Doe v. Exxon Mobil Corp.

corroborate al-Jadani’s did not evidence 26-27; Maj. Op. 7-8.

account, at id. conclusion court’s

The district are be credited” and “cannot

statements

“unreliable,” Almerfedi, F.Supp.2d light “plausible least is at Awad,

record,” 7. To the 608 F.3d at cir- majority suggests

extent capture seem of al-Adeni’s

cumstances (who was arrest- of Almerfedi

match those custody, Iran, Afghan transferred

ed custody) transferred

and then Maj. Op. at path “unique,” was

posits this

7-8, makes such neither government evidence that points to record

claim nor district court’s con-

would undermine paths the coincidence

clusion government’s case little” to the

“add[s] guest- stayed in Tehran

that Almerfedi

houses, F.Supp.2d Almerfedi was to show that this evaluation

much less plausible. VIII, al., Appellants et DOE

John CORPORATION,

EXXON MOBIL al., Appellees.

et 09-7125, 09-7127,

Nos. 09-7135. Appeals, Court of

United States Circuit.

District Columbia

Argued Jan. July

Decided J.

William Aceves was on the brief for amici curiae International Law Scholars in support appellants.

Muneer I. Ahmad was on the brief for Miller, amici curiae Arthur Erwin Cheme- rinsky, and Professors of Federal Jurisdic- Legal History tion and in support appel- lants. argued

Sri Srinivasan the cause for ap- pellees/cross-appellants. With him on the brief were Dellinger, Walter Anton Metlit- Jr., sky, Theodore Young V. Wells Alex K. Oh, Nikhil Singhvi, Weinstein, Martin J. and Patrick J. Conlon. Conrad,

Robin S. Untereiner, Alan E. Mark T. and Stancil were on the brief for amicus curiae The Chamber of Commerce of the United States of in support America appellees. Jeffrey A. Lamken Kry K. Robert on were the brief for amici curiae National Foreign Council, Trade Inc. et al. in sup- port appellees.

Daniel J. Popeo and A. Samp Richard on were brief amici curiae Wash- ington Legal Foundation, support et al. in appellees. ROGERS, TATEL, Before: Agnieszka Fryszman KAVANAUGH, argued Judges. the cause Circuit for appellants on State Claims. Paul Hoff- Opinion for the Court Judge Circuit

man argued the for appellants cause ROGERS. Federal Claims. With them on the briefs were Konopka, Kathleen M. E. Maureen Opinion dissenting in part by Circuit McOwen, Terrence P. Collingsworth, and Judge KAVANAUGH. Piper M. Hendricks. Charles J. Ogletree Jr. Joseph M. Sellers entered appear- ROGERS, Judge: Circuit ances. Pursuant to a contract with the Indone- Marco B. Simons was on the brief for government, sian Exxon Corpora- Mobil EarthRights amicus curiae International tion, a United corporation, States (ERI) support appellants. wholly several of its owned subsidiaries (hereinafter “Exxon”)

Jennifer M. Green was on the brief operated a large amici curiae University of gas Minnesota Law natural processing extraction and fa- School, al. in et support appellants. cility province the Aceh Indonesia supports corporate the ATS purpose fif- Plaintiffs-appellants are 2000-2001. villagers immunity from Aceh for torts based on heinous con- Indonesian teen villagers filed com- territory. agents Eleven committed its allegedly duct Exxon’s secu- alleging of the law of nations. We affirm plaint violation murder, torture, forces committed rity TVPA claims in the dismissal view assault, battery, impris- and false sexual of this court. precedent of recent We Alien Tort in violation onment conclude, however, objections that Exxon’s (“ATS”) the Torture Victim Statute justiciability unpersuasive are (“TVPA”), Act and various Protection ruling ap- the district court erred in (The IDoe com- law torts. common prudential standing bring lack pellants villagers al- other Aceh plaint.) Four tort in the their non-federal claims and vari- that Exxon committed leged Finally, we choice of law determination. (The Doe VIII common torts. ous challenge conclude that Exxon’s to the di- allege plaintiffs-appellants All complaint.) versity parties Doe VIII com- in the actions both Unit- that Exxon took initially by to be resolved plaint in the Aceh facility and at its ed States Therefore, the district court. we affirm injuries. resulted their province that plaintiffs-appellants’ of dismissal TVPA statutory the district court dismissed claims, reverse the of the ATS dismissal claims, Corp., I Mobil see Doe v. Exxon appeal, along claims at issue in this (D.D.C.2005), dis- and F.Supp.2d non-federal tort plaintiffs-appellants’ the on tort claims.1 covery proceeded claims, the to the dis- and remand cases claims, however, subsequently were Those trict court. standing. prudential lack of dismissed Corp., 658 Doe VIII v. Exxon Mobil I. (D.D.C.2009). Plaintiffs- F.Supp.2d 131 of challenge the appellants dismissals Accepting allegations the of the com- complaints Exxon filed cross- their true, construing the com- plaints as raising first alia for the appeal, inter as plaintiffs-appellants, in favor of plaints corporation it was immune time that as a Seldin, must, v. see Warth we under the ATS.2 from 490, 501, 95 45 L.Ed.2d 343 (1975), that plaintiffs the claim Exxon’s follow, that we conclude For the reasons security mem- comprised forces were abetting liability well aiding and that military bers the Indonesian under the ATS. We further established subsidiaries, its which were Exxon and this precedent our conclude under filing time the of the incorporated the contention court should address Exxon’s Jersey Dela- complaint first in New and, corporate immunity con- appeal ¶¶ ware, 17, 20, Compl. Doe I retained the trary to view and Second its gas Circuit, guards for its natural join Eleventh Circuit these soldiers we the text, facility Exxon was aware that history, though nor even holding that neither the this, purposes appeals For of these it is unneces- interlocutory appeal 2. 1. In an filed jurisdiction ad- sary distinguish that it lacked to the com- court held between two to complaint contention that the dress Exxon's Plaintiffs-appellants appeal dis- plaints. the political pursuant the to should dismissed by statutory the claims missal of failed question doctrine and Exxon had Judge the and the dismissal of Oberdorfer for issuance of writ of to meet the standard prudential in 2009 on common law torts Corp., Mobil mandamus. See Doe Exxon by Judge standing grounds Chief Lamberth. (D.C.Cir.2007). F.3d army reports including the had committed hu- Indonesian atrocities committed ¶¶ 39-47; rights past, unit, id. man abuses Exxon’s dedicated and that Exxon ¶¶ 55-66; Am. Doe Compl. Doe I VIII provided logistical nonetheless and materi- ¶¶ 39-59, perform- and knew that Compl. al support military by hiring merce- security contract lead ance of would advice, provide naries to training, intelli- rights human Indonesian sol- violations gence, equipment to the unit while against the residents of Aceh. Doe I diers Exxon profited operation from of its ¶¶ 64, 71; Compl. I Am. Compl. ¶¶,60, Doe ¶¶ 39-41, facility. By Aceh Id. acting 46. ¶¶ 125; Compl. Doe VIII together security forces, with Indonesian rights alleged The human abuses included plaintiffs-appellants claim that Exxon torture, genocide, extrajudicial killing, acted color under of Indonesian law. Id. against humanity, violence, crimes sexual 1, 2001, On October Exxon moved to ¶ kidnaping. Doe I Compl. complaint, dismiss and after a hearing extrajudicial killings addition some of on the motion the requested district court plaintiffs-appellants’ as part husbands of Legal Depart Office Adviser of the campaign of a “systematic of extermination ment of State inform the court whether Aceh, people [defendants’ Department adjudication deemed ¶ forces,” security id. [Indonesian] to affect adversely case the interests of “beaten, burned, plaintiffs-appellants were 29, 2002, July United States. On prods, shocked with cattle kicked and sub- Legal Office of Adviser filed a statement of jected to brutality other forms of and cru- ¶ interest and attached statement of torture, the elty” amounting to id. as well Indonesian Ambassador to the United forcibly as removed and detained for Thereafter, ¶ States. time, the district lengthy periods court dis id. Plain- missed the tiffs-appellants statutory claim claims. It ruled that that Exxon or its agents, by aiding abetting decisions made in the and was not un United actionable ¶¶ States, 30, 32-33, ATS, I, id. der and at its Aceh the Doe F.Supp.2d ¶¶ 55-57, plant, id. “committed acts that that “sexual sufficiently violence” not had the intent and the of grossly effect recognized as a violation of law humiliating debasing” and either them or ATS, nations to be actionable under the their by “forcing deceased husbands them and that Exxon could not liable for be. against conscience, act will them and genocide against and humanity crimes be inciting anguish, fear and and breaking adjudication cause such claims would physical their by moral resistance” and/or “be an impermissible intrusion in Indone that actions constitute “inhuman or de- sia’s internal Id. at Although affairs.” grading treatment in violation of the law of that concluding “resolving claims com ¶ nations.” Id. 68. plicity detention, arbitrary torture, and extrajudicial killing pose[d] less of threat According to complaints, these ac- of infringing id., tions of the Indonesia’s military sovereignty,” Indonesian could be court they attributed to district ruled that plaintiffs Exxon because were committed could not assert such against a unit claims dedicated Exxon facility Aceh Exxon’s and because color-of-law jurisprudence Exxon had devel authority oped “to control lawsuits direct[ ]” sol- under U.S.C. ¶40. diers’ actions. inapplicable Id. was Plaintiffs-appel- view of v. Alva Sosa rez-Machain, 692, 124 lants claim Exxon was aware of the atroci- ties I, committed military Indonesian 159 L.Ed.2d 718 Doe Aceh, confirmed public reports F.Supp.2d court 25-26. district corporations maintain that be liable joint with the Indo- that action also ruled abetting alleged, directly aiding sufficiently was also military nesian TVPA. inquiry under the ATS and the required even if were but concerns, and to justiciability would raise challenge Finally, appellants the dis- alleged state action could the extent claims, tort con- missal of their non-federal theory, that theo- cause proximate under history demonstrates that tending sufficiently alleged in the com- ry was not per there is no bar on non-resident alien se court at 26-27. district plaint. Id. they the traditional standing and that meet hold, that the urged, as Exxon declined to prudential test for stand- zone-of-interests due to must be dismissed ATS claims ing. appellants Exxon maintains that can- failure to exhaust plaintiffs-appellants’ test because not meet the zone-of-interests ap- because it was remedies Indonesia foreign on soil alleged torts occurred such would be futile. efforts parent and that law claims would be state at 24-25. Id. subject foreign preemption, affairs survive, even if those claims Indonesian plaintiffs-appellants chal- appeal,

On ought Exxon also raises apply. ATS and lenge the dismissal their objections: the com- justiciability three prohibitions ex- TVPA claims based plaint should be deference to dismissed torture, killing, prolonged trajudicial views policy Executive detention, appeal but do not arbitrary Branch; a peace the claims interfere with genocide, of their claims of dismissal agreement by the supported humanity, or sexual vio- crimes States; threaten and the claims interna- contend, and Exxon does not They lence. comity Exxon fur- tional with Indonesia. torture, killing, dispute, extrajudicial ther maintains the Doe complaint VIII arbitrary are prolonged detention diversity must be dismissed lack of clearly norms of international established jurisdiction. contend, Exxon They law.3 also but dis- II, court erred rul- putes, aiding district Part address and abet- we ATS, aiding liability liability is ing abetting ting concluding that under the ATS, III, of In Part under the in view sub- that it is well established. we unavailable of corporate law in the circuit courts of examine Exxon’s claim immu- sequent case nity, ju- corporations in that that can be appeals, ruling concluding color-of-law IV, In Part risprudence may applied not be ATS held liable under the ATS. we affirm the of claims Responding appellants’ cases. to Exxon’s new con- dismissal precedent under the TVPA in view of is- appeal tention on is entitled to customary by argument in- sued after corporate immunity because this court oral V, Exx- law these cases. In Part we consider recognize corpo- ternational does violations, complaints rights for human on’s contentions that should rate justiciability grounds contend that Exxon has conflat- dismissed on appellants unpersuasive. VI, In Part analysis in a find them we ed Sosa’s for norms manner appellants’ challenge to the dis- that is inconsistent with well-established resolve law, their claims lack in international and alter- missal of common law for distinction standing, natively inaccurately prudential concluding of it has recounted cus- they standing; agree, tomary Appellants law. have such we howev- international task, capable of norms 3. This the court from the universe relieves colleague in ATS dissenting unnecessarily giving rise to causes of action lawsuits. which our Arg. engages, Op. identifying 73 n. See Oral Tr. at 64:9-12. see Dis. er, Exxon that the district court under erred the ATS did so 1980 when the in its choice of law determination and that Second Filartiga Circuit held Pena (2d -Irala, Cir.1980), applies law under the District Indonesian 630 F.2d 876 appel- rule to perpetrated Columbia choice law deliberate torture under color tort authority universally lants’ non-federal claims. Part official violated ac VII, ques- cepted remand to the district court we norms of international on hu by regard tions raised Exxon with man rights provided and that the ATS diversity jurisdiction jurisdiction existence of Doe federal a claim a over resi against Paraguayan VIII. dent alien official for in Paraguay. death his son The conclude that none of the four We rea- Supreme Court in Sosa described Filarti dissenting colleague sons offered our ga as “the birth modern line of reaching a different conclusion about cases.” 542 U.S. at [ATS] the reach of the ATS analysis. withstand Filartiga, 2739. Even after howev objection The dissent’s first relates to ex- er, courts commentators continued to traterritoriality pre- when that is not issue disagree as to the proper interpretation of and, sented as the historical context makes ATS, resulting exchange in the be clear, the ATS occurring reaches harm Judge tween Edwards and Bork in Judge outside United States. The dis- Libyan Tel-Oren v. Arab Republic, 726 objection corporate liability sent’s is (D.C.Cir.1984). F.2d Supreme based on misstatement of the definition Court in Sosa disagreement, settled this international law and of Su- an adopting approach consistent with both preme precedent, disregards Filartiga Judge separate Edwards’ both a fundamental distinction between opinion in Tel-Oren. causes of action based on conduct that violates the law of nations or treaties and issue Sosa was whether Mexi remedy under domestic and a (Alvarez-Machain) can citizen bring could source of international law. The dissent’s a claim under the ATS Mexican objection third precludes TVPA hired by nationals the U.S. Drug Enforce regarding court’s conclusions the ATS (“DEA”) ment Administration an al contrary to the Court’s conclu- leged violation of the law of arising nations sion about effect TVPA the from “arbitrary his agents arrest.” DEA inappropriately ATS and an addresses ar- had obtained an arrest warrant from a gument forfeited Finally, Exxon. the U.S. district court hired and Mexican na justiciability objection dissent’s selectively Sosa) (including tionals to abduct Alvarez characterizes not complaints but bring Machain and him to the United also the State Department’s expression of 698, 124 States to be 542 arrested. U.S. at interest in this litigation. Court, S.Ct. Supreme 2739. The although concluding juris ATS was as “intended

II. dictional,” 714, 2739, 124 id. S.Ct. and The ATS largely stood action,” dormant no new causes of “creatfed] id. at nearly 724, two 2739, centuries after its enactment 124 juris S.Ct. held that “[t]he 1789. Two district jurisdic- courts invoked dictional grant having is best read as been tion under the Clift, ATS. Adra v. 195 enacted on the understanding that (D.Md.1961); 857 F.Supp. Bolchos v. Dar- common law would provide cause of ac rel, (D.S.C.1795) (No. 1,607). 3 F.Cas. 810 tion for the modest number of internation appellate The first court to uphold claim al potential law violations with a for per-

19 nom., Further, time,” Am. Isuzu Mo quorum id. banc sub liability at the sonal Ntsebeza, tors, 1028, Inc. U.S. has v. 553 128 “Congress concluded that the Court 2424, (2008); § 171 L.Ed.2d 225 see way 1350 S.Ct. relevant amended any not Presbyterian Sudan v. Tal power by law an- also Church civil common or limited Inc., 244, (2d 582 Energy, 124 isman F.3d 256 Id. at S.Ct. other statute.” — denied, Cir.2009), U.S. -, observe, dis- cert. 131 on to as we The Court went V, rea- 178 L.Ed.2d 241 good that “there are S.Ct. Part cuss ruled there conception of the district court also was no for a restrained sons and liability aiding abetting under the should exercise a federal court discretion ATS, applying statutory this the rule of con a new of action of considering cause struction Central Bank Denver v. kind.” Id. Denver, Bank First Interstate history considering pur- and Upon 164, 181-82, 128 L.Ed.2d ATS, in- of the pose (1994), statute, superseded part by 119 any require that “courts should structed 78t(e), § no general there is 15 U.S.C. present-day law of na- claim based on aiding in favor of and abet presumption to rest on norm international tions I, ting liability. F.Supp.2d Doe at 24. world accepted by the civilized character a specificity comparable and defined Appellants persuasively contend 18th-century para- of the features aiding un abetting exists id., recognized,” have referenc- digms we Virtually every der the ATS. court conducts, infringement ing violation of safe issue, before and after address the ambassadors, piracy, rights of the held, secondary liability recognizing has so 724, 124 2739. The Court S.Ct. id. law for violations of international since the judge deciding that “a in reli- recognized founding Republic. Appellants cite norm will find ance an international Jansen, (3 examples Talbot judg- discretionary substantial element of (1795) (Ire Dall.) 133, 167-68, 1 L.Ed. decision,” ment id. S.Ct. dell, J.), Nancy, Amiable F. Cas. that “federal courts but admonished (C.C.D.N.Y.1817) (No. 331), under recognize private claims should Case, 11 F. Cas. Henfield’s federal common for violations (No. (C.C.D.Pa.1793) Further, 6,360). international law norm with less definite they aiding abetting liability note that acceptance among na- content and civilized Founding-era a common feature of was paradigms tions than the historical familiar addressing law of statutes enacted,” § was id. at when 9, 10, fenses, Act ch. Crimes aiding abet- Appellants’ (1790) (deeming “an acces 1 Stat. test. ting contention meets this piracies” anyone ... who sary [sic] statutory “knowingly willingly piracy). aided” dismissing appellants’ maintains, however, claims, no relied Exxon that there is principally the district court Litiga aiding abetting liability and under the ATS Apartheid In re South African (S.D.N.Y. tion, 538, against extra presumption because of the F.Supp.2d 346 at the 2004), application who territorial established private which held that actors enactment, and of the ATS’s the Su engage not in state action committed time did Bank, in preme under ATS. Court’s instruction Central no violation remediable 181-82, 1439, in 114 that authority Khuluma 511 U.S. at S.Ct. That was overruled Ltd., “aiding abetting is an ancient although Bank 504 Barclay ni v. National doctrine,” 181, 114 (2d Cir.2007), at S.Ct. en criminal law id. F.3d 254 lack aff'd for of 20 J., a un- 124 Congress (Breyer, “when enacts statute 542 U.S. at 2739 S.Ct. may person concurring) (citing

der a sue and recover which (Third) Restatement Foreign private from a defendant for the damages Relations Law of the United 401(l)-(2)). statutory § defendant’s violation of some The two other States norm, general in presumption judges there is no Teh-Oren our recent decision also plaintiff may sue aiders and abet- in Ali Authority, v. Palestinian Shafi tors,” (D.C.Cir.2011), 1439. id. S.Ct. For F.3d 1088 relied on other reasons, following claims, we hold that is no grounds dismissing there for the ATS extraterritoriality notwithstanding bar as Exxon suggests, that both involved claims abetting that the principle aiding occurring of harms outside of the United States, in is well established as did claims Sosa and Filar law, and rea tiga. mens requirements and actus reus are set those Supreme Court, however, The recently Nuremberg out by Tribunals and the the “presumption against reaffirmed extra- international courts created territoriality” Morrison v. National Nations, which reflect standard under —Ltd., -, Australia Bank federal common law. (2010), L.Ed.2d holding “[rjather than guess anew each A. case, we apply presumption all extraterritoriality, although The issue of cases, preserving background a stable Sosa, briefed,4 was not decided Congress which can legislate with yet to be a circuit has decided court of predictable effects.” Id. at 2881. “This appeals. judge One of this court discussed principle represents a canon of construc- Tel-Oren, looking issue the then- tion, or presumption a about a statute’s Foreign tentative draft Restatement of the meaning.” Id. 2877. a “When statute States, Relations Law of the United 726 gives no clear indication an extraterrito- (Edwards, J., F.2d at 781 n. concur- application, rial it has none.” Id. 2878. ring), which in final its version states provides in full: jurisdiction a nation has universal to define original district courts shall have prescribe punishment egre- for certain jurisdiction of any action an civil alien gious crimes regardless territorial only, tort committed violation of considerations, (Third) Restatement the law of nations treaty or Foreign Relations Law of the United United States. § 404, and otherwise nation States prescribe law § as conduct or occurring 28 U.S.C. 1350. The ATS was enacted an having territory effect in its and “the as part Judiciary Act of ch. activities, interests, status, (1789), § or relations of Stat. content its its nationals outside as well within its materially has been amended since its 402(l)-(2); territory,” § id. see also enactment.5 “jurisdictional,” Its terms are listed, Respondent jurisdiction Brief for the United States as were the ATS was amend- Supporting Sosa "The Petitioner ed read: district courts shall have Alvarez- Machain, (2004) (No. 03-339), jurisdiction brought by any [o]f U.S. 692 ... all suits 2004 WL alien nations, a tort in violation of the law of treaty United States.” (1st 1875). 5. The ATS has been amended three Stat. times. Rev. ed. In the 1911 1874, part Act, Judiciary of the first official codification codification of the a comma Congress grants of the Acts phrase only” of when the of was added after "tort and a

21 Sosa, encompass conduct in statutes] “en- [federal held in Supreme Court territory” foreign recog in a militates to hear claims abling] federal courts aiding abetting of by nizing the law a common law category limited defined very rights at law.” on human violations recognized common claim based nations country. At the 712, Appel in a at 124 S.Ct. 2739. committed 542 U.S. ATS, posits of the Br. Exxon form of of enactment lees’ novel time observed, canon, law of beyond in violation of the appears “torts debate ATS, within understood piracy contemplated nations were 719, 2739; the Su- although And 124 law.” Id. 542 at common see U.S. S.Ct. Tel-Oren, (Edwards, J., altered fundamentally Court has 726 F.2d at 779 preme understanding of federal 4 concurring) (citing the breadth Blackstone’s Commen enactment, *67); (Bork, J., law the ATS’s common since id. at 813-14 con taries 729, (citing Erie 124 S.Ct. 2739 can occur of curring), piracy see id. outside 64, States, 58 v. 304 Tompkins, R.R. Co. U.S. the territorial bounds United (1938)), 817, Hasan, the Court 82 1188 L.Ed. States v. 747 generally S.Ct. see United (E.D.Va.2010), certain federal and, that in areas F.Supp.2d noted Sosa 599 the Su held, because of prevail law will either common Court has also within the ter preme nation, authorization to de express congressional ritorial waters of another see Unit 726, (5 Wheat.) body id. at 124 S.Ct. Furlong, vise States v. 18 U.S. ed (1820). (citing 184, 200-01, v. Lincoln 2739 Textile Workers 5 L.Ed. 64 Morrison 912, 448, 1 Ala., hold, U.S. 77 S.Ct. Mills 353 other Court cases (1957)), judicial by way canon, or L.Ed.2d 972 “that legislation contrast Exxon’s contrary “to federal common Congress, ap- create intent decision unless fed particular areas apply rules interstitial is meant to within the pears, interest,” (citing jurisdiction United States eral id. territorial the United 715, Foods, Inc., 440 U.S. 130 at 2877 EEOC (quoting Kimbell States.” S.Ct. (1979)). (“ARAMCO 1448, ”), L.Ed.2d 711 59 Am. 499 v. Arabian Oil Co. 248, enacted 244, 1227, ATS was Court concluded 111 L.Ed.2d S.Ct. 113 assump “congressional (1991)); Bros., on the basis of Foley Inc. v. 274 see also develop common Filardo, 281, 285, 575, tion” that courts would 69 93 336 U.S. S.Ct. of na from the law law claims “derived (1949); 680 Blackmer v. United L.Ed. tions,” common ensuring any thus 252, States, 421, 437, 52 76 284 U.S. S.Ct. con lawmaking authority as to actionable (1932); Bow- States v. L.Ed. would, least, the law be cabined duct man, 94, 98-99, S.Ct. 19, 124 n. of nations. Id. at 731 (1922). arguable It is least L.Ed. Morrison, modern cases cited that a that none Exxon contends Citing (and dissenting Dis. colleague, our against extending ... Exxon “strong presumption 1350). § word "committed” phrase after "law of 28 U.S.C. removed comma was added, nations”; party has a case or appears had but no cited change to have was neither scholarly suggesting the has ch. work addition any practical Act of Mar. effect. Congress any significance had In the § 36 Stat. Tel-Oren, Code, adding particular it. term intent in Judicial 1948 revision of the J., (Edwards, concur- F.2d at n. 3 was substituted for "suits” "civil action” Act, "any ring). Also the 1948 term Rules conform with Rule Federal alien,” Procedure, consistent provided reverted to "an which that "there alien” Civil language, original and the word as a action known be one form of to be shall ” 25, 1948, "jurisdiction.” “original” was before inserted June ch. ‘civil action.’ Act of (1948) (codified at 62 Stat. at 934. 62 Stat. 74-76) construction, Op. interpret having statutory statutes and not one of the reach, as the dis- settled “background interpreta obvious extraterritorial canons of sent, ATS, Congress is true of the see Dis. tion of which concedes is presumptively Op. legislates. when 78-79. aware” it Lockhart v. States, against a principle presumption “This [of 699, 163 (2005). L.Ed.2d 557 repre- of a extraterritorial reach statute] ... rather dissenting colleague sents a canon of construction Our would bifurcate Congress’s than limit upon power by to the canon a requiring separate query Morrison, legislate.” respect 130 S.Ct. at 2877. with high to the foreign seas and of the presump- posits Exxon’s characterization countries. The dissent that because extraterritoriality tion incom- against piracy is definition high occurs on the best, plete seas, the stating presumption application is of the canon ex “against to en- extending traterritoriality that [federal statutes] canon has been —as compass foreign territory.” consistently conduct defined Supreme the Court Appellees’ Br. Exxon 37. has cited no for over two years hundred —creates authority supporting the of a statutory existence that outcome is at odds with presumption applies that a statute to the congressional that grant intent the ATS high (e.g., piracy) but jurisdiction seas not to federal courts pira over aliens’ indeed, territory; cy-related Exxon cites two Su- Op. torts. Dis. at 78-79. Find preme supporting cases con- ing avail, Court canon existing of no (9 Wheat.) trary: Apollon, 22 dissent mutates both canon and the 362, 370, (1824), 6 L.Ed. 111 precedent and Rose v. produces into a new canon that (4 Cranch) 241, 279, Himely, 8 U.S. 2 the desired result. To the extent that a Apollon L.Ed. In The canon of construction persuasive draws its Court laws held of no nation in large “[t]he ness measure from the fact that can justly beyond aware,” extend its own territo Congress is “presumptively Lock ries, regards hart, so except 148, 126 its own citi 546 U.S. at of such far zens,” added), (emphasis U.S. at 370 canons of outstanding vintage leg when it and in v. “that Himely legislation Rose islates and thus “preserves] a stable back country territorial; of every beyond is ground against Congress which can legis its own territory, only Morrison, it can its own with predictable effects,” late affect citizens,” subjects (empha U.S. at S.Ct. at a newly minted canon added).6 sis To the extent main Exxon fashioned in dissenting opinion more tains that the partially ATS is extra years than two hundred after the First territorial, a novel provides advocates canon of Congress no such benefit.7 Himely In Rose the Court went on to hold (Breyer, 542 U.S. at 124 S.Ct. 2739 J., person subject, “a seizure of a concurring). not a or of belonging subject, a vessel not to a made seas, high municipal for the breach of a presumption To extent a existed at the regulation, sovereign an act Congress, which can- of the time First it differed materi- authorize,” 279, indicating ally suggested by U.S. at from that Exxon 37; the background principle at work at time Appellees' dissent. Br. Op. Dis. at 74-76. extraterritoriality was one where Furlong, based interpreted was on a sovereignty principle national piracy provisions rather the reach of the and other special high-seas exception. than a Such in the Crimes Act 1790. 18 U.S. at 200. principle part Stating remains a ought that a court to consider Foreign today. (Third) See Restatement punishing pow- statute "reference to the 402(2); Congress apply ers” and then a "reason- Law Relations United States

23 recognize in im- that federal courts ATS Further, action a but nonetheless technical may con- to harm to aliens on Exxon’s lawsuits extend light point sheds portant might this in countries. asking occurring foreign are not One appellants tentions: hope question ATS itself extraterrito- to resolve this consider- apply to the court Sosa, Congress held Supreme the Court whether the First would rially. ing that jurisdictional statute courts the is a understood federal to have the that ATS have jurisdic- courts with authority recognize U.S. district to such causes of ac- provides aliens brought by over civil actions Unfortunately, tion the historical record tion. in viola- seeking relief for torts committed to is respect question sparse this with nations, does not the of tion of ambiguous. as has been characterized at of action. 542 U.S. create causes authority legal itself is a point most on 1795 The 2739; § U.S.C. Attorney by U.S. General William opinion statute, apply it would jurisdictional aAs Neutrality, Op. of Bradford. See Breach only if were extraterritorially Congress (1795). In the the Att’y Gen. 57 midst of foreign in courts U.S. district establish that fol- war between Britain France applying say that court is To countries. Revolution, the French citizens lowed U.S. an extraterritorially when it hears privateer in a French fleet’s participated brought appellants such have action plunder the British of colony attack and of than that saying no sense makes more in at Leone 1794. See id. 58.8 Re- Sierra is 28 U.S.C. applying court to a from protest the British sponding statute, extraterritorially question federal Ambassador, Attorney General Bradford by a brought claim it hears a TVPA when “some doubt” as whether the expressed foreign on torture citizen based U.S. prosecuted citizens in U.S. U.S. could be country. But id. at Bradford courts. See 58-59. company “no doubt that the or individ-

Thus, had here not whether question injured acts ha[d] the[ ] is uals who been extraterritorially but applies the ATS remedy by a hostility of civil suit common law causes ha[d] whether the instead 21, 2011); Knox, (last John A Congress not in- visited June H. presumption” that did able Extrajurisdictionality, Presumption Against conversely powers, to exceed those tend J. The 104 Am. Int'l L. "general ought ... ... be that words argues "[(Characteristically [pira- dissent that within to exclude cases restricted so as cy] regarded as an has been offense meaning,” the held that natural Court their seas,” Op. (quoting 79-80 n. open Dis. at Con- conclude[] "it was reasonable Dickinson, Piracy D. the Crime Edwin Is legislate, ex- gress [the] unless intended to Obsolete?, L.Rev. 336-37 Harv. preclude conclu- press language shall (1925)), Supreme Furlong but Court powers Congress Id. 196. The sion.” Con- patently made clear First has Furlong applied in were those identified “high to in- gress intended the term seas” Apollon, 22 U.S. at and Rose states, territory at least some clude Congress Himely, namely 8 U.S. at U.S. at see 18 200-01. legislate respect U.S. acts within with territory respect citizens. to its own Casto, Thus, con- Federal Furlong, Court also William R. affirmed 8. See over under Protective Torts Com- piracy of two U.S. citizens Courts’ Jurisdiction victions Nations, Law com- 1790 Act the crimes had been mitted Violation where (1986) (hereinafter Portugal, territorial waters of 502-03 mitted L.Rev. Conn. "Casto, ”) i.e., (citing Christopher Boa Law in a near islands of Nations roadstead (1962)), Maio, History of Afri- A off the western coast Leone, Vista Fyfe, Sierra 200-01; Dep’t ca. U.S. at also cited 713, 717, Background n. Cape available Verde, State, Note: http://www.state.gov/r7pa/ei/bgn/2835.htm since in the courts of United States” committed within jurisdic- the territorial had federal Congress granted foreign in the ATS tion of but “only nations for the ... in “jurisdiction by all where taken high courts cases actions on Americans Royal seas.” See Kiobel v. only, alien a tort in of Dutch Petro- an sues for violation Co., nations, (2d 111, or of leum treaty the laws of 621 142 F.3d n. 44 Cir.2010).9 Id. at Sosa (emphasis United States.” 59 In Supreme Court original). the Attorney opinion viewed General’s that open “clear a federal was court for the however, opinion, Bradford’s is not a prosecution of growing a tort action out clarity. paragraph model of The contain- 721, episode,” 542 at 124 U.S. ing opens of the ATS Bradford’s discussion 2739, uncertainty but noted about whether ... stating, “So far as the transactions Bradford assumed had there been a viola- complained or originated place took a treaty tion of “it and concluded that foreign country, they are not within the ” appears likely Bradford understood the Id. cognizance courts.... at of our provide to jurisdiction over what context, might this statement be best ‘ must have to amounted common law read as to applying scope of the action,” id. causes U.S. courts’ criminal jurisdiction. The majority Circuit, however, in the Second Extraterritorial application of the ATS interpreted broadly, the statement more contemporaneous would reflect the under- citing it as support proposition that, standing Judiciary the time of the enactment, at the time 1789, of its the ATS was Act of a transitory tort action arising grant not ju- understood to federal courts out of activities beyond the forum state’s risdiction over international law violations territorial limits be could tried the fo- relies, 9. The cases on which Exxon which Punish” Clause and the Limits Universal early piracy seek prop- Jurisdiction, to invoke cases for the 149, 103 Nw. U.L.Rev. 189 osition non-extraterritoriality, inappo- are (2009) (citing 4 Blackstone’s Commentaries instance, Palmer, site. For in United States v. *71). Further, Exxon fails to address devel- (3 Wheat.) 610, (1818), 16 U.S. 4 L.Ed. 471 Palmer, opments response namely to that in Supreme interpreted Act Crimes Congress 1819 amended Crimes Act of of 1790 not extend where a situations provide: 1790 non-citizen foreign attacked vessel under whatsoever, any person if persons That flag bearing or citizens of a state. Exxon shall, fails, however, seas, high on the to account for United States v. commit the crime of Klintock, (5 Wheat.) 144, piracy, nations, 5 L.Ed. 55 as defined the law of ... (1820), where the Court backed every such offender or offenders shall ... Palmer, away stating from although punished with death. Palmer could be “understood to indicate the 77, 5,§ Act March ch. 3 Stat. 510 opinion that the whole act must be limited (1819) added). (emphasis The 1819 Act was operation its by, to offenses committed or extended, 15, 1820, indefinitely May Act of ch. States,” upon, the of the citizens United (1820), § 3 Stat. 600 and the crime issue was not before Court in Palmer. Id. identical,” Hasan, piracy today "nearly 747 at long 152. The Court held that so as the F.Supp.2d (citing 614 18 U.S.C. piracy by persons was committed on board a and, alia, Corrie, inter v. States F. vessel “belonging subjects (C.C.D.S.C.1860) (No. 14,869)). Cas. foreign power possession ... aof crew cases, Apollon, Other such as The acting in defiance of all and acknowl- Himely, Rose v. 8 U.S. at edging government obedience to no whatev- (a citizen) relies, which Exxon U.S. and the er,” id., words, having in other a vessel no prize court cases Washington on which amici nationality, piracy provisions Legal Foundation Allied Educational Crimes Act of 1790 would reach the conduct. rely, Foundation do not advance their extra "description happens This pirates to fit ato objection. territorial Kontorovich, tee.” Eugene "Define Bird, Kirby Kent, v. rum state. See Stoddard Commentaries on James American (New 1854) (herein- (Ellsworth, York Law 8th ed. (Conn.Super.Ct.1786) (1774) Eng. Commentaries”). after J.); Mostyn Fabrigas, “Kent’s (K.B.) Casto, 1025-26; similarly Act of 1790 had contem- Law Crimes Rep. 1021 Nations, against piracy n. 205. violations of the law plated at 503-04 & supra note land.10 understanding an committed on Id. 187-89. The would reflect It also dissent, maintaining ought could occur that the ATS of the law of nations a violation occur, can jurisdiction apply piracy for to wherever see the territorial within 78-79, civilly Op. attempt in Dis. at makes no country and be remediable eign early early reconcile its view with States courts. As as definitions of the United 1781, piracy high in Lindo v. that are not limited to Lord Mansfield held (K.B.), 2 seas. Rodney, Doug. reprinted 614 (1781) Eden, Eng. Rep.

Le v. 99 375 Caux True, provide the 1790 Act did not nations, (K.B.), “[b]y the law primary liability for actions taken on the treaties, to the every nation is answerable nation, providing land of another instead done, land, injuries by sea or other for all principal only as a punishment for crimes waters, at n. port,” in fresh or id. 389 or seas, committed piracy “upon high 1, reason which created a “every and that river, any bay, or in basin or out of the things upon Prize as to taken state,” jurisdiction particular [U.S.] seas, they high equally holds when are 9, 8, 113-14; § at Furlong, ch. Stat. id., land,” citing at treaties as thus taken Moreover, suggest U.S. at 200-01. amici 389, parliamentary old as id. at provisions were never invoked II, reign King George acts from the id. tak- prosecutors involving cases actions Congress adopted at this definition nation, territory en within the of another 15, 1820, May in the Act of ch. “piracy” Washington Legal Brief of Foundation and (1820). 3, 3,§ 3 Stat. 600 Allied Educational Foundation as Amici Kent, great Support Defendants-Appel- commenta- Chancellor “the Curiae (“Wash. Br.”) law,” Holy Trinity Legal n.8, tor on American lees Found. States, 457, 470, although Furlong, supra the facts of Church v. United 143 U.S. (1892), point. Consequently, 36 L.Ed. 226 and then note weaken this S.Ct. scholar,” record, country’s foremost the historical clear on the notion legal “the Prods., Inc., founding courts at the nation’s Douglas Seacoast 431 U.S. jurisdiction at 278 n. 52 L.Ed.2d could exercise over least (1977), work,” commit- “his landmark Sun some international law violations Wortman, 717, 726, beyond Co. v. 486 U.S. 108 ted our domestic shores and Oil nation, (1988), de- territorial waters of Fur- L.Ed.2d 743 another 200-01, at is nonetheless piracy long, scribed both Lindo and the statute 18 U.S. declaratory ambiguous regarding jurisdiction of the law of nations.” whether “only as provided punish- manding, counselling advising [sic] 10. The Act or Crimes sea, same, ment upon either the land or the shall shall, declared, “every person upon be, who either they hereby are deemed seas, knowingly wittingly or the land adjudged accessary [sic] to be to such assist, command, counsel, procure, aid and fact, piracies every before the such any person persons,- to do or advise or person being suffer thereof convicted shall seas, piracy [and commit ... ... on the death.” every person all and such so as afore- that] added). (emphasis 1 Stat. at 114 said, aiding, assisting, procuring, com- remain Report over law nations ute should intact.” Id. The could be exercised occurring on the land of another violations of the House Committee on the Judiciary Rep. nation.11 to the is same effect. See H.R. No. 102-367, Second, at although the historical record To the extent argued in United States Sosa that the ATS inconclusive, developments two modern torts, way “applies alleged in no such entirely appropriate that it is convince us arbitrary the one issue in [at deten Sosa— proceed with their permit appellants tion], that occur outside of the United abetting though claims even aiding and States,” Sosa, Brief for United States relating much of the conduct to the inter (2004) (No. 03-339); see also in their alleged national law violations 46-50; Reply id. Brief for United States First, complaint occurred Indonesia. (2004) (No. 542 U.S. 692 has fo litigation primarily modern ATS 03-339), no Justice agreement indicated in foreign cused on atrocities committed Sosa, with the position, United States’ countries, in cf. Congress enacting 762-63,124 (Breyer, S.Ct. 2739 federal expressly TVPA endorsed courts’ J., concurring). Given Congress’s ratifica jurisdiction over such lawsuits. exercise tion of ATS lawsuits involving foreign con Report The of the Senate Committee on duct and the Court’s failure to Judiciary states that the “TVPA would disapprove of such in unambiguous establish an basis for a cause lawsuits we successfully of action that has been main extraterritoriality conclude canon Filartiga, tained” in ATS lawsuits such as appellants does not bar from seeking relief in that case explaining that “two citizens of alleged aiding based on Exxon’s and abet Paraguay alleged Paraguay that a former ting of international law violations commit police an inspector general of had tortured in ted Indonesia. family killed member their in arguments dissenting our col- S.Rep. Paraguay.” No. at league contrary offer no basis for a conclu- (1991).12 The TVPA thus “enhance[d] First, sion. injuries the dissent notes that

remedy already available under” the ATS here, alleged of the sort by aliens occur- by extending remedy that civil also U.S. abroad, ring “by could be remedied may citizens who have been tortured sovereigns under their countries’ laws.” Expressing approval abroad. Id. at 5. ATS, so, Op. Perhaps Dis. at 77. report the Senate Committee but the un- “[consequently, thus noted that challenged finding by stat- the district court is complaints aiding 11. The at issue rights concern The ... law of human abetting liability where at least some of right ... endows individuals with the causing plaintiffs the conduct harm to the competent invoke international in a Indonesia occurred in the United States. The appropriate forum and under circum- court, denying part district Exxon's mo- result, .... stances As in nations such as summary judgment tion for on the non-feder- the United States where international law is claims, plaintiffs al tort found that the had land, part of the law of the an individual’s presented corporate sufficient evidence of rights directly human are in certain cases go control within the United States to to trial. in domestic courts. enforceable Doe I Corp., F.Supp.2d v. Exxon Mobil Memorandum for United States as Amicus (D.D.C.2008). 31-32 Pena-Irala, 20, Filartiga Curiae at v. 630 F.2d Legal Department Advisor of State (2d Cir.1980), reprinted in 19 I.L.M. supported adjudication of the claims in Filar- tiga, participating as amicus curiae and stat- ing that: unreasonably their litigate application pro- could not their plaintiffs that the Indonesia, assuming, as longed,” (quoting even id. at 829 claims Restatement Foreign court, argued before the district Exxon (Third) Relations Law of the required exhaustion f, that international citing 713 cmt. id. States remedies, they (Switz. had dem of local because d, § 703 cmt. and Interhandel futile, would be an such efforts (Mar. onstrated U.S.), 29)); 1959 I.C.J. I, exhaustion. Doe exception prudential recognized futility Ninth Circuit also (citing at 25 Hammontree v. F.Supp.2d exception applied by the district court NLRB, 1486, 1517(D.C.Cir.1991); here, id. at 830. Because Exxon has not Press, F.Supp. v. Assoc. Rasoulzadeh challenged finding the district court’s (S.D.N.Y.1983), op. unthout futility, this court has no occasion to decide aff'd (2d Cir.1985)). Rosa, 767 F.2d 908 question. To the extent sug- Exxon referenced the exhaustion Supreme Court subsequent gests may events Indonesia European amicus Commis argument outdated, finding have rendered the but noted that it need not reach the sion remand, issue be addressed on it “would cer question although stating Part C.13 V. infra ap in an tainly requirement consider this Second, deeming “very odd” that 21,124 case.” 542 U.S. at 733 n. propriate Congress the First would be interested circuit to S.Ct. 2739. Since then protecting injured “a Frenchman in Lon question concluded that “cer address don,” 77, Op. Dis. at ignores dissent appropriately tain claims are consid that the can change calculus where a U.S. ered for exhaustion under both domestic a harm.14 E.g., citizen is cause of the principles and core prudential standards 362; Furlong, Tinto, Apollon, 18 U.S. at law,” international Sarei v. Rio Rose, Cir.2008) 200-01; (9th (en “Congress 8 U.S. PLC, 822, 550 F.3d prescribing standards of conduct banc), noting that “[u]nder American citizens project impact a ordinarily required state is beyond of its laws the territorial bound a claim another state for an consider States,” aries of the United Steele v. Bulo injury person to its national until that has Co., 280, remedies, 282-83, va Watch 344 U.S. exhausted domestic unless such 252, (1952), L.Ed. 319 clearly inadequate, especially remedies are sham or S.Ct. XX, foreign piracy, id. 13. The dissent's satisfaction with do- law of nations such as see art. extradition, and Dis. mestic remedies use of 8 Stat. 126-27. 7, 5, Op. at n. 78 n. undoes the First Congress's decision that federal courts should objections respects 14. in some echo the provide remedy empowered a for aliens minority views in the Senate Committee re- suffering of the law of na- torts in violation TVPA, port accompanying ex- which remedies, Relying foreign tions. domestic pressed "over-extendind[ing] concerns about harms in the dissent assumes such occur Congress's authority” constitutional in that territory country and not in offended S.Rep. statute. No. at 13. But the territory country. of a third disinterested ignores minority the fact both the dissent Furthermore, party neither nor amici de- agreed majority and the no such con- views prior scribe the status of extradition treaties cern existed in case where "connection passage Judiciary to the of the Act of 1789. clear,” ... id. at to the United States as By way example, Jay Treaty Nigeria, in Verlinden B.V. v. Central Bank Kingdom permitted United extradition 461 U.S. 76 L.Ed.2d 81 forgery, Treaty cases of murder (1983), foreign Commerce, where a defendant used a U.S. Amity, Navigation, U.S.-Gr. Brit., XXVII, 19, 1794, instrumentality corporation of a as an breach art. Nov. 8 Stat. contract, appeared id. to exclude violations of the engaged accomplice acts here avows himself an or where defendant abettor steps crime, the course of subject’s that “were essential of his upon and draws abroad,” id. at business consummated community his the calamities of foreign has not Supreme 252. The S.Ct. war. bar when a feder- found an extraterritorial 4 Blackstone’s Commentaries *67-68. for criminal or civil provided al statute representation Blackstone’s that a liability for a scheme devised and executed country could deem the an United States to inflict in the United States intended abettor,” “accomplice *68, id. at of a abroad, e.g., harm to a Frenchman in Lon- violation of the if law of nations it does not Sabena, Airways Laker Ltd. v. don.15 See censure U.S. citizen who has violated Airlines, Belgian World Congress’s that law makes the First judg- (D.C.Cir.1984); Pasquantino cf. hardly ment “odd” all. States, 349, 371-72, 544 U.S. Here, 161 L.Ed.2d 619 B. Exxon appellants engaged claim that statutory The rule of construction set part acts the United States were forth Central Bank not preclude does parcel they of the harm suffered. recognition of aiding abetting liability Considering identity person for claims under ATS. Central causing harm to the Frenchman in London Bank, Court held that al- Congress’s illuminates the First further 10(b) § though of the Securities Ex- all, intent. After Act, change 78j, § pro- U.S.C. did not the individuals of where state violate aiding hibit and abetting liability, “the nations], general law [of this is then private plaintiff may not bring a 10b-5 duty the interest as gov- well suit pro- defendant for acts not ernment, live, they under which to ani- 10(b),” hibited the text of upon madvert them with a becoming 114 S.Ct. 1439. The Court de- severity, peace of the world clined to create a presumption against may be maintained. For in vain would and aiding abetting liability, but instruct- nations, capacity, in their collective ob- statute, ed that when Congress enacts a rules, private serve these universal if there is no presumption aiding in favor subjects liberty were at to break them abetting liability. and Id. at discretion, at their own and involve the S.Ct. 1439. Our conclusion that there is two in a It states war. is therefore aiding abetting liability and under first, upon injured, incumbent the nation ATS is not presumption based on a justice to demand satisfaction and to be aiding abetting liability. favor of offender, by done on the the state to and, which he if belongs; jurisdiction that be re- provides for the fused or neglected, sovereign then federal courts to hear regarding lawsuits Steele, 15. The dissent finds fault with grants this citation of like the statute at issue feder- Pasquantino, misinterpreting jurisdiction Steele and their al courts over at least some forms not, citation. The court as the dissent of extraterritorial conduct. The court cites suggests, reading permit applica- Pasquantino only support proposi- Steele "to as for the where, here, tion of a plaintiffs may nonextraterritorial statute whenever tion that ulti- mately prove conduct in the United provided Slates contributes to a that Exxon substantial abroad,” Morrison, assistance, C, violation practical at S.Ct. see Part II. from infra States, (emphasis supplied). Op. jurisdiction 2886 n. 11 Dis. at its offices in the United Rather, 75 n. 4. ap- the court starts with the ATS over extraterritorial harm is all the more ATS, history text and propriate. and concludes that the 1790, 10, ting liability. law of Crimes Act of in violation of the torts “committed Congress George § 1350. at 114. Washing 28 U.S.C. Stat. President nations.” ton, the courts derive the in response directed that to the state of hostilities in thus nations, and Revolution, from the law of Europe following rule of law the French for conduct responsibility Neutrality that law extends issued the Proclamation of and abettors. violating its norms aiders warning “the citizens of the United Court’s instruction Cen- “Supreme carefully States to avoid all acts and pro enacts a Congress Bank that “when tral ceedings” that would contravene that neu sue and person under which statute trality “mak[ing] known that” citizens private from a defendant damages recover punish would render themselves “liable to violation of some statu- for the defendant’s ment or forfeiture under the law of nations norm, no tory general presump- there is by committing, aiding, abetting hostili may also sue aiders plaintiff tion that the against any” power ties involved abettors,’ inapposite.” is thus Khulu- general “or carrying conflict (Katzmann, J., mani, con- 504 F.3d at 282 them those articles which are deemed con Bank, 511 U.S. curring) (quoting Central usage traband the modern of nations.” 1439) (internal 182, 114 citation (1793),reprinted Proclamation No. 3 in 11 (Hall, J., omitted); see also id. 288 n. 5 (1859) added). too, (emphasis Stat. 753 So Casto, R. The New concurring); William opinion Attorney the 1795 General Remedies Common Law Tort Federal recovery Bradford stated civil could Law, 37 International Violations be had in federal court citi for U.S. Rutgers (2006) (hereinafter 635, 650 L.J. zens who “aided and abetted” the French ”). “Casto, Law Federal Common privateer plunder fleet its of Sierra 58; Op. Att’y Leone. 1 Gen. at authority supports the conclusion Ample also 542 U.S. at 124 S.Ct. 2739. Congress aiding that the First considered early An decision of the abetting itself to be a violation of the upheld aiding abetting liability gov- All law of nations. three branches subject capture unlawful of a neutral ship. had addressed the ernment Talbot, 167-68; see also Hen Congress were in accord. 1790 enacted Case, providing aiding and abet- 11 F. Cas. 1099.16 piracy field’s against” European Case involved a U.S. citizen ac- or abet hostilities na- Henfield’s illegally enlisting pri- cused of with French neutrality pun- tions violation of must be Jay, sitting vateer. Chief Justice John on cir- ished, added), (emphasis id. at 1104 and cuit, (1) grand jury "the instructed that: committing, aiding, acts amount to or "[w]hat the United States” consisted of trea- laws of ties, hostilities, abetting by or must be determined nations, the law of and the Constitution nations, approved practice the laws and of States, and statutes of the United 11 F. Cas. at by and the treaties and other laws of the 1100-01; (2) and consider- "circumstances cases,” (em- United States relative to such id. urging people unite in of the ations now added). phasis grand jury charge was particularly States exact and to apparently published explain the effect of circumspect observing obligation of the 1793 Proclamation at home and abroad. treaties, nations, of which ... and laws Casto, Nations, 8, supra Law note at See very important part laws of the of our form nation,” Lerner, (citing Ralph 502 & n. 193 The Su- 1102; (3) Washing- id. at President Schoolmaster, preme Republican Court as proclamation “exactly ton's had been consis- 127; 1967 Sup.Ct. Wharton, Rev. Francis State declaratory tent with and of ... the law of During nations,” id.; (4) a nation of the United States "let[s] if loose Trials Adminis- (hereinafter Washington nations, subjects against foreign [its] reins of trations and Adams (1849); [it],” 49 n.* will in the these behave same manner Trials”) "Wharton’s State Jul- aid, 1103; (5) commit, those "who id. at History Goebel, Jr., Court of ius 30 abetting liability im- aiding customary

Because source of international law. See, “specific character of the con- plicates e.g., Copper Flores v. S. Peru Corp., by committed the defen- allegedly 233, (2d duct Cir.2003); 414 244 F.3d n. 18 Khulumani, sued,” at dants 504 F.3d 269 Yousef, 56, United States v. 327 F.3d 105 (Katzmann, concurring), adopted in J. (2d Cir.2003); nn.39-40 Hamdan cf. Sudan, 582 Presbyterian Church F.3d Rumsfeld, 557, 40, 548 U.S. 610 & n. 126 258, represent a at the conduct must viola- 2749, (2006); S.Ct. 165 L.Ed.2d 723 Princz tion of an international law norm with at Republic Germany, v. Federal 26 F.3d acceptance least as “definite content and 1166, (D.C.Cir.1994), denied, cert. among civilized nations historical [as] 130 L.Ed.2d 803 1789,Sosa, paradigms familiar” (1995). Meron, generally Theodor Re at 2739. To the extent the on the Prosecution War flections I, F.Supp.2d district court in Doe Tribunals, Crimes International aiding abetting concluded that lia- Am. J. Int’l L. The Gener “ bility an ‘innovative interpreta- would be Assembly al of the United Nations has Alien Tort Statute” tion[]’ unanimously principles affirmed the of in consequences in “collateral could result recognized by ternational law the London possible repercus- relations Charter and the Nuremberg tribunals. sions,” the Second Circuit has since held See Affirmation of Principles of Inter aiding abetting that there can be lia- national Recognized by Law the Charter ATS, bility Presbyterian under the see Tribunal, 95(1), Nürnberg G.A. Res. Sudan, 258-59; Church 582 F.3d at (Dec. 1946) (“Nurem U.N. Doc. A/236 Khulumani, curiam). (per 504 F.3d at 260 I”). berg Principles Resolution Exxon The Eleventh Circuit has also held that dispute does not that the London Charter aiding abetting liability is available and the prosecuted cases thereunder con under the ATS. See Sinaltrainal v. Coca- customary stitute sources of international (11th Co., Cola 578 F.3d 1258 n. 5 law. Cir.2009); Co., Romero v. Drummond Inc., (11th Cir.2008); 552 F.3d responsibility “[Criminal of those who N.A., Aldana v. Del Monte Fresh Produce aid and abet violations of international (11th Cir.2005). 416 F.3d Both “accepted law” has been as one of the core upon courts reached this conclusion look- principles of post-World IIWar war ing Khulumani, crimes trials.” 504 F.3d at Sudan, Presbyterian Church (Katzmann, J., concurring). The Lon- Aldana, 258; F.3d don Charter extended responsibility for which we turn. now “accomplices crimes to participating formulation or execution of a common plan

Decisions of the courts established Council, conspiracy to commit” Security the U.N. of the crimes the Internation- triable Military al the Tribunal. London Nuremberg Tribunal Charter estab- 6, lished in art. 82 At Agreement for the U.N.T.S. 282. the direction of Prosecu- tion Major Assembly, and Punishment of the U.N. General War the Interna- (“ILC”) Axis, 8, European Criminals of the tional Law Commission Aug. (hereinafter 1945, “principles recognized U.N.T.S. 280 “London formulated in Charter”), and the several ... Nuremberg judgment tri- Charter and in the of the Tribunal,” recognized bunals are as an authoritative as a codification legal of certain 1801, Beginnings (1971)). at 623-24 States, the United Antecedents to tri- of the Nuremberg Statute International Criminal Tri- applied principles Rwanda, Principles 6, 955, Reso- Nuremberg bunal for art. S.C. Res. bunals. (Nov. I; 1994) Akayesu, 8, Prosecutor v. lution see also U.N. Doc. annex S/RES/955 ICTR-96-4-T, Statute”). (“ICTR Trial Chamber Secretary Case No. General ¶ 2, 1998); Prosecu- (Sept. Judgement, explained of the Nations that “in Milosevic, IT-02-54, Trial No. tor v. Case assigning to the International Tribunal the Preliminary on Mo- Decision Chamber responsible prosecuting persons task of for ¶¶ (Nov. 2001). 8, tions, Principle 29-30 serious violations of international humani- com- “[c]omplicity provided VII Security tarian Council would not against peace, a crime a war mission of creating purporting ‘legislate’ or crime, against humanity ... is a or a crime Rather, the International Tribunal law. ILC, law.” crime under international applying existing would have the task of Recog- Law Principles of International humanitarian Report law.” Nürnberg of the Tri- nized the Charter Secretary-General of the Pursuant Tribunal, Judgment and in the of the bunal Paragraph Security Council Resolu- 12, G.A.O.R., session, Supp. 5th No. U.N. ¶ 808, 29, tion (May U.N. Doc. S/25704 (1950) (“ILC A/1316, Principle Doc. VII 1993) (“Sec’y Report”). General ICTY Principles”). Implementing the London jurisdiction The ICTY’s was limited to Charter, joint body coordinating Allied “rules of international humanitarian law postwar Germany pro- governance beyond any part which are doubt of cus- Law No. 10 to mulgated Control Council ¶ 34; tomary law.” Id. [international] see liability criminal on whomever was impose Khulumani, (Katzmann, F.3d accessory to the commission of “an J., concurring) (citing Prosecutor v. Fu- such crime or ordered abetted rundzija, Case No. Trial IT-95-17/1 same.” Allied Control Council Law No. ¶¶ (Dec. Judgement, Chamber (“Control (Dec. 1945) II, § 2 art. 1998); Tadic, Prosecutor v. Case No. IT- 10”), Law No. in 1 Enactments Council 94-1-T, Trial Opinion Chamber Papers Approved Coun- Control ¶¶ 689-92, 730, 735, Judgement, (May (1945) Coordinating Committee cil and 1997)). emphasized The ICTY that it Khulumani, 504 F.3d (“Enactments”); required objective was to determine “the (Katzmann, J., concurring); at 272 Flick v. responsibility for basis such individual (D.C.Cir. Johnson, ... matter of international law 1949). since the International Tribunal is Security The U.N. Council resolutions humani- empowered apply international establishing the International Criminal ‘beyond any tarian law doubt cus- ” Yugoslavia the Former Tribunal Tadic, tomary law.’ Trial Opin- Chamber (“ICTY”) and the International Criminal ¶ Judgement, (quoting Sec’y ion and (“ICTR”) likewise Tribunal Rwanda ¶ 34). The Report General ICTY ICTR any “person who imposed has a similar mandate to that of the ICTY ordered, instigated, committed or planned, encompasses but also several treaties. See plan- otherwise aided and abetted Report Secretary-General Pursuant of a crime. ning, preparation or execution” Security Paragraph 5 of the Council Tri- of the International Criminal Statute ¶ 955, 12, Doc. Resolution U.N. S/1995/134 Yugoslavia, art. bunal for the Former (Feb. 13,1995). 1993) (May Doc. annex U.N. S/25704 (“ICTY have, turn, Statute”), in relied on S.C. Res. Federal courts adopted in 25, 1993); in (May international criminal law norms estab- U.N. Doc. S/RES/827 aiding provides mon law the standard the law of nations.

hshing the content Judge abetting liability. and Edwards Khulumani, at 270 See, 504 F.3d e.g., Tel-Oren, in 726 F.2d similarly observed Kadic, (Katzmann, J., concurring); 777-78, at that “the law of nations never Sosa, at 241-43; 542 U.S. see also F.3d at perceived to create or define the has been J., (Breyer, concurr to be made available each civil actions and sources These authorities ing).17 nations; community of the member liability is abetting and aiding confirm that consensus, leave that determina the states nations in the law of clearly established respective municipal laws.” tion to their liability available is consequently such cite the United States’ Appellants also under the ATS. urging in amicus brief the Second Circuit “validity that the of a federal-common-law C. be generally claim under Sosa should what intent must question remains question, with the ATS treated as merits aiding abetting proved for subject-matter jurisdiction conferring so that Appellants suggest under the ATS. allegations of a violation of long as the law standard for aid- the federal common plainly customary international law are assistance ing abetting knowing — Brief for the United States insubstantial.” commission effect on the has substantial as Amicus Curiae at Abdullahi v. Pfiz well es- rights of the human violation—is (2d Cir.2009). er, Inc., Ap 562 F.3d 163 that the standard under cus- tablished and pellants suggest application “[t]he essentially the tomary international law is common standards is essen domestic law to follow the urges same. Exxon the court tial because international law does not or Presbyterian Church Second Circuit of dinarily provide for the means of its own Sudan, 259, by requiring proof 582 F.3d courts,” Appel enforcement domestic purpose that the acted with the defendant view, Br. lants’ their Su committing alleged rights human Sosa, preme Court violation, a federal maintaining “[i]f Judge “endorsed Edwards’ S.Ct. aiding abetting cause of common law govern litiga view domestic rules ATS, recognized action is to be under the courts,” Appel tion of ATS claims U.S. scope that the requires then Sosa lants’ Br. 33-34.

federal common law rule derive from inter- history examined of the ATS Appellees’ national law.” Br. 40. Sosa, Supreme Court

In stated that indicated the First Con- S.Ct. “jurisdictional grant is best read the ATS’s gress’s understanding that federal common having on the understand- been enacted law cases. supply would rules ATS ing provide that the common would professors Amici law in Sosa noted that 724, 124 cause of action.” 542 U.S. at was enacted there was no when appel- 2739. From this statement clear distinction between common law and Brief of lants the conclusion that federal com- international law. See draw glo-American pointed ... criminal and tort 17. As the Seventh Circuit has out: distinguished. proceedings clearly were not frequently overlap. Crimes torts Bach, (7th United States particular, definite most crimes that cause alia, Cir.1999) (citing, Seipp, J. inter David losses to ascertainable victims are also Between Crime and Tort in The Distinction tort of con- torts: version; the crime of theft Law, Early 76 B.U. L. Rev. Common the crime of assault is the tort of (1996)). battery.... An- [In] much earlier era of

33 preme and Le Court in Sosa mandated that of Federal Jurisdiction courts Professors Support recognize only “a History Amici Curiae narrow set of common gal as Alvarez-Machain, v. law actions derived from law of Respondents, Sosa na- (2004)(No. 03-339), reprinted 721, 692 tions.” 542 U.S. at 124 542 U.S. S.Ct. 2739. Comp. Hastings 99,109 doing, identify in 28 In so a court a norm must Int’l & L.Rev. Br.”). (2004) (“Sosa History Amicus Legal for conduct of no less “definite content and routinely treated causes of action Courts acceptance among civilized nations than they arising under international law as did paradigms the historical familiar when gen applying enacted,” 732, other common law § 1350 124 was id. S.Ct. torts — See, principles. e.g., 2739, law Tal eral common community the international which (3 Dall.) bot, (Paterson, 3 U.S. 155-58 expresses approbation disapprobation.18 or J.); (Iredell, J.); id. at 169 id. at 161 Aiding abetting liability, supple- while Benner, J.); States v. (Rutledge, C. alleged liability, mental to some other tort (C.C.E.D.Pa.1830) 24 F. Cas. 1087 is based conduct distinct from the con- (No. 14,568). Appellants maintain that the principal duct actor. Consistent rules to application of common law question is whether way in cases is consistent with the which community express international would implement other federal federal courts disapprobation definite toward aiding and See, e.g., v. Kim statutes. United States conduct abetting when based on a Foods, Inc., 715, 727, 99 S.Ct. bell particular standard. The court therefore (1979); 59 L.Ed.2d 711 see also Tex. customary looks to law to Materials, Inc., Indus., Inc. v. 451 assessing determine the standard for Radcliff aid- 630, 641, 101 68 L.Ed.2d ing abetting liability, much as we did (1981). 500 The Eleventh Circuit has addressing availability of aiding and adopted approach, holding this that a abetting liability Important itself. sources knowledge applies that is standard because are the international tribunals mandated the standard under federal common law. by their to apply only customary charter Fernandez-Larios, 402 See Cabello v. F.3d tribunals, international law. Two such (11th Cir.2005); Doe v. cf. International Criminal Tribunals for the Front, F.Supp.2d 257 Islamic Salvation Rwanda, Yugoslavia Former are con- (D.D.C.2003). 115, 120 12n. sidered authoritative sources of See, Hamdan, e.g., international law. particular cogni-

That a cause of action 2749; Abagni- U.S. at 611 n. recognized under is to zable the ATS claim, however, Corp., law AMVAC Chem. federal common does nin (9th Cir.2008); identify not the source of law to Ford ex rel. Estate which Garcia, (11th court must for a standard. Ford v. look The Su- F.3d permits only by general prescribes 18. “A or a certain subsequent norm norm inter- behavior,” human having Principles national the same character.” Kelsen, Hans (1966); Law it determines Art. Vienna Convention on the Law of International or, “ought” happen meaning what Treaties, 23, 1969, 331; May 1155 U.N.T.S. conduct, is, ought ought that whether one Foreign see also Restatement (Third) Rela- behavior, engage particular Hans Kel- k; § 102 cmt. tions Law of if nited States (1991). Inter- Theory sen, General Norms (Sir Law Robert Oppenheim's International concept per- national law embraces the Watts, eds., Jennings & Sir Arthur 9th norm, emptory "accepted one that Weil, ed.1996); Prosper Relative Towards recognized by community the international Law, Normativity in International Am.J. deroga- no states as whole from which Int’l L. permitted tion is and which can be modified ¶¶ (Nov. 16, 1998); Tadic, Cir.2002). Trial have declared the knowl- 325-29 They ¶¶ 674, Judgement, Chamber 692. The under suffices edge standard in agreement. ICTR is See Prosecutor v. law.19 Ntakirutimana, ICTR-96-13-I, No. Case ICTY, addressing whether the ¶ (Dec., 13, 2004); Appeals Judgement, the mens rea of must “share accomplice20 Musema, Prosecutor v. No. Case ICTR- knowledge” or whether mere principal 96-13-1, Judgement, Trial Chamber suffice, that “the latter will will concluded ¶¶ (Jan. 2000). parties 180-82 do Furundzija, Trial Chamber suffice.” approach that the of the suggest not ICTY ¶ necessary It is not Judgement, 236. and the ICTR is inconsistent the fed- aider and abettor “shares the mens rea aiding abetting eral standard for and liabil- positive in the perpetrator, of the sense ity. crime,” provided intention to commit Welch, In Halberstam v. 705 F.2d 472 knowledge he his actions will “ha[s] (D.C.Cir.1983), which the perpetrator assist the the commission of “a comprehensive opinion described as ¶ crime.” Id. 245.21 The Trial Cham- subject aiding abetting],” and Cen- [of states: judgment ber’s Bank, tral 511 U.S. at aiding abetting] [of actus reus [T]he scope aiding this court defined the assistance, practical encour- consists abetting for tort in the civil con- agement, support or moral which has a text as follows: perpetration effect on the substantial (1) party whom the defendant required the crime. The rea mens is perform wrongful aids must act that knowledge acts these assist (2) injury; an causes the defendant commission of the offense. generally must be aware of his role as ¶ ¶¶ an part illegal overall or tortious 249; 238-40, Id. see also id. 245-46 activity at the time that he provides alia, Tesch, (citing inter In re 1 Law Re- (3) assistance; the defendant must ports 93); of Trials of War Criminals knowingly substantially assist the Krstic, IT Prosecutor Case No. -98-33- principal violation. ¶¶ A, Appeals Judgement, (Apr. Delalic,

2004); alia, Prosecutor v. No. IT- (citing, Case 705 F.2d at 477 inter Restate- 96-21-1, (1979), Trial Judgement, Chamber (Second) ment of Torts knowledge appears Furundzija 19. The standard to con- 21.The Trial Chamber in further aiding form with the standard for emphasized knowledge abet- that the standard: countries, ting liability many other includ- particularly apparent from all the cases France, Canada, ing Germany, England, having persons in which were convicted for Australia, Krstic, Ap- and Switzerland. perpetrators driven victims and to the site ¶¶ peals Judgement, Brief of Amici 140-41; prose- of an execution. In those cases the Sup- Curiae International Law Scholars in prove cution did that the driver drove port Plaintiffs-Appellants Seeking Rever- purpose assisting killing, for the in the ("Inti Br.”) sal Law Scholars Amicus 16-17. is, with an intention to kill. It was the knowledge purpose of the criminal opinions 20. The ICTY and the ICTR refer to executioners that rendered the driver liable "accomplice" "aiding abetting” lia- Consequently, as an aider and abettor. if bility interchangeably, Furundzija, e.g., Trial ¶¶ proven that a driver would rea- were not Judgement, Chamber and that purpose sonably of the have known that understanding is reflected in the London execution, trip was an unlawful he would opinions Nuremberg Charter and the tribunals, Khulumani, acquitted. 504 F.3d at 272 (Katzmann, J., concurring). Id. Khulumani, of that crime.” commission resulting to “For harm provides: which (Katzmann, J., concur- the tortious conduct F.3d at 277 from person third if he ... another, subject liability is that one The Second Circuit reasoned ring). (b) conduct consti- the other’s knows that recognize “aiding abetting whether to gives substan- duty and a breach of tutes a decision liability significant is no less to the encouragement or tial assistance recognize whole new than whether himself.”). In Halber- conduct so to other Presbyterian place,” tort in the first relevant stam, cited five factors the court Sudan, 259, 582 F.3d at Church of as- the defendant’s determining whether in command about the consistent with Sosa’s “ ‘the sufficiently substantial: was sistance norms, of new concluded definiteness the amount encouraged, act of the nature sources that “no such [in- from those two defendant, his by given of assistance imposing consensus exists ternational] tort, at the time of or absence presence (but knowingly individuals who on [tortfeasor] to the other his relation aid and a violation purposefully) abet ” (alteration in Id. at 478 of mind.’ his state law,” international id. (quoting Restatement original) (Second) d). The Eleventh § cmt. 876 agree with the Second Cir Although we of Torts stan- adopted the Halberstam has Circuit aiding abetting that premise cuit’s litigation. See and TVPA in ATS dard in a norm of must be embodied Cabello, (citing Hal- at 1158-59 402 F.3d law, amici international 487). 481, berstam, To the F.2d at why out its conclusion was point scholars law and federal common extent Statute, The Rome which created flawed. law standards customary international (“ICC”), the International Criminal differ, may, purposes a court do not treaty nature of a properly viewed rea reus and mens applying the actus customary international law. and not as standards, common law turn to the federal Int’l Law Scholars Amicus Br. 19-20 addressing claims knowledge standard Statute, 10; Nadya Rome art. Leila (citing under the ATS. Custom, Sadat, and Some Codification Circuit, Presbyterian The Second Relationship Between Thoughts About the 259, Sudan, none- 582 F.3d Church of Statute, the ICC the Tioo: Article and abettor held that the aider theless n.11, (2000); 909, 911 & L.Rev. DePaul princi- purpose as the must share same 10, Commentary Triffterer, Article Otto actor, Rome relying on the Statute pal Statute of the International Rome (“Rome International Criminal Court (Otto ed., Triffterer Court Criminal 90, 17, 1998, Statute”), 2187 U.N.T.S. July 1999)). in Article specifically provides It v. von Weizsaecker and United States interpreted as 10 that it is not to “be (“The Case”), 14 Trials Ministries any way existing limiting prejudicing or Nuernberg Criminals Before War developing rules of international law.” Military Control Coun- Tribunals Under that the Rome Statute acknowledges This (1997) (“Trials 308, cil Law No. existing affect or amend was not meant to Khulumani, see also Criminals”); of War law. See Int’l customary international (Katzmann, J., concur- at 276 treaty, Amicus Br. As Law Scholars standard, defen- “the ring). Under only those coun the Rome Statute binds (1) practical assistance provides dant it, Military ratified tries that have effect has a substantial principal which (Nicar.v.U.S.), (2) Paramilitary Activities crime, and perpetration on the ¶ (June 27), and the facilitating the 1986 I.C.J. purpose does so with the Const, not,22 ute of has see U.S. the International Court of Justice States (“ICJ Yaker, Statute”), 2; II, cl. Haver v. June art. art. (9 Wall.) (1869); 38(1)(a), 1055, 1060, 19 L.Ed. 571 59 Stat. 832 U.S.T.S. 738; recognized F.3d see also Stat- 993.23 ICC has Abagninin, 545 signed the national law Clinton Rome Statute is one of sources for the law President not, misconception appears of nations. The stating: "I will and do not recommend also Kiobel, Flores, my Treaty F.3d at submit to the successor White F.3d at 237 & n. where the cited authori- Senate for advice consent.” Communications, treating ties for the "law of nations” House Office of Statement as Signature Treaty synonym "customary of the ICC for international law” President on 2, 2001), (Jan. support proposition. at 2001 WL do not Nor did the available 6, 2002, Supreme equivalent May President Bush withdrew the Court in Sosa treat as On customary signature States of the United from Stat- international and the law of Bolton, generally. R. nations ute. See Letter of John Under In Sosa notion of cus- Sec., tomary Sec’y Control and international law of State for Arms Int’l is not discussed un- C, Annan, Sec'y to Gen. of the United Na- til Part IV. where the Court Kofi addresses contrast, 6, 2002). (May By tions the United whether Alvarez-Machain's abduction and ar- Representative rest could States to United Nations be considered a violation of an Security sufficiently specific voted in the U.N. Council to create international norm of a ICTR; cognizable both the ICTY and the the votes were character to be under the ATS. unanimous, 735-37, except repre- By the vote of 542 U.S. at for 124 S.Ct. 2739. con- trast, against Rwanda creation of the where the sentative from Court reaches a Bingham, general Strategy ICTR. Laura or Process? conclusion it refers to "international Closing the International Criminal Tribunals law” or the "law of nations” without modifi- Rwanda, See, 712, 714, 715, Yugoslavia e.g., cation. id. the Former for (2006). Habana, (quoting Paquete J. Int’l L. S.Ct. 2739 Berkeley 677, 686, U.S. 20 S.Ct. 44 L.Ed. 320 Statute, 23. Article 38 of the ICJ which "em- (1900)). rejection The Court's of Alvarez- understanding bodies the of States as to what Machain's claim because the defendant's con- competent proof sources offer of the content customary duct no "violate[d] norm of inter- law,” Flores, customary international support national law so well defined as to 251, provides: F.3d at remedy,” creation of a federal id. at Court, 2739, necessarily requires whose function is to decide in to ATS, finding accordance international law such dis- exist under the that the defen- it, putes apply: as are to customary submitted shall dant either violated a norm of in- conventions, treaty a. international whether ternational law or a to which the Unit- general particular, establishing party. rules ed States is This follows not from expressly recognized by contesting synony- the fact that the "law of nations” is states; "customary mous with international law.” custom, b. international as evidence of a Countless sources of international law con- law; otherwise, general practice accepted clusively generally as demonstrate general principles recog- Pugh c. of law Louis Henkin, Richard Crawford & Oscar nations; (3d nized civilized 51-149 SCHACHTER, LAW INTERNATIONAL ed.1993), judicial d. ought ... decisions and the teach- and this court not assume law, ings highly qualified publi- of the most that the Court misstated international cf. nations, subsidiary Murray Charming Betsy, cists of the various v. The Schooner (2 Cranch) means for the determination of rules of 2 L.Ed. 208 Rather, stating engage law. that courts must Statute, 38; lawmaking ICJ subject art. see also Restatement some form of common Foreign "vigilant doorkeeping,” 542 U.S. at (Third) Relations Law of 102(1), 103(2). §§ emphasized the Court States dissenting colleague incorrectly Our customary im- that the violation of a norm of plies customary necessary that the definition interna- international law is a condition synonymous recognition tional law is with the law of under federal common law of Rather, Op. plaintiff's nations. Dis. 84 n. 10. claim. This no means indi- indicates, customary as the ICJ customary Statute inter- cates that international law consti- necessarily repre- person “a has intent ... does not where rela [i]n Rome Statute customary international law. Prose- sent consequence, person tion to a means Katanga and Mathieu cutor v. Germain consequence to cause that or is aware Chui, ICC-01/14/01/07, No. Ngudjolo Case that it ordinary will occur course of Charges, Decision on the Confirmation of 30(2)(b) (emphasis events.” Id. art. add 2008).24 ¶¶ (Sept. ed). 25(3)(c) Although the text of Article agree that the Rome Even were we appears require proof of “purpose,” the Statute reflects 25(3)(d) requires text of Article no more interpretation the Second Circuit’s in than “knowledge.” Given that Exxon is Khulumani, (Katzmann, at 276 F.3d alleged to have aided and the In abetted J., concurring), Presbyterian Church forces, military donesian which in turn Sudan, 259, appears 582 F.3d at incon- alleged are to have committed violations provisions. with its Article sistent of the law of nations appellants, 25(3)(c) provides of the Rome Statute apply were the Rome Statute to it ap individual, purpose if an “[f]or 25(3)(d) pears that Article and its mens of a facilitating the commission such of “knowledge” apply. rea would Cf. crime, aids, abets or otherwise assists Prosecutor v. Lubanga Dyilo, Thomas attempted its commission or its commis- ICC/01/04-01/06, Case No. Pre-Trial sion, including providing the means for its Chamber Decision on the Confirmation of 25(3)(c) Statute, commission.” Rome art. (Jan. 2007) Charges (applying a added). 25(3)(d) (emphasis pro- Article “knowledge” standard under Article liability for an individual who “con- vides 25(3)(a) to international violations attempted tributes to the commission or co-perpetrator). To the same effect are group of such a crime a commission applying decisions Article which de persons acting purpose” common requirement fines the mens rea of intent where such contribution is “intentional” “knowledge,” to include such as Prosecu and either “made with the aim of further- Katanga tor v. Germain and Mathieu ing activity pur- the criminal or criminal Chui, Ngudjolo No. Case ICC —01/14— pose group” of the or “made 01/07, Decision on the Confirmation of knowledge group of the intention of the ¶¶ 25(3)(d) (em- Charges, 2008), commit (Sept. art. the crime.” Id. added). Gombo, phasis provides Article 30 v. Prosecutor Jean-Pierre Bemba ri, corpus Presbyterian entire tutes the of international law or Church Sudan v. Talisman court, 20, 2010) (No. 09-1262), exercising Energy, (May Inc. that this its common law — denied, U.S. -, authority to decide interstitial and technical cert. questions L.Ed.2d 241 appurtenant to the substantive Ambassador Scheffer conduct, provisions primary governed states that on accessorial liabil norm of which is ity "negotiated compromise among were a by customary not look mostly govern common law and civil law guidance from other sources of interna- years leading ments after of talks to the Rome tional law. express Statute and not finalized to [were] 3; Appellants direct the court to the amicus rule of law.” Id. at see also id. Scheffer, 7, 9-13; brief filed David J. former U.S. David J. Scheffer & Caroline Kaeb, Ambassador-at-Large Compliance: for War Crimes The Five Issues Levels CSR delegation Resiliency Corporate Liability and head of involved Under the negotiating the Rome David Alien Statute. Brief of Tort Statute and the Case a Counter Scheffer, Strategy Compliance Theory, J. Director of Center for Interna- attack (2011) (here Rights, tional Human as Amicus Curiae in J. Int’l L. 348-51 Berkeley Kaeb”). Support of the Issuance of Writ of Certiora- inafter "Scheffer & -01/05-01/08, Instead, Decision on the Confir- the Second Circuit considered ICC ¶ (June 15, 2009), only one of the decisions rendered in the Charges, mation of prosecution in The v. Abdallah Banda Aba- multi-defendant Minis- and Prosecutor Presbyterian Saleh Mohammed Jer- tries Case. Church kaer Nourain and ICC-02/05-03/09, Sudan, Khulumani, Jamus, Decision on bo ¶¶ (Katzmann, J., Charges, 156-57 504 F.3d at 276 concur- Confirmation (Mar. 2011). ring), has also ob- that court examined the case of Karl ICTY Rasche, Bank, that the Rome Statute embraces of Dresdner served the Chairman rea for aid- knowledge standard of mens acquitted who was war crimes and abetting. Furundzija, Trial ing against humanity aiding crimes on an ¶ 243-44 & n.266.25 Judgement, Chamber abetting theory, 14 Trials of War Crimi- 622, although convicted on other nals focusing only on The Ministries Finally, in the charges, pro- id. 784. Yet same fact that in numerous Case overlooks the Puhl, ceeding the convicted Emil Tribunal Nuremberg tribunals de- decisions deputy president to the of the German fendants were convicted as aiders and Reichsbank, on the same charge based abettors based on a mens rea of knowl- theory, knowingly part where he took edge purpose. and not See Int’l Law disposing gold, including gold teeth and Scholars Amicus Br. Amici cite as crowns and other valuables looted from examples Ohlendorf, in 4 United States victims, though Holocaust even he did (defen- Trials of War Criminals perpetra- share the intent of the Holocaust people aware that dant “was listed “originatef] tors and did not the matter found”); would be executed when probably him.” repugnant was to [that] Flick, States v. 6 Trials of War Criminals at 621. The that Id. Tribunal concluded (defendant knowingly contribut- part Puhl had no in the actual extermina- money organization ed to an though even inmates, camp tion of concentration “willingly was “unthinkable” he would not, that it had “no that he doubt would atrocities); Tesch, a party” to In re orders, Rep. in (1947) (defendant participated even under have Int’l L. acted program.” that part Id. 620-21. knowledge” gas “with that would be used appears distinction for the Tribunal to kill Int’l prisoners). See Law Scholars have been not that Rasche had mere Amicus Br. 21. These cases are not ad- knowledge of the activities of the German by the dressed Second Circuit either Puhl Presbyterian purpose; Nazis whereas had both Judge Church Sudan or knowledge only. had Instead the concurring opinion Katzmann’s Khulu- actus Khulumani, mani. But see 504 F.3d at reus was the critical distinction relied on (Hall, J., concurring). the Tribunal.26 Rasche’s activities nev- Kaeb, supra supplies & See Scheffer note who sells or raw materials to a house, building knowing 251-57. a builder that the pur- structure will be used for an unlawful stated, respect 26. The Tribunal with pose? money A bank sells or credit in the Rasche, any same manner as the merchandiser of is, question commodity. real is it a crime to make a It not [t]he other does become loan, knowing having good partner enterprise, reason to and the interest charged merely gross profit us[e] believe borrower will which transaction, financing enterprises funds in which are out of bank realizes from costs, employed using labor in violation of ei- which it must deduct its business profit. hopes national or law? which it to realize a net ther Does from any position to be he stand in different than one Loans or sale of commodities used in beyond bring- Ms routine duties as a acts that have a substantial effect in er went and, thus, he had not committed an ing banker about the all practical violation. For By con- reus sufficient convict. actus purposes, agree appellants we trast, engaged Puhl had in activities be- the standard under federal common law banking duties in order to yond his routine applies parties suggest inasmuch as the no primary perpetrators. The Sec- assist differences between it and the standard implica- ond Circuit never considered the under customary international law.27 scope Puhl’s conviction for the tions of liability reaching

aiding abetting III. proper conclusion about the standard. contends, Exxon for the first time on Accordingly, aiding we hold that appeal, recognize the ATS does not abetting is available under the liability. corporate The district court dis because it involves a norm estab ATS appellants’ failing missed ATS claims for customary lished international law and adequately plead joint action or causa require that the mens rea and actus reus tion under a color of theory liability, ICTY, ments are those established having aiding abetting ruled that lia ICTR, tribunals, Nuremberg and the I, bility was unavailable. Doe expressions constitute opinions whose F.Supp.2d Appellants at 24-27. contend customary international law. The Rome that, therefore, this court should not ad in Statute does constitute argument, dress Exxon’s new they but require law. Its rea ternational mens responded argument have to the on the event, contemplate, ments an merits and addendum to their reply “knowledge” standard. The discussion of brief contains amicus on corporate briefs aiding abetting charge against liability under the lodged were Rasche The Ministries Case does not Royal with the Second Circuit in Kiobel v. support “purpose” standard when con (Oct. Petroleum, Dutch No. 06-4800-cv conjunction charges with the sidered 2010) (en banc). 15,& Puhl, part also of The Ministries Case, Nuremberg and other cases heard at “knowledge” that suffices to establish A. requirement aiding meet the mens rea urging the court to abetting liability. ques- The decisions of address the corporate liability a tion of adopt “knowledge” although

the ICTY and ICTR is showing appeal, mens rea and a for actus reus of raised for the first on time Exxon enterprise may give an unlawful well be con- duties to directions that the matter be standpoint demned from a moral and re- secretly by appropriate depart- handled part flect no credit on the of the lender or ments of the bank.... [WJithout doubt he case, seller in either but the transaction can consenting participant part was a hardly duty be said be a crime. Our is to to plan, although execution of the entire his try punish guilty violating in- those participation major was not a one. law, prepared ternational and we are not to Id. at 620-21. state that loans constitute a violation such law, our attention nor has been subject liability 27. Because is to Exxon any ruling contrary. drawn to aiding abetting theory, on an the court contrast, Puhl, By respect Id. appellants' need not address alternative con- the Tribunal concluded: tention, challenges, which Exxon that Exxon part His in this transaction was not that of liability subject as a is to ATS state actor messenger a mere or businessman. He beyond ordinary range acting under color of Indonesian law. went his liability “jurisdictional.” rate under the ATS is all of the question suggests above, Sosa, depend any and it “does not on 542 U.S. S.Ct. theory may, additional facts not considered the dis- jurisdictional Exxon’s Id.; trict court.” however, Rep see also Time Warner People’s afoul of Herero run Co., FCC, Bank, L.P. A.G., Entm’t 93 F.3d 974- Corp. v. Deutsche arations (D.C.Cir.1996). (D.C.Cir.2004). case, appellants Because do In that F.3d 1192 they not suggest prejudiced are not subject juris matter this court held having opportunity present had an their the ATS existed where a diction under position on the merits in the district court alleged was to have corporate defendant they fully have on addressed issue law, stating violated international briefs, appeal, including attaching amici question as whether the “federal common law, the question because is one of we private ... provide[s] cause of action that addressing conclude whether there is for violations corporate liability under the ATS is both law,” id. at which mimics what the way fair and to proceed efficient inasmuch Supreme Court concluded complaint as the Doe I was filed more 711, 721, 2739; n. U.S. at ago. than a decade Corp., see also Saleh v. Titan 580 F.3d — (D.C.Cir.2009), denied, cert. B. ——, 180 L.Ed.2d 886 Appellants contend that there is no basis corporate immunity in either the text unnecessary It is to decide wheth history or the of the ATS or international jurisdictional ques er Herero settles the question corporate and that because, tion after Sosa as Exxon alterna pursuant is to be decided either “[cjourts maintains, tively appeals are general federal common law or principles rigidly limited to issues raised observe, They of international law. as the instance; they tribunal of first have fair Romero, Eleventh Circuit held 552 F.3d measure of discretion to determine what places the text of the ATS no questions to consider and resolve for the defendant, limit on who can con- time appeal.” first Roosevelt v. E.I. plaintiff, trast with who can be a and the Co., de Du Pont Nemours & phrase “any civil action” undermines (D.C.Cir.1992) alia, 419 n. 5 (citing, inter implied limitations not contained in the Helvering, Hormel v. 555- They text. also observe that the codified (1941)). 59, 719, 61 S.Ct. 85 L.Ed. 1037 action,” “any statute’s use of civil see su- Although usually such review is confined 5, pra note does not meaning, alter its circumstances,” id., “exceptional citing the Brief of Amici Curiae Profes- court in gave examples Roosevelt as Legal sors Federal Jurisdiction and His- “uncertainty such in circumstances tory Support in of Plaintiffs-Appellants law,” (citing state of the id. Proctor v. En Seeking Rehearing Petition Banc at Co., State Farm Mut. Auto. Ins. 675 F.2d n.3, 2 v. Royal Kiobel Dutch Petroleum (D.C.Cir.), denied, (2d Cir.2011) cert. 459 Co., (“Kiobel 642 F.3d 268 U.S. 103 74 Br.”). S.Ct. L.Ed.2d 81 Legal History Amicus Consistent (1982)), “novel, and a important, and re with emphasis history, Sosa’s 542 U.S. law,” curring question of (citing 712-24, federal id. at 124 main- appellants S.Ct. Concerts, Inc., City Newport v. Fact tain that the textual and evi- historical 247, 255-57, 101 S.Ct. Congress dence indicates that the First (1981)). corpo- juridical L.Ed.2d 616 The issue'of would have considered entities defen- tions than the corporations proper paradigms such as to be historical familiar 732, 124 when 1350was enacted.” at dants under the ATS. Id. S.Ct. 2739. The Court also counseled analysis begins recognizing Our conception “restrained of the discretion a corporate liability differs fundamen federal court should exercise consider tally conduct-governing from the norms at ing a new cause of action” of the kind Sosa, consequently customary issue urged by plaintiff Sosa. Id. at provide law does not the rule international question pre S.Ct. 2739. Because the we establish that corpo of decision. Then sented in alleged Sosa was whether the liability purpose rate is consistent with the (of illegal arrest and brief detention less ATS, with the understanding hours) than 24 could support cause of agency present, law 1789 and i.e., whether a substantive norm of action — with sources of international law. Our support conduct existed to the claim—the conclusion differs from that of the Second looked to Royal Dutch Circuit Kiobel Petro law. (2d Co., Cir.2010), reh’g leum Corporate presents conceptu- (2d denied, Cir.2011), en banc 642 F.3d 268 ally different question. By way of exam- analysis because its conflates norms of ple, legal parlance one not does refer to conduct at issue in Sosa and the rules for “corporate battery” the tort of aas cause any remedy to be found in federal common of action. The cause of action battery; is here; terms, law at issue even on its own agency law determines whether a principal analysis misinterprets import its pay damages battery will for the commit- unduly footnote 20 Sosa and is circum principal’s ted agent. Here the examining scribed in the sources of cus court assume that individuals acting tomary Finally, international law. we con agents corporation of a violated sub- arguments clude that Exxon’s other stantive international law norms. The immunity are corporate unpersuasive. question is whether a corporation can be the Supreme Court set made to pay damages for the conduct of its forth the standard which federal courts agents in violation of the law of nations. derive common law causes action for question Sosa did address this and “at norms, violations of international Delphian guidance,” best lends Khuluma- U.S. ni, (Hall, J., 504 F.3d at concurring), is to be applied standard where norm supplies on what law the rules governing relating to the conduct of an actor “the technical accoutrements to [a cause issue. Sosa whether addressed federal Tel-Oren, (Ed- action,” F.2d at of] recognize courts should under federal com- wards, J., concurring). action,” mon law “new cause[s] 713, 724, 725, 727, 732, Sosa instructs that the substantive “claim,” aor new common law id. at content of the common law causes of action 714, 720, 725, 19, 731-32, 733, 731 n. 124 that recognize courts ATS cases must S.Ct. 2739. The Court instructed that have its source international subject “accepting when a cause of action law. It is clear from the fact that the law 1350,” nations, treaties, § jurisdiction under a court of outside of certain Finck, (2d recognize private Dreyfus not claims under v. 534 “should Von F.2d 31 Cir.1976), federal common law for violations of creates no civil remedies and no international norm with private right less definite of action that federal courts acceptance among any remedy content and civilized na- nature of must determine the 42 harmony ever imagine even to of the law of alleging violations

in lawsuits this issue. would characterize to federal common reference by nations customary international than (Edwards, J., law rather concurring) F.2d at 778 726 Henkin, leading (citations omitted); Professor Louis Dreyfus, law. accord law, explained authority on international 31; F.2d (Third) Restatement of For- eign the distinction: Law of the States Relations United b; Oppenheim’s § 906 & cmt. Interna- part law is of [T]hough international provides § 19. That the ATS tional Law ..., except as oth- States law United the conduct at jurisdiction where federal treaty special or provided erwise under Sosa qualifying fits a norm issue ..., law estab- doctrine affording a implies purposes that for duties, remedies for rights, lishes remedy, any, if the law of the United International against states.... states must and not the law nations States require any par- ... not law itself does in an the rule of decision provide law---- to violations of ticular reaction lawsuit. States and how the United Whether fact that the law of Consequently, the do- react to such violations are should of action provides private right no nations mestic, court political questions: the will wrong corporations to sue addresses reaction, any particular rem- not assume not question and does demonstrate edy, consequence. or liability un- corporations are immune from Foreign Louis Henkin, and the Affairs right no to sue the ATS. There is der (2d Constitution States nations; right law of no to sue under the ed.1996). Judge Edwards elaborated entities, juridical persons, natural TeNOren, addressing ATS specifically Customary international law—de- states. claims: states,” “[pjractice fined as the Restate- permits nations ... countries The law of Foreign (Third) Relations Law of ment international duties as to meet their 102(2) b, i.e., § & cmt. the United States cases states have they will. In some by widespread that law “made over time carry obligations out their undertaken acting from a practice governments ways, as in a United agreed-upon legal obligation,” Louis sense Henkin, Convention, which Genocide Nations Foreign How Nations Behave: Law and genocide states to make commits (2d ed.1979), 1 Oppenheim’s Policy In- crime, multilateral or in bilateral or rip- § “gradually ternational Law Otherwise, may make treaties. states law,” The ening into a rule of international municipal their laws in the available Habana, 686, 20 Paquete they appropriate. manner consider As (1900); North Sea Con- L.Ed. 320 see also result, never has been the law of nations (Ger. Den.), v. 1969 I.C.J. tinental Shelf civil to create or define the perceived ¶ (Colom. (Feb. 20); Peru), Asylum by each actions to be made available (Nov. 20); Restate- I.C.J. nations; community of member Foreign (Third) Relations Law of ment consensus, 102(2) c, that de- b, the states leave § & cmts. States, the United municipal respective termination to their Oppenheim’s k; Law International Cheney Hyde, Indeed, existing array 16-17; given §§ laws. Inter- Charles (1922) world, “par- a con- systems within the legal —does national Law code,” legal impossible prolixity of a virtually would be take of sensus cf. (4 Wheat.) 17 U.S. Maryland, ac- v. on the technical M’Culloch particularly reach— (1819). 316, 407, Although 4 L.Ed. 579 action—and it is hard coutrements to an

43 provides international law rules concerns that abandoning motivated the determining whether international di- Articles and convening the Constitutional sapprobation types attaches to certain of Convention. complained: James Madison torture, conduct, extrajudicial such as kill- ] articles The[ [of contain confederation] detention, arbitrary ing, prolonged or aid- provision no for the case of offenses same, abetting ing and the one could not nations; against the law of and conse- written, Judge expect, Edwards has quently leave it in power widespread practice of states out of “a indiscreet member embroil the Con- legal obligation,” produce sense of de- federacy nations. procedure tailed rules of and evidence on judicata, proof, matters like res burdens of 42, (James 258, No. 260 The Federalist respondeat superior. Madison) ed., 1888). (Henry Lodge Cabot Ordinarily our statutory analysis The Congress Continental struggled to re- ATS, begin would with the text of the spond to violations of the law nations. See, e.g., end with the text if it is clear. In 1779 it wrote to the French Minister Affairs, Hawaii Hawaiian Office of Plenipotentiary to assure that the courts 163, 1436, 1443, 129 S.Ct. 173 L.Ed.2d “will cause the law of to be nations most (2009). Appellants have made such strictly found, observed: that if it shall be points as can be made about plain text: trial, after due that the owners of cap- [ ] phrase “any civil action” is inclusive tured vessels have damage suffered from and unrestricted. The Supreme Court has misapprehension or violation of the “by observed that the its ATS terms does rights of neutrality, war and Congress will distinguish among classes of defen- made____”14 cause reparation to be Jour- Argentine Republic dants.” v. Amerada Congress 1774- nals the Continental 428, 438, Shipping Corp., Hess 1789, (Worthington at 635 Chauncey Ford 683, S.Ct. L.Ed.2d 818 1909). ed., promise hollow; rang al- brevity Given the of the text of the ATS though the gave Articles the federal courts and the of a legislative absence formal authority over “the piracies trial of Sosa, history,28 718-19, 542 U.S. at seas,” felonies committed on high court, Sosa, S.Ct. inas looks to Arti- 1,§ art. context, 1 Stat. the historical suggests and it Confederation, cles of (1778), purpose authority courts lacked supports the avail- ability of corporate liability. over violations of the law of nations on land. Congress Continental Sosa,

As the observed adopted a “implored resolution that Confederation, under the Articles of rights States to vindicate under the government federal authority lacked nations,” Sosa, 542 U.S. at remedy prevent violations of the law of 2739, specifically “provide expeditious, nations.29 Id. at 124 S.Ct. 2739. The exemplary adequate punishment” need to address and enforce the law of nations at the federal among level was violations. Journals of the Continen- Tel-Oren, (Bork, L, origins 28. Little is known of the of the ATS. 726 F.2d at 812 concur- Sosa, 542 U.S. at S.Ct. 2739. ring); see also 542 U.S. at Representatives The debates in the House of 2739; Royal Wiwa v. Dutch Petroleum ATS, "contain no reference to the” In re Es- Co., (2d Cir.2000). 104 n. 10 Rights tate Ferdinand E. Marcos Human (9th Cir.1992), Litig., 978 F.2d Legal History 29. See Sosa Amicus Br. 102-03. recorded, the debates in the Senate were not (Gail- Congress a citizen 1774-1789, any transgression of at 1136-37 tal 1912). States, will receive such ed., of United Hunt lard if suspicion, reluctance and disavowal with acknowledged to The 1781 resolution adequate punishment shall not regular and the alien tort precursor of be “the direct provided against transgres- have been Judiciary Act.” First provision in the Id at 1136.30 sor.” Tort Stat- Burley, The Alien Anne-Marie A Judiciary Act 1789: and the ute examples illustrate concerns under Two 461, Honor, L. Am. J. Int’l Badge lying the 1781 Resolution and enactment of (1989); Dodge, The S. Sosa, 716-17, see also William the ATS. 542 U.S. at Tort Stat- Origins the Alien 1784, Historical May S.Ct. 2739. In the Chevalier “Originalists,” A to the Response citizen, ute: Longchamps, De a French assault Comp. Hastings 221, L Marbois, Barbe the French ed Francis Int’l & Rev. Nations, (1996); Casto, supra note Law General, Consul on a street Philadel 8, requested at 490-91. The resolution Pennsylvania. Respublica v. De phia, (1 Dall.) state, “in that echo Black- that each words Longchamps, 1 U.S. (O.T.Phila.1784). stone,” The French L.Ed. 59 for the “violation complained establish remedies Ambassador to the Continental for “the passports,” Congress conducts or and the Dutch Ambassador of safe if hostility against of acts of such threatened to leave the State action was commission Casto, amity, (citing truce with the not taken. Id. Law Na league are in or 138). same, tions, States, n. supra are note at 491-92 & United who within conduct,” Although Pennsylvania for state court general implied under a safe an Longchamps of the immunities of am- tried and convicted De for “the infractions nations, ministers,” public against for offense the law of which bassadors and other Oyer termed of treaties conventions to the Court of and Terminer “infractions extent, part “in its full ... of the law of’ party,” which the States are a (1 nations, Pennsylvania, Longchamps, De for “offenses the law Dall.) foregoing enumer- the events laid bare the not contained nation. The impotence young Con ation.” Journals Continental Congress Congress Secretary In and the at 1136-37. let- tinental states, an Foreign struggled respond Affairs to to ters to the the Continental Con- incident over which the fed gress pointed prince, out that “a to whom authority.31 no may necessary government hereafter to disavow eral had Nations, 492). supra response, example, Connecticut in note Conti- for of nental criminalizing only require Congress 1782 enacted a law violations of could the Secre- nations, "any express as well as other tary Foreign Jay law of John Affairs of, or Offenses Infractions or Violations Congress’s "regret” and "lament” over known, against the received and established explain the incident and Nations, agreeable Laws of civilized arise on this head the difficulties Nations,” State, this or the Laws of Laws of the nature union in which from federal creating remedy injuries a tort caused each State retains a distinct and absolute violation of the law of nations. Acts and sovereignty expressly in all matters not [sic] Connecticut, Laws of the State of in America leaving delegated Congress them advising many of those cases in that of governments which other decree. was a sensa- "The Marbois Affair national Congress virtually 1774- 33 Journals tion that attracted the concern of of the Continental ed., 1933). (John Fitzpatrick every figure Legal at 314 C. public in America.” Sosa Casto, Secretary explained that History (quoting Law Amicus Br. 105

45 (Max affair,” at 316 reprise “a of the Marbois Farrand of Convention 1937) (“Farrand’s (state- ed., 124 Records”) Madison). during the Constitutional December ment of James Opposing the Convention, a York constable entered New Jersey power New Plan to enhance the of house of the Dutch Ambassador states, small Madison asked: it pre- “Will one of his domestic servants. arrested vent violations of the those law of nations 105; History Amicus Br. Cur- Sosa Legal prevented & of Treaties which if not must TheAlien Tort Statute and Bradley, A. tis foreign involve us the calamities of III, Article Int’l L. Va. J. tendency wars? The of the States to [sic] City Mayor The of New York these violations has been manifested in constable, Secretary of arrested the sundry instances.” M32 Hamil- Alexander Jay Foreign requested, Affairs John but ton noted that will “[t]he Union undoubt- nor Congress he cautioned that “neither edly foreign be answerable to powers for yet Legislature passed our internal have members,” the conduct of its The Federal- any respecting privi- act a breach of the (Alexander ist No. Hamil- leges of Ambassadors” and so the nature ton) ed., (Henry Lodge 1888), Cabot punishment depend of degree would or perversion jus- “[a]s denial of recog- common law on whether the would courts, tice of sentences as well as The Alien Tort Bradley, nize the breach. manner, other is with reason III, supra and Article at M1-A2 Statute war, among just classed causes of it Dep’t Diplomatic (quoting 3 State, The of judiciary will follow that the federal ought Correspondence of States of cognizance to have of all causes in which (1837)). Secretary Jay re- America the citizens of other countries are con- ported Congress to the Continental cerned,” id. Hamilton emphasized appear “the federal Government does not jurisdiction such “not was less essential to any judicial ... vested with to be Powers faith, preservation public of the than to competent Cognizance Judg- to the Id. security public tranquility.” ment of Cases.” such 34 Journals of at 495-96. Congress 1774-1789, at 111 Continental (Roscoe 1937). ed., Hill R. Judiciary Act of 1789 ensured gap subject there would be no in federal James Madison lamented at the Consti- jurisdiction regard matter to torts in tutional Convention that files “[t]he violation of treaties or the law nations. Cong[ress] already, contain complaints provided jurisdiction It federal for lawsuits every from almost nation with trea- which brought by aliens for torts in violation of ties have been formed. Hitherto indul- the law of nations without textual limita- gence has been shewn to us. This cannot contrast, By tion. permanent disposition grant contained no 1 question jurisdiction cases, nations.” federal in civil Records of the Federal Madison, many allowances are to be made for a na- 32. See James also Vices the Politi- States, present System reprinted tion whose whole attention till the cal the United Writings period engaged pursuit has been (Ralph in the of James Madison Selected ed., 2006); measures which were determine their Ketcham Documentary History such, (Mer- they existence as even thou should be the Ratification Constitution ed., 1976) (statement provisions found deficient in those wise rill Jensen of James Wilson); (state- experience among which has established 1 Farrand’s Records (statement Randolph), older Nations. ment of Edmund Madison). Id. of James (Ed- Tel-Oren, ships party, F.2d at 779 n. 3 of war of either priva- teers, wards, J., concurring), freely carry they di- whithersoever established please, ships goods in the federal circuit the taken versity jurisdiction from ...; amount-in-contro- their enemies nor shall such subject prizes to a courts $500 seized, they or versy requirement, ch. Stat. arrested when come to and alleging ports party.” enter of consequence, a aliens the either Id. art. 78-79. As Ownership common law or international non- XVII. of the slaves turned on domestic claims, including foreign validity creditors the of of Spanish tort the seizure prize by privateer on debts owed the French seeking high to collect citizens, into un- were forced state courts seas. The district court’s “doubt about more, admiralty jurisdiction or a their suit was for which over suit for dam- less $500 ages ... practical excluding assuaged assuming had the effect virtu- was ally jurisdictional tort lawsuits from the all domestic ATS was basis for the Casto, action,” Sosa, Law Na- court’s federal courts. See 542 U.S. at tions, supra note at 497-98 & n. and the district court in 1795 Clearly Judiciary treaty Act evi- ruled that the required 507-08. with France Congress judgment that the First knew how in favor of French privateer. dences limit, altogether, subject deny matter Thus prior to the Constitutional Conven- jurisdiction a class of claims and de- over tion, when the new nation was at risk of respect clined to do so with torts losing respect abroad because it could not of nations and violations of the law treaties nations, respond to violations of the law of brought by aliens. when Congress the Founders and the First rec-

Exemplary purpose ognized inability the ATS is to respond to Darrel, the case of Bolchos 3 F.Cas. such could lead to violations the United Bolchos, privateer, A entanglement foreign 810.33 French had States’ conflicts Spanish prize sailed a into the single harbor when a citizen abroad offended Charleston, Carolina. France foreign power by violating South was of na- then at Spain war with and Great Britain. tions. The Bradford and opinions Bolchos slaves, cargo The vessel had a which are evidence of the realities of this con- Spanish subject were the of a property Attorney cern. General Bradford could who had them to a mortgaged British sub- abide the 1793 Proclamation of Neutral- (a ject, Savage. Savage’s agent, ity by favoring Darrel neither France nor Great person citizenship of unknown who was in Britain prevent a U.S. citizen from at or after the entangling gener- Charleston time the vessel the United in the States landfall), made seized the slaves on behalf al in Europe conflict as a result of his abroad, Savage and sold them. Bolchos filed activities Sierra Leone. Simi- larly, suit the U.S. District Court for the legisla- Bolchos executive and District of demanding expressing opinions South Carolina rec- tive branches avoided ompense prize,” dispute for the slaves “as lawful on the civil between British and Treaty invoking Amity Spanish subjects and Com- because the district court merce France adjudicate between and the United and the Court could States, U.S.-Fr., 6, 1778, disputes by applying Feb. 8 Stat. such the law of na- which provided that shall be lawful for tions. “[i]t Lee,

33. See Thomas H. The- Safe-Conduct Statute, ory the Alien Tort 106 Colum. L.Rev. owner, a context, mortgage Span- from the actual clarifying The historical ATS, Thus, suggests subject). no context ish historical purpose text and Congress that the First that the to conclude offers no reason to conclude First reason the risk supremely concerned Congress sought prevent drawing was cause the Unit- persons natural would dispute States into a between into entan- to be drawn ed States Great Britain and France because the de- allow formal was content to glements, but ownership fendant who had taken and sold individuals, i.e., corpo- legal associations cargo person was a natural ship’s an rations, Considering as ex- to do so.34 a In the of amici corporation. not words Leone affair the facts of the Sierra ample jurisdiction legal professors of federal and Attor- a citizen abroad involving U.S. history: opinion, 1795 noth- ney General Bradford’s remedy To problems identified Congress First suggest that the ing would preceding years, provid- per- to natural sought prevent

would have jurisdiction ed federal courts with to which causing entanglements sons from “all in violation of the over causes” party by a ransack- the United States was The text of nations. demonstrates holdings of the plundering ing crimi- that the ATS was not limited to content Company Leone but been Sierra corpo- not nal conduct and did exclude mis- privateering a where the fight to war Congress rate defendants. was fo- supported by funded or otherwise sion was cused not on whether the acts were Attorney corporation. General U.S. identity criminal or the defendant’s away the notion shy from Bradford did right but rather on the that had been Company could sue that the Sierra Leone (a right under “the law of violated ATS, intimating that a never under treaty nations or could not be a defendant corporation States”) identity plaintiffs and the capacity its to sue prove would have to (“an alien”). fac- Together, these two rather than the under the law of nations defined a class of cases sufficient- tors at Op. Att’y 1 Gen. 58- common law. U.S. Congress grant ly important for impos- Congress shy did from 59. Neither jurisdiction over “all causes where an early in the piracy ing punishment only in alien sues for a tort violation of acts, to the conduct of referring crime treaty or a of the the law of nations 1790, Act of “persons,” defendant Crimes United States.” 10, 114; May § also Act of Stat. (1820), 3, § ch. 3 Stat. (cita- Br. Legal History Amicus Kiobel to individual and referring

term both omitted) (emphasis original). tions (defin- entities, corporate see U.S.C. immunity also would be Corporate ing “person” corporations); to include cf. by 1789 with the ATS because inconsistent Del, 37 v. Farmers’ Bank U.S. Beaston an corporate liability accepted in tort was (12 Pet.) 9 L.Ed. 1017 States. principle of tort law in the United in the Bolchos did the district court Nor Mansfield held that early As as Lord law of shy applying from the common case liable it failed Darrel, corporation could be an where (allowing Bolchos to sue agency consequence citizen, keep repair a stream Savage, who held of a British agent individual, suing being particularly ... of ... a collection of [ "A Corporation ] individuals, body, ... many united into one A Treatise sued.” 1 Stewart Kyd, Law on the vested, policy (1793) with the (emphasis original). Corporations respects, capacity acting, as an in several which, they injured. Mayor, though must be exercised was person of which a (1774) Turner, Eng. Rep. 980 through the medium of its natural mem- Lynn v.. (K.B.). bers, of the several Early decisions yet subsisting are considered as proposition. itself, this In Ches support states if corporation- distinctly as v. Turnpike Co. Springhouse nut Hill & personage. it were a real (Pa.1818), Rutter, Rawle 6 Serg. & observed, moreover, Id. The Court that “a considered Pennsylvania Supreme Court exist, in great variety corporations of these detail, corporate liability question every country governed by the common Lynn as as the citing Mayor well 668; law.” Id. at see also Blackstone’s VI, reigns Henry Books from the Year County, *469. In Cook III. Commentaries VIII, VII, Henry Henry id. Chandler, ex rel. United States doubt,” “beyond it was concluding 155 L.Ed.2d 247 be liable corporation that a could id. (2003), sources, the Court assembled in- agents. torts of its for the cluding corpo- a 1793 treatise on the law of similarly of Massachusetts Judicial Court rations, supra demonstrating see note law,” including considered “ancient understanding the common law that a cor- English Year Books relied on Chesnut juridical poration person is a with the ca- Hill, concluded that tort actions could pacity to sue and be sued. See 538 U.S. against corporations. be maintained Rid 125-26, appears 123 S.Ct. 1239. Thus it Merrimack River Proprietors dle v. corporate liability that the law in 1789 on Canals, (1810); Locks & 7 Mass. today: general was the same as it “The Susquehanna Townsend v. Turn also that corpora- rule of substantive law is Co., pike (N.Y.Sup.Ct. Road 6 Johns. 90 tions, individuals, like are liable for their 1810). An treatise cites Hill Chesnut Dispensary torts.” White v. Cent. & in noting learning that “much will be found Emergency Hosp., 99 F.2d subject” corporate on the [in case] (D.C.Cir.1938); see also Daniels v. Tear- stating torts and that “from the earliest (1880); ney, 102 U.S. 26 L.Ed. 187 present day, corporations times to the Lyon Carey, v. 533 F.2d Joseph have been liable for torts.” Kinni- (D.C.Cir.1976). Angell Ames, cut &Samuel on the Treatise Corporations Aggregate 4. Neither the law of does the nations Law of Private 222-23 & n.l support corporate immunity under where, example, corporation for corporations The notion that could be operates piracy, engages as a front for torts, therefore, held liable for their would human trafficking, mass-produces poi- or surprising not have been to the First Con purposes genocide. for sons ICTY gress that enacted the ATS. In Trustees of against humanity, has held that a crime Woodward, College Dartmouth v. (4 Wheat.) example, requires “instigated or di- (1819) acts (Story, 4 L.Ed. 629 by any organization rected ... J.), group,” that an “ag- Court held II law, noting post-World development War gregate corporation, at common is a individuals, customary collection of united international law. Prosecu- into one Tadic, IT-94-1-T, body, collective under a ... special name tor v. Case No. Trial ¶¶ possessing] capacity suing ... of Opinion Judgement, 654- Chamber 1997). being corporation sued.” Id. at 667. A (May Amici international law is, short, point an scholars to nunrerous international person, existing artificial juridical in contemplation explicitly treaties that state that and endowed with certain powers and franchises entities should be liable for violations nations,35 5. Exxon nonetheless while others do maintains the law of juridical natural and between distinguish question corporate liability that the is to Brief of Amici Curiae individuals.36 by looking be answered in Support Law Scholars International because, asserts, ternational law and Plaintiffs-Appellants-Cross-Appellees recognize corporate that law does not lia Royal Dutch Petroleum Kiobel bility provide the ATS does not a cause of (“Kiobel (2d Cir.2011) Co., It principally action it. relies Br.”). point also Int’l Law Scholars Amici Kiobel, the Second Circuit’s decision many authoritative actors and entities corporate liability which concluded rights Nations’ human estab- the United discernible, “has not attained a much less are concluding corporations lishment universal, among nations of acceptance for violations of the law of responsible world in their relations inter se.” 621 example, (citing, Id. at 10-11 nations. Essentially, adopts F.3d at 145. Exxon Rights Human Committee U.N. (1) majority the view of the in Kiobel that on the Elimination of the U.N. Committee responsibility rights the moral for human Discrimination). All of Racial Forms violations so heinous as to rise to the level Report Exxon’s reliance on the of the “an solely ‘international crime’ rest[s] Representative Secretary- Special with the individual men and women who Rights on the Issue of Human General it,” perpetrated have id. at and that Corporations and Other Transnational (2) corporate liability the absence of has Enterprises, U.N. Doc. Business A/HRC/ Nuremberg been settled since when Arti (Feb. 19, 2007), Its misplaced. 4/35 cle 6 of the London Charter limited the quotation report from the over- selective military jurisdiction tribunal’s to “individu Op. Dis. at 83- point. looks the salient See organizations.” Ap als” and “members many report refers to states’ 84. Kiobel, 28; pellees’ Br. see 621 F.3d at adopt pro- domestic laws unwillingness that the suggests 133-34. Exxon also ad rights corpora- human standards for viding hoc international tribunals —the ICTY and ¶ report 44. But tions. Id. elsewhere jurisdiction the ICTR—and the ICC have points responsibility to the “extension of only that human persons over natural and un- corporations international crimes to for rights codifying treaties international hu ¶ law,” 22, specifically der domestic id. and rights apply only man norms to natural ju- provides that the ATS such recognizes citing, example, the Genocide ¶¶23, persons, against corporations, risdiction id. Torture Conventions.37 3, 243; 35.See, 1973, 1(2), e.g., European on the Pre- art. 1015 U.N.T.S. see also Convention Kaeb, 24, Terrorism, 2005, 16, supra May Scheffer & note at 359. art. vention of 10(1), (2005); C.E.T.S. No. 196 Convention See, e.g., Convention Relative to the Treat- Crime, Organized Against Transnational Nov. War, 2, 1956, 3, Feb. art. ment of Prisoners of 209; 15, 2000, 10(1), art. 2225 U.N.T.S. Con- 6 U.S.T. T.I.A.S. 75 U.N.T.S. 135. Combating Bribery Foreign on vention Officials in International Business Public any argument 37. Exxon has waived that en- Transactions, 17, 1997, Treaty art. S. Dec. preempted actment of the TVPA torture and 105-43; No. Basel Convention on the Doc. extrajudicial killing by claims under the ATS Transboundaiy Movements of Haz- Control of raising argument only conclusory in a Disposal, Mar. ardous Wasters and Their Appellees’ Br. 32 n.4. But see footnote. See 57; 2(14), Interna- art. 1673 U.N.T.S. Op. at 85 n. 11. “We need not consider Dis. footnote,” Suppression cursory arguments only a tional Convention on the made Columbia, Apartheid, Hutchins v. District 188 F.3d of the Crime of Nov. Punishment Kiobel, problems ty a n. There are number id. 128-29 & like foremost, Perhaps Exxon, Sosa, in Kiobel. analysis misreads footnote 20 looked to international the Second Circuit relies, primarily which it to state that defendant, a who but law to define particular “whether a defendant can be Republic, 488 U.S. at Argentine ... necessarily question sued is a about ” concluding “[b]ecause ‘scope Ap for a violation.’ corporate liability recognized is not as a Sosa, pellees’ Br. (quoting 542 U.S. at norm, universal, obligatory’ ‘specific, 2739).38 20, 124 732 n. S.Ct. a international law is not rule In footnote a Sosa noted consider- may apply under the ATS.” Kio- we by comparison ation raised a of Tel-Oren bel, (quoting at 145 Karadzic, (2d and Kadic v. 70 F.3d 232 2739) (citation 732, omit- Cir.1995).39 Each case addressed whether ted). question Sosa neither addressed the certain forms of conduct were violations of by claim presented corporate Exxon’s international when done immunity, provided precise guidance nor actor, state or at least under color of state body on which of law a court must draw to state, jointly law or with a when questions ancillary answer to the cause of private done Nothing actor.40 in ei- itself, corporate liability. action such as opinion suggests ther that either court Part III.B.1. supra The Second Cir- dichotomy considered a between natural approach key cuit’s overlooks the distinc- juridical person, though even Tel- tion between norms of conduct and reme- juridical defendant, Oren involved a dies discussed Henkin Professor Organization. Palestinian Liberation Judge Edwards and instead conflates the (the distinction private between and state ac- norms and the rules technical accou- trements) any remedy tors exists in international found federal and amici doing, majori- common law. And so point law scholars out the " 531, (en banc). (D.C.Cir.1999) Compare Libyan 539 n. 3 'It Republic, Tel-Oren v. Arab 774, enough merely possible (C.A.D.C.1984) (Ed- is not to mention a 726 F.2d 791-795 argument way, leaving wards, J., (insufficient in the most skeletal concurring) consen- " the court to do counsel's work.' N.Y. Rehab. by private sus in 1984 that torture actors NLRB, 1070, Mgmt., Care LLC v. 506 F.3d law), violates international with Kadic v. (D.C.Cir.2007) (quoting Schneider v. Kis- Karadzic, 232, (C.A.2 190, (D.C.Cir.2005)); singer, 412 F.3d 200 n. 1 1995) (sufficient ge- consensus in 1995 that R.App. 28(a)(9). Arguing see also Fed. P. as a by private nocide actors violates interna- policy corporate liability matter that is "im- law). tional 31-32, proper,” Appellees’ Br. is not the same Sosa, 20, 542 U.S. at 732 n. 124 S.Ct. 2739. addressing as "occupies] whether the TVPA field,” Sosa, at 124 S.Ct. Tel-Oren, Judge 40.In concluded in Edwards n.4; Appellees' Op. see also Br. 32 Dis. although practiced by 1984 that torture a 85-86, single, at to which Exxon devotes a nations, state violated the law of there was no conclusory sentence. then-prevailing norm of interna- practiced by private tional law that torture Kaeb, supra 38. See Scheffer & note at imprimatur actor with no of the state consti- 364-65. tuted a violation the law of nations. Tel- Oren, J., (Edwards, 726 F.2d at 794-95 con- 39. Footnote 20 states in full: Kadic, curring). the Second Circuit con- cluded in 1995 that a sufficient consensus A related consideration is whether interna- genocide existed that violated scope liability tional law of na- extends the given regardless perpetra- violation of a tions of whether it was conducted norm to the sued, being tor private private if the a state actor or a defendant is individual. corporation actor such as a or individual. F.3d at 241-42. meaning pas- of this centu- understands recognized for has been distinction sage. Br. 7. Int’l Law Scholars Kiobel ries. See instance, 404 of the Restate- (Leval, J., Section concurring)

For 621 F.3d at 166 Law defines Foreign (emphasis original). Relations ment of that are crimes of international limited set Corporate liability governs the commit- that can be “universal concern” relationship of a be legal consequences individual, slave- piracy, such as by an ted agent, and an principal tween a see Re hijacking, whereas Section trading, and (2006), Agency § 1.01 (Third) statement that violate interna- those acts 702 defines explained by for the reasons Professor a matter of Edwards, where a state as tional law and endorsed Judge Henkin and Sosa, Compare in them. 542 U.S. at engaged policy Re- Foreign the technical accoutrements to the ATS (Third) Relations statement action, liability corporate cause of such as with id. States Law law, are to be drawn from agency appears to reference § 702. Footnote law, “in federal common mindful that most dichotomy, which was briefed before this a court asked to state or cases where Court,41 an opposed in a principle formulate a common law new liability, which corporate about argument context, general understanding there is a pointed out Judge As Leval was not. the law is not so much found Kiobel: it is either made or created.” discovered as persons natural implying that Far from 2739; at 542 U.S. S.Ct. differently are treated corporations (citing Tex also id. S.Ct. 2739 liability under [the] of civil purposes 912). Workers, tile S.Ct. ATS, the foot- the intended inference of Although provide guidance Sosa identically. they are treated note is body pro of law is to particular on which that interna- norm is one If the violated ancillary to the questions vide answers to States, applies only against tional law norm, underlying recognized conduct corpo- as a private then “a actor such [ ] that the tort cause of action under the ATS ” individual, acts inde- an who from federal common ration or is derived State, 2739. In other of a can have no liabili- U.S. pendently words, position of international law law of nations ty “[t]he for violation of the imposed on whether civil should be has been no violation of because there norms is that interna hand, for violation its other of nations. On the law that position tional law takes no and leaves as type if the conduct is of the classified question to each nation to resolve.” Kio of the norms of international a violation bel, (Leval, J., concurring); 621 F.3d at 152 done regardless of whether 542 U.S. at 124 S.Ct. 2739. actor, private then “a private or a State or an corporation such as a [] actor majority taking analysis But individual,” the law of na- has violated regarding its own terms Kiobel on subject liability a suit law, tions and is a source source of overlooks proper majority’s partial under the ATS. law that would tend to of international context, interpreting out of the ATS is quotation confirm that under corporate defen- distinguishing properly be- extended to that Preliminarily it is to be noted corporations, mis- dants. individuals tween Alvarez-Machain, 542 U.S. 692 European Sosa v. Brief of Amicus Curiae the 41. See 03-339), (2004) (No. WL 177036. Party at Support of Neither Commission Kiobel, majority Germany’s assets, Exxon and the Nazi public both industrial 133-36, emphasize 621 F.3d at Ger- private, system and created a repa- put man were not on trial corporations injured states; rations for individuals and (3) Nuremberg following before the tribunals prosecuted major war criminals Asserting II. ab- “[t]he World War under the London Charter before an inter- corporate liability sence of for internation- military national tribunal constituted at al rights human violations has been settled Nuremberg, indicting among others six Nuremberg,” Appellees’ since Br. Exx- Nazi organizations, designating three as although Nuremberg on maintains that criminal. Kiobel Nuremberg Amicus Br. charged tribunals executives of I.G. Far- 4-9. Control ignored Council Law No. (“I.G. Farben”) benindustrie A.G. with in- by Kiobel, majority Exxon and the crimes, ternational German corporations F.3d directed the dissolution of This, however, put were not on trial. Farben, I.G. disposal and the of the assets important part overlooks an of Nuremberg regarded “of what was princi- as the Allies’ history. pal enemy.” economic Nuremberg Kiobel 11. preamble Amicus Br. to Law No. Nuremberg

Amid point scholars out proclaimed that “I.G. knowing- history Farben[ ] Nuremberg is more ly prominently engaged in building up suggests. nuanced than Exxon Brief of maintaining poten- German war Nuremberg Amid Curiae in Sup- Scholars tial.” Control Council Law port of No. Provid- Plaintiffs-Appellants-Cross-Appel- ing Property lees’ Petition for Seizure Rehearing and for Re- Owned En hearing Banc at I.G. Farbenindustrie Royal Kiobel v. and the Control (Nov. Co., 1945), Dutch Petroleum reprinted F.3d in 1 Thereof (2d 2010) (No. Thus, Cir. WL Oct. 06- Enactments Nuremberg amici 4800-cv) (“Kiobel observe, Nuremberg Amicus scholars the corporate pen- death Br.”). The program alty Allies’ defeated enforced I.G. Farben was as Germany war, at the end of the application amid much an interna- note, “had components: three what to do tional on which Control Council Law with the German upon based, state defeat of the No. 9 was imposed as the sentences Reich, Third what to per- do natural the tribunals themselves: the Allies crimes, sons who committed and what to determined that I.G. Farben had commit- economy do with the German and its in- ted violations of the law of nations and (1) dustrial cartels.” Id. parti- The Allies therefore destroyed it. Nuremberg Kiobel (2) Germany zones; tioned into dismantled Amicus Br. 11-12.42 implicitly suggests Exxon liquidated because the also dissolved a number of Nuremberg produce era did not deci- tribunal companies pursuant insurance to Control embodying disapprobation sions corporate Council Law No. 57 and seized the assets atrocities, corporate liability under the law of corporations, other German in some instance nations cannot exist or be ascertained. But them, liquidate pursuant to dissolve and the doctrine of sources of international law Control Laws Council Nos. 39 and 47. Kiobel judicial secondary treats decisions as evidence Nuremberg Amicus Br. 14 & n. 23. In Control nations, of the law of and the conduct of Council Law 2No. the Allies abolished the Statute, primary nations as evidence. See ICJ Party, noncorporate juridical entity, Nazi 38; 18; art. 1 Kent's Commentaries Cheng. Bin illegal, declared it and authorized confisca- Principles Applied by General of Law as Interna- tion of its assets. Id. at 9. Other evidence (2006). and Tribunals Exxon tional Courts Nuremberg head, prosecutors indicates that con- flips treating judicial this doctrine on its prosecution primary corporation cluded the decisions as of a evidence. Amici Nu- was remberg point legally permissible. generally Scholars out that the Allies Jonathan A. policy of the for occu- Moreover, charge part the de- ble German the failure to countries as described.... pied was not based on above entity with crimes funct rep- Farben had Farben and its view that I.G. The action [I.G.] tribunals’ resentatives, circumstances, of international violations under these committed not were im- corporations that other differentiated from acts of law or cannot be liability: from pillage by mune or committed offi- plunder cers, soldiers, or officials of the public individuals, jur- including private Where Reich. German mili- exploit proceed persons, istic by acquiring private tary occupancy at 1140.43 Id. and consent of against the will property owner, action, being not such majority the former over- Additionally, the Kiobel ..., in violation of justified is expressly general principles looked of international Similarly where a law.... international proper law as a source for the content of juristic person individual or a private corpo- international law. Amici state that confiscation party to unlawful becomes liability rate is universal feature of the property by planning public private legal systems and that no domestic world’s design a well-defined executing jurisdiction exempts legal persons from li- ac- property permanently, such acquire ability. Kiobel Int’l Law Scholars Br. 12. sub- under such circumstances quisition Corporate personhood recognized has been to the confiscation constitutes sequent upon considering the “wealth of by ICJ [international in violation of conduct already accumulated on the sub- practice law]. law,” Traction, ject in municipal Barcelona Case, Co., The Farben Light & Power I.C.J. 8 Trials of War Crimi- (Feb. 20). The Tribunal continued: systems nals 1132-33. Legal throughout the corporate legal that re- recognize world be- proof find that the establishes [W]e part parcel privi- sponsibility that offenses a reasonable doubt yond lege corporate personhood. First in Control against property as defined City Bank v. Banco Para El National committed Law No. 10 were Council Cuba, Exterior de Farben, these offenses Comercio [I.G.] 19-21, 2591, 77 with, nn. and an inextrica- 628-29 & connected were Bush, only prior practice in international law Prehistory Corporations and Con- on the Law: What spiracy in International Criminal holding responsible for such viola- nations Said, Really L.Rev. Nuremberg 109 Colum. nothing the Nurem- Id. "There is tions.” suggest Nuremberg berg judgment that the exclusion judges made this statement to the observes, Ambassador Scheffer 43. Former corporations purposes of either nations or Leval, Judge majority in much as conduct civil for such criminal only misinterprets footnote 20 of Kiobel not Kaeb, supra & note Id. at 362-63. see Scheffer of international law.” violation "misinterprets the famous out, but also Additionally, points only way he "the that, judgment Nuremberg in the statement Nuremberg prosecutors made their cases against law are commit- international 'Crimes corporate executives of Farben entities, men, abstract ted corpo- Krupps was to establish that these commit such by punishing individuals who law.” Id. violated international rations had provisions of international crimes can the majority's ” concludes: "The Kiobel at 363. He enforced,' points out: id. at 362. He violate corporations cannot contention focusing Nuremberg judges were "The face of law thus flies in the precedent in internation- to create a new how sense, reality logic, of the and the common prosecuting individuals for viola- al law for Nuremberg.” Id. rely presented at evidence international law rather than tions of (1983) alia, (1927); gies (citing, inter Bar- Law 33-35 L.Ed.2d 46 International Co., Light & Power 1970 Oscar celona Traction Schachter, International Law in 38-39), (1991); Theory upheld F.A. at 50-55 I.C.J. Practice Mann, “aris[ing] under interna- on a Commercial Law a counterclaim Reflections Nations, 20, for corporation tional a Cuban 33 Brit. Y.B.I.L. 34-39 law” 623, illegal expropriation, principles pri- id. at 103 S.Ct. It includes “the Habana, 175 (citing Paquete U.S. vate law administered national courts 290), applicable 20 S.Ct. and observed where these are to international relations,” principles governing “the this case are common to both international law and fed- law, [p]rivate being general [domestic] law, eral common which in these circum- law, developed more than international necessarily by stances is informed both always has constituted sort of reserve principles law articu- international principles upon store of which the latter Id.; congressional policies.” lated drawing has been in the habit of ... Rights Brief of Amici Curiae Human good principle reason that a which is Support of Plain- Organizations Labor generally accepted by found to be civi- tiffs-Appellants’ Rehearing Petition for legal systems may fairly lized be as- Rehearing and for En Banc at Kio- sumed to be so reasonable as to be Petroleum, Royal bel v. Dutch 642 F.3d necessary justice to the maintenance of (2d 2011 WL 338048 Cir. Oct. any system. under 2010) (No. 06-4800-cv) (“Kiobel Human Brierly, J.L. The Law of Nations Br.”). Rights This understanding Amicus (6th ed.1963). International law “bor- corporate personhood directly is con- from” the principles private row[s] trary majority conclusion of the legal poli- institutions for “an indication of Kiobel. cy principle.” or prin- Id. 63. General ciples of international fur- law thus offer Unlike manner which support corporate responsibility ther recognized law is agents prin- for the conduct of its under a through practice usage common out of a ciple of respondeat superior recognized legal obligation, general princi sense of in the law of nations. ple becomes international law wide its sum, spread application domestically by majority civilized in Kiobel not text, ignores history, nations.44 See Bin the plain purpose Cheng, General Princi ples Applied ATS, it rests its conclusion of corpo- of Law as International (2006); immunity misreading H. Lau rate on a of footnote Courts Tribunals ignoring 20 Sosa while Sosa’s conclusion terpacht, Private Law Sources Analo- Proceedings principles 44. General of international of the Committee June 16th- jus gentium, otherwise known as the were as well as statutes of July 24th, developed by jurists provide Roman rules laches, limitations and (Third) Restatement disputes lawof for the settlement of civil Foreign Relations the United States Law of between Roman citizens and aliens and be- Compag- 102 cmt. 1.See also v. La Souffront aliens, tween aliens and because the Roman Rico, nie Des Sucreries de Porto applicable only disputes civil law was be- †, 483-84 & n. 54 L.Ed. 846 tween Roman citizens. 1 Blackstone's Com- (1910); Banco de Nacional Cuba Chem. Examples princi- *44 n.8. include mentaries Co., (2d Bank N.Y. Trust ples procedure, principle good- of defense, aof Cir.1987); Compensation Awards principle judicata, faith and the of res Effect of byMade United Nations Administrative Tribu- Justice, Permanent Court Advi- of International nal, 13). (July 1954 I.C.J. sory Jurists, Procés-Verbaux Committee Supreme the maintains that because the Court supply would common law that federal recognize corporate liability has refused remedies, at 721- regarding rules brought in lawsuits under Bivens v. Six 2739, as all claims inasmuch 124 S.Ct. Agents, Federal Unknown Narcotics are federal common law the ATS under 91 S.Ct. 29 L.Ed.2d 619 U.S. claims, Rumsfeld, v. Mohammed see (1971), for violations of the U.S. Constitu- (D.C.Cir.2011), and also F.3d Malesko, tion, Corp. Servs. see Corr. pro- law a source of international ignoring 61, 63, 151 L.Ed.2d U.S. S.Ct. liability legal in all corporate viding for (2001), simi- by analogy this court should joining approach, this systems. larly corporations cannot be held hold the same analysis suffers from dissent’s law in liable for violations international n. 9. at 82-83 As See Dis. Op. flaws. flawed, analogy ATS lawsuits. The is noted, there is an inconsisten- Judge Leval however, ignores because it crucial distinc- law: selectively reading international cy in Bivens suits and ATS suits. tions between generally international Because Although private right recog- of action the issue of civil aspects all leaves basis, statutory in any nized Bivens lacked nations, there is no to individual liability the First see id. law to custom of international rule or the under- Congress enacted ATS with any form or con- damages civil award that “the district courts would standing or as text, persons as to natural either for cer- recognize private causes of action of a ones. If the absence juridical na- tain torts violation of the law of universally accepted rule for award tions,” 542 U.S. at S.Ct. corporations damages against of civil judiciary’s 2739. Because the exercise of may courts not award means that U.S. powers common law ATS lawsuits has a then the against corporation, damages basis, statutory firm unlike the Bivens line universally accepted of a absence same cases, hesitancy Supreme Court’s damages the award of civil rule for liability any Bivens new con- “to extend mean that natural must against persons defendants,” category of in- text or new damages may not award courts U.S. cluding corporations, way in no forecloses But the ma- a natural person. recognition corporate liability ATS (as must) that concedes jority opinion Malesko, 68, 122 lawsuits. U.S. damages against courts award Malesko, example, 515. For S.Ct. employees when cor- corporation’s to impose declined to extend Bivens Court rule of nations. violates the poration liability because the rationale corporate Furthermore, and others our circuit Bivens, underlying gov- to deter individual damages, and have for decades awarded committing officials from consti- ernment made clear Supreme Court Sosa violations, in that tutional was inconsistent remedy lie under damage that a does corporate liability. Id. at context with Kio- majority opinion [in the ATS. contrast, By the deterrence internally inconsistent and bel is thus ] actor, for the ATS extends to rationale both Second logically incompatible with might entangle juridical, natural or who authority. Circuit inci- in an the United States (Leval, J., Kiobel, of na- through con- violation of the law 621 F.3d at 152-53 dent tions. curring). Second, maintains because argu- other Exxon Finally, Exxon’s two creating corpo- from Congress refrained immunity under corporate

ments for TVPA, Mohamad v. First, Exxon rate unpersuasive. are (D.C.Cir. Foreign the House Affairs Committee Rajoub, 2011), refrain from against creating corporate court also should this decided corporate can be liabili holding liability that there in the TVPA. Neither does it Sosa, Supreme In ty under the ATS. motivating indicate whether the concerns general practice that “the Court observed the Committee’s 1988 action were shared legislative guidance to look for has been Congress the later that enacted the authority innovative over exercising before in 1992. TVPA See Dawson Chem. Co. v. 542 U.S. at substantive law.” Co., 176, 204, Rohm Haas & gleaned to be guidance 2739. The S.Ct. 65 L.Ed.2d 696 of the TVPA Congress’s from enactment Sosa, In Court character is, however, history slight. legislative ized the TVPA as “supplementing” (1) A pre that: of the TVPA shows ATS, 731, 124 replacing it. 542 U.S. at imposed would have cursor to the TVPA legislative history S.Ct. 2739.45 The of the who, any “person on under actual TVPA is to the same effect. The House authority any foreign na apparent reports and Senate Committee state subjected any “person other to tor tion” “[sjection important 1350 has other uses killing,” H.R. extrajudicial ture or replaced” by and should not be the TVPA. (as § 2 Cong. 100th referred to the H. 102-249, (1991); S.Rep. No. at 4 H.R.Rep. Foreign Comms. on Affairs and the Judi 102-367, (1991),reprinted No. at 3 in 1992 (2) 1978); ciary, House For Mar. operating U.S.C.C.A.N. 86. in a When eign pre Affairs Committee amended this fashion, guided by common law courts are replace in June 1988 to decessor bill experience. reason and Fed.R.Evid. Cf. “individual” and in “person” word so 501. Absent a clear indication either doing single explained Member that the legislative history the text or the purpose was to make clear that the bill Congress TVPA that reached considered applies corpora “to individuals and not to judgment corporations should never tions,” The Torture Victim Protection Act: Comm, be held liable for violations of the law of Hearing Markup the H. before nations, applies suggest- the court the rule H.R. Foreign on 100th Affairs ed experience both reason and (1988), Cong. 87-88 see also Brief of Amici —that law, principles agency under established University Curiae of Minnesota Law corporations can be held liable in ATS Human Rights School International Clinic lawsuits for torts committed their Legal Support of Plain- Scholars agents. dissenting To the extent our col- tiffs-Appellants-Cross-Appellees Seeking (“U. Br.”) league that allowing concludes aliens to n.2; Reversal Minn. Amicus (3) corporations sue in federal courts for aid- Congress and when a later enacted the ing abetting extrajudicial torture and later, approximately years TVPA four killing while “U.S. citizens not bring statute continued to use the word “individ- outcome,” ual” such suits” is a “rather bizarre “person,” rather than see Bowoto v. (9th Corp., Op. argument Chevron Dis. such an F.3d Cir.2010). history Congress legislative pro- This better addressed inasmuch as guidance subject designed greater vides little on the of cor- to afford ATS was porate liability. why jurisdictional protections It does not indicate to aliens.46 any argument suggested "principle Exxon has waived that en- 46. The dissent’s in ATS cases," preempted Op. actment of the TVPA torture and Dis. and notion of “two filters,” id., extrajudicial killing supra require claims. See note would the court to ad- (TVPA preemption) dress an issue that Exxon concludes, sum, by merous courts have considered cases guided court ATS, juridical against corporations or other enti- under the domestic law, any under the without i.e., supplies the ties indication federal common controversy, that the issue was whether question corporate law on the source of proceed47 in ruling States has that ATS cases could liability. The law of they grounds.48 or that could not on other founding corpo its that uniform since been ap- Exxon fails to show that a different held liable for the torts rations can be is warranted proach is con now. agents. their This committed practice, in international both firmed legal systems throughout treaties and IV. every world. Given provides; The TVPA

jurisdiction in the United States and nation, (a) nu and the law of every who, civilized Liability. individual under —An treaties, provide that merous international authority, actual or apparent or color of responsible for their corporations law, are any foreign nation— torts, anomaly a bizarre it would create (1) subjects an individual to torture for corporations liability from immunize shall, action, in a civil for be liable dam- agents in lawsuits the conduct of their individual; ages to that egregious viola brought “shockingly for (2) subjects extrajudi- an individual to recognized universally principles tions of shall, action, killing cial in a civil be Quinn, v. 707 Zapata international law.” damages liable for to the individual’s (2d Cir.1983). analysis of F.2d 691 legal representative, any person or to Kiobel, majority in 621 F.3d at a claimant in an who action for between by overlooking the distinction wrongful death. norms and technical accoutrements 2(a). § § note In searching for an international law norm of 28 U.S.C. 1350 Moha- mad, held, liability interna- 634 F.3d this court after corporate case, law, argument misinterpreting Sosa in several oral the instant tional selectively ignoring Congress’s relevant use of word “individual” ways, and unpersua- indicated that it did not intend for the customary international corporate liability apply corporations has TVPA to or other sive. The issue 606-09; background during organizations. see also Bo- remained in the Id. woto, thirty years Accordingly, de- 621 F.3d at 1126-27. since Second Circuit in dismissing F.2d while nu- the district court not err Filartiga, cided 630 did waived, event, (N.D.Cal.2008); F,Supp.2d supra any In 1091-1100 has note 37. years Bridgestone Corp., John Roe I v. 492 Court observed thirteen (S.D.Ind.2007). "Congress F.Supp.2d enactment of the TVPA that after way has not in relevant amended power by or limited civil common law anoth- See, 1090-96; e.g., Shafi, Ali 642 F.3d at er statute.” 542 U.S. at Church, (2d Cir.); Presbyterian 582 F.3d added). (emphasis Agent Orange Vietnam v. Ass’n Victims Co., (2d Cir.2008); Dow Chem. 517 F.3d 104 See, Inc., Pfizer, Copper Corp., e.g., F.3d Flores v. S. Peru 414 F.3d 233 Abdullahi v. PLC, Tinto, (2d Cir.2003); (2d Cir.2009); Freeport-McMoran, Beanal v. Sarei Rio Inc., (5th (9th Cir.2008) (en banc); 1999); Khu- 197 F.3d 161 Cir. Carmichael 550 F.3d 822 lumani, (2d Cir.); (5th Roy- Corp., Wiwa v. v. United Techs. 835 F.2d 109 Co., Co., (2d Cir.1988); Iwanowa v. Ford Motor al Dutch Petroleum 226 F.3d 88 Cir. (D.N.J.1999). 2000); F.Supp.2d Corp., Bowoto v. Chevron I, permitting corporate claims. See Doe 393 text for vicarious lia- appellants’ TVPA cite, bility. The that appellants authorities F.Supp.2d at 28. indicating Congress provide can Exx- to their claim of As an alternative aiding abetting absent direct TVPA, appel- liability under on’s direct liability, support do not the inference that they may sue Exxon lants contend that Congress provided Ap- so in the TVPA. theory aiding under the TVPA on pellants point provision to no other liability. They Nofzig- cite re abetting colorably provides TVPA for such lia- (D.C.Cir.1992), er, where the 956 F.2d 287 bility. assuming arguendo Even that aid- proposition that in general court stated ing abetting liability is available under may guilty be found a criminal case “one TVPA, precedent the court’s would individual in aiding abetting another liability limit persons. such to natural that the aider and his violation of a statute Mohamad, 634 F.3d at 608-09.49 charged personally not be abettor could (citing 290 v. violating.” Id. at Coffin V. States, 432, 447, 156 15 S.Ct. United (1895)). They also cite 39 L.Ed. 481 presents argu- Exxon three additional 2(a), provides 18 which U.S.C. contending appellants’ ments law- person aids or abets a criminal offense who First, non-justiciable: complaint suit is principal. punishable See also should be dismissed in deference to the States, 447 U.S. 18 foreign-policy Standefer views of the Executive n. 64 L.Ed.2d 689 Second, adjudication Branch. of the com- split. Elev- There is a circuit plaint would an interfere with private held that parties, enth Circuit has agreement supported by the United corporations, can be liable for including Third, comity legis- States. is owed to the aiding abetting violations of the lative, executive, judicial or acts of Indone- Aldana, at TVPA. 1247-48. The sia. corporations Ninth has held that Circuit directly not be held liable under the A. that, assuming TVPA and “[e]ven Court referenced permits some form of vicarious lia- TVPA “policy case-specific deference to the bility, the text limits such to indi- political branches.” 542 U.S. 733 n.

viduals, statute, meaning in this natural 124 S.Ct. 2739. The Court did not elabo- Bowoto, 1128; persons.” F.3d rate, although such impli- deference could Mohamad, also 634 F.3d at 608-09. cate a number of the factors identified in Carr, 186, 217, holding Given this court’s Mo Baker v. 369 U.S. 82 S.Ct. hamad, (1962).50 statutory Court, there is no basis in the 7 L.Ed.2d 663 49. To the factors to no vicarious statute ordered, abetted, natural ciary S. dresses the issue and concludes that there is 86, this is inconsistent with the Senate Judi- Rep. In Baker v. Committee permits No. persons extent guide aiding “lawsuits Cair, under the report, or assisted in court's determination dissent at 8. the Court identified six which states that the abetting liability against persons TVPA, unnecessarily ... Dis. torture.” Op. who ad- for ble whether a political department; bility commitment of the issue to a coordinate cially determination of a kind dards for [1] a question: textually discoverable and complaint presents deciding resolving demonstrable constitutional without an initial it; or or clearly manageable ^{[2] [3]} a lack of non-justicia- nonjudi impossi policy stan judi (D.C.Cir.2010) States, multi- F.3d however, then-pending referred (en banc); McNamara, class action law- litigation involving Bancoult v. district corporations (D.C.Cir.2006). from al- damages suits F.3d in, abetted, participated leged have 29, 2002, By July Legal letter formerly con- regime that apartheid Adviser of the State in re- Department, Africa. at 733 n. trolled South inquiry, to the district court’s filed sponse In re S. (citing Afr. that appellants’ a statement interest Litig., F.Supp.2d Apartheid in fact a potentially lawsuit “would risk (J.P.M.L.2002)). objected South Africa impact inter- significant serious adverse on adjudication of cases interfered letter ests of the United States.” The Truth and Reconciliation Commis- with its noted, however, that was the assessment Id. agreed. and the United States sion “necessarily predictive contingent cases,” note “In such But see infra might how the case unfold in the course concluded, strong “there is the Court The letter that the litigation.” emphasized give that federal courts should argument impact foreign policy on U.S. interests Branch’s weight to the Executive serious certainty.” “cannot be determined with poli- impact foreign the case’s view of Department The State attached a letter of 21, 124 542 U.S. at n. S.Ct. cy.” 733 15, 2002 from the July Indonesian Ambas- elsewhere cau- As Court had stating Indonesia “cannot ac- sador tioned, the conduct relating to “[m]atters a an cept” govern- suit Indonesian exclusively ... so relations are institution, and that ment U.S. courts political gov- to the branches entrusted adjudicating “allegation^] should not be from largely as to be immune ernment rights by of human the Indonesian abuses judicial Regan v. inquiry or interference.” In military.” supplemental statement of 222, 3026, Wald, 242, 104 468 U.S. 14, 2003, July Department the Justice ref- (1984) (internal L.Ed.2d 171 citation expressed the views in the erenced State omitted); Haig v. marks see also quotation Department’s arguing letter while 280, 292, Agee, 453 U.S. 101 S.Ct. legal point merely juris- that the is ATS (1981); Air Chicago L.Ed.2d 640 & S. pri- dictional statute and that there is no Corp., 333 U.S. Lines v. Waterman S.S. ATS, right point vate of action under the (1948); 103, 111, 68 S.Ct. 92 L.Ed. 568 By July moot Sosa. letter of rendered Co., Oetjen v. Cent. Leather 15, 2005, Department expressed the State 62 L.Ed. 726 with the plaintiffs’ proposed “concerns” Similarly, this court has stated discovery May imple- plan 2005—not judgment adjudication “Executive’s mented the district court—which would court inimical to by a domestic would be discovery relatively have involved broad foreign policy interests of the United that could extend to documents located ease compelling [a] and renders States I, Upon Doe Indonesia. F.3d non-justiciable political question under the their Hwang dismissing statutory claims on Japan, doctrine.” Geum Joo v. I, (D.C.Cir.2005); merits, F.Supp.2d also see Doe 413 F.3d explained; court Pharm. Indus. Co. v. United the district El-Shifa cial without court’s coordinate branches of an unusual discretion; undertaking independent expressing need for or ^[4] lack of the unquestioning government; or impossibility respect due resolution adher of a ^[5] from ence to or ous U.S. at ^[6] departments multifarious political potentiality 82 S.Ct. 691. on one pronouncements by decision question. of embarrassment already made; vari Moreover, possibility the court parties in this case have noted The issues and letter, that it had question: misinterpreted to a narrow[] been tailored if that Department, in their effort to invited the State were corporations did U.S. Department in Indonesia violate the case or if the had addi- pipeline secure their litigation, “to Litigation law? and dis- tional concerns about the file state tort issue, if conducted with further letters or briefs with the district covery on this care, Depart- expressing court its views.” Id. The court should alleviate State interfering opinions with cited from the Ninth and Elev- ment’s concerns about prerogatives rejecting non-justiciability while enth sovereign Indonesia’s Circuits objections for law tort plaintiffs a means for to obtain common providing tort actions.52 through garden-variety relief their feasible, in- It should be claims. interlocutory appeal decided stance, perpetuate testi- plaintiffs indisputa- that Exxon lacked a “clear and mony satisfy discovery document right ordering ble” to a writ of mandamus Indonesia. requirements outside appellants’ common law tort claims to be at 29-30.51 Id. political question dismissed under the doc- I, interlocutory appeal, this trine. Doe F.3d at 357. Now prior this rejected justiciability Exxon’s con- court reviews de novo the district court court’s Depart- inasmuch as the State decision to dismiss those claims. Lin tention States, ment’s 2002 letter contained “several im- v. United I, (D.C.Cir.2009). portant qualifications.” Subsequent per- Doe 473 F.3d at events Department’s analysis by State letter suade us that the considered “[T]he [is] unqualified opinion not an that this suit this court Doe I is correct. The Su- [ ] dismissed, preme petition must be but rather a word of Court denied Exxon’s for a [ ] certiorari, alerting caution to the district court it to writ of Corp. Exxon Mobil I, Department’s the State concerns.” Id. Doe (2008),

The court further noted that the reference L.Ed.2d 876 which the United might opposed. to “how the case unfold in the States The United States stated litigation” carefully course of leads to the inference that “[t]he district court consid- Department by that “the did not neces- ered concerns State identified the United court,” sarily expect the district court to in its that immedi- States submissions to ately entirety.” noting claims, dismiss the case in its Id. dismissal of the federal law emphasized general constitutionally 51. The district court the a tort suit —which is commit- ambiguity Department's I, the State 2002 let- judiciary.” ted to the Doe 473 F.3d at 354 ter, I, F.Supp.2d Sarei, Doe 1079-82). (citing 456 F.3d at This observed that a few months later it had or- Portocarrero, court also cited Linder v. discovery dered to commence on the common (11th Cir.1992), F.2d 332 where Eleventh claims, suggests id. at 23. This the dis- political question Circuit concluded that the trict court did not view the 2002 letter as ought prevent doctrine not common law tort presenting justiciability problem for either Nicaraguan arising claims civil war out of statutory the federal or the common law forward, going noting from id. at that claims. "[t]he fact that the issues before us arise in a politically charged context does not convert PLC, Tinto, 52. This court cited Sarei v. Rio essentially ordinary what is an tort suit into a (9th Cir.2006), 456 F.3d 1069 vacated on oth- non-justiciable political question,” (quot- id. (9th Cir.2007) (en grounds, er 487 F.3d 1193 Lauro, ing Klinghoffer v. S.N.C. Achille banc), Department where State had filed a (2d Cir.1991)). letter, F.2d stating against an ATS suit non-state was, court, "simply actors in the words this (D.C.Cir.1998). Currently the court has indirectly a defendant claims “all government,” the Indonesian to “decide what level of defer- by no occasion owned discovery in a manner “limit[ ] [on] and the a letter from the ence would be owed to offending Indonesia’s avoid intended to Department unambiguously that re- State for the Brief United sovereign interests.” dismiss a the district court quests Curiae, Exxon Mobil Amicus States non-justiciable political question.” case as (No. (2008) I, U.S. 909 v. Doe Corp. I, origi- (emphasis 473 F.3d at 354 Doe Further, 07-81), at *8.53 WL (1) nal). only: court are an Before this history light procedural of that that “[i]n by interest ambiguous statement of request by the United and the absence of regarding in 2002 Department State in its case be dismissed States litigation, respecting both the plaintiffs’ reasonably appeals entirety, the court tort statutory and non-federal federal interlocutory appeal petitioners’ regarded (2) claims; by an amicus brief filed of a motion from the denial as one Depart- General and the State Solicitor an claims based on tort dismiss state-law that the Legal emphasizing ment’s Advisor defendants, by private assertion not constitute an statement of interest did Executive, would litigation itself request affirming for dismissal and explicit consequences for the Na- have adverse mitigated the district court had and thus policy interests tion’s regarding concerns United States concerns.” separation-of-powers raised (3) discovery; from the United silence Id., (emphasis at *8-9 2008 WL years States since added). also cite an amicus Appellants to the States’ statement as amicus Su- before the by the United States brief filed Court, notwithstanding this court’s preme Circuit, that the “re- emphasizing Second I to file a further state- invitation Doe explicit request an for dis- quirement of (4) interest; an amicus brief ment foreign policy grounds missal on in another cir- filed the United States is, view, critical.” Branch in our Executive emphasizing that the United States cuit Amicus the United States as Brief for explicit request will make an for dismissal AG, Balintulo v. Daimler Curiae 2009) (2d lodged Also but not appropriate. when 09-2778-cv Cir. Nov. No. January court is a letter of original). The Executive filed this (emphasis request Embassy made no such the ex- Branch has 2011 from the Indonesian instant cases. continuing objection plaintiffs’ pressing subse- lawsuits. Given the United States’ “grant[s] weight”

This court substantial quent filings subsequent silence—the regarding statements Department to State —and misinterpret court concludes that it did not are “at heart of factual the questions of in- Legal the Advisor’s 2002 statement re Pa- expertise.” the In Department’s 252 & n. terest.54 pandreou, 139 F.3d /, at 354. Since claims. See Doe

53. The United States’ amicus brief before the appellants appeals in court had noted their Court stated that district Department a statement of "carefully concerns identified State has not filed considered “[l]argely on the basis court. the United States” and interest in this or the district those concerns” had dismissed federal expert testimo- The district court received WL at *8. Both the claims. 2008 concluded, question or ny on the of the definitiveness court how- district court and this ever, ambiguity the 2002 statement of interest Department's letter that the State Koh, Hongju qualifying at the time for- ambiguous from Harold was and the text Secretary State for Democra- Department's position applied all mer Assistant State Nonetheless, “necessarily embody insofar as the court is re- respect ‘lack of due’ (minus ATS claims viving appellants’ to the Executive support Branch’s of the part by Accord,” defendant owned the Indonesian Appellees’ Helsinki Br. 65 (citing Carr, those dismissed government claims Baker v. 369 U.S. at 691). court appealed), recognizes previously had expressed United States paltry Exxon marshals support for its Although the court concern. lacks a suffi- nonjusticia asserted domestic doctrine of ciently unambiguous recent statement bility based on peace interference with the expressing from the United States concern process. It proposition relies on the justify dismissal of as would the ATS claims, “war-related including those not justiciability grounds, if claims addressed, explicitly extinguished by are were to Department State reassert con- settlement,” peace (quoting [a] id. cerns, do, as it has been invited to this Burger-Fischer AG, Degussa or, remand, upon court the district court in (D.N.J.1999) (alteration F.Supp.2d instance, the first must assess whether in original), principally pointing to Ware v. they provide grounds for dismissing the (3 Dall.) Hylton, 199, 230, 1 L.Ed. thereof, complaints part particularly or a (1796)). In Hylton, Ware v. a British regard to the ATS claims. See Dis. subject sought to recover debt confiscat- Op. at 90-91. ed Virginia Commonwealth of dur- ing the Independence, War of and Justice B. Chase wrote that treaty inasmuch as “the August peace Memorandum of Un- of subject war, abolishes the of the derstanding Between the Government of peace concluded, and that after neither Republic of Indonesia and the Free the matter in dispute, nor the conduct of signed Aceh Movement was part war, as party, either during the can ever be revived, Helsinki Accord. Exxon characterizes the brought again.” into contest Memorandum a peace treaty ending Id. at 230. principle This was applied Aceh appellants’ conflict and claims as Hwang Geum Joo v. Japan, 413 F.3d 45 injuries arising allegedly (D.C.Cir.2005), out of sustained involving claims women during civil By war. letter of Febru- who had been abducted and forced into ary 1, 2007 Department, to the State slavery by sexual Japanese Army be- Embassy Indonesian posi- II; “reaffirm[ed] its fore and during World Japan War both tion as contained in previous corre- and the Department State filed statements spondence,” “highlight[ed]” the memoran- Taiwan, that treaties Japan between dum of understanding, Korea, and concluded China, that South the Philippines, and adjudication appellants’ lawsuit “could respectively, had resolved all civil claims. be deemed as undermining the result of Id. at 52. This court relied on the state- process.” democratic suggests Exxon ment of the Department State continuation of litigation this would also claims had been extinguished by treaty. cy, Rights Human and Labor in the Department. Clinton Advisor of the State Dean Koh’s attorney-adviser Administration and former testimony supports the conclusion of this Legal the Office of Counsel in the Justice prior interlocutory appeal court in the Administration, Department Reagan in the Koh, Hongju Separat- now. See also Harold capacities who in participated both in the ing Myth Reality Corporate About Re- from drafting of statements of interest of the sort at sponsibility Litigation, 7 J. Int'l. Econ. L. 263 issue here. Thereafter he was Dean of the

Yale currently Law Legal School and is Hwang is that of once- Exxon neither cites Restatement the citizens Id. at 51-52. warring may rely on their re- addresses the fact that countries nor Geum Joo opin- sovereigns no to their claims expressed spective has enforce Department State not, proves necessity of or if that Memorandum regarding ion conflict, Instead, Following cites Exxon relations. citizens Understanding. sovereign petition involved each their own Burger-Fischer, which Ware compensa- Ap- to to their claims. governments action lawsuit recover enforce class forced damages in connection with have no such because the pellants tion and recourse regime. sovereign; the Nazi The district Aceh Movement not a labor under Free is the civil had been court concluded claims did in its inde- Aceh’s rebellion not result by the by agreed remedies to subsumed Exxon cites no pendence from Indonesia. Germany without reference Allies and authority for the extension of the doctrine by Department. any statement State agree- articulated Ware to domestic Exxon also Id. at 279. cites Section purpose underlying and the the doc- ments Foreign i of the Restatement of comment appear applicability trine would to have no Law.55 Relations agreement bargained when the is not independent sovereigns. two doctrine Exxon’s invocation of this understood, So Exxon’s contention that a fundamental level. As dem founders on court must to “the Ex- respect afford sources, by the noted the basic onstrated support” Branch’s ecutive of the Memoran- authority that a state principle is has Br. Understanding, Appellees’ dum of and, behalf of its citizens conse bargain on ap- no more becomes than an alternative civil quently, bargain away its citizens’ Foreign case-specific to the proach deference Henkin, claims. and the Affairs already Executive Branch discussed. The 299-300. an interna Once Constitution finalized, Department State filed its statement agreement is tional settlement years of interest three before the Memo- claim a “claim of the private becomes signed, Understanding randum of was is under the state’s control.” state and Foreign reference to the United States made no (Third) Relations Restatement amicus brief the Su- its filed before cmt. i Law the United States Thus, Exxon’s preme Court. where first reasoning The flaw in Exxon’s is that nonjusticiability regarding contention not, was Movement never Free Aceh is silence, on premised ambiguity followed was, Appellants consequently a state. premised second Exxon’s contention Mem challenge the characterization of the silence alone. Understanding “treaty as a orandum it is is no peace,” and notable that there C. by the Branch that

statement Executive invocation doctrine of princi the characterization. The Exxon’s supports citing Guyot, ple comity, articulated Justice Hilton v. Chase Foreign merge may the settle it. state claim (Third) Rela- 55. Restatement 902 cmt. i: with other claims with a view to an en bloc the United tions Law of States may claims for an inter- settlement. The state set Like other violation of claimant obligation, a for a against by national state's claim these claims off claims injury rights is, caused or violation that to respondent Any reparation the state. persons private of the interests of is claim obligation principle, the for the violation of under the control. The state and is state's state, any payment the made is the may reme- determine what individual state state. claim, pursue, the or dies to abandon (1895), deciding prudential 40 L.Ed. 95 fares the ATS has Hilton, Supreme In the Court requirement, no exhaustion better. that:

instructed at plaintiffs 733 n. S.Ct. the opportunity require- were from the meeting there has been for a excused where fair trial before a full and abroad court ment “it is apparent because here that jurisdiction, conducting competent pursue efforts to this case in Indonesia regular proceedings, after upon trial due I, F.Supp.2d would be futile.” Doe voluntary or appearance citation Specifically, 25. court district found defendant, system juris- under plaintiffs, response that the to an affida- likely impartial an prudence to secure vit from an Indonesian administration justice between the cit- litigated Justice that their claims be could country izens of its own those of Indonesia, “effectively they counter that countries, is nothing other and there to risk real very possibility reprisals, court, prejudice in the show either or death, they if including pursue their claims which system laws under it was ap- there.” Id. The court circuit or sitting, procuring judg- fraud peals question to address the held that a ment, or any special why other reason prudential requirement exhaustion does comity of this should nation not al- ATS, exist under international law effect, low it full merits of the case but that “the where ‘nexus’ States not, in an brought should action in this weak, carefully courts should consider country upon judgment, be tried exhaustion, the question particularly ... afresh, as on a appeal, new trial an regard to claims that do not involve upon mere party assertion of the ” concern,’ matters of ‘universal and in so judgment that the was erroneous in law doing apply the usual domestic exhaustion or in fact. principles, including that defendant “[t]he Id. at 16 S.Ct. 139. In other bears to plead justify the burden an words, foreign judgment ought to have requirement, exhaustion including the preclusive effect and granted full credit Sarei, availability local remedies.” principles and effect under the of comity “remedy F.3d at must be avail- and international law. Id. able, effective, and not futile.” Id. appeals Circuit courts of applying require adjudication Hilton of the propri regarding Exxon’s contention interna- decision, ety foreign judicial of a Phila. comity appears tional thus be an at- Mexico, S.A., v. Corp. Gear Phila. Gear de tempt reargue prudential the issue of (3d Cir.1994), F.3d and where exhaustion, which it has not appealed, see proceeding abroad, no has been conducted II.A, supra challenging Part without emphasize importance of an available finding district to pur- court’s efforts forum, see, e.g., Ungaro-Benages sue the case Indonesia would be futile. AG, Bank Dresdner 379 F.3d doctrine, In order to invoke this Exxon (11th Cir.2004); Bigio v. CocarColamust point legal either to a proceeding (2d o., Cir.2001); COC 239 F.3d involving particular plain- Indonesia these Inc., (2d Jota v. Texaco 157 F.3d tiffs to which the court defer or must Cir.1998). availability least the of effective and non- effect, challenges Exxon futile Bigio, district local remedies. See that, court’s conclusion assuming without at 454. has Exxon done neither.56 point, ing although The dissent makes a related assert- that enacted to avoid conflict standing to sue no United States VI. Id. Appellants courts.” at 152. contend the common court dismissed district any subsequent nor that neither that case standing. of prudential for lack law claims rule, general such a case has established VIII, Appellants Doe F.Supp.2d contrary would to the which rules per se there is no contend that correctly standing and Framers’ in- prudential the standing for non-resident rule amici support- nor tent. Neither Exxon and that under aliens in federal courts Berlin rely Exxon in this on ing court the upon applying case-by-case approach, per Democratic Club se any rule. In- test, they prudential have zone-of-interests they appellants fail to show stead maintain dis- claims. Exxon bring their standing the they fall within zone of interests that meet the zone-of- appellants that putes D.C. common law because neither the test, alternatively maintains interests any nor District of Columbia state the its choice that the court erred district States has interest extend- of federal analysis principles law and that law ing allegations its to reach the dispose ap- foreign preemption affairs involving foreign nonresidents individuals claims. pellants’ of a territory foreign sovereign, within the A. assert, when, they particularly the claims sovereign’s military concern acts of that claims, dismissing the common law during analysis a civil war. Our begins on Berlin Demo- the district court relied pruden- the with review of standard Rumsfeld, v. cratic Club F.Supp. standing then that (D.D.C.1976), applies tial stan- which relied on an asserted appellants’ have dard to tort claims. “general rule non-resident aliens Supporting Appellees at with nations the ATS has caused the Amicus Curiae AG, Op. (2d years. opposite Dis. at 77-78. in recent Balintulo v. 09-2778-cv Daimler No. support examples 30, 2009). of this as- Yet the cited Papua regards Cir. Nov. As New As Guinea, do not withstand examination. sertion govern- Secretary Chief apartheid, the dis- regards South African multiple ment wrote to the district court litigation hampered sent that the ATS states occasions, reflecting by expressed the views Commission of the Truth and Reconciliation parliament, urging Prime Minister Tutu, Archbishop Id. Desmond South Africa. Sarei, litigation proceed. F.3d at Commission, disagreed and Chairman of Indeed, in letter the Chief 1199-1200. one filed district court and letters way Secretary that the indicated go urging that the claims for- Second Circuit the United States and Pa- relations between Apartheid Litig., 617 ward. In re S. Afr. pua New could be harmed would be Guinea (S.D.N.Y.2009). F.Supp.2d Follow- litigation Id. at 1207 "if the is discontinued.” court, ing ruling by later the district Presbyteri- objections n. 15. Canada Africa wrote Justice Minister South Inc., Energy, v. an Church Sudan Talisman light that in of the limitation district court 9882(DLC), WL No. 01 Civ. abetting very aiding and "based on claims 30, 2005), (S.D.N.Y. Aug. the United crimes, torture, extraju- [and] serious such as Switzerland, Germany Kingdom, ap- —as killing of inter- dicial committed violation pended to Brief United States as for the apartheid regime,” as national Support of Petitioners Amicus Curiae in corporations contrasted with those C-D, Ntsbeza, Motors, apps. Inc. Am. Isuzu apartheid gov- "merely did business with 07-919) (2008) (No. —were ernment,” Af- court addressed South had jurisdiction over events that to the exercise of Radebe, from J.T. rica's concerns. Letter place countries but to exercise took in their Devel- of Justice and Constitutional Minister corporations Scheindlin, jurisdiction that were citi- over opment, to Hon. Shira A. 7a-8a, See, Court, e.g., id. (Sept. zens of those countries. N.Y. 1-2 Dist. S. Dist. of 2009), 10a. quoted in the United States Brief for 66 Bush, 466, rely 936. Rasul v. 542 124 not to on Berlin U.S. decision

Exxon’s (2004), 2686, well founded. The Club is L.Ed.2d Democratic S.Ct. 159 548 aliens, permit resi intended to rejected Framers Supreme Court the notion its otherwise, to federal courts: access dent or precedent “categorically excludes aliens of the conferred Article III Constitution military in custody detained outside the in law jurisdiction the federal courts over ‘privilege litiga- United States from the State, or the Citizens suits “between courts,” 484, 124 tion’ U.S. id. at S.Ct. States, thereof, Citizens States, (quoting 2686 Al Odah v. United Const, III, 2;§ art. Subjects.” U.S. 1134, (D.C.Cir.2003)), F.3d 1139 321 JPMorgan Bank v. also Chase Traffic “Eisentrager erects stated itself no Ltd., (BVI) 536 Stream Infrastructure juris- bar to the exercise of federal-court 95, 2054, 88, 122 95 S.Ct. 153 L.Ed.2d U.S. corpus diction over habeas claims” [ ] (2002).57 Judiciary au- Act of 1789 2241, § brought under U.S.C. id. 28 cases thorized the federal courts hear quoted Gesellschaft, Court Disconto Judiciary involving an alien defendant. “[ajlien citizens, which had stated 1789, 73, 20, 11, § Act ch. 1 78 Stat. policy practice of the courts of (1789).58 The court in Berlin Democratic country, ordinarily permitted are this v. 339 Eisentrager, Club misread Johnson to the for resort courts the redress of 763, 936, 70 S.Ct. 94 L.Ed. 1255 wrongs rights,” and the of their protection (1950), concerned the constitutional which 578, 337, 208 U.S. 28 S.Ct. and noted enemies, 769, 774, 776, alien id. at rights of explicitly that “28 U.S.C. 1350 confers 936, pains distinguish 70 took privilege suing for an actionable friends, 2, alien id. at 769 & n. 70 S.Ct. ... ‘tort of the committed violation Eisentrager 936. The authorities cited in treaty of nations or a of the United States’ proposition for the that “alien enemies res- on aliens alone.” 542 U.S. at 124 country enemy ident in the of the not could (alteration in original). S.Ct. 2686 an during maintain action in its courts hostilities,” 776, To extent the court Berlin Demo- period id. at 70 S.Ct. 936, opinions, Club on this make clear that the cratic relied court’s overruled, enemy they qualified, intended have been if address claims 6, 776-77, aliens. id. at 774 n. by subsequent Supreme See 70 S.Ct. Court decisions.59 494, Br.”) ("Legal History (citing See also The Federalist No. versal Amicus (Alexander Hamilton) Johnson, (Henry Why Alienage Cabot R. Kevin Jurisdiction ? ed., 1888); Lodge Historical Foundations and Modem Justifica- Debates the Several Disputes Adoption tion Federal Jurisdiction over In- State Conventions on the Feder- (Jonathan Elliott, ed., Noncitizens, volving 21 Yale. J. Int'l L. al Constitution 1836) (statement Madison); (1996)). of James id. at (statement Wilson); of James Brief for Reyes Secy 59.The also v. district court cited Support- the United States as Amicus Curiae Health, Welfare, & Educ. 476 F.2d 910 ing JPMorgan Petitioner at Chase Bank (D.C.Cir.1973), Ltd., a substan- (BVI) which addressed Stream Traffic U.S. 88 Infrastructure tive, procedural question, namely not a (2002) (No. 01-651), WL protected whether a alien non-resident was at *2. applicability Due Process Clause and the Every proposed Judi- version draft Constitution outside of United ciary provided alienage jurisdiction. Act Id. at & n. 8. court States. The district Miller, Douglas’s Brief Amici Curiae of Arthur cited also Justice dissent Klein- Mandel, Chemerinsky Erwin and Professors of Federal dienst v. (1972), Legal History Support "assuming, Jurisdiction and 33 L.Ed.2d 683 ar- Plaintiffs-Appellants-Cross-Appellees guendo’’ persons Re- outside

67 SEC, for own for [and] v. 309 enacted its benefit also Mining Corp. Kukatush In as (D.C.Cir.1962), people attorney American a private this court held the 647 F.2d id. 1191. In general,” Berlin Democrat- corporation, a alien non-resident Club, adopt the district court refused no ic no and had transacted business which exception a an additional non-resident States, stand- lacked the United assets the res not within a do- alien where was juris- “ha[ve] the court did not ing because jurisdiction a mestic court’s territorial or subject pre- or with the of the res diction applied alien had not for relief nonresident immigration laws.” rights under ferred brought statute or was not under U.S. how- acknowledged, The court Id. at 650. subject to be to a domestic from abroad ever, rigidi- relax the “a definite trend to 152; F.Supp. at prosecution. criminal 410 Id.60 Con- ties of the earlier cases.” id. at 153. see also Centroamerica, de S.A. Civiles structores (D.C.Cir. 1183, Hannah, 1190 459 F.2d v. spoke again this court on the Before 1972), circuit case law court found this standing for a non- question prudential and, noting Supreme the Court’s muddled alien, resident the Court ren- citizens, by the that ‘“[a]lien admonition prudential of decisions on dered series the of this practice courts policy standing,61ultimately analysis the adopting to resort country, ordinarily permitted are v. Valley Forge College Christian Amer- wrongs for the redress of to the courts Separation United icans Church ” rights,’ (quot- protection of their id. State, Inc., 464, 454 102 U.S. S.Ct. 578, Gesellschaft, 208 ing (1982). Disconto U.S. 752, 700 In an effort to 70 L.Ed.2d (alteration 337) original), con- 28 S.Ct. clarify line between constitutional “depends upon question cluded standing, enumerated prudential circumstances,” court id. The did on “prudential principles three bear (1) circum- judging a test for suggest standing”: plaintiff “the question stances, id., standing in held was legal but there rights assert his own generally must contacts plaintiffs interests, substantial his view and cannot rest claim to D.C., Washington, agency legal rights with federal on the or interests relief (2) money originated parties”; ought fact that the at issue courts refrain third Washington, questions Treasury “adjudicating ‘abstract from U.S. from D.C., Mining, public significance’ and unlike in Kukatush which amount wide pervasively grievances,’ an but alleged wrongdoer ‘generalized was not plaintiff arguably appropriately least and most addressed a statute at shared sued “under Mining, standing First States. See Kukatush 309 to assert States lacked being en- Similarly, Amendment claim of excluded from court Cia F.2d at 649-50. this read 772, protected speech, id. 92 try on based Com- Mexicana De Gas S.A. v. Federal Power J., dissenting); (Douglas, dis- S.Ct. 2576 mission, (5th 1948), F.2d 804 Cir. 167 ques- senting a substantive opinion rested on Ahrens, (5th v. Cir. Estrada tion, namely First whether Amendment 1961), relying idiosyncrasies of as adminis- applied extraterritorially, id. Mining, 309 F.2d trative law. See Kukatush at 649-50. Mining other in Kukatush read court opinions For in- as limited to their facts. E.g., Vill. Bell- Realtors v. Gladstone stance, v. the court read Disconto Gesellschaft wood, 91, 99-100, 1601, S.Ct. 441 U.S. Umbreit, 208 U.S. Boren, (1979); Craig U.S. L.Ed.2d 66 (1908), Volunteer Fleet L.Ed. 625 and Russian 190, 193-94, 451, 50 L.Ed.2d 397 97 S.Ct. States, 51 S.Ct. v. United Seldin, (1976); 499 Worth v. (1931), concerning the 75 L.Ed. 473 - L.Ed.2d present prior of a res in the existence (3) branches”; and in the of the territorial reach representative constitutional complaint protection: the fall within the court “plaintiffs [must] looked the merits plaintiffs claim protected the zone of interests to be or the to determine wheth- protected er the First regulated by the statute or constitutional Amendment the of the Id. 102 conduct non-resident aliens. Id. at guarantee question.” (internal quotation 284-85. S.Ct. 752 citations and omitted).

marks regardless Consequently, Forge Since this court has im- Valley whether Berlin Democratic Club was cor disability on posed special no non-resident rectly decided authority based on this standing addressing time, alien status in analyzes circuit this now court bring claims. prudential standing case-by-case constitutional Cardenas on a basis Smith, (D.C.Cir.1984), v. F.2d 909 on based the zone of interests of the law Mining providing plaintiffs court characterized Kukatush the basis for the cause non-exhaustive of situa- of action. The court identifying a list has identified special a rule governing prudential tions which nonresident alien suit, standing of bring non-resident aliens. To and Constructores Civiles as depen extent zone-of-interests test is signaling rigidities” a “relaxation of merits,” “peek dent “ease-by-case Emergency on at the adopting analytical ap- Coal, proach.” Educ. Travel v. Applying Dep’t Id. at 916. the zone- Defend (D.C.Cir. Treasury, Valley Forge, of-interests test the court 545 F.3d 2008), question inquired whether the interest substantive will asserted constitutional, plaintiff “enjoys statutory, whether protection Amendments,” protection Fourth common law and Fifth the sub- has extraterritorial suit, plaintiffs stantive for the reach or reaches aliens. basis non-resident acknowledged inquiry that “the tends to B. question meld into the of whether [the plaintiff] has a cause of action prudential to enforce The test for standing “is not these Amendments.” Id. at “It is meant to be especially demanding,” and beyond noted, peradventure,” the court “need [legislative] there be no indication of nonresident, “that a foreign purpose non-hostile to benefit plaintiff.” the would-be circumstances, may, Ass’n, alien under some en- v. Clarke Sec. Indus.

joy the benefits certain constitutional 93 L.Ed.2d 757 imposed limitations on United ac- question appellants States whether would tions.” DKT Id. In Fund v. Memorial have prudential standing under the zone- Agency Development, test, International assuming of-interests applies,62 (D.C.Cir.1989), 887 F.2d 275 court turns on what law provides the basis for again prudential decided the standing the cause of action under District of Co- question question rules, based the substantive choice of par- lumbia law which the DEA, purposes (D.C.Cir. appeal For of this the court as- Inc. v. 362 F.3d deciding sumes 2004). without that the zone-of-inter- pru- The First held Circuit has test, developed ests as a matter of administra- standing dential is demonstrated when a Clarke, tive see 479 U.S. at n. plaintiff either satisfies the zone-of-interests 750, applies to a cause of sound- action harm "show[s] test or that the of which he ing in court tort. The has described the zone- complains injury, amounts to a law’ 'common of-interests test administrative claims as Pierce, such as tort.” v. Munoz-Mendoza gloss judicial "a provision on the review (1st Cir.1983). 711 F.2d the Administrative Procedure Act.” PDK Labs. any, parties if tionship, between cross-appeal Exxon apply. On agree ties ” (quoting Id. of law centered.’ challenges district court’s choice (Sec- Restatement 145(2) (1971)). novo, is de Fetch our review analysis, and ond) Law of Conflict Florida, Inc., Air courts District Columbia (D.C.Cir.1989).63 Restatement, follow section 145 (D.C. Pool, A.2d jurisdic Rymer v. which “To determine 1990), dispute, a comment to which states: “When governs a tion’s substantive involving tort are locat ‘gov certain contacts courts blend District of Columbia in two or more states with identical analysis’ a ‘most ed interests ernmental the question, local rules on the issue in v. law relationship’ test.” Oveissi significant Iran, 835, pur for choice-of-law F.3d case will be treated 573 Republic Islamic (D.C.Cir.2009) grouped if contacts were poses as those (quoting Hercules & 842 Co., single 566 A.2d a state.” Corp., a Rest. Ltd. v. Sham (Second) Restatement 145, i; (D.C.1989)). cmt. see also 31, “Under the 40-41 & n. 18 Conflict of Law States, 193, F.3d 198 analysis!,] ... Simon v. United [a interests governmental (3d Cir.2003). The pol n. 3 district court con governmental the evaluate court] must among was no conflict laws and cluded that there underlying applicable icies the Columbia, Dela would the laws of District jurisdiction’s policy which determine ware, Texas, except Jersey, law New as to having ap its most advanced wrongful claim as to which the under re death to the facts of case plied Hercules, applied A.2d district court Delaware law.64 (quoting view.” Id. 41) (alterations jurisdictions in Exxon are the which original). “To deter These appellants and where sig legal has the most is resident jurisdiction mine which case, allege of the tortious conduct oc court must some relationship to a nificant (1) court, however, inju curred. The district com place where consider ...: ‘the (2) pared of the States occurred’; the con the interest ry place ‘the where (3) occurred’; law the District of Columbia to applying ‘the causing injury duct I v. residence, Indonesia. See Doe Exxon domicile], nationality, place of interest of Civ.A.01-1357, Corp., No. 2006 WL place of of the Mobil incorporation and business 2006). (D.D.C. (4) *2 But Mar. where the rela- place ‘the parties’; Appellees' Br. precautionary suggestion, as a measure. Contrary appellants’ to 63. properly law issue is before the choice of 2. Cross-Appeal, Notice of Exxon court. In the Appellants suggest that choice “any appealed orders that stated it from ... analysis proceed Exxon failed cannot because Septem- merged have into the court’s [district a "true conflict.” “Where demonstrate judgment." One such order is 2009] ber appli- would have an in the each state interest ruling, court’s of law which the district choice facts, law to the a true cation of its own rulings its list of under Exxon also included in jurisdiction law the conflict exists and the Mobil's Certificate review. See Exxon apply.” re stronger interest will with the Parties, Rulings, & Related Cases Exxon’s (D.C. Delaney, 819 A.2d Estate of court's intent seek review of district 2003) (quoting Arlington Cnty., 738 v. Biscoe fairly ruling "can be inferred” choice of law (D.C.Cir.1984)); also F.2d appeal and certificate from its Columbia, its notice A.2d v. District Herbert Comm, rulings LaRouche’s under review. (D.C.2002); Kaiser-Georgetown Cmty. FEC, Plan, Stutsman, a New Bretton Woods 491 A.2d Inc. v. Health (D.C.Cir.2006). 1985). (D.C. suggest not ad- Appellants The court need do not applica- the cross- no appellants' dress motion dismiss that Indonesia has interest laws to their cases. was filed tion of its appeal Exxon states it because I complaint affairs interest of the United Doe was foreign filed were incorporated by the district court— in the United States: States identified one corporate principal place defendant had its leader of the free has an world[ ] “the of business in Indonesia and three in vari- overarching, safety, vital interest in the citizenship ous U.S. states. The prosperity, consequences of the behav- its corporate principal defendant with citizens, super- ior particularly of its its place of business Indonesia the time corporations conducting business in one or complaint Doe filed in VIII was id., countries,” more does not nec- in dispute. remains The district court essarily reflect the interests of the several relationship found that between “[t]he compare states. Rather court must likely plaintiffs [Exxon] centered states, the interests of the three and the Indonesia.” Id. Columbia, District interest of forum with the interests of Indonesia. The dis- importance In view of the that the Re- correctly trict observed that court such places statement place injury, the comparison in favor of Indonesia.” “tilt[s] which District of Columbia choice of law follow, Id. rules (Second) Restatement d; § 145 cmt. Rymer, Conflict of Laws “[S]ubject excep to rare 574 A.2d at and the fact that the tions, the local of the law state where remaining weigh factors in favor of a injury applied conduct and occurred will be law, choice of Indonesian we hold that to determine whether the actor satisfied applies Indonesian law to appellants’ non- acceptable minimum standards of conduct objection federal claims. Exxon’s that In- and whether the interest affected the donesian law apply should not due to con- pro legal actor’s conduct was entitled to comity siderations of international con- tection.” Restatement (Second) of Con cerns the content of Indonesian not its d; § 145 cmt. see also Drs. flict of Laws applicability under District of Columbia Merritt, Groover, Burke, Christie & P.C. v. choice of law rules. Exxon relies on dic- (D.C.2007). place A.2d (1870) in Phillips Eyre, tum 6 L.R.Q.B. v. of injury particular is accorded importance 1 at 30-31 for (Eng.), proposition “in personal injuries the case of and of comity would support recognizing gener- injuries tangible things.” to Washkoviak amnesty foreign jurisdic- al issued Ass’n, v. Student Loan Mkg. 900 A.2d upon tion law whose the court relies. It (D.C.2006) (quoting Restatement (Sec points objection to the of the Indonesian f). 145 cmt. ond) Laws Conflict Embassy, agreement which refers to an to The district court concluded that “[s]ome rights establish human court and a com- most) (perhaps of the conduct occurred reconciliation, mission truth and but Indonesia, although plaintiffs argue that not does refer to either implementation Exxon participated, Mobil knew about and agreement, exclusivity of that of that directed, indeed from the United States remedy, amnesty party. None allegedly culpable conduct to detri experts presented of the on Indonesian law I, ment of Doe plaintiffs.” 2006 WL to the district court referred to the reme- 516744, at *1. Other decision-making, than cited Embassy dies and their status for purposes of the non-federal tort claims applicability are uncertain.

all causing injury conduct In occurred in C. donesia according complaint. to the plaintiffs are citizens In reside in Because Indonesian law applies under defendants, rules, donesia. The at the time the District of law Columbia choice of court not reach Exxon’s federal The district did Exxon’s the court need not address objections. agree appel- regarding diversity District of We with argument preemption law. To the ex non-diversity and Delaware would not Columbia lants EMOI’s argu during oral suggested tent Exxon dismissal because the district mandate tort non-federal appellants’ ment court, to find that EMOI is non- were it if Indonesian preempted EMOI, claims would per- could party, diverse dismiss it cites its authorities applies, Exx- mitting appellants proceed against relating the “su inapposite, brief are Rule Corporation. Federal on Mobil gen power national in the of the premacy 21 permits Procedure dismissal of Civil and to the affairs” eral field “jurisdictional a “fic- spoilers” creates prevent legislatures need relates to the tion that back [the dismissal] conducting foreign policy, states from complaint,” Lorazepam In re & date of Davidowitz, 52, 62-63, 312 U.S. Hines v. Litig., F.3d Clorazepate Antitrust (1941); L.Ed. 581 see also 61 S.Ct. (D.C.Cir.2011). We therefore remand Miller, 429, 44(M1, Zschemig this court. issue the district 664, 19 (1968); Saleh, L.Ed.2d 683 affirm the Accordingly, we dismissal Otherwise, argu- at 12-13. claims, we appellants’ TVPA reverse the it is present- ment because is forfeited this dismissal claims issue N.Y. ed Exxon’s briefs. See Rehab. appeal, along appel- dismissal of NLRB, v. Mgmt., Care LLC claims, tort and we re- lants’ non-federal (D.C.Cir.2007) (quoting 1076 to the court. mand the cases district Kissinger, 412 F.3d 200 v. Schneider R.App. (D.C.Cir.2005)); also Fed. n. 1 KAVANAUGH, Judge, Circuit 28(a)(9).

P. dissenting part: VII. Indonesian citizens who Plaintiffs are Exxon contends that Doe (or they family their mem- allege that diversity on complaint, which is based VIII bers) beaten, abused, imprisoned, were § jurisdiction, 28 U.S.C. should be and in some cases killed Indonesia complete diversity for lack dismissed claim that Indonesian soldiers. Plaintiffs and Com plaintiffs between defendants. violated custom- the Indonesian soldiers diversity parties that no plete requires two torture, ary norms international an action can be citi opposite on sides of killing, prolonged deten- extrajudicial and Strawbridge state. v. zens of same provided tion. The Indonesian soldiers (3 Cranch) Curtiss, 267, 267, 2 7 U.S. corporation, for security an American (1806). diversity L.Ed. 435 statute case, did not plaintiffs In this Exxon. subject jurisdiction not confer matter does or Indonesian officials. sue Indonesia on over a lawsuit between an alien one Rather, they the Alien sued Exxon under side, an and a citizen on the alien U.S. Statute, ATS, and abet- aiding Tort for Farouki, other v. side. See Saadeh con- ting the Indonesian officials’ tortious (D.C.Cir.1997). Doe VIII F.3d duct. plaintiffs complaint alleges that are ¶¶ courts grants The ATS federal district citizens, Compl. Doe VIII 6- Indonesian “any civil action an jurisdiction over Exxon Mobil In defendant only, in violation (“EMOI”), alien for tort committed in the incorporated donesia is treaty law of nations or place of Cayman principal with its Islands ¶ In United States.” U.S.C. Id. business Indonesia. treaty no cases such as this where is which of course have a strong interest involved, policing regulating the substantive content an conduct their is ATS claim determined reference to own countries. The ATS contains no tex- customary international also common- tual indication that it apply was meant to ly the law Sosa in foreign Moreover, called of nations. See conduct countries. Alvarez-Machain, purpose ATS’s historical towas avoid L.Ed.2d 718 Customary foreign governments. conflicts It did international law is kind of by providing foreign so redress citizens body law. It injuries common of sometimes who suffered within the United principles diffícult-to-ascertain rules and high States or seas. As this case from informally general arise and exemplifies given Indonesia’s strenuous — nations, practice objections consistent and that and repeated to a U.S. court’s recognized have been entertaining plaintiffs’ enforced in- extending the suit— such post- ternational tribunals as the ATS to conduct that in foreign occurs II Nuremberg. World tribunal at War creates countries rather than avoids con- flicts with nations and thus runs Court, In District Judge Oberdorfer directly counter to both the presumption plaintiffs’ dismissed ATS claims. Doe I v. against extraterritoriality ATS’s Exxon Mobil Corp., F.Supp.2d 24- design purpose. (D.D.C.2005). I would Judge affirm Oberdorfer’s decision of four inde- Second, as recently the Second Circuit pendent reasons.1 held, the ATS not apply does to claims First, under presumption against ex- against corporations. Royal See Kiobel v. traterritoriality, Co., apply (2d the ATS does not to Dutch Petroleum F.3d Cir.2010). conduct occurred foreign nations— the Supreme Court suit, such this which concerns conduct stated that courts in ATS cases must de- “longstand- occurred Indonesia. A customary termine whether international ing principle of American law” scope dictates law liability “extends of for a that “legislation Congress, of unless a con- of given violation a norm perpetra- to the trary appears, intent apply 20, meant to tor being sued.” 542 n. U.S. at 732 124 jurisdiction within the territorial Customary of S.Ct. 2739. law the United States.” EEOC v. Arabian does recognize corporate not liability. (ARAMCO), American Oil Co. plaintiffs’ 499 That against U.S. means ATS claims 244, 248, 1227, (Exxon) 111 S.Ct. 113 L.Ed.2d a corporation go cannot forward. (1991). The presumption helps Moreover, the United the Supreme Court in Sosa em- nations, States avoid with phasized conflicts other judicial restraint, the need for claims, Milter, In plaintiffs addition to their ATS 389 U.S. 88 S.Ct. 19 L.Ed.2d (1968); Davidowitz, Hines v. have 312 U.S. asserted under claims the federal Tor- (1941); 61 S.Ct. L.Ed. Saleh v. ture Victim Protection Act and tort state law. Corp., Titan 11-12 & 12 n. 8 agree opinion’s I majority with the decision to (D.C.Cir.2009); see also Chamber Com- affirm dismissal of the TVPA claims. I also Whiting,-U.S. merce United v. States agree majority opinion's with the decision to -, 1968, 1983, 179 L.Ed.2d 1031 claims, including remand the state-law for a (2011) (describing "uniquely federal areas of analysis careful of whether those claims are regulation” citing Crosby and and Garamendi preempted foreign preemp- under the affairs Council, Foreign v. NatT Trade U.S. tion doctrine. See American Ins. Ass’n v. Gar- 373-74, 120 S.Ct. 147 L.Ed.2d 352 amendi, 396, 422-23, 539 U.S. (2000), S.Ct. examples authority as federal over (2003); affairs). Zschemig 156 L.Ed.2d foreign caution,” aiding in a court for abet- “vigilant doorkeeping” ration U.S. and and “great ting extrajudicial and but a killing, torture cases. Id. ATS corpora- citizen cannot sue the same Supreme Court’s admoni- U.S. Given court tion the same U.S. for the exact tion, quite it be odd for a U.S. court would aiding abetting and torture and customary international law- same to allow a little extrajudicial killing. That makes against corporation claim based ATS is, strange put charitably, to has allowed sense no international tribunal when reading congressional intent and Su- customary international law claim preme precedent. Court corporation. Fourth, Third, Supreme required has customary international Court even if interpret open-ended language to liability tor- us corporate established so to avoid conflict with killing, we still the ATS extrajudicial ture therefore, policy foreign claims for Nation’s plaintiffs’ not allow should —and in- Branch go because do- heed Executive statements those violations to forward Sosa, in ATS cases. incongruous with Tor- terest U.S. ing so would Sosa, Supreme Following 124 S.Ct. 2739 n.21. Protection Act. The ture Victim ex- courts must dismiss ATS cases when the indicated that courts should Court has explains judicial interpret reasonably the Executive Branch restraint ercise foreign policy the suit would harm U.S. open-ended language the ATS refer- Here, the Executive Branch has analogous congressionally enacted interests. ence to repeatedly allowing stated that these ATS of action. See causes proceed would harm the 731, 124 Plaintiffs assert that claims United S.Ct. 2739. relationship as- international law States’ with Indonesia —an ATS and up pointed several let- of action for torture sertion backed give aliens a cause analogous ters that Government Indonesia has extrajudicial killing. The directly this and the gives Act submitted Court Protection Torture Victim The Executive Branch has action for torture and District Court. citizens a cause of explained damage extrajudicial killing. But TVPA does relationship would aiding with Indonesia corporate allow States’ security American liability. exercising impair re- in turn national abetting policy to the on- respect straint mandated cases, against Qaeda, al a war which Congress’s ap- going we must follow war ATS key ally. Judge is a fashioning the TVPA for Indonesia Oberdorfer proach to U.S. and, in similarly light those concerns citizens and fashion the ATS heeded them, majority plaintiffs’ opinion’s properly con- dismissed ATS aliens. Under a trary approach, corpo- an alien can sue claims.2 Breyer underlying but the Court as whole has claims on identified Plaintiffs base their torture, geno- yet position against not taken a on—are customary international law norms cide, torture, against humanity, extrajudicial killing, prolonged and war crimes and J., (Breyer, perspective crimes. Id. at 124 S.Ct. 2739 From a lower court’s detention. case, concurring). plaintiffs a tor- many Because assert an there be as ATS Breyer is four currently cognizable customary ture claim —which one interna- seven point certainly this almost has become might one call the tional law norms: what cogniza- customary law norm plus “Breyer international four.” "Blackstone three” against state actors at least— ble in ATS cases original three are offenses Blackstone ambassadors, require- plaintiffs' that threshold con- suit satisfies violations of safe Sosa, ducts, 124 an ATS claim. id. piracy. ment for Cf. cogni- (dismissing no Breyer S.Ct. 2739 suit because four —which Justice S.Ct. 2739. The ” v. Ara EEOC

Exercising by the caution mandated tion of the United States.’ cases, I (ARAMCO), ATS would Court bian American Co. Oil claims for of those dismiss the ATS 244, 248, 111 S.Ct. 113 L.Ed.2d U.S. independent my judg- four reasons. In Bros., (1991) (quoting Foley Inc. v. ment, permitting pro- these ATS claims Filardo, 281, 285, U.S. judicial jumps proper ceed rails (1949)). Congress L.Ed. 680 Because “or restraint. domestic, dinarily legislates respect matters,” foreign presume not courts that I not apply foreign statutes do to conduct in First, I dismiss the claims would ATS lands unless an “affirmative intention of alleged the torts here because occurred Congress clearly expressed” indicates Indonesia and the does not extend to ATS Morrison v. Nat’l Australia otherwise. foreign conduct occurred lands.3 — Ltd., U.S.-, Bank 130 S.Ct. principle It of Ameri “longstanding is 2877, 177 L.Ed.2d can un legislation Congress, law ‘that The presumption against is contrary appears, less a intent meant to extraterritori- apply only jurisdic ality within the territorial “serves to protect against unintended (9th J., Cir.2010) (Kleinfeld, zable al- dissenting). law norm In reason, Sosa, raised, leged). For extraterritoriality unlike we issue was arguments but must consider various other the Court did not reach it because the rejected against plaintiffs’ raised Exxon ATS claim on claim other doubtful, however, grounds. Breyer Only for torture. It seems Justice alluded to issue, extraterritoriality plaintiffs— he the other two norms did so asserted Alvarez-Machain, detention, briefly. extrajudicial killing See Sosa v. prolonged 692, 761-63, among are which Blackstone three (2004) J., (Breyer, concurring). L.Ed.2d 718 Breyer cognizable four—would in an against any ATS suit defendant. Because It appeals, is true that some courts of with- opinion majority remanding the ATS suit any analysis extraterritoriality, out have Court, up the District it will be to that court permitted though underly- ATS suits even on remand to assess whether the ATS extends ing foreign tortious conduct occurred in extrajudicial killing to claims for pro- See, e.g., countries. Hilao v. Estate Mar- longed detention. cos, (9th Cir.1994); Filartiga 25 F.3d 1467 v. Pena-Irala, Cir.1980). (2d 630 F.2d 876 We surprisingly, appeals Somewhat no court of are of course not bound decisions of other analyzed applies has whether the ATS to con- Moreover, appeals. courts of those cases place duct that took nation. judicial analysis contain no of the extraterri- opinion its corporate liability, recent on ATS toriality question provide persua- and thus no expressly question the Second Circuit left this arguments accepting sive the extraterrito- open suggested "very well could application of rial the ATS. See Arizona apply conclude that the ATS does not extra- Organization Christian School Tuition Winn, - n , territorially, - and thus we would 1436, dismiss this U.S. 131 S.Ct. 1448- majority and the vast 49, of recent ATS on (conclusion suits (2011) 179 L.Ed.2d 523 as- ground the that the violations of prior prec- sumed sub in not silentio cases is alleged by plaintiffs origi- edent). And the that fact some of those cases place country.” foreign nated took in a years have been on the books for several Co., Royal v. Kiobel Dutch Petroleum 621 F.3d materially persuasive does not add to their 111, (2d Cir.2010) (internal - quota- 143 n. 44 Dep’t Navy, force. See Milner the omitted); U.S.-, 1259, 1268, tion marks see also id. at 117 n. 131 S.Ct. 179 L.Ed.2d (2011) ("immaterial” judge One Ninth Circuit who has addressed 268 that an incorrect the that consistently issue stated the ATS not apply upon should doctrine "has been relied foreign to conduct that on years” occurred land. See and followed for 30 in the lower Tinto, PLC, 561, courts). Sarei v. Rio

75 (internal domestically) occur late” must our laws and those between clashes omitted). That a quotation marks defen- result interna- nations which could other ARAMCO, a thus not miti- dant is U.S. citizen does 499 U.S. at tional discord.” the In gate presumption. the force of 248, presumption 111 S.Ct. 1227. The ARAMCO, Supreme example, for the risk interference the “serious avoids regulate that Title VII did not Court held foreign ability independent- a nation’s foreign employment practices the of two own commercial affairs.” ly regulate its 247, 499 at corporations. Delaware U.S. Empagran Roche Ltd. v. F. Hoffmamv-La 259, Morrison, 155, 165, 111 the S.A., S.Ct. And 542 U.S. S.Ct. Supreme dismissed securities suit “Foreign conduct is Court L.Ed.2d law,” against foreign corporations both and U.S. foreign and generally domain for misconduct in connection with securi- legislators assume that take “courts should foreign exchanges. on legitimate sovereign inter- ties traded S.Ct. account of the they nations write 2888.4 ests of other when AT Corp. v. & American laws..” Microsoft deeply That canon of construction is T, 437, 455, 127 550 U.S. example, In the Su rooted. (internal (2007) quotation L.Ed.2d 737 preme Court “however instructed omitted). marks and alteration general comprehensive phrases be, they municipal extraterritori- used our laws presumption against construction, conduct, always must be restricted ality is on the site of focused See, upon whom the identity places persons, of the defendant. not (the Morrison, authority jurisdic Legislature 130 S.Ct. at 2884 have e.g., 362, 370, regu- Apollon, tion.” The 22 U.S. that a statute “seeks to transactions States, tirely majority opinion cites v. Bulova within and the Su- 4. The Steele Co., preme give Watch 344 U.S. 73 S.Ct. therefore did not need to L.Ed, (1952), Pasquantino v. United again, the statute extraterritorial effect— States, conduct, 125 S.Ct. focusing his defendant’s (2005), claiming Morrison, 2887; that "the L.Ed.2d citizenship. See change can where U.S. citizen is a calculus Pasquantino, 544 U.S. at 125 S.Ct. 1766. Maj. Op. at 27. But the cause of harm.” Supreme Court has also ruled that the Supreme both of those cases Court discussed extraterritoriality presumption against bars Morrison, in ARAMCO and the suit based on conduct even when analysis majority support does not Court's citizen defendant took some actions opinion's use of cases here. The Su- those foreign con- the United States related to the preme presump- Court determined that ARAMCO, example, VII duct. the Title In extraterritoriality applied against tion allegedly defendant —who . discriminated cases, way and the defen- same in all four working employee Ara- an in Saudi citizenship did not affect the extraterri- dant’s originally employee in hired that Hous- toriality analysis. and Morrison ARAMCO bia— ton. 499 U.S. at 111 S.Ct. 1227. And crystal identity make clear the American Morrison, deceptive allegedly conduct— presump- of the defendant does not defeat which transactions Steele, affected securities against extraterritoriality. tion moreover, abroad —occurred in Florida. 130 S.Ct. ap- the statute under consideration explained, 2883-84. As the Morrison Court may lawfully plied to "all commerce which prohibited is a rare extraterritorial "it case "express[] regulated by Congress,” application lacks contact with the all statutory in the text rebutted state[ment]” territory pre- of the United States. But the extraterritoriality presumption against re- application sumption against extraterritorial gardless identity See of the of the defendant. 11; ARAMCO, Morrison, watchdog if it re- would be a craven indeed 2886 n. 130 S.Ct. at 252-53, its domestic treated to kennel whenever some 499 at 111 S.Ct. 1227. In Pas- U.S. activity at in the case.” Id. quantino, at en- is involved the conduct issue occurred 76 (1824) 362, J.); (Story, L.Ed. 111 in “foreign

Wheat. 6 commerce” did not suffice to 241, 279, Himely, 8 U.S. 4 presumption against see also Rose v. overcome the extra- (1808) 241, (Marshall, Morrison, territoriality. Craneh 2 L.Ed. 608 at 130 S.Ct. C.J.); 10(b) Charming Murray (interpreting Schooner Bet- 2882 of Exchange the 64, 118, 64, 2 2 sy, Act); ARAMCO, 251, U.S. 6 Craneh L.Ed. 499 atU.S. 111 S.Ct. C.J.). (1804)(Marshall, VII); 208 (interpreting 1227 Title see also Small, S.Ct. day The canon remains to this an essen- (statutory phrase in any “convicted court” tial part Supreme jurispru- Court’s refers to convictions domestic repeated- invoked it dence. Court has courts). Morrison, See, ly years. e.g., in recent (2010); S.Ct. Small v. specific Nor does the ATS’s reference to States, 125 S.Ct. alien plaintiffs establish that the statute (2005); ARAMCO, 161 L.Ed.2d 651 applies extraterritorially. language That U.S. at merely S.Ct. plaintiffs ensures that alien can sue under customary inju- international law for presumption In applying ex- ries suffered within the United States. traterritoriality, we “look to see whether Similarly, ARAMCO, cov- statute language in the gives any [relevant Act] aliens, ered but the Supreme Court said congressional purpose indication of a the statute did apply not to extraterritorial beyond coverage places extend its over conduct. See 499 U.S. at which the United States has sovereignty or (Title did apply VII not al- abroad legislative has some measure of control.” though protected the statute work- aliens ARAMCO, 499 U.S. at 111 S.Ct. 1227 States). ing in the United (alteration (internal original) quotation omitted). gives marks “When statute no The ATS’s historical context likewise clear indication of an appli- provides extraterritorial no for rebutting pre- basis cation, Morrison, it has none.” sumption against extraterritoriality. In- deed, background provides the ATS’s affir- reinforcing mative evidence the conclusion Here, sparse of text the ATS does apply that the statute does not to conduct support application law con- occurring in foreign countries. duct in lands. The refers conduct committed in “violation Confederation, law Under the Articles of a treaty nations or of the United which were in effect from 1781 until the sure, States.” To be such conduct can U.S. was Constitution ratified occur worldwide. But as U.S. Government authority lacked to rem- Court has explained, the mere fact edy prevent violations statutory language plausibly apply could to nations. Two during period incidents extraterritorial conduct does not suffice to involving foreigners mistreated in the overcome presumption against extra- highlighted problem United States cre- Otherwise, territoriality. statutes, most ated this legal vacuum. In the “Mar- including laws, most federal criminal would bois Affair” of Secretary apply extraterritorially and cover Legion, conduct French a French ambassador occurring anywhere in sorts, the world. Mor- was assaulted on a street in Phila- ARAMCO, rison and the Supreme Casto, delphia. See R. William The Feder- recognized that point commonsense al Courts’ Protective Jurisdiction Over jurisdictional ruled that “broad language” Torts Committed Violation the Law statutory Nations, references acts occurring 18 Conn. L.Rev. sovereigns (1986). City- by foreign under their coun- a New York And very the home of a Dutch tries’ laws.5 It to think entered would be odd constable and arrested one the am- ambassador Congress that the 1789wanted to create servants, the ambassa- violating bassador’s cause of action enforceable in federal tort at privileges. See id. diplomatic dor’s for, injured say, court a Frenchman U.S. interna- Both torts violated in London. infringements on namely, tional norm— background of the purpose The Congress ambassadors. Yet rights avoiding foreign conflict with na- ATS— redress for either powerless ensure

was presumption tions—thus reinforce the impo- of the law of nations. The violation extraterritoriality. against And modern in turn government tence of the national litigation further demonstrates the foreign with nations generated conflict continuing vitality of the un- concerns that not ob- concerned that their citizens could dergird presumption. goal of the injuries for certain suf- legal tain redress against extraterritoriality, presumption See, e.g., Sosa fered in the United States. ATS, goal like is to avoid conflict Alvarez-Machain, n. v. foreign with nations. But recent ATS 11, 124 S.Ct. 159 L.Ed.2d 718 on acts cases based that occurred for- ratification the Constitution After engendered eign nations have often conflict Congress this the First addressed nations, sovereign with other rather than enacting in 1789 the Alien Tort problem Indonesia, it. avoided The Government of Statute, part which was of Section 9 example, strenuously repeated- for has 717, 124 Judiciary Act of 1789. See id. at ly objected this lawsuit. The Govern- statutory 2739. The text allowed S.Ct. complained ment of Africa for South six committed in viola- aliens to sue for torts years that an extraterritorial ATS case treaty. or a tion of the law of nations litigated in the Second Circuit interfered primary purpose The ATS’s was ensure its operation post-apartheid with the redress incidents like the two federal for Truth Reconciliation Commission. thereby avoid unnec- described above 21, 124 542 U.S. at 733 n. essary foreign conflicts nations. See objected government 2739. The Canadian 715-20, The First id. S.Ct. 2739. brought against to an ATS suit a Canadian Congress who was concerned about aliens corporation for conduct occurred injured in were the United States viola- Sudan, the suit interfered explaining that customary international but tion of foreign with Canada’s relations. See Pres- in federal court. But who had no redress byterian Church Sudan Talisman Congress there is no evidence that was Inc., No. Energy, WL injuries remedying about aliens’ concerned 2005). (S.D.N.Y. Aug. *1-2 in foreign that occurred lands. And there Papua New Guinea Government Congress no particular is reason objected years two to an ATS least about aliens would have been concerned mining corporation op- suit injured foreign lands. Remedies island, all, injuries complaining on the that the provided, could be after erated such clear, plain- injury point not and how to redress an that occurs 5. To be here is territory. un- foreign within And that traditional tiffs must exhaust their its remedies explains why systems here, derstanding sovereignty Con- legal Indonesia's —be- nations' — gress this in 1789 would choose extend bringing fore claims under the ATS. Contra Rather, occurring in Maj. Op. point U.S. tort law to conduct at 26-27. here foreign sovereign whether lands. that a can decide very wrinkle, litigation “potentially riality had serious so- does raise analytical one cial, economic, legal, political security although presented it’s not in this case: implications” Papua New Guinea and apply Does the on high ATS to conduct its relations with the United impair is, would seas—that conduct neither the terri- Tinto, Sarei Rio 487 F.3d States. See tory of the United States nor the terri- (9th Cir.2007), rev’d on unrelat- tory foreign country? of a I believe the banc, grounds en ed yes, better answer is and that pre- including And several other sumption against extraterritoriality is nations — Switzerland, Kingdom, United and Germa- overcome to that limited extent in ATS complained that the ATS im- ny cases. The Court noted in Sosa —have their properly rights interferes with piracy was one three causes of regulate their citizens and conduct their action contemplated by Congress the First territory. Developments own in the passed it when the ATS. 542 U.S. at Extraterritoriality, Law: 124 Harv. L.Rev. “[Pjiracy, S.Ct. 2739. by the law of (2011).6 1226,1283 nations, sea”; is robbery it upon can- not, matter, aas definitional occur on U.S. laundry This list shows that something Smith, soil. United States v. awry in palpably litiga- the modern ATS (1820) (Sto- 5 Wheat. 5 L.Ed. 57 juggernaut. problem tion The stems in (The J.). ry, other two causes action large part from extension of the ATS to originally available under the ATS—of- foreign occurring conduct lands. The against fenses ambassadors and violations presumption against extraterritoriality was of safe occur conducts—can in the United designed, part, to prevent such over- States.) Because we know that Congress reaching thereby avoid this kind of intended the piracy ATS to cover be- ARAMCO, international discord. See piracy seas, high cause occurs 111 S.Ct. 1227. As history its Congress follows that intended the ATS to reveals, the ATS shared the same broad apply to conduct on high seas. purpose. Stretching the ATS to cover conduct in other countries thus has man- Applying the conduct on the aged to purposes flout the both the ATS high seas not pose does the risk of con- longstanding itself and the presumption foreign flicts with nations that the pre- against extraterritoriality. may— Courts sumption against extraterritoriality indeed, binding Supreme under the ATS itself were primarily designed to precedent, apply must—adhere to and high avoid. jurisdictionally seas are presumption against settled extraterritori- unique. They are “the common highway ality, thereby avoid creating this kind nations,” governed of all single no sov- unnecessary international discord.7 ereign. Apollon, 22 U.S. at 371. As a sure,

To be result, the interaction of the ATS high seas fall within the presumption and the jurisdiction extraterrito- of the federal courts even say foreign 6. That governments is not to To extent an individual commits an of- always have fense abroad and objecting. laudable when then flees motives fugitive as a States But from nation's that's not the relevant issue. The ATS legal process, the traditional re- presumption against and the extraterritoriali- lations tool to address that situation is extra- ty designed were to avoid conflict with for- course, point, At dition. this the United nations, eign litigation and modern ATS has States has extradition treaties with most other purpose. thwarted that §§ nations of the world. See U.S.C. 3181— foreign That lands distinction between foreign territo- foreign countries when sense, good high par- and the seas makes See, e.g., American do not. rial waters to ticularly applied as the Tortious ATS. Co., 213 U.S. Fruit Co. United Banana foreign conduct that occurs in a nation’s 511, 826 53 L.Ed. territory regulated by foreign is the sover- (“No (1909) subject no regions in to doubt seas, high eign. Tortious conduct on the seas, to law sovereign, high like or no the contrast, by in by regulated is no nation as recognize would civilized countries that (de- Smith, at 162 particular. See 18 U.S. may treat some adequate, such countries all general practice “the nations scribing gov- as their citizens relations between punishing persons, in all whether natives law, to keep, some by their own erned [piracy] who have committed foreigners, or extent, personal sover- the old notion whatsoever, with against persons times, further, They go at alive. eignty they amity”). in the Although whom are risks na- they punish anyone, offending foreign United States will and declare in by regulating occurring tions conduct not, things, shall do certain subject or who countries, foreign performs those some- him, inas the case of they can catch if public by thing of an international service (internal seas.”) high the cita- pirates on supplying omitted); Apollon, The 22 U.S. at 371 tions in against cause of action federal court “foreign ports and territo- (distinguishing illegal high on the The seas. conduct Cf. jurisdiction our is “places ries” from where Flora, 1, 40, 24 11 Marianna U.S. Wheat. waters, or ... the complete, ... our own (1825) “are, (pirates L.Ed. ocean”); Neutrality, Op. Breach of U.S. truth, common all man- the enemies of (1795) (crimes committed Att’y Gen. kind”) J.). (Story, ATS, designed The to cog- country “are not within the foreign improve the smooth United States’ courts,” our but “crimes com- nizance of nations, foreign quite thus relations high the within the mitted on seas are sensibly interpreted to extend to and circuit jurisdiction the district high on the seas but not to con- conduct States”). foreign countries.8 of the United duct courts see, I, (1925); § e.g., art. point piracy typical- Const, The central here is that seas, To high ("Congress shall have Power ... define ly on the not in nation's occurs Moreover, extending punish committed a cause ac- Piracies and Felonies territory. Seas, high against and Offenses high poses no risk on the tion conduct on seas Nations”); foreign Law 4 William It follows of conflict with nations. Blackstone, Com- ("The high piracy, *72 offence of com- ATS conduct on applying mentaries committing those goals mon acts with the of the ATS consists seas is consistent seas, upon high robbery depredation presumption against and the extraterritoriali- land, which, says persons upon have majority opinion if committed would ty. there.”); felony piracy foreign instigate land amounted could aid or from too, ("Consider, foreign 124 S.Ct. 2739 piracy in territorial waters. or commit enough Congress to the Op. & 10. the First was attentive Maj. 22-23 n. n. recognize certain majority opinion law of nations offenses reasons that criminal, including foreign expressly three extend to conduct on land. thus must view, my possibility An Act for the mentioned Blackstone. See In such theoretical Against presump- Certain Crimes to overcome the Punishment of far too thin reed States, (murder extraterritoriality Stat. 113-114 and extend the tion crimes, punisha- robbery, capital foreign or or other land. "Character- ATS to conduct high regarded piracy committed on the as an of- ble as istically [piracy] has been if seas)....") added); seas,” (emphasis id. not open in a nation's fence of J., (Scalia, ("That Dickinson, concurring) por- S.Ct. 2739 territory. D. Is the Crime Edwin Obsolete?, general law known as tion of the common Piracy 38 Harv. L.Rev. 336- ATS, mentioning Early though courts; cases cognizance our nor can number, confirm that legally few statute the actors be prosecuted pun- applies to conduct the United States or ished for them the United States. seas, high on the but to conduct in But crimes high committed on the seas jurisdiction nations. the decade after the are within the of the district reported the passage, ATS’s two cases that and States; circuit courts of the United and, discussed the statute dealt with conduct far so as the offence was committed thereon, in that the I occurred United States on am inclined to think that it Darrel, high may the seas. See Bolchos v. legally prosecuted be in either of (No. (D.S.C.1795) (ATS 1,607) courts, F.Cas. those in district wherein jurisdiction wrongful provides when sei- may offenders be found. But some port “original zure occurred at point, U.S. doubt rests on this in consequence sea”); cause arose at Moxon v. The Fan- of the terms in which the ‘Act in addi- (No. (D.Pa. 9,895) ny, F.Cas. tion to the punishment act 1793) (owners of ship sought British dam- certain crimes the United States’ ages for its in U.S. by seizure waters Neutrality [the Act of ex- 1794] is privateer; apply French does pressed. ATS not be- But there can be no doubt suit only”). cause was not “for a tort the company or individuals who injured by have been these acts hos- Attorney opin- General Bradford’s 1795 tility have remedy by a civil [ATS] ion about an incident in Sierra Leone also suit in States; the courts of the United (i) supports this distinction between con- jurisdiction being expressly given to duct high United States or on the these courts in all cases where an alien (ii) seas and conduct in foreign lands. The for a only, sues tort in violation opinion Bradford considered whether the nations, treaty laws of or a of the United criminally prosecute States could States; and as such suit main- an individual for acts committed on the by distance, tained evidence taken at a high seas and Sierra Leone. The opin- on a commission issued that purpose, ion also mentioned liability civil under the difficulty of obtaining redress would opinion ATS. The is say best read to not great be so as in a prosecu- criminal applies the ATS conduct the United tion, where viva voce testimony alone States or on high It say seas. does not can as legal proof. be received that the foreign ATS extends to conduct in lands. Because the opinion’s meaning has Op. (first Att’y U.S. Gen. at 58-59 subject been the some debate ATS added). emphases second Brad- When the cases, Maj. compare Op. at ford opinion finally ATS, mentions the it is Co., Kiobel v. Royal Dutch Petroleum focused acts high “committed on the (2d F.3d 142 n. 44 Cir.2010), I repro- seas,” not on acts occurred in a for- duce the portion relevant entirety its eign country. recently The Second Circuit here: analyzed the opinion Bradford and reached far, therefore,

So as the transactions same “Attorney conclusion: General complained of originated place or took Bradford opinion, ap- circumscribes his a foreign country, they not with- pearing are to conclude Company law of was nations understood to refer high to the and with actors on seas hostile to all accepted practices of dealings nations in their beyond jurisdic- nations all their territorial (treatment ambassadors, with one another added). (pirates).") (emphasis tions suit, immunity etc.) sovereigns from this porations. cases such as where bring suit for actions taken no could not involved, claims treaty under the foreign country, but Americans customary ATS are defined limited rather, for the actions taken could sue customary interna- high on the seas.” Kio- Americans (internal tional law does not extend to cor- bel, quota- F.3d at n. porations. omitted). extent an marks To the tion Attorney General matters opinion one plaintiffs alien to bring ATS allows ATS, the

judicial interpretation tort claims for violations of in view that opinion supports the Bradford are “accepted ternational law norms that conduct in U.S. territo- applies by the civilized world and defined with a seas, ry high on the but does comparable origi to” the specificity three the conclusion that the ATS ex- support cognizable to be thought nal norms under foreign countries. tends to conduct ambassadors, against the ATS: offenses conducts, piracy. violations of safe sum, presumption against extra- In Alvarez-Machain, 692, v. 542 Sosa U.S. territoriality ATS suits based con- bars 725, 2739, 124 S.Ct. 159 L.Ed.2d 718 The lands. ATS contains foreign duct in the Supreme As Court directed: a congressional purpose no “indication accept “Whatever the ultimate criteria for coverage” conduct occur- extend its subject jurisdic a ing cause action ARAMCO, lands. ring foreign ATS, tion” under “federal courts 1227. And the ATS’s private recognize should not claims under sup- affirmative evidence history provides federal common law for violations of The geographic scope. its porting limited norm international law with less definite reason, was, good pri- Congress First acceptance among content and na civilized against torts aliens marily concerned about tions than the historical paradigms [of within the United States and that occurred ambassadors, against violations fenses high Extending the ATS to on the seas. conducts, piracy] familiar safe when foreign countries conduct that occurs Id. was enacted.” [the ATS] against only presumption not violates the emphasized S.Ct. 2739. The Court extraterritoriality, runs to the but counter “great caution” courts must exercise purpose avoiding conflict ATS’s broad “vigilant in ATS doorkeeping” eases. Id. foreign Applying with the bed- nations. 728-29, 124 S.Ct. 2739. presumption against rock extraterritoriali- ty would alleviate the serious discord Supreme Court has said that we nations that has arisen recent foreign to customary look international law not years as courts the ATS to have extended only for the substantive content of the tort I occurring in foreign conduct lands. categories but also for the defendants plaintiffs’ ATS claims— would dismiss Id. may who be sued. at 732 n. are on conduct that occurred which based a norm-specif- 2739. This is done “on S.Ct. the ATS Indonesia —because does ic basis.” Ali Palestinian Au- Shaft a apply to that occurred within conduct (D.C.Cir. thority, 642 F.3d country. 2011); Libyan see also Tel-Oren v. Arab (D.C.Cir.

Republic, 726 F.2d 791-95 II 1984) (Edwards, J., concurring).

Second, alternative, particular, I would the Court Sosa stated customary international law deter- dismiss ATS claims because plaintiffs’ may mines state actors be apply to claims cor- whether ATS does not actor) violating customary a plaintiff liable for interna- seeks to sue.” Id. at (as (Breyer, J., S.Ct. 2739 concur- tional law norm was traditional ring). private such approach), or whether actors corporations private also individuals required has Court thus given a norm. violating be liable for customary that we look to international explained, the Court whether an ATS

As categories law determine what of defen brought against corporation claim can be can violating particu dants be liable for private depends or a on “wheth- individual lar norm. Royal See Kiobel v. Dutch Pe scope er law extends the international troleum, (2d Cir. given to 2010). for a violation norm case, applied As to this Sosa re sued, being if perpetrator the defen- quires us to determine “whether interna actor such as a private corpora- dant is scope tional law extends liability” tion or individual.” U.S. at 732 n. torture, aiding abetting extrajudi added). (emphasis Later in killing, prolonged S.Ct. cial detention “to here, perpetrator opinion, being underscored a cor- sued” — poration. who at 732 n. defines sued; can plain- the Court said

tiff that in Sosa needed to show the defen- To an support claim a against cor- govern- dant “was on behalf of a acting poration, it would not be sufficient to show norm, allegedly when ment” he violated a customary that prohibits international law plaintiff for a otherwise the “would need torture, extrajudicial killing, prolonged ” to rule broader liabili- still establish ATS detention when committed state actors. ty. Id. at 124 S.Ct. 2739 (emphasis It likewise would not to be sufficient show added). Like that footnote later sen- customary that international recog- law in quite clearly tence Sosa indicated that corporate liability nizes for some viola- customary international law tions, answers but for aiding abetting not tor- question of who be cases. ture, sued ATS extrajudicial killing, prolonged Breyer Justice reiterated the same point Rather, plaintiffs detention. for main- to Sosa qualify claims, his concurrence: To for customary tain their international ATS, recognition in- under norm of must impose liability corpora- law ternational law “must liability aiding torture, extend for abetting tions ex- type (e.g., of perpetrator private trajudicial killing, prolonged or detention.9 mutual, customary gov- 9. Because international law merely norms that are “of several, concern”) (internal and not issue, foreign omitted). erns this nations' domestic laws citations here, contrary suggestion are not relevant Court itself underscored this Sosa, majority opinion. Maj. Op. in the point holding See 53- at claim for arbi- legal trary cognizable ''[T]he fact that a norm is found in detention was not under the most or though alleged even all 'civilized nations' not does ATS even detention was part customary make that illegal norm a of interna- under Mexican law. 542 U.S. at Kiobel, "[Tjhat 2739; tional law.” at 621 F.3d also id. at n. ("Sosa corporate liability recently criminal might has ob- well have greater law”). acceptance Europe' tained been liable under Mexican In —al- event, though interesting comparative as a of matter there no consensus in na- corporate law—does legal corporations not demonstrate lia- systems tions' can bility has attained of a alleged status norm liable for violations of the kind here. Id., customary Report international n. Special Representative law." at 141 Pena-Irala, (citing Filartiga Secretary-General on Issue of Human (2d Cir.1980), proposition Rights Corporations and Transnational ¶ customary Enterprises law international consists Other U.N. Doc. Business Trial, reprinted Nürnberg War Crimes fact, customary interna- It does not. (1946). Temp. liability against impose L.Q. No does not in 20 tional law at all. corporations corporations charged were or convicted trials, however, Nuremberg even generally law Customary international many corporate were though executives states, as liability well extends Bush, A. individually tried. See Jonathan of state who act under color individuals Prehistory Corporations and Con- For states. most law or aid abet norms, in International Criminal Law: spiracy law cus- international customary Said, Really tomary Nuremberg international law does extend What Colum. indepen- liability who act Although to individuals nu- L.Rev. (Piracy is a dently of state involvement. company of the German merous executives customary interna- exception; prominent charged the U.S. mili- I.G. Farben were liability imposes private indi- tional law tribunal, tary the Tribunal stated that “the piracy.) importantly Most viduals for defendant, Farben, corporate is not before customary international purposes, present of this Tribunal and cannot be bar corpora- liability to not extend does subjected penalties to criminal these accurately As the Second Circuit tions. act proceedings” “corporations because stated, concept corporate “[t]he individuals.” 8 Trials through War for violations Nuernberg Military Criminals Before recognition not achieved universal law has Law Tribunals Under Control Council relations as a norm the acceptance (1952). Indeed, the No. 10 1153 London Kiobel, 621 each other.” F.3d States with Charter, which the Interna- established (Leval, J., 149; see also id. Military Nuremberg, Tribunal at tional (“It international true that concurring) is jurisdiction for tribunal to provided law, force, imposes own no liabilities its ... “try punish” only “individuals or juridical private or other corporations Agreement of organizations.” members entities.”). and Punishment of the for the Prosecution customary A review of internation- brief Major European of the War Criminals that, as convincingly al law demonstrates Aug. Axis art. Stat. concluded, is no Circuit there the Second (Tri- 280; id. see also art. U.N.T.S. liability customary interna- corporate may group that “the or or- bunal declare liability law, corporate much for tional less ganization of which individual was alleged here. violations of norms organization,” was a criminal member Traditionally, rights and duties un- legal proof in a designation serve as which applied primarily to der international law “for trial of an individual mem- subsequent states. See sovereign Restatement therein.”). bership Foreign (Third) Relations Law of Nu- Every international tribunal since (1987) (Report- States in- customary that has enforced remberg Notes). Nuremberg trials follow- ers’ path, law has followed this ex- ternational II “for the first time made ing World War liability but not to tending to individuals that “individu- explicit unambiguous” prominent corporations. To take most responsible” for the commission of als are Tri- the International Criminal Jackson, examples, H. crimes. Robert international Yugo- former for Rwanda and the Concerning bunals to the President Report Final ("At (Feb. 19, 2007) corporate legal responsibilities lev- and content national A/HRC/4/35 els, rights.”). scope regarding diversity human is there enormous individuals, jurisdiction slavia over “natural it have has never extended the Kiobel, persons.” scope liability 621 F.3d at a corporation. Kiobel, 621 F.3d at 120. Report A U.N. noted the recent “ab short, of an claim content accountability sence an international governed by customary law, international corporate conduct. mechanism” Re customary international law does not port Representative Special of the of the provide liability against corporations for Secretary-General on Issue Human torture, extrajudicial killing, prolonged Rights Corporations and Transnational (or thereof). aiding abetting detention ¶ 21, Enterprises and Other Business U.N. assuming Even that there were hints in (Feb. 2007). Doc. A/HRC/4/35 customary corporate international law of Report U.N. concluded that “States have liability customary for certain international unwilling adopt binding been interna violations, surely law cannot be said that tional rights human standards for corpora corporate liability alleged for the norms ¶ result, tions.” Id. 44. As “[b]efore the this has case been with established courts, current round of cases U.S. no specificity and widespread acceptance re- corporation had been charged ever with or quired by Sosa for ATS cases.10 for an convicted international war crime or Bush, agree similar Prehistory offense.” Plaintiffs Cor- interna- tional law does porations at not extend to cer- tain categories of defendants. Plaintiffs recently The Second Circuit summarized acknowledge, example, that customary this way: state law, except respect certain norms piracy, such as does not Looking to international we find a impose liability on private individuals who jurisprudence, set first forth in Nurem- act independently of state involvement. berg repeated by every internation- plaintiffs And recognize that when custom- al aware, tribunal which we are ary international law does not extend lia- (i.e., offenses the law of nations bility private individual defendants for customary law) international for viola- norm, of a given violations U.S. courts rights tions of human charged can be cannot against allow ATS suits private in- against against States and individual dividual defendants for of violations men and women against juridical but not customary international law norm. persons such corporations. as As a re- sult, although customary international Despite acknowledging that we should law has sometimes scope extended the customary follow international law in de- liability for a given violation of a norm to termining private parties when may be Although explain it does not always relevance lion in ATS cases is almost a violation nations,’ today 'law of also point analysis known as this to its or conclusion in law,’ ‘customary international rather than a case, opinion majority says this passing Fletcher, treaty.”); violation of a William A. that the "law of nations” referred in the Congressional Power Over the Jurisdiction of customary ATS is distinct from international Meaning Federal Courts: The the Word Maj. Op. law. See at 36-37 n. 23. But courts III, “All” Article 59 Duke L.J. leading equate and scholars the two terms. (2010) ("The law what of nations was we See, e.g., Bradley, Curtis A. State Action and law.”). today customary call international Corporate Rights Liability, Human 85 Notre The substance and relevance of footnote 23 of (2010) ("For variety majority opinion Dame L.Rev. are thus somewhat un- reasons, alleged law international viola- clear. given simply of a that such result “incon- in ATS cases for violations Circuit liable Kiobel, 621 F.3d at 122. norm, say we not follow ceivable.” plaintiffs should determining customary law in sum, In customary international law particular category private one whether corporate liability not for provide does aid- be liable parties corporations—may — torture, and ing abetting extrajudicial kill- that, Rather, plaintiffs say ATS cases. Therefore, ing, or prolonged detention. clear limits custom- notwithstanding the their plaintiffs cannot maintain ATS claims free should feel ary international we Exxon, a corporation. common-law a broader federal fashion allowing liability against corporations rule Ill cases. ATS Third, alternative, also in the even if and position frankly little Plaintiffs’ makes customary international established Either international law sense. liability aiding corporate abetting for categories determines which of defendants extrajudicial killing, torture and we still ATS, or does may liable under the be plaintiffs’ not allow claims should for Supreme Court resolved not. In to go those violations forward because do- that cus The Court stated question. ing incongruous so would be with the Tor- de tomary international law does fact Act, ture Victim Protection 28 U.S.C. categories which defendants termine § 1350 note.11 norm-by- on a liable in ATS cases be Congress passed n. President norm See 542 U.S. at 732 basis. signed Bush the Torture Victim Protection has 2739. Our Court said 1095-96; Act cause supplies Act. That civil Shaft, Ali 642 F.3d same. See citizens, Tel-Oren, (Edwards, action to American as well aliens, extrajudicial killing. for torture and J., concurring). Applying principle TVPA, just Americans can sue under the complicated here should not —other But as aliens can sue under the does ATS. fact that it than for inconvenient provide corporate lia TVPA does plaintiffs’ desired result with not lead bility, provide it does not for aiding respect corporate liability. liability. explain, As I abetting will ma- plaintiffs approach provide the TVPA does not because very result: jority opinion produces a odd liability aiding abetting corporate in an A defendant who would not be liable citizens, in suits we should par- for violation of a international tribunal interpret provide the ATS likewise not to customary international law norm ticular corporate liability aiding or for abet in a may nonetheless be liable U.S. court analogous ting suits aliens.12 in ATS suit for violation of that custom- an Why In we attention to ary light pay law should the international norm. action direction, agree I the limits the TVPA’s causes of for Sosa’s with Second aiding and majority opinion Exxon 12. As an alternative to their abet- 11. asserts that Maj. Op. claim, this 56 n. 45. ting plaintiffs forfeited claim. have also asserted that page in the text of its But Exxon devoted Exxon under color of Indonesian law acted wholly arguing to would be ”[i]t brief effect, However, was, a state actor. improper for to create a federal com- courts plaintiffs argue Exxon have failed to act- under ATS mon-law cause of action by customary of law as defined ed under color analogous directly than action broader law. international by Congress,” TVPA. Exxon established argument Br. address that here. at 31-32. I extrajudicial killing when fash- norms that sufficiently torture and are definite and contours of ATS of ac- ioning widely causes accepted. extrajudicial killing? tion for torture discussion, present Relevant to the customary international law is Recall that also emphasized that courts should vague somewhat ill-de- notoriously for legislative guidance “look before exer- or fined. There is no book code that tells cising authority innovative over substan- customary us the international content law” in tive ATS cases. Id. law; indeed, it is often unclear who even is S.Ct. 2739. Court pointed out that customary making international law. Congress by or direct indirect command customary Modern international law thus customary scale back international a make-it-up-as-you-go- sometimes has cognizable law norms otherwise in ATS Bradley it. along feel to See Curtis A. & (Con- cases. See id. S.Ct. Goldsmith, Customary Jack L. Interna- gress may “shut the door law of tional Law Federal Common Law: A “explicitly, nations” either implicitly by or Position, Critique Modem field”); treaties statutes that occupy (1997) (describ- Harv. L.Rev. id. at also 2739 (Breyer,

ing rapidly the numerous sources and J., concurring) (“Congress can make clear changing customary content of internation- that courts should not recognize any such law). Indeed, al even back at the Consti- norm, through direct or indirect com- Convention, tutional Gouverneur Morris field”). mand or occupying the noted that principles international law vague were “often too and deficient be a plaintiffs What this is means rule” implementing legislation by without pass ATS cases through must two filters Congress. 2 The Records Fed- respect of their substance (Max at 615 eral Convention First, they claims. must show that their ed.1937). ed., Farrand rev. reality That alleged claim the defendant poses difficulty trying courts firmly grounded customary international figure out the customary content of inter- Second, they law. also must show that national for purposes law of an suit. ATS Congress has not cast doubt on their as- difficulty And poses turn a risk that serted ATS claim direct or indirect courts will be left with little than more command. their policy preferences own when deter- mining scope ATS/customary an view, my emphasis judicial Sosa’s international claim. restraint and on the Congress role of dic- the following interpretive tates principle in All of this is good judicial reason for cases: Congress ATS When has enacted a Indeed, restraint in ATS cases. statute that gives U.S. citizens cause of the Supreme Court emphasized para- action tortious conduct that is mount also a judicial restraint, need for “great caution,” violation of “vigilant doorkeeping” in cases, the statutory then the Court limits on U.S. citizens’ outlined several principles recovery of restraint under that statute guide pre- that must should Alvarez-Machain, Judiciary. sumptively See to apply recovery Sosa v. aliens’ under 692, 725-33, 124 the ATS as well. That interpretive princi- S.Ct. (2004). L.Ed.2d example, ple avoids For as dis- the bizarre result that would cussed opinion, above Part II of this if ensue aliens—but not U.S. citizens— Court that Judiciary recognize bring insisted could suit in U.S. court for the same only customary those injuries international caused the same defendants. liability aiding interpretive this Because for and

Applying Sosa-based abetting should not be liable corporations extrajudicial torture and principle, killing or alleged TVPA, ATS cases based on torture not does exist under courts extrajudicial The Torture Victim killing. liability aiding not allow should for and “a civil action for Protection Act authorizes abetting extrajudicial torture and killing from an recovery damages individual under the ATS. extrajudicial in torture or engages

who clear, To be not TVPA does alter or acts “under actual or killing” and who affect the of ATS contours suits based on authority, or color of apparent customary international law norms other 102-256, Pub.L. No. nation.” extrajudicial and killing. than torture (1992) (codified at 28 U.S.C. Stat. Sosa, U.S. note) added). (emphasis As this generally was not intended to TVPA held, recently and Court TVPA’s text preempt displace all ATS suits. See id. corporations are structure establish (TVPA’s “legislative history includes in TVPA proper not defendants suits. remark that [the should ‘remain in ATS] Rajoub, Mohamad v. 634 F.3d permit to tact suits based on other norms (D.C.Cir.2011); also Bowoto v. Chev- Cir.2010). already may ripen exist or (9th Corp., ron 621 F.3d 1116 future into rules of The word “individual” the TVPA carries ”) (quoting H.R.Rep. l aw No. ordinary meaning,” “encompass- “its which p. pt. persons corpora- natural and not U.S.C.C.A.N. es (1991)). Mohamad, organizations.” or other But TVPA reflect a spe- tions does 607; § 1 congressional see also 1 cific U.S.C. decision about when and Act) (the in- (Dictionary “person” word under what circumstances U.S. citizens “corporations, companies, (and aliens) cludes associa- may sue for torture and extra- tions, firms, societies, partnerships, ... as It judicial killing. would be and odd incon- ”) added). (emphasis well as individuals gruous disregard those in defining to limits when aliens sue for torture and extra- interpretive prin- Under the Sosa-based judicial Put killing under the sim- ATS. plaintiffs’ ciple, ATS claims for torture and ply, Sosa told courts ATS cases look extrajudicial killing just are barred not Congress guidance, Congress for provides the TVPA no corporate because specifically has delineated what limits liability, pro- because the TVPA but also suits should attach civil for torture and abetting liability. aiding vides no extrajudicial killing. Consistent aiding Plaintiffs are Exxon under an suing direction in we should follow the abetting theory. But the text of the fashioning TVPA when the contours of the provide aiding does not for TVPA famously vague And makes ATS. emi- liability, abetting so nent sense fashion ATS crystal that there has made clear can aliens cannot recover court for aiding abetting no civil unless U.S. extrajudicial killing torture and in circum- Congress expressly provides for it. See Denver, Bank N.A. v. stances where U.S. citizens could not re- Central First Denver, N.A., extraju- Bank cover court for torture and Interstate U.S. killing.13 128 L.Ed.2d 119 dicial aliens, Second, just redundant with to aliens. the TVPA The TVPA was not not First, extrajudicial supplies TVPA a cause action least three reasons. gives killing, likely cognizable a cause action to U.S. citizens and which is cus- opinion policy case-specific discounts the rele- majority po- The deference to the analysis here. applies of the to our litical branches” that vance TVPA cases however, so, majority touching on the By doing opinion foreign relations of the Alvarez-Machain, bizarre that produces the rather outcome United States. Sosa v. corporations in 542 U.S. 733 n. may sue U.S. courts aliens cases,” aiding abetting torture and L.Ed.2d 718 In “such for and extra- instructed, judicial killing, strong not Court “there is a argu- but U.S. citizens aiding for abet- ment that corporations give sue U.S. and federal courts should seri- extrajudicial weight In ting killing. torture and ous to the Executive Branch’s view view, my implausible impact to think that foreign policy.” case’s on Id.; Congress discrepancy. intended such see also id. at 124 S.Ct. 2739 (“courts (Breyer, J., And it is inconsistent with Sosa en- concurring) should discrepancy give such into weight’ shrine ATS case ‘serious to the Executive provide impact law. Because the TVPA does not Branch’s view on aiding or corporate liability abetting policy and an permitting ATS suit will extrajudicial likely kill- liability given torture have in a case type or case”). ing, provide the ATS likewise does not Court The added that courts con- corporate liability aiding abetting sidering ATS cases should be “particularly extrajudicial wary for torture and kill- of impinging on the discretion ing.14 Legislative and Executive Branches in

managing foreign affairs.” Id. at IV S.Ct. 2739. Fourth, alternative, again I judicial The restraint dictated Sosa affirm District

would Court’s dismissal footnote 21 means following: When plaintiffs’ claims Exec- ATS because the Executive reasonably explains Branch reasonably explained utive Branch has adjudication particular aof lawsuit would adjudicating those ATS claims harm would adversely foreign policy affect U.S. inter foreign policy interests. ests, the court should dismiss the lawsuit. above, In the Supreme 2739; as noted id. at See 733 n. 124 S.Ct. cf. emphasized Court Altmann, lower courts must Republic Austria v. judicial exercise restraint ATS cases. 159 L.Ed.2d 1 (2004) restraint, said, (“[S]hould Part of that the is “a Department State tomary international law violation in ATS claims on customary based those two asserted cases because not it is one of the Blackstone international law norms. Plaintiffs also claim Breyer supra three or the four. note customary alleged a third international law Third, at the time the was TVPA enacted in prolonged detention. The TVPA does norm — any it was unclear whether causes of speak prolonged put detention or limits action could be asserted with- under ATS it. alleged But that norm is not one of the See, congressional e.g., out further action. four, Breyer Blackstone three or the and thus Libyan Republic, Tel-Oren v. Arab likely is not (D.C.Cir.1984) (disagreement between cognizable pro- norm cases. ATS The Judges issue). Edwards and Bork on this longed likely detention claim thus at the fails uncertainty by TVPA eliminated some defini- threshold, arbitrary did the asserted deten- tively establishing causes of action for torture supra Sosa tion norm in itself. See note extrajudicial killing. event, any prolonged detention claim fails of the other three alternative reasons provides 14. The TVPA a cause of action for I, II, opinion. set forth in Parts IV extrajudicial killing. analysis of this torture precludes plaintiffs' in this section thus opinion impli July Department In the its on the State filed express to choose jurisdiction par a statement of interest with District exercising over cations of stating that would their this case inter- connection with petitioners ticular foreign the U.S. conduct, fere with Government’s opinion might that well be alleged goals. explained: That policy letter the considered to deference as entitled [Tjhe particular the Executive on a judgment Department of State believes Crosby v. question foreign policy.”); adjudication that of this lawsuit this Council, Foreign potentially Trade in fact a Nat’l time would risk seri- (2000) 2288, 147 386, 120 impact significant L.Ed.2d 352 ous adverse on inter- States, for- legislation regulating including in- (regarding state ests related eign “[Rjepeated directly on-going with Burma: terests commerce Branch representations by struggle against the Executive international terrorism. ability to protests formal It also diminish our work diplomatic supported disputes more than suffi- with the Government of Indonesia and concrete are (“GOI”) a variety important pro- the state Act on cient to demonstrate that including promote way Congress’s diplomatic grams, in the efforts hu- stands objectives.”); Hwang Japan, rights Geum Joo v. man Indonesia. (“The (D.C.Cir.2005) Exec- a adjudication by that judgment

utive’s respect litigation, it is With this to the court would be inimical domestic Department’s opinion considered of the United foreign policy interests adjudication this time could adversely and renders this case compelling States is affect United States interests in two question under the nonjusticiable political ways, recognizing that such effects can- doctrine.”). certainty. First, not be determined with may respond litigation by the GOI to the footnote theory behind Sosa curtailing cooperation the United Congress created tort straightforward. impor- on issues of substantial States on custom- of action aliens based cause Second, to the tance United States. ary of internation- kind on litigation’s potential effects Indone- Congress al law. did so in order common economy adversely could in turn sia’s But foreign America’s relations. benefit important affect United States interests. if Nation’s an ATS suit would harm the Taft, IV, and ex- foreign relations —as assessed Legal from William H. Letter plained by Department State, of State Adviser, to The Hon- Department of representative Oberdorfer, of Justice Department F. orable Louis United States the President of United States —then of Columbia District Court the District 2002) (footnote omitted). ignoring have no business (July courts interest, threatening thereby statement Department Justice sub- and thwart- Nation’s relations “Supplemental of In- mitted Statement ing intent the ATS. Congress’s addressing legal some of the terest” issues That by plaintiffs’ raised claims. state- against Exxon has been Plaintiffs’ case the U.S. Govern- explained ment decade, and the pending for Executive litigation concerns about the re- ment’s views repeatedly expressed Branch has its dismiss quired that District Court claims. Executive has the ATS ATS claims: reasonably consistently stated that ad- position judication claims would It remains United States’ plaintiffs’ would adjudication of this case raise foreign policy harm interests. security foreign policy and national con- claims” when it dismissed those claims. the reasons articulated in the Id. at cerns for letter. (cid:127) con- Department’s State Those “Moreover, the United States had said by holding, cerns can be avoided as the that its can ‘concerns be avoided * * * contends, that the ATS United States holding that the does ATS independent right not create an does action,’ an independent right create action. and the district court responded by granting petitioners’ motion to dismiss Supplemental Statement Interest of the claims, the ATS and TVPA which were I United States of America Doe premised on alleged violations of inter- Corp., F.Supp.2d Exxon Mobil (D.D.C.2005). govern- national law the Indonesian ment.” (quoting Supplemen- Id. Court, Judge In the District Oberdorfer tal Statement of Interest of the United paid careful attention to the Executive States of America at Doe I v. Exxon Branch’s stated concerns and dismissed Corp., F.Supp.2d Mobil claims, plaintiffs’ in part ATS to avoid 25625348). WL “adjudicating the actions of the Indonesian (cid:127) a result of the “[A]s district court’s government.” Doe I v. Exxon Mobil rulings narrowing scope of respon- (D.D.C. Corp., 26-27 F.Supp.2d suit, dents’ presents case now nei- 2005). Exxon then asked this Court to particular ther of the situations dis- interlocutory appeal entertain an or grant cussed in Sosa and Altmann. In compelling writ of mandamus the Dis- Sosa, the Court addressed the defer- trict plaintiffs’ Court to dismiss tort D.C. ence owed to the Executive Branch claims as well. This Court declined to do the courts in exercising their federal- so. See Doe v. Exxon Mobil Corp., 473 common-law-making authority under (D.C.Cir.2007). F.3d 345 The Court’s with respect ATS alleg- claims opinion plaintiffs’ focused on D.C. tort ing violations of international law. presented claims—the issue did —and Here, the district court dismissed re- not evaluate either the Executive Branch’s spondents’ ATS, claims under the as respect statement of interest with to the the United had requested, States ATS claims or the District Court’s decision well as those under the TVPA.” Id. at to dismiss the ATS claims. (internal omitted). citation petitioned Exxon for certiorari with re- The U.S. Government’s amicus brief to spect claims, to the D.C. tort and the plainly Court thus stated that Government filed an amicus urging brief the Executive opposed Branch the ATS the Supreme deny the writ. claims and that the District Court correct- Brief for the United States as Amicus ly plaintiffs’ dismissed light ATS claims in . Doe, Curiae at Exxon Mobil Corp. v. of the Executive Branch’s concerns. That (2008) (No. 07-81). 554 U.S. 909 In so n amicus brief was the Executive Branch’s doing, the Government’s brief—which was last statement on this lawsuit. signed by the Solicitor General and the Legal Department Adviser to the sum, 2002, 2003, n State —reiterated the U.S. Government’s Executive reasonably explained Branch position on the ATS claims: the court would harm

(cid:127) The District Court policy the re- interests if it plaintiffs’ “reach[ed] allowed

sult the United States had proceed. advocated claims to The Executive Branch respect to respondents’ ATS has never retracted statements. Federation of Government instruc- American followed Sosa’s Judge Oberdorfer Employees, of Prison Lo- Council weight to the Execu- “serious give tion cals, 33, Intervenor. impact on Council view of the case’s Branch’s tive ATS he dismissed the foreign policy,” No. 10-1089. 21, 124 733 n. U.S. at claims. 542 Appeals, States Court of 21, I would footnote light In of Sosa 2739. District of Columbia Circuit. decision. Judge Oberdorfer’s affirm Argued Jan. my majority disagrees. opinion majority opinion does judgment, July Decided to the Executive proper weight give the ATS claims. Branch statements about sure, that the it is possible

To be it said in Sosa didn’t mean what that the possible 21. And it is

footnote what longer Branch no believes

Executive On the and 2008.

it said however, record, little there can be

current 21 that footnote

doubt under Sosa and consistent Branch’s clear

Executive the ATS dismissal of require

statements remand, the District Court On

claims. should) (and view, invite the my

still can clarify its Branch to state or

Executive If Executive Branch again. once

views claims, to the objection its

reiterates the District Court should dismiss

then claims.

those respectfully

I dissent. OF

FEDERAL BUREAU

PRISONS, Petitioner RELATIONS

FEDERAL LABOR

AUTHORITY, Respondent

Case Details

Case Name: Doe v. Exxon Mobil Corp.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 8, 2011

Citation: 654 F.3d 11

Docket Number: 09-7125, 09-7127, 09-7134, 09-7135

Court Abbreviation: D.C. Cir.