against Royal Dutch Petroleum (the defendants here) before this court. See Wiwa v. Royal Dutch Petroleum, 226 F.3d 88, 91 (2d Cir. 2000).

Judge Leval also relies on a publication of the International Commission of Jurists. Concurring Op. 65. That, however, is an advocacy organization, in some respects like Amnesty International or Human Rights Watch. See Int’l Comm. of Jurists, Corporate Complicity & Legal Accountability, at ii (2008), available at http://icj.org/IMG/Volume_1.pdf (“The International Commission of Jurists . . . is a non-governmental organization devoted to promoting the understanding and observance of the rule of law and the legal protection of human rights throughout the world.”); id. at vii (explaining that members of the “steering group” for the “Corporate Complicity & Legal Accountability” project included representatives from, among other organizations, Amnesty International and Human Rights Watch); see also http://www.icj.org (follow “About Us” link) (last visited Aug. 20, 2010) (“Through pioneering activities, including inquiry commissions, trial observations, fact-finding missions, public denunciations and quiet diplomacy, the [International Commission of Jurists] has been a powerful advocate for justice.”).

In the words of Judge Leval, we think “[i]t is not selfevident” that the works of such advocates are “what the Supreme Court had in mind in Paquete Habana when it gave cautious approval to consultation of ‘the works of jurists and commentators.”’ Concurring Op. 59 n.39 (emphasis omitted) (quoting The Paquete Habana, 175 U.S. at 700).

In any event, Judge Leval’s criticism of our reliance on the affidavits of Professor Crawford and Professor Greenwood is irrelevant because Judge Leval agrees that “international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Concurring Op. 67.

⁴⁸ Tellingly, most proponents of corporate liability under customary international law discuss the subject as merely a possibility or a goal, rather than an established norm of customary international law. See, e.g., Menno T. Kamminga & Saman Zia-Zarifi, Introduction to Liability of Multinational Corporations Under International Law, ante, at 1, 8 (acknowledging “the unsatisfactory state of international law regarding the status of [multinational corporations] and their impact” but asserting that “[i]t now seems possible, indeed highly probable, that a regime of international legal liability for [multinational corporations] can and will be developed” (emphasis added)); Ratner, note 43, ante, at 449 (“This Article posits a theory of corporate responsibility for human rights protection. Building upon the traditional paradigm whereby international law generally places duties on states and, more recently, individuals, I consider whether and how the international legal process might provide for human rights obligations directly on corporations. My thesis is that international law should and can provide for such obligations . . . .” (emphases added)); Beth Stephens, The Amorality of Profit: Transnational Corporations and Human Rights, 20 Berkeley J. Int’l L. 45, 46 (2002) (“Over the fifty years since the Holocaust, the international community has recognized that governments can be held liable for abuses directed at both their own citizens and foreigners, during war and when at peace—and that individuals can be held accountable as well. Today, the abuses of the Holocaust are contributing to the development of new approaches to human rights accountability, this time focusing on corporate human rights violations . . . .” (emphases added)); id. at 47 (“Both domestic governments and international organizations have danced around [the topic of corporate liability], urging voluntary codes of conduct rather than seeking to impose binding rules of law.” (emphasis added)).

Others rely on improper sources of customary international law to find a norm of corporate liability. See e.g., Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, 25 Brook. J. Int’l L. 17, 25 (1999) (“Every individual and every organ of society excludes no one, no company, no market, no cyberspace. The Universal Declaration applies to them all.”); cf. Sosa, 542 U.S. at 734 (explaining that the Universal Declaration of Human Rights “does not of its own force impose obligations as a matter of international law” and, therefore, is of “little utility” in discerning norms of customary international law); note 34, ante.

⁴⁹ Judge Leval relies on the works of Oscar Schachter and Louis Henkin for a general and undisputed proposition: “There is no general requirement in international law that States provide [civil remedies to private persons]. By and large, international law leaves it to them to meet their obligations in such ways as the State determines.”’ Concurring Op. 42 (quoting Oscar Schachter, International Law in Theory and Practice 240 (1991)); see also id. at 42 n.30 (“The international system requires that a State meet its international obligations, but ordinarily the law has not required that a state meet those obligations in a particular way or through particular institutions or laws.” (emphasis omitted) (quoting Louis Henkin, International Law: Politics, Values and Functions 88 (1990))). We agree, of course, that nothing in international law prohibits the United States from providing a civil remedy against corporations for violations of the law of nations (nor could it). The Congress of the United States has simply not chosen to do so, opting instead to provide a civil remedy—by conferring jurisdiction over torts committed in violation of the law of nations—but leaving the question of who can be sued to the law of nations. See 28 U.S.C. § 1350.

⁵⁰ Even in our domestic law, the question of the scope of liability— that is, who can be held liable for wrongful conduct— is not a question of remedy. Remedies refer to “precisely what the plaintiff may recover after resorting to the law.” Edward D. Re & Joseph R. Re, Remedies 2 (6th ed. 2005) (emphasis added) (internal quotation marks omitted). Whether a plaintiff is entitled to money damages, declaratory relief, an injunction, or specific performance are all questions of remedy. See generally id. at xi-xiii. Whether a particular remedy— money damages, an injunction, etc.—can be enforced against a certain individual or entity is not a question of remedy; it is a question of the scope of liability.

⁵¹ We note that, even within our federal system, there are a variety of approaches to determining how the courts are to impute to a corporation the conduct and intent of its employees or agents. See, e.g., 7 U.S.C. § 2(a)(1)(B) (adopting respondeat superior principles for regulatory actions brought by the Commodity Exchange Commission); Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999) (limiting applicability of respondeat superior in civil claims for punitive damages under Title VII); Faragher v. City of Boca Raton, 524 U.S. 775 (1998) (limiting applicability of respondeat superior in civil actions for sexual harassment); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998) (same). Yet, in arguing that corporate liability exists under the ATS, Judge Leval does not even explain where that norm of liability derives from (federal statute, federal common law, state law perhaps?), much less attempt to specify which among the different standards of corporate liability courts should apply in ATS cases.

² The majority concede that “federal courts may recognize claims ‘based on the present-day law of nations.”’ Maj. Op. 17. Where their opinion departs from precedent is its contention that courts may not recognize a claim against “a particular class of defendant” unless international tribunals regularly impose liability on that type of defendant. Maj. Op. 20, 49, 51. As I explain below, there is no legal basis for this novel requirement.

³ The majority protest that their rule is not one of “immunity” but rather one of absence of liability. Maj. Op. 50. Because their rule provides that, when a corporation is sued, it can have the suit dismissed on the ground that it is a corporation, it seems to me to be indistinguishable from an immunity. But nothing turns on whether we call it an immunity, an exemption, a protection, an absence of liability, or any other name. My reasons for rejecting the rule are that there is no support or justification for it in precedent, scholarship, reason, experience, or morality. None of this would change if the rule were called by a different name.

⁴ See The Amy Warwick, 67 U.S. (2 Black) 635, 670 (1862) (“The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no . . . anomalous doctrine.”); Oscar Schachter, International Law in Theory and Practice 2 (1991) (“[I]nternational law . . . is more than a given body of rules and obligations. It involves purposive activities undertaken by governments, directed to a variety of social ends.”).

⁵ See, e.g., Sosa, 542 U.S. at 732, 737 (torture, slave trade, prolonged arbitrary detention committed as a matter of state policy, and piracy); Kadic v. Karadžić, 70 F.3d 232, 240, 243 (2d Cir. 1995) (genocide, war crimes, and torture and summary execution committed in the course of genocide or war crimes); In re Ferdinand Marcos, Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994) (torture); see also Restatement (Third) of the Foreign Relations Law of the United States § 404 (1987) (genocide, war crimes, piracy, slave trade, and attacks on or hijacking of aircraft).

⁶ VIII Trials of War Criminals Before the Nuernberg Military Tribunals 1173-74 (1952) (the “Farben Trial”) (“Charged with the responsibility of meeting fixed production quotas, Farben yielded to the pressure of the Reich Labor Office and utilized involuntary foreign workers in many of its plants. It is enough to say here that the utilization of forced labor, unless done under such circumstances as to relieve the employer [the Farben company] of responsibility, constitutes a violation of [international law].”); see also IX Trials of War Criminals Before the Nuernberg Military Tribunals 1375-76 (1950) (the “Krupp Trial”) (“[T]hroughout German industry in general, and the firm of Krupp and its subsidiaries in particular, prisoners of war of several nations including French, Belgian, Dutch, Polish, Yugoslav, Russian, and Italian military internees were employed in armament production in violation of the laws and customs of war.”).

⁷ The majority contend that the failure of the Nuremberg tribunal to impose civil damages on Farben shows that international law does not impose damages on corporations. Maj. Op. 32. This argument demonstrates the illogic and internal inconsistency of the majority’s position. The Nuremberg tribunal also did not impose liability for civil damages on Farben’s executives whom it convicted criminally. If the fact that Nuremberg did not impose civil liability on the Farben corporation means that international law does not allow for civil liability of corporations, then the fact that Nuremberg did not impose civil liability on Farben’s guilty personnel must mean that international law does not allow for civil liability of natural persons. Yet the majority concede that such natural persons are liable for civil damages. The Nuremberg tribunal simply did not contemplate questions of civil liability, nor has any subsequent international tribunal. As I explain below, the law of nations has simply not ventured into determinations with respect to civil liability. It has left that question to individual nations.

⁸ See Trafficking Victims Protection Reauthorization Act of 2005, Pub. L. 109-164, § 2, 8 119 Stat. 3558, 3558 (Jan. 10, 2006) (noting that an estimated 600,000 to 800,000 individuals are trafficked across international borders each year and exploited through forced labor and commercial sex exploitation, of which 80% are women and girls); United Nations Office on Drugs and Crime, Global Report on Trafficking in Persons 48-50 (Feb. 2009), available at http://www.unodc.org/documents/Global_Report_on_TIP.pdf (noting approximately 14,900 incidents of human trafficking were reported in 2006, 79% of which involved sexual exploitation).

⁹ See generally Lauren Ploch et al., Cong. Research Serv., Piracy Off the Horn of Africa (Sept. 28, 2009); Peter Chalk, The Maritime Dimension of International Security: Terrorism, Piracy, and Challenges for the United States 6 (RAND 2008).

¹⁰ The possibility of pirates operating through the corporate form is not far-fetched. According to a recent United Nations report, Somali pirates essentially operate as limited partnerships, in which investors make investments of money, weaponry, and equipment in exchange for “Class A” and “Class B” participations in the profits of piracy operations. Rep. of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1853 (2008), U.N Doc. No. S/2010/91, at 99 (Mar. 10, 2010). The profits of such an operation can be substantial, as in the case of the MV Faina, which was released in February 2009 for $3.2 million ransom. See Piracy Off the Horn of Africa, supra, at 10-11.

¹¹ The majority’s characterization of the facts upon which their theory rests is occasionally subject to dispute. For example, the opinion asserts that “customary international law has steadfastly rejected the notion of corporate liability for international crimes.” Maj. Op. 9. The opinion refers to “a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations . . . can be enforced against States and individual men and women but not against juridical persons such as corporations.” Id. It maintains, “there are ample sources of international law explicitly rejecting corporate liability.” Maj. Op. 10 n.21. However, the most that can be asserted as fact, as opposed to argument, is that international tribunals have not been empowered to exercise criminal jurisdiction over corporations or civil jurisdiction over any sort of private actor.

The majority opinion further asserts that “no international tribunal has ever held a corporation liable for a violation of the law of nations,” Maj. Op. 9, and that “no corporation has ever been subject to any form of liability under the customary international law of human rights,” Maj. Op. 10. The fact is, however, that no international tribunal has ever considered whether a corporation or a natural person can be held civilly liable in damages for violation of the customary law of nations, because no international tribunal has ever exercised civil jurisdiction over private actors.

The majority describe their ruling as answering a “question that has been lurking for some time in our ATS jurisprudence.” Maj. Op. 15. It is not the case, however, that judges have struggled uncomfortably with this problem for decades. While the ATS has been in our law for over 200 years and was held to apply in actions both by and against corporations as early as 1795, 1 Op. Att’y Gen. 57, 59 (1795), and 1907, 26 Op. Att’y Gen. 250, 253 (1907), it was only four years ago that corporate immunity was first argued to our court and only eight years ago that it was first argued to a district court. See Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 282 (2d Cir. 2007); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 319 (S.D.N.Y. 2003).

¹² See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (holding that allegation that a corporate defendant engaged in non-consensual medical experimentation on human subjects stated a claim under the ATS for violations of law of nations), cert. denied, 78 U.S.L.W. 3049; Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) (concluding that nonfrivolous claims against international mining corporation for vicarious liability for violations of jus cogens norms were sufficient to warrant exercise of federal jurisdiction under the ATS), vacated in part on other grounds, 550 F.3d 822 (9th Cir. 2008) (en banc); Doe I v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) (concluding that a private party – such as Unocal, a corporation – may be subject to suit under the ATS for aiding and abetting violations of customary international law and for violations of certain jus cogens norms without any showing of state action), reh’g en banc granted, 395 F.3d 978 (9th Cir. 2003), appeal dismissed, 403 F.3d 708 (9th Cir. 2005); Aguinda v. Texaco, Inc., 303 F.3d 470 (2d Cir. 2002) (dismissing ATS case against corporate defendant on forum non conveniens grounds, because courts of Ecuador provided adequate alternative forum); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir. 2000) (reversing district court’s dismissal of ATS complaint against corporations on forum non conveniens grounds, and affirming district court’s ruling that corporations were subject to personal jurisdiction in New York); Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998) (vacating district court’s dismissal of ATS case against corporation on forum non conveniens grounds and remanding for further proceedings); Bowoto v. Chevron Corp., 557 F. Supp. 2d 1080 (N.D. Cal. 2008) (denying oil company defendants’ motion for summary judgment on claims that U.S. corporation, acting through its Nigerian subsidiary, aided and abetted violations of laws of nations; case proceeded to trial before jury, which found in favor of defendants); Licea v. Curacao Drydock Co., 584 F. Supp. 2d 1355 (S.D. Fla. 2008) ($80 million ATS judgment against defendant corporation for human trafficking and forced labor); Chowdhury v. WorldTel Bangladesh Holding, Ltd., No. 08 Civ. 1659 (BMC) (E.D.N.Y. Aug. 6, 2009), ECF No. 48 ($1.5 million ATS jury verdict entered against defendant holding company for torture), appeal filed, No. 09-4483-cv (2d Cir.); see also Hilao v. Estate of Marcos, 103 F.3d 767, 776-77 (9th Cir. 1996) (affirming $2 billion ATS class award against estate of former president of Philippines for gross human rights violations committed during his reign). (The majority’s rule would immunize an estate or trust equally with a corporation, as it applies to all juridical entities.)

¹³ Judge Katzmann wrote in response, “This argument [that corporations may not be held liable under the ATS] was not raised by the defendants on appeal and therefore the issue was not briefed by the parties. It is perhaps not surprising that neither the defendants nor the United States raised this issue as a bar to liability: We have repeatedly treated the issue of whether corporations may be held liable under the AT[S] as indistinguishable from the question of whether private individuals may be.” Khulumani, 504 F.3d at 282 (Katzmann, J., concurring).

¹⁴ Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009) (“In addition to private individual liability, we have also recognized corporate defendants are subject to liability under the ATS and may be liable for violations of the law of nations.” (citing Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir. 2008) (“The text of the Alien Tort Statute provides no express exception for corporations, and the the law of this Circuit is that [ATS] grants jurisdiction from complaints of torture against corporate defendants.”)); Al-Quraishi v. Nakhla, No. Civ. No. 08-1696, 2010 WL 3001986, at *39 (D. Md. July 29, 2010) (“There is no basis for differentiating between private individuals and corporations [under the ATS] . . . .”); In re S. African Apartheid Litig., 617 F. Supp. 2d 229, 254-55 (S.D.N.Y. 2009) (Scheindlin, J.) (rejecting argument that corporate liability cannot be imposed under the ATS); In re XE Servs. Alien Tort Litig., 665 F. Supp. 2d 569, 588 (E.D. Va. 2009) (“Nothing in the ATS or Sosa may plausibly be read to distinguish between private individuals and corporations; indeed, Sosa simply refers to both individuals and entities as ‘private actors.’ . . . [T]here is no identifiable principle of civil liability which would distinguish between individual and corporate defendants in these circumstances.” (internal citations omitted)); see also In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 58 (E.D.N.Y. 2005) (Weinstein, J.) (“A corporation is not immune from civil legal action based on international law.”); Presbyterian Church of Sudan v. Talisman Energy, Inc., 374 F. Supp. 2d 331, 335 (S.D.N.Y. 2005) (Cote, J.) (“Talisman’s argument that corporate liability under international law is not . . . sufficiently accepted in international law to support an ATS claim is misguided.”); Talisman, 244 F. Supp. 2d 289, 319 (S.D.N.Y. 2003) (Schwartz, J.) (“A private corporation is a juridical person and has no per se immunity under U.S. domestic or international law. . . . [W]here plaintiffs allege jus cogens violations, corporate liability may follow.”); cf. In re S. African Apartheid Litig., No. 02 MDL 1499(SAS), 2009 WL 5177981, at *2 (S.D.N.Y. Dec. 31, 2009) (denying motion for certification of interlocutory appeal, because there are not “substantial grounds for disagreement on the issue of whether ATS extends liability to corporations”); Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882 (DLC), 2005WL2082847, at *3-*4 (S.D.N.Y. Aug. 30, 2005) (same); but see discussion of Doe v. Nestle, at footnote * on page 3, supra.

¹⁵ Although the Supreme Court relied on Attorney General Bradford’s 1795 in Sosa, the majority’s only response to these Attorney General opinions is that they “do[ no]thing more than baldly declare” conclusions which the majority consider erroneous. Maj. Op. 41 n.44. (They add the irrelevancy that one of the opinions would require dismissal of this suit on a completely different ground.)

¹⁶ The majority find it “particularly significant” that no international (criminal) tribunal has ever held “a corporation liable for a violation of the law of nations.” Maj. Op. 28. This misunderstands the role of such tribunals in the enforcement of the law of the nations. The primary, and prior to the twentieth century, the exclusive, means of applying and enforcing the requirements of customary international law was the domestic law of civilized nations. The very actions that were “uppermost” in the First Congress’s mind in passing the ATS – piracy, violations of safe conduct, and offenses against ambassadors – had been punished not by an international tribunal but by the domestic courts of England under the domestic law of England. See Sosa, 542 U.S. at 715, 719; 4 William Blackstone, Commentaries *66. Only beginning in World War I, with the advent of the Permanent Court of International Justice, did international law also provide an international court for enforcing these requirements. And, until the establishment of the ICC, it provided courts to enforce international law against individuals only on an ad hoc basis, convening to carry out judgment for particular violations of international law – for example, in Nazi Germany, the former Yugoslavia, and Rwanda. Such tribunals have exercised only criminal jurisdiction. They have never entertained claims of civil liability directed against either corporations or natural persons.

¹⁷ The European Commission also raised this concern as amicus curiae. See Br. of Amicus Curiae the European Comm’n in Supp. of Neither Party, at 10, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339) (“[O]nly a subset of norms recognized as customary international law applies to non-state actors, such as corporations, and hence only that subset may form the basis of liability against such actors. For example, non-state actors may be liable for genocide, war crimes, and piracy, while torture, summary execution, and prolonged arbitrary detention do not violate the law of nations unless they are committed by state officials or under color of law.” (citing, inter alia, Tel-Oren or Kadic)), available at 2004 WL 177036.

¹⁸ The majority opinion argues at one point that “customary international law does not develop through ‘logical’ expansion of existing norms,” and that its rules cannot be extended by “parity of reasoning.” Maj Op. 36-37 & n.37. In spite of this assertion, the majority opinion seeks by “parity of reasoning” to extend international law’s refusal to exercise criminal jurisdiction over corporations into a principle of refusal to allow imposition of civil liability on corporations. The problem with the exercise is not only the majority’s inconsistency on the inappropriateness of logical extension by parity of reasoning, but more importantly that its asserted extension is based on neither logic nor parity of reasoning. Parity of reasoning undertakes to apply the same rule to logically indistinguishable cases. The majority seek by illogical argument to extend a rule justified solely by one set of circumstances into other situations that lack the justifying circumstances. Legal scholarship often extols the virtue of deciding like cases in like fashion. The majority here undertake to decide unlike cases in like fashion.

¹⁹ See, e.g., 2 Int’l Commission of Jurists, Corporate Complicity & Legal Accountability 57-58 (2008) (“National criminal laws were developed many centuries ago, and they are built and framed upon the notion of the individual human being as a conscious being exercising freedom of choice, thought and action. Businesses as legal entities have been viewed as fictitious beings, with no physical presence and no individual consciousness.”); L.H. Leigh, The Criminal Liability of Corporations and Other Groups: A Comparative View, 80 Mich. L. Rev. 1508, 1509 (1982) (“These arguments [against corporate criminal liability] may be summarized quickly: a corporation has no mind of its own and therefore cannot entertain guilt; it has not body and therefore cannot act in propia persona; . . . .”).

²⁰ See, e.g., 2 Int’l Commission of Jurists, supra note 19, at 58 (“[M]any perceive it to be impossible to prove that a business entity had criminal intent, or knowledge.”); V.S. Khanna, Corporate Criminal Liability: What Purpose Does It Serve?, 109 Harv. L. Rev. 1477, 1490 (1996) (“Many European jurisdictions initially refused to recognize corporate criminal liability because the notion that a juristic fiction such as a corporation could possess guilt in the sense necessary for the application of the criminal law seemed far-fetched.”); Guy Stessens, Corporate Criminal Liability: A Comparative Perspective, 43 Int’l & Comp. L.Q. 493, 496 (1994) (describing decisions of the Queen’s Bench that “managed to surmount the so-called ‘mes rea hurdle”’); Gerhard O.W. Mueller, Mens Rea and the Corporation, 19 U. Pitt. L. Rev. 21, 29 (1957) (discussing mid-century French view that “corporate criminal liability is irreconcilable with the guilt principle”); Robert Phillimore, Commentaries upon International Law 50 (1854) (“Criminal law is concerned with a natural person; a being of thought, feeling, and will. A legal person is not, strictly speaking, a being of these attributes, though, through the medium of representation and of government, the will of certain individuals is considered the will of the corporation; but only for certain purposes.”).

²¹ See, e.g., Prosecutor v. Kayishema & Ruzindana, Case No. ICTR-95-1-T, Sentence, ¶ 2 (June 1, 2001) (“This Chamber must impose sentences on convicted persons for retribution, deterrence, rehabilitation, and to protect society. As to deterrence, this Chamber seeks to dissuade for good those who will be tempted in the future to perpetrate such atrocities by showing them that the international community is no longer willing to tolerate serious violations of international humanitarian law and human rights.”); Prosecutor v. Nahimana, Case No. ICTR-99-52-T, Judgement and Sentence, ¶ 1095 (Dec. 3, 2003) (“The Chamber considers that sentencing serves the goals of retribution, deterrence, rehabilitation, and protection of society.”); Prosecutor v. Musema, Case No. ICTR-96-13, Judgment and Sentence, ¶ 986 (Jan. 27, 2000) (“The penalties imposed by this Tribunal must be directed at retribution, so that the convicted perpetrators see their crimes punished, and, over and above that, at deterrence, to dissuade for ever others who may be tempted to commit atrocities by showing them that the international community does not tolerate serious violations of international humanitarian law and human rights.”); Prosecutor v. Kupreskic, Case No. IT-95-16-T, Judgment, ¶ 848 (Jan. 14, 2000) (“[I]n general, retribution and deterrence are the main purposes to be considered when imposing sentences in cases before the International Tribunal.”); Prosecutor v. Naletilic, Case No. IT-98-34-T, Judgement, ¶ 739 (Mar. 31, 2003) (same).

²² André Tunc, Introduction, in 11 International Encyclopedia of Comparative Law ¶ 167, at 96 (André Tunc ed., 1983) (“[T]he law of tort should serve the fulfillment of justice, at least if a compensatory justice, not a punishing one, is contemplated.”); Doug Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Nw. J. Int’l Human Rights 304, 322-23 (2008) (“[C]ustomary international law has long held that injuries caused by violations of international norms require reparation, including monetary compensation when full restitution is not possible.”); see also infra note 24 (quoting decisions of the International Court of Justice and Permanent Court of International Justice to the same effect).

²³ Several international conventions explicitly recognize the diversity in nations’ domestic laws regarding the imposition of criminal sanctions on legal or juridical persons. These conventions require State parties to impose criminal sanctions on legal persons, or where that is not possible under the individual nation’s domestic law, non-criminal sanctions. See Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, May 25, 2000, G.A. Res. 54/263, Annex II, 54 U.N. GAOR Supp. (No. 49) at 6, U.N. Doc. A/54/49, Vol. III (2000), entered into force Jan. 18, 2002 (“Subject to the provisions of its national law, each State Party shall take measures . . . to establish the liability of legal persons. Subject to the legal principles of the State Party, such liability of legal persons may be criminal, civil or administrative.”); Organization for Economic Cooperation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business transactions, art. 3, Nov. 21, 1997, DAFFE/ IME/BR(97)20, entered into force Feb. 15, 1999 (“The bribery of a foreign public official shall be punishable by effective, proportionate and dissuasive criminal penalties. . . . In the event that under the legal system of a Party, criminal responsibility is not applicable to legal persons, that Party shall ensure that legal persons shall be subject to effective, proportional and dissuasive non-criminal sanctions.”).

²⁴ One international tribunal, the closest thing to a tribunal vested with civil jurisdiction – the International Court of Justice (ICJ), which resolves matters referred to it by treaty or agreement of State parties – does award civil reparations against States, which are juridical entities. Statute of the International Court of Justice, art. 36(1), June 26, 1945, 59 Stat. 1055, 33 U.N.T.S. 993. While that court does not exercise jurisdiction over private actors, id. art. 34(1), its precedents involving awards of reparations paid by one State to another demonstrate that an award of damages against a juridical entity is familiar ground in international law. In a line of decisions dating to the 1920s, the ICJ and its predecessor court, the Permanent Court of International Justice, have recognized as “a principle of international law that the breach of an international engagement [a duty imposed by international law] involves an obligation to make reparation in an adequate form.” Factory at Chorzów (Jurisdiction) (Germany v. Poland), 1927 P.C.I.J. (ser. A) No. 9, at 3, 21 (July 26); see also United States Diplomatic and Consular Staff in Tehran (Judgment) (United States of America v. Iran), 1980 I.C.J. 3, 41-42 (May 24) (“Iran, by committing successive and continuing breaches of [treaty obligations] and the applicable rules of general international law, has incurred responsibility towards the United States. [I]t clearly entails an obligation on the part of the Iranian State to make reparation for the injury thereby caused to the United States.” (emphasis added)); Corfu Channel Case (Merits), 1949 I.C.J. 4, 23 (April 9) (“The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them, and that there is a duty upon Albania to pay compensation to the United Kingdom.”); 1 Oppenheim’s International Law ¶ 155, at 528 n.3 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1996) (noting an “international engagement’ includes any duty under international law”).

²⁵ See Prosecutor v. Kayishema & Ruzindana, Case No. ICTR- 95-1-T, Sentence, ¶ 1 (May 21, 1999) (stating that the International Criminal Tribunal for Rwanda was established “to ensure the effective redress of violations of international humanitarian law in Rwanda in 1994. The objective was to prosecute and punish the perpetrators of the atrocities in Rwanda in such a way as to put an end to impunity and promote national reconciliation and the restoration of peace.” (emphasis added)); Prosecutor v. Blagojevic & Jokic, Case No. IT-02- 60-T, Judgement, ¶ 814 (Jan. 17, 2005) (stating that the International Tribunal for the Former Yugoslavia seeks to impose punishment that “reflect[s] both the calls for justice from the persons who have – directly or indirectly – been victims of the crimes, as well as respond to the call from the international community as a whole to end impunity for massive human rights violations and crimes committed during armed conflicts”).

²⁶ The distinction between criminal and civil enforcement of international law is also recognized in many multilateral agreements. Most prominently, the Torture Convention requires each State party to criminally prosecute acts of torture or to extradite the alleged torturers to other States for prosecution. Then, on the subject of compensatory civil liability, it obligates each State party to “ensure in its legal system that the victim of an act of torture . . . has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible.” Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 14, Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85.

²⁷ See, e.g., Prosecutor v. Furundzija, Case No. IT-95-17/1, Trial Chamber Judgment, ¶ 155 (Dec. 10, 1998) (explaining that victims of officially sanctioned torture “could bring a civil suit for damage in a foreign court”); VI Trials of War Criminals Before the Nuernberg Military Tribunals 1207-08 (1952) (“[T]here may be both civil and criminal liability growing out of the same transaction. In this case Flick’s acts and conduct contributed to a violation of Hague Regulation 46[,] that is, that private property must be respected. . . . But his acts were not within his knowledge intended to contribute to a program of ‘systematic plunder’ [and therefore cannot be punished criminally].”).

²⁸ See, e.g., Rome Statute, art. 5 (vesting ICC with jurisdiction over the crime of genocide, crimes against humanity, war crimes, and the crime of aggression); Convention on the Prevention and Punishment of the Crime of Genocide, art. V, Dec. 9, 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 (obligating state parties “to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide”).

²⁹ Upon his death in 2003, former Secretary General Kofi Annan described Professor Schachter as the “architect of the legal framework which has guided United Nations peacekeeping for more than 50 years.” Wolfgang Saxon, Oscar Schachter, 88, Law Professor and U.N. Aide, N.Y. Times, Dec. 17, 2003, at C15.

³⁰ See, e.g., Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 422-23 (1964) (“The traditional view of international law is that it establishes substantive principles for determining whether one country has wronged another. Because of its peculiar nation-to-nation character the usual method for an individual to seek relief is to exhaust local remedies and then repair to the executive authorities of his own state to persuade them to champion his claim in diplomacy or before an international tribunal. Although it is, of course, true that United States courts apply international law as a part of our own in appropriate circumstances, the public law of nations can hardly dictate to a country which is in theory wronged how to treat that wrong within its domestic borders.” (citations omitted)); Restatement (Third) of the Foreign Relations Law of the United States § 111, cmt. h (1987) (“In the absence of special agreement, it is ordinarily for the United States to decide how it will carry out its international obligations.”); Eileen Denza, The Relationship Between International Law and National Law, in International Law, 423, 423 (Malcolm Evans ed., 2d ed. 2006) (“[The law of nations] permeates and radically conditions national legal orders, its rules are applied and enforced by national authorities, and national courts are often asked to resolve its most fundamental uncertainties. Yet international law does not itself prescribe how it should be applied or enforced at the national level. It asserts its own primacy over national laws, but without invalidating those laws or intruding into national legal systems. National constitutions are therefore free to choose how they give effect to treaties and to customary international law. Their choice of methods is extremely varied.” (emphases added)); Louis Henkin, Richard Crawford Pugh, Oscar Schachter & Hans Smit, International Law: Cases and Materials 153 (3d ed. 1993) (“Since a state’s responsibility to give effect to international obligations does not fall upon any particular institution of its government, international law does not require that domestic courts apply and give effect to international obligations. . . . States differ as to whether international law is incorporated into domestic law and forms a part of the ‘law of the land,’ and whether the executive or the courts will give effect to norms of international law or to treaty provisions in the absence of their implementation by domestic legislation.” (emphasis added)); Louis Henkin, International Law: Politics, Values and Functions 88 (1990) (“The international system requires that a State meet its international obligations, but ordinarily the law has not required that a State meet those obligations in a particular way or through particular institutions or laws.” (emphasis added)); id. at 251 (“Compliance with international law as to civil and political rights . . . takes place within a State and depends on its legal system, on its courts and other official bodies.”); Louis Henkin, Foreign Affairs and the Constitution 224 (1972) (“International law itself, finally, does not require any particular reaction to violations of law . . . .”); Michael Koebele, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law Through U.S. Torts Law 208 (2009) (“[I]nternational law leaves individual liability . . . , be it of a natural or legal person, largely to domestic law.”); Eric Mongelard, Corporate Civil Liability for Violations of International Humanitarian Law, 88 Int’l Rev. Red Cross 665, 671 (2006) (“Legal persons can . . . have obligations under international law, or at least there is a strong tendency to that effect. However, virtually none of the above [human rights] instruments provides for a mechanism for the enforcement of any liability that may arise or lays down any obligation for non-state entities to make reparation; they leave it to the states party to the treaties to choose how to apply the rules.”).

³¹ See, e.g., International Covenant on Civil and Political Rights, art. 2(3), Dec. 16, 1966, 31 S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171 (“Each State Party to the present Covenant undertakes . . . To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy . . . .”); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 2(1), Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 85 (“Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” (emphasis added)); International Convention to Suppress the Slave Trade and Slavery, art. 6, Sept. 25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253 (providing that the State parties undertake “to adopt the necessary measures in order that severe penalties may be imposed in respect of such infractions”); United Nations Convention on the Law of the Sea, art. 105, opened for signature Dec. 10, 1982, 21 I.L.M. 1261 (providing that upon seizure of vessel or persons engaged in piracy, “[t]he courts of the State which carried out the seizure may decide upon the penalties to be imposed, and may also determine the action to be taken with regard to the ships, aircraft or property, subject to the rights of third parties acting in good faith” (emphasis added)); International Convention on the Suppression and Punishment of the Crime of Apartheid, opened for signature Nov. 30, 1973, art. IV(b), 1015 U.N.T.S. 243 (obligating State parties “to adopt legislative, judicial and administrative measures to prosecute, bring to trial and punish in accordance with their jurisdiction persons responsible for” that offense (emphasis added)).

³² Beth Stephens, Translating Filártiga: A Comparative and International Law Analysis of Domestic Remedies for International Human Rights Violations, 27 Yale J. Int’l L. 1, 17-34 (2002) (reviewing reasons foreign countries have not exercised universal tort jurisdiction over human rights violations).

³³ The majority mischaracterize my position when they attribute to me the view that corporate liability is “merely a question of remedy.” Maj. Op. 48; see also Maj. Op. 9, 46. As explained throughout this opinion, international law outlaws certain forms of abhorrent conduct and in general leaves to individual nations how to enforce the proscription.

³⁴ The majority’s position is also inconsistent with our court’s understanding in prior cases of the norms dictated by international law. In prior opinions, we have looked to international law to determine whether the defendant’s conduct violated norms of conduct universally accepted by the nations of the world as rules of international law. Three of our opinions contain extensive discussion of whether particular forms of conduct contravene customary international law. In Flores v. Southern Peru Copper Corp., 414 F.3d 233 (2d Cir. 2003), a civil suit brought under the ATS against a corporate defendant, we surveyed the sources on international law and concluded that acts of intranational pollution did not violate any norm of international law capable of supporting liability under the ATS. In reaching this conclusion, our opinion speaks repeatedly of the “offenses” or “conduct” the corporation allegedly engaged in, and whether such acts violate customary international law. See, e.g., id. at 247 (“The determination of what offenses violate customary international law . . . is no simple task..” (emphasis added)); id. at 249 (“[O]ffenses that may be purely intra-national in their execution, such as official torture, extrajudicial killings, and genocide, do violate customary international law because the ‘nations of the world’ have demonstrated that such wrongs are of ‘mutual . . . concern,’ and capable of impairing international peace and security.” (citations omitted and emphasis added)); id. at 255 (“The precept that ‘[h]uman beings are . . . entitled to a healthy and productive life in harmony with nature,’ . . . utterly fails to specify what conduct would fall within or outside of the law.” (emphasis added)); id. at 266 (“Because plaintiffs have failed to submit evidence sufficient to establish that intranational pollution violates customary international law, the District Court properly granted defendant’s motion to dismiss.” (emphasis added)). Nothing in the opinion even discussed whether the defendant might be exempt from liability because of its corporate character or whether liability was foreclosed because of the absence of a widely accepted convention among nations for awarding civil damages.

Again in United States v. Yousef, 327 F.3d 56 (2d Cir. 2003), we concluded that the act of placing a bomb on a airplane operated by a foreign carrier did not support the exercise of universal criminal jurisdiction, because the nations of the world disagree over which forms of conduct constitute “terrorism.” Again, our opinion contains an extensive discussion of the forms of conduct that are proscribed by international law. See, e.g., id. at 104 (“In modern times, the class of crimes over which States can exercise universal jurisdiction has been extended to include war crimes and acts identified after the Second World War as ‘crimes against humanity.”’ (emphasis added)); id. at 106 (“Unlike those offenses supporting universal jurisdiction under customary international law – that is, piracy, war crimes, and crimes against humanity – that now have fairly precise definitions and that have achieved universal condemnation, ‘terrorism’ is a term as loosely deployed as it is powerfully charged.” (emphasis added)); id. at 107 (“[T]here continues to be strenuous disagreement among States about what actions do or do not constitute terrorism . . . .” (emphasis added)).

And in Abdullahi v. Pfizer, Inc., 562 F.3d 163, 183-84 (2d Cir. 2009), cert. denied, 78 U.S.L.W. 3049, we wrote, “[T]he norm prohibiting nonconsensual medical experimentation on human subjects has become firmly embedded and has secured universal acceptance in the community of nations.”

³⁵ See, e.g., Kadic v. Karadžić, 70 F.3d 232, 242 (2d Cir. 1995) (“[F]rom its incorporation into international law, the proscription of genocide has applied equally to state and non-state actors.”); Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, art. 15, G.A. Res. 60/147, U.N. Doc. A/RES/60/147 (Dec. 16, 2005) (“In cases where a person, a legal person, or other entity is found liable for reparation to a victim, such party should provide reparation to the victim or compensate the State if the State has already provided reparation to the victim” (emphasis added)).

³⁶ See VI Trials of War Criminals Before the Nuernberg Military Tribunals (1952) (the “Flick Trial”); VII, VIII Trials of War Criminals Before the Nuernberg Military Tribunals (1952) (the “Farben Trial”); IX Trials of War Criminals Before the Nuernberg Military Tribunals (1950) (the “Krupp Trial”).

³⁷ See, e.g., Banco Nacional de Cuba v. Chem. Bank N.Y. Trust Co., 822 F.2d 230, 236-37 (2d Cir. 1987); Banco Nacional de Cuba v. Chase Manhattan Bank, 658 F.2d 875, 894 (2d Cir. 1981); Banco Nacional de Cuba v. First Nat’l City Bank of N.Y., 478 F.2d 191, 193 (2d Cir. 1973); Banco Nacional de Cuba v. Farr, 383 F.2d 166, 170, 185 (2d Cir. 1967); Banco Nacional de Cuba v. Sabbatino, 307 F.2d 845, 864 (2d Cir. 1962), rev’d on other grounds, 376 U.S. 398 (1964), superseded by statute, 22 U.S.C. § 2370(e)(2).

³⁸ The majority do cite one published book, Michael Koebele, Corporate Responsibility Under the Alien Tort Statute: Enforcement of International Law Through U.S. Torts Law (Nijhoff 2009), in a manner suggesting that it supports the majority’s analysis, but once again the quotation is out of context. The majority quote this work to the effect that it remains the “prevailing view” among scholars that international law “primarily regulates States and in limited instances such as international criminal law, individuals, but not [transnational corporations].” Maj. Op. 43-44. This quotation appears to support the majority’s position, but when one places it in context, the appearance of support disappears. Koebele’s book later explains that “the ATS, although incorporating international law, is still governed by and forms part of torts law which applies equally to natural and legal persons unless the text of a statute provides otherwise,” and that international law does not prevent a State “from raising its standards by holding [transnational corporations] which are involved [in] or contribute to violations of international law liable as long as the cause of international law is served because international law leaves individual liability (as opposed to State liability), be it of a natural or a legal person, largely to domestic law.” Koebele, supra, at 208. Koebele thus recognizes that the imposition of tort liability on a corporation under the ATS is entirely consistent with international law.

³⁹ It is not self-evident that unpublished expert affidavits submitted in a different litigation are what the Supreme Court had in mind in Paquete Habana when it approved consultation of “the works of jurists and commentators” and, under that rubric, cited leading works of published scholarship.

⁴⁰ Professor Crawford’s affidavit does not take the position that there is any obstacle to a national court holding a corporation civilly liable – only that no such decision has yet has been rendered. The affidavit notes that a study by the International Commission of Jurists on corporate complicity in human rights violations states that corporations are in a “zone of legal risk,” Crawford Decl. ¶7, but cites no examples of decisions actually holding them liable. In speaking of the experience of the United Kingdom, Professor Crawford characterizes the question of corporate liability as “largely untested.” Id. ¶8. And as far as international tribunals are concerned, the Professor explains that the reason for the absence of judgments against corporations is that the international tribunals do not have jurisdiction to award such judgments. “None have jurisdiction over corporations as respondents.” Id. ¶9.

⁴¹ Another aspect of the majority’s citation of Professor Crawford’s declaration requires clarification. The majority opinion quotes the declaration as saying, “[n]o national court [outside the United States] and no international judicial tribunal has so far recognized corporate liability, as opposed to individual liability, in a civil or criminal context on the basis of a violation of the law of nations.” Maj. Op. 43 (first emphasis added). The manner of presenting the quotation could lead the reader to understand that the Professor, like the majority, is saying that when a corporation violates the law of nations, that law recognizes civil liability of natural persons who acted for the corporation, but not of the corporations. That is not what the Professor was saying. When Professor Crawford responded that no national court outside the United States or international judicial tribunal had imposed corporate liability, “as opposed to individual liability,” he was merely adhering to the precise question asked. He was not suggesting, as the majority opinion does, that civil liability of natural persons is judged differently from civil liability of corporations. His affidavit contains no discussion whatsoever of whether any national court or international judicial tribunal has recognized civil liability of natural persons, and he makes no statement one way or the other on the question of such liability.

One of the main problems with the majority’s theory is its incoherence resulting from the fact that it treats the absence of any international law precedent for imposition of damages on corporations as barring such an award under the ATS, while acknowledging that damages are properly awarded against natural persons notwithstanding the very same absence of international law precedent for such awards. The quotation from Professor Crawford’s affidavit in the majority opinion sounds as if the Professor is saying that international law distinguishes between civil liability of natural persons, which it allows, and civil liability of corporations, which it does not allow. But the Professor was not saying that. His affidavit does not discuss, much less support, the majority’s theory that, when a corporation violates the law of nations, civil liability under the ATS may be imposed on the natural persons who acted for the corporation but not on the corporation. The ambiguity in Professor Crawford’s sentence does not indicate adoption of the majority’s incoherent and inconsistent proposition.

⁴² The majority contend that I criticize them for citing affidavits. They assert that affidavits, because they are made under penalty of perjury, are as reliable a source as law review articles “whose accuracy is confirmed only by efforts of the student staff of law journals.” Maj. Op. 44 n.47. I do not criticize the majority for citing the affidavits of learned professors. I have only questioned whether unpublished litigating affidavits are what the Supreme Court had in mind in Paquete Habana as the “teachings” of publicists. Regardless, I have no criticism of the affidavits of Professors Crawford and Greenwood. The problem with the majority’s citation of those affidavits is that the affidavits do not support the majority’s thesis.

⁴³ Int’l Comm. of Jurists, Corporate Complicity & Legal Accountability (2008), available at http://www.icj.org/default.-asp?nodeID=350&langage=1&myPage=Publications.

⁴⁴ See infra note 46.

⁴⁵ While the majority dismiss Professor Steven R. Ratner’s discussion as merely aspirational, they do not acknowledge his assertion, based on a report of the International Council on Human Rights, judgments of the Nuremberg Tribunals, multilateral instruments imposing obligations on corporations, the multimillion dollar settlements agreed to by German companies alleged to have been complicit in the wartime human rights violations of the Third Reich, and the practice of the European Union, that “international law has already effectively recognized duties of corporations.” Steven R. Ratner, Corporations and Human Rights: A Theory of Legal Responsibility, 111 Yale L.J. 443, 475 (2001) (emphasis added).

⁴⁶ The majority criticize the report of the International Commission of Jurists and the Stephens treatise as biased sources. Maj. Op. 44 n.47. They point out that certain authors of the Stephens treatise serve as counsel for the Plaintiffs in this case. That is indeed a reason to view the conclusions of the treatise with skepticism. The majority’s condemnation of the International Commission of Jurists, on the ground that it “promot[es] the understanding and observance of the rule of law and the legal protection of human rights throughout the world,” is less convincing. I do not understand why an organization’s commitment to upholding the law justifies the view that the organization is biased as to the content of the law. But in any event, the views expressed in those scholarly works are consistent with the views of scholars the majority have not questioned. In contrast, no work of scholarship, whether interested or not interested, has supported the majority’s view.

⁴⁷ Because I agree that international law does not of its own force impose liability on corporations, the majority assert that “Judge Leval does not disagree with Part II” of their opinion. Maj. Op. 45. To the contrary, while certain facts mentioned there are entirely accurate, I disagree with numerous unwarranted inferences and conclusions the majority draw from them.

⁴⁸ By “Complaint,” I refer to the amended complaint filed in May 2004. See infra Part VII.A.3.

⁴⁹ Because of changes in corporate form unrelated to this lawsuit, Shell Petroleum N.V. and Shell Transport and Trading Company, Ltd. are the successors to the named defendants Royal Dutch Petroleum Company and Shell Transport and Trading Company PLC, respectively.

⁵⁰ The designation “Shell,” as noted above, represents holding companies in England and Holland, which wholly own The Shell Petroleum Company Ltd., a holding company, which in turn owns SPDC. SPDC is the sole operator and 30% owner of a joint venture engaged in oil exploration, refinement, and extraction in Nigeria.

⁵¹ Shell also moved to dismiss on the grounds that Plaintiffs’ claims are barred by the act of state doctrine and by the doctrine of international comity. All of these motions were denied and were not appealed. Kiobel, 456 F. Supp. 2d at 459.

⁵² Plaintiffs contend we should not consider this question because the district court did not consider it and Shell did not raise the issue in its petition for permission to appeal. On interlocutory appeal pursuant to § 1292(b), however, “our Court ‘may address any issue fairly included within the certified order,’ as ‘it is the order that is appealable, and not the controlling question identified by the district court.”’ Cal. Pub. Employees’ Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 95 (2d Cir. 2004) (quoting Yamaha Motor Corp. v. Calhoun, 516 U.S. 199, 205 (1996)); see also Merican, Inc. v. Caterpillar Tractor Co., 713 F.2d 958, 962 n.7 (3d Cir. 1983) (“On a § 1292(b) appeal we consider all grounds which might require a reversal of the order appealed from.”). The issue has been fully briefed and I see no reason not to consider it.

⁵³ I note the allegation of the Complaint that “SPDC Managing Director Philip B. Watts, with the approval of Shell, requested the Nigerian Police Inspector General to increase SPDC’s security . . . to deter and quell community disturbances.” Even assuming this allegation suffices to allege action for which Shell would be responsible, a request for increased security and a quelling of disturbances is not a request for human rights violations, such as torture, arbitrary arrest, crimes against humanity, or extrajudicial killing.

⁵⁴ There is an additional reason why the Complaint fails to state a claim on which relief against Shell may be granted: the pleadings do not support a plausible inference that Shell, the parent holding companies, themselves rendered assistance to the Nigerian government. To the contrary, the Complaint alleges that the Shell entities are holding companies based in England and the Netherlands, and that they operate in Nigeria only “through” subsidiaries, specifically SPDC. In light of these concrete allegations regarding corporate form, the conclusory allegations that Shell was complicit in its subsidiary SPDC’s rendition of aid to the Nigerian government does not meet the plausibility threshold of Iqbal. On the assumption that the Complaint adequately pleads actions of SPDC sufficient to constitute actionable aiding and abetting of Nigeria’s human rights abuses, the mere addition of the name of a European holding company to the allegation does not plausibly plead the holding company’s involvement.

⁵⁵ Because we are dealing with the English and Dutch parents of a Nigerian corporation, a full conflict of laws analysis may reveal that common law vicarious liability standards are not applicable. As both parties have argued their positions on the basis of the common law, however, I employ the blackletter common law formulations described below for purposes of determining whether Plaintiffs have adequately stated a claim with respect to vicarious liability. In any event, the Dutch law of veil piercing is similar to common law alter ego doctrine, in that it requires a showing that the corporate form has been disregarded or abused to avoid a legal obligation. See Nicola M.C.P. Jägers & Marie-José van der Heijden, Corporate Human Rights Violations: The Feasibility of Civil Recourse in the Netherlands, 33 Brook. J. Int’l L. 833, 841-42 & nn. 28, 30 (2008). Likewise, under English law (which is substantially similar to the law of Nigeria), a court will hold a parent corporation liable when the subsidiary is so totally under the control of the parent that it cannot be said to be carrying on its own business or when the subsidiary is a mere sham or facade. See Creasey v. Breachwood Motors, Ltd., [1993] BCLC 480, [1992] BCC 638 (Q.B.); Jones v. Lipman, [1962] 1 W.L.R. 832, 835 (Ch.) (Eng.).

⁵⁶ Plaintiffs cite to an opinion of the United States District Court for the Northern District of Illinois for the principle that agency is a question that must survive a motion to dismiss. See Cumis Ins. Soc., Inc. v. Peters, 983 F. Supp. 787, 796 (N.D. Ill. 1997). Plaintiffs’ reliance on that case is misplaced. In Cumis, the district court noted that, “[w]hile the existence and extent of the agency relationship is a question of fact, the plaintiff must sufficiently allege that an agency relationship existed in order for his complaint to survive a Rule 12(b)(6) motion to dismiss.” Id. There, the court found that the existence of an agency relationship between the plaintiff and the defendant was sufficiently pleaded where the complaint alleged that the plaintiff had made an agreement with the defendant, a collection agency, that the defendant would pursue claims on the plaintiff’s behalf. Id. No comparable agreement is alleged in this case.

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U.S. Second Circuit Court of Appeals: Kiobel V. Royal Dutch Petroleum Co.

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