ABSTRACT: II. INTRODUCTION III. PUBLIC INTERNATIONAL LAW VERSUS PRIVATE INTERNATIONAL LAW IV. Jus COGENS A. Legal Implications of Jus Cogens B. Natural Law V. CIVIL VERSUS CRIMINAL LIABILITY IN PUBLIC INTERNATIONAL LAW VI. THE LAW OF NATIONS INCLUDES TREATIES VII. THE RATIONALE OF THE ATS VIII. CONCLUSIONS I. ABSTRACT:
In Kiobel v. Royal Dutch Petroleum Co., the Second Circuit overrules numerous prior decisions and contradicts sister circuits, finding that corporate liability in international law is not a sufficiently specific norm to support a finding of liability under the Alien Tort Statute. That decision is clearly erroneous. Kiobel violates the general principle of legality, immunizing corporate conduct from liability even in cases where States would be liable for violating jus cogens norms and thus also violates the principle of sovereign equality of States due to principles of comity and the res judicata effect of the decision. Kiobel is also an abnegation by the United States of U.S. obligations under international law. While no state is obliged to remedy jus cogens violations, each state is obliged to respect them. Because Kiobel reflects a deep and significant split at the circuit courts, because it concerns U.S. international legal obligations, because the stakes, in human and financial terms are high, because it was so obviously wrongly decided, the split that Kiobel represents has reached the U.S. Supreme Court. This Article explains precisely why the court's decision in Kiobel misapprehends the structure and sources of international law and consequently reaches the wrong result for the wrong reasons. The U.S. Supreme Court will likely conclude that the ATS governs jus cogens claims against natural and artificial persons without a showing of state action, but requires state action or complicity with state action otherwise.
Kiobel v. Royal Dutch Petroleum C0., (1) held that the Alien Tort Statute (ATS) (2) does not apply to corporations. (3) In my opinion, that decision was wrongly reached. Kiobel contradicts several prior decisions of the Second Circuit, (4) other federal appellate circuits, (5) and ignores international practice. (6) To appreciate the errors in the majority's reasoning in Kiobel we must understand the structure of public international law, which often differs from the common law.
PUBLIC INTERNATIONAL LAW VERSUS PRIVATE INTERNATIONAL LAW
The law of nations (jus gentium), colloquially known as international law, is divided into two branches: public international law and private international law (also known as jus gentium privatum). (7) Public international law consists of two further branches, customary international law (jus gentium publicum) and international treaty law (just inter gentes). (8) The United States currently interprets the law of nations, (9) jus gentium, (10) as indicating public international law, ix even though jus gentium consists of two distinct parts, jus gentium publicum and just gentium privatum.
States, as a general rule, are the presumed addressees of duties and bearers of rights under public international law. Likewise, private individuals are ordinarily the addressees of private international law. Private international law is most often accessed in the U.S. context through "conflicts of law" i.e. the rules for allocating decisional authority in cross-jurisdictional contexts. However, private international law also includes admiralty and law merchant (lex mercatoria), (12) the latter today largely codified through the UCC, the UN Convention on Sale of Goods, and via arbitration. (13)
Thus, while individuals may, as an exception to the general rule, have rights and duties under public international law (14) (e.g. for violations of jus cogens), such exceptions are rare and infrequent. (15) Even when individuals possess a right under public international law, that does not necessarily indicate they also have a directly enforceable remedy: (16) the right may well inhere in the individual, yet only be enforceable by their State. Nineteenth century State theory wrongly presumed that States could and would effectively intercede on behalf of their wronged citizens as their protectors and that this political right of the Citizen or Subject to the legal right of diplomatic protection to be asserted by their state would be a more efficient system than the directly enforceable private law which it replaced. Today, in the wake of two global wars which tragically and conclusively proved the dualist nineteenth century construction of international law inadequate to preserve peace and protect people's basic rights, individuals once again have rights and duties under international law and directly enforceable remedies, which was also the case prior to the nineteenth century. However, directly enforceable individual rights and duties under public international law are exceptions to the outlined general rules and must be plead and proven by their proponent.
The schism between the ideas that first, states are the principal addressees of public international law, and second, that rights and duties may be ascribed to non-state actors under public international law is one key to understanding the significance of the Alien Torts Statute in the corporate context. The best way to address this fissure in the logic of international law is the concept of jus cogens. Non-state actors who violate jus cogens, whether natural or artificial persons, are subject to universal jurisdiction and legal liability, (17) either in crime or tort, without regard to state action for their wrongful act because the wrong is so vile and odious as to entail universal liability through any actor, any locus, and any forum. (18) Thus, international law permits attribution of criminal or civil responsibility to corporations for violations of international law (19) at the very least for corporate violations of jus cogens norms.
Jus cogens norms are non-derogable (20) customary international laws, through which any wrongdoer may be tried in any forum for their jus cogens violation. While a state, through persistent objection ab initio, may exempt itself from general customary international law, (21) no state may avoid its jus cogens obligations. However, although no state is obligated to offer a remedy for a violation of a jus cogens obligation, (22) every state may choose to enforce a jus cogens violation anywhere such violation occurs. A jus cogens norm triggers universal jurisdiction because the violator is an outlaw and may be taken by any State. (23) Not all instances of universal jurisdiction arise out of jus cogens, but any violation of jus cogens entails universal jurisdiction. (24) Further, although a state may choose not to enforce a jus cogens obligation, it must not hamper the enforcement of such obligations by other states: thus, where a state has, for example, a war criminal who has violated the jus cogens prohibition against war crimes, that state must either extradite or prosecute the accused (aut dedere, aut judicare). (25)
Legal Implications of Jus Cogens
Jus cogens norms entail universal jurisdiction. They are specific, universal, and obligatory rights. They are in those senses contemporary natural law: one universal law in all places, (26) the law of good conscience as an essential quality of humanity. There are very few such norms, however, they are fundamental and can be fairly readily enumerated. The earliest jus cogens norm to arise was the prohibition of piracy on the high seas. (27) Pirates were recognized as a universal concern of all states because their crimes occurred outside the territory of any state. Then, the slave trade was recognized as the next universally illegal action: (28) likely because transport of slaves involved countries which were not then among "civilized nations", i.e. not part of the international legal system, and also because transit of slaves was most often over the high seas and associated with piracy. War crimes were the next recognized universal non-derogable norm; (29) then the various fascist atrocities, including genocide, crimes against humanity, and likely also crimes against peace (conspiracy to commit war of aggression). (30) In the post war era, it is certain that torture too entered into the number of universally condemned illegal acts under public international law, and most likely the prohibition of segregation (apartheid) is also a jus cogens norm. (31) In addition, the first use of nuclear weapons against civilian targets probably also violates jus cogens; targeting civilians is disproportional and thus illegal, even if not a crime against humanity.
Terrorism today is universally condemned, and were its definition not so politically controverted its prohibition would likely have already become a jus cogens norm. However, due to ambiguity, "air piracy", hijacking, random bombing, use of hostages, and narco-trafficking--the various instances of non-state politically motivated violence--have not yet been adequately defined to be seen as universal, non-derogable, and unambiguous rules of public international law enabling universal jurisdiction. Similarly, child sex tourism, though already illegal by national extraterritorial laws of many states, is likely not yet a jus cogens norm. Scholarly attention to these issues is required in order to form the opinio juris (32) which must be linked to state practice to form customary international law.
Jus cogens norms imply individual rights and duties under public international law. This issue is known in European parlance as "direct effect": (33) in the United States it is addressed under the doctrine of "state action" (34). Both doctrines try to determine when public laws create directly enforceable rights, whether between individuals and the state or between individuals and other individuals. The U.S. approach is to determine whether the private actor...
Kiobel v. Royal Dutch Petroleum Co.: corporate liability under the Alien Torts Statute.
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