Esther KIOBEL, individually and on behalf of her late husband, Dr. Barinem Kiobel, Bishop Augustine Numene John-Miller, Charles Baridorn Wiwa, Israel Pyakene Nwidor, Kendricks Dorle Nwikpo, Anthony B. Kote-Witah, Victor B. Wifa, Dumle J. Kunenu, Benson Magnus Ikari, Legbara Tony Idigima, Pius Nwinee, Kpobari Tusima, individually and on behalf of his late father, Clement Tusima, Plaintiffs-Appellants-Cross-Appellees, v. ROYAL DUTCH PETROLEUM CO., Shell Transport and Trading Company PLC, Defendants-Appellees-Cross-Appellants, Shell Petroleum Development Company Of Nigeria, Ltd., Defendant.
Docket Nos. 06-4800-cv, 06-4876-cv
United States Court of Appeals, Second Circuit
Argued: Jan. 12, 2009. Decided: Sept. 17, 2010.
621 F.3d 111
District courts have broad latitude to consider the totality of the circumstances when determining whether a party has raised an inference of discrimination. Batson, 476 U.S. at 96-97, 98 n. 21, 106 S.Ct. 1712. Based on the record here, we conclude that the district court did not abuse its discretion in determining that Paris had failed to make a prima facie showing of discrimination by the Government in its exercise of its peremptory strikes.
CONCLUSION
We have considered Paris‘s remaining arguments on appeal and conclude that they are without merit.
For the foregoing reasons, the judgment of conviction and sentence are AFFIRMED.
Paul L. Hoffman, Schonbrun DeSimone Seplow Harris & Hoffman, LLP, Venice, CA (Stephen A. Whinston, Carey R. D‘Avino, Keino R. Robinson, Berger & Montague, P.C., Philadelphia, PA, on the brief), for Plaintiffs-Appellants-Cross-Appellees.
Jeffrey J. Keyes, Briggs and Morgan, P.A., Minneapolis, MN (Mark Girouard, Halleland Lewis Nilan & Johnson, Minneapolis, MN, on the brief), for amici curiae International Law Professors in support of Plaintiffs-Appellants.
Naomi Roht-Arriaza, San Francisco, CA, for amici curiae International Law Scholars Cherif Bassiouni, et al. in support of Plaintiffs-Appellants.
Judith Brown Chomsky (Jennifer M. Green, on the brief), Center for Constitutional Rights, New York, NY (Marcos Simons, Richard Herz, Earthrights International, Washington, DC, on the brief), for amici curiae Wiwa Plaintiffs in support of Plaintiffs-Appellants.
William Aceves, California Western School of Law, San Diego, CA, for amici curiae International Law Scholars in support of Plaintiffs-Appellants.
Before: JACOBS, Chief Judge, LEVAL, and CABRANES, Circuit Judges.
Judge LEVAL concurs only in the judgment of the Court dismissing the complaint and files a separate opinion.
JOSÉ A. CABRANES, Circuit Judge:
Once again we consider a case brought under the Alien Tort Statute (“ATS“),
Since that time, the ATS has given rise to an abundance of litigation in U.S. district courts. For the first fifteen years after Filartiga—that is, from 1980 to the mid-1990s—aliens brought ATS suits in our courts only against notorious foreign individuals; the first ATS case alleging, in effect, that a corporation (or “juridical” person) was an “enemy of all mankind” apparently was brought as recently as 1997.5
Such civil lawsuits, alleging heinous crimes condemned by customary international law, often involve a variety of issues unique to ATS litigation, not least the fact that the events took place abroad and in troubled or chaotic circumstances. The resulting complexity and uncertainty—combined with the fact that juries hearing ATS claims are capable of awarding multibillion-dollar verdicts6—has led many defendants to settle ATS claims prior to trial.7 Thus, our Court has published only nine significant decisions on the ATS since 1980 (seven of the nine coming in the last decade),8 and the Supreme Court in its
Because appellate review of ATS suits has been so uncommon, there remain a number of unresolved issues lurking in our ATS jurisprudence—issues that we have simply had no occasion to address in the handful of cases we have decided in the thirty years since the revival of the ATS. This case involves one such unresolved issue: Does the jurisdiction granted by the ATS extend to civil actions brought against corporations under the law of nations?10
Plaintiffs are residents of Nigeria who claim that Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations. They seek damages under the ATS, and thus their suit may proceed only if the ATS provides jurisdiction over tort actions brought against corporations under customary international law.
A legal culture long accustomed to imposing liability on corporations may, at first blush, assume that corporations must be subject to tort liability under the ATS, just as corporations are generally liable in tort under our domestic law (what international law calls “municipal law“).11 But the
Our recognition of a norm of liability as a matter of domestic law, therefore, cannot create a norm of customary international law. In other words, the fact that corporations are liable as juridical persons under domestic law does not mean that they are liable under international law (and, therefore, under the ATS). Moreover, the fact that a legal norm is found in most or even all “civilized nations” does not make that norm a part of customary international law. As we explained in Filartiga:
[T]he mere fact that every nation‘s municipal [i.e., domestic] law may prohibit theft does not incorporate “the Eighth Commandment, ‘Thou Shalt not steal’ ... into the law of nations.” It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the [ATS].14
Accordingly, absent a relevant treaty of the United States—and none is relied on here—we must ask whether a plaintiff bringing an ATS suit against a corporation has alleged a violation of customary international law.
The singular achievement of international law since the Second World War has come in the area of human rights, where the subjects of customary international law—i.e., those with international rights, duties, and liabilities—now include not merely states, but also individuals. This principle was most famously applied by the International Military Tribunal at Nuremberg. As Justice Robert H. Jackson, chief prosecutor for the United States at Nuremberg, explained:
[The Nurnberg trials] for the first time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in International Law, namely, that to prepare, incite, or wage a war of aggression ... and that to
persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, is an international crime, and that for the commission of such crimes individuals are responsible. Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes Trial (1946) (emphasis added), reprinted in 20 Temp. L.Q. 338, 342 (1946).15
From the beginning, however, the principle of individual liability for violations of international law has been limited to natural persons—not “juridical” persons such as corporations—because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an “international crime” has rested solely with the individual men and women who have perpetrated it. As the Nuremberg tribunal unmistakably set forth in explaining the rationale for individual liability for violations of international law: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The Nurnberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int‘l Military Trib. at Nuremberg 1946) (rejecting the argument that only states could be liable under international law).
After Nuremberg, as new international tribunals have been created, the customary international law of human rights has remained focused not on abstract entities but on the individual men and women who have committed international crimes universally recognized by the nations of the world. This principle has taken its most vivid form in the recent design of the International Criminal Court (“ICC“). Although there was a proposal at the Rome Conference to grant the ICC jurisdiction over corporations and other “juridical” persons, that proposal was soundly rejected, and the Rome Statute, the ICC‘s constitutive document, hews to the tenet set forth in Nuremberg that international norms should be enforced by the punishment of the individual men and women who violate them.16
We must conclude, therefore, that insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs’ claims fall outside the limited jurisdiction provided by the ATS.
We emphasize that the question before us is not whether corporations are “immune” from suit under the ATS: That formulation improperly assumes that there is a norm imposing liability in the first place.17 Rather, the question before us, as the Supreme Court has explained, “is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”18 Looking to international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations (i.e., customary international law) for violations of human rights can be charged against States and against individual men and women but not against juridical persons such as corporations. As a result, although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation.19
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We pause briefly to acknowledge and reply to the separate opinion of our colleague, Judge Leval. As an initial matter, we are perplexed by Judge Leval‘s repeated insistence that there is no “basis” for our holding because “[n]o precedent of international law endorses” it. See, e.g., Concurring Op. 151. In an ATS suit, we may apply only those international norms that are “specific, universal, and obligatory.”20 As a result, the responsibility of
Although Judge Leval condemns our holding, he in fact agrees with much of our opinion. He concedes, for example, that “[i]t is true that international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Concurring Op. 186; see also id. (explaining that it “is entirely accurate” that “international law imposes no liabilities on private juridical persons“); id. at 185-86 (“[I]t is absolutely correct that the rules of international law ... do not provide for any form of liability of corporations.“). He similarly has “no quarrel” with the “premise[]” that international law is “the place to look” to determine whether corporations can be held liable for violations of international law. Id. at 174-175. He concludes, however, that international law does not supply an answer to that question. In his view, the question of corporate liability is merely a matter of “remedy” that “international law leaves ... to the independent determination of each State.” Id. at 176.
We agree with Judge Leval that whether to enact a civil remedy for violations of customary international law is a matter to be determined by each State; the United States has done so in enacting the ATS. But the ATS does not specify who is liable; it imposes liability only for a “violation of the law of nations,”
We will not embark on a lengthy tangent in response to Judge Leval‘s many “hypothetical cases,” Concurring Op. 159, in which corporations would not, under our holding, be liable under the ATS. We note only that nothing in this opinion limits or forecloses suits under the ATS against the individual perpetrators of violations of customary international law—including the employees, managers, officers, and directors of a corporation—as well as anyone who purposefully aids and abets a violation of customary international law. Nor does anything in this opinion limit or foreclose criminal, administrative, or civil actions against any corporation under a body of law other than customary international law—for example, the domestic laws of any State. And, of course, nothing in this opinion limits or forecloses legislative action by Congress.
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Lastly, we wish to note that we do not take lightly the passion with which Judge Leval disagrees with our holding. We are keenly aware that he calls our reasoning “illogical” on nine separate occasions. See Concurring Op. 151, 152, 154, 165, 166 n. 18, 168, 164, 174, 185, 186. Nor is it lost on us that he calls our conclusions “strange,” id. at 151, 179-80, 180-81,23 or that he repeatedly criticizes our analysis as “internally inconsistent,” id. at 152-53, 153, 174.24 We must, however, leave it to the reader to decide whether any of Judge Leval‘s charges, individually or in combination, are a fair reading of our opinion. In so doing we are confident that if our effort is misguided, higher judicial authority is available to tell us so.
These cross-appeals come to us from the United States District Court for the Southern District of New York (Kimba M. Wood, Judge). At this stage of the proceedings, we accept as true all nonconclusory factual allegations relevant to this decision. See Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (2009).
I. Factual Background
Plaintiffs, who are, or were, residents of the Ogoni Region of Nigeria, allege that defendants Royal Dutch Petroleum Company (“Royal Dutch“) and Shell Transport and Trading Company PLC (“Shell“), through a subsidiary named Shell Petroleum Development Company of Nigeria, Ltd. (“SPDC“), aided and abetted the Nigerian government in committing human rights abuses directed at plaintiffs. Royal Dutch and Shell are holding companies incorporated respectively in the Netherlands and the United Kingdom.25 SPDC is incorporated in Nigeria. All defendants are corporate entities—that is, “juridical” persons, rather than “natural” persons.
SPDC has been engaged in oil exploration and production in the Ogoni region of Nigeria since 1958. In response to SPDC‘s activities, residents of the Ogoni region organized a group named the “Movement for Survival of Ogoni People” to protest the environmental effects of oil exploration in the region. According to plaintiffs, in 1993 defendants responded by enlisting the aid of the Nigerian government to suppress the Ogoni resistance. Throughout 1993 and 1994, Nigerian military forces are alleged to have shot and killed Ogoni residents and attacked Ogoni villages—beating, raping, and arresting residents and destroying or looting property—with the assistance of defendants. Specifically, plaintiffs allege that defendants, inter alia, (1) provided transportation to Nigerian forces, (2) allowed their property to be utilized as a staging ground for attacks, (3) provided food for soldiers involved in the attacks, and (4) provided compensation to those soldiers.
Plaintiffs brought claims against defendants under the ATS for aiding and abetting the Nigerian government in alleged violations of the law of nations. Specifically, plaintiffs brought claims of aiding and abetting (1) extrajudicial killing; (2) crimes against humanity; (3) torture or cruel, inhuman, and degrading treatment; (4) arbitrary arrest and detention; (5) violation of the rights to life, liberty, security, and association; (6) forced exile; and (7) property destruction.
Plaintiffs commenced this lawsuit by filing a putative class action complaint in September 2002, which was amended in May 2004. They alleged that defendants aided and abetted, or were otherwise complicit in, violations of the law of nations by the Nigerian government. Relying on the Supreme Court‘s June 2004 decision in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), defendants moved to dismiss.
In September 2006, the District Court dismissed plaintiffs’ claims for aiding and abetting property destruction; forced exile; extrajudicial killing; and violations of the rights to life, liberty, security, and association. The District Court reasoned that customary international law did not define those violations with the particularity required by Sosa. See Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457, 464-65, 467 (S.D.N.Y.2006). The District Court denied defendants’ motion to dismiss with respect to the remaining claims of aiding and abetting arbitrary arrest and detention; crimes against humanity; and torture or cruel, inhuman, and degrading treatment. See id. at 465-67. Recognizing the importance of the issues presented and the substantial grounds for difference of opinion, the District Court certified its entire order for interlocutory appeal pursuant to
DISCUSSION
We review de novo a district court‘s dismissal for failure to state a claim, see
As we have explained above, this appeal presents a question that has been lurking for some time in our ATS jurisprudence. Since our first case upholding claims brought under the ATS in 1980, see Filartiga, 630 F.2d 876, our Court has never directly addressed whether our jurisdiction under the ATS extends to civil actions against corporations, see Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 261 n. 12 (2d Cir.2009) (assuming, without deciding, that corporations may be liable for violations of customary international law); Khulumani v. Barclay Nat‘l Bank Ltd., 504 F.3d 254, 282-83 (2d Cir.2007) (Katzmann, J., concurring) (noting that, because defendants did not raise the issue, the Court need not reach the question of whether corporations may be liable for violations of customary international law); id. at 321-25 (Korman, J., concurring in part and dissenting in part) (expressing the view that corporations cannot be held liable under the ATS). We have, in the past, decided ATS cases involving corporations without addressing the issue of corporate liability. See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir.2009), cert. denied, 561 U.S. 941, 130 S.Ct. 3541, 177 L.Ed.2d 1121 (2010); Flores, 414 F.3d 233; Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88 (2d Cir.2000). But that fact does not foreclose consideration of the issue here. As the Supreme Court has held, “when questions of jurisdiction have been passed on in prior decisions sub silentio,” the Court “has never considered itself bound when a subsequent case finally brings the jurisdictional issue before [it].” Hagans v. Lavine, 415 U.S. 528, 533 n. 5, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974) (em
In answering the question presented we proceed in two steps. First, we consider which body of law governs the question—international law or domestic law—and conclude that international law governs.26 Second, we consider what the sources of international law reveal with respect to whether corporations can be subject to liability for violations of customary international law. We conclude that those sources lead inescapably to the conclusion that the customary international law of human rights has not to date recognized liability for corporations that violate its norms.
I. Customary International Law Governs Our Inquiry
The ATS grants federal district courts jurisdiction over claims “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
The Supreme Court did not, however, limit the jurisdiction of the federal courts under the ATS to those three offenses recognized by the law of nations in 1789. Instead, the Court in Sosa held that federal courts may recognize claims “based on the present-day law of nations” provided that the claims rest on “norm[s] of international character accepted by the civilized world and defined with a specificity compa
The Supreme Court cautioned that “the determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts.” Id. at 732-33, 124 S.Ct. 2739 (footnote omitted). The Court also observed that “a related consideration is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Id. at 732 n. 20, 124 S.Ct. 2739 (emphasis added). We conclude—based on international law, Sosa, and our own precedents—that international law, and not domestic law, governs the scope of liability for violations of customary international law under the ATS.
A. International Law Defines the Scope of Liability for Violations of Its Norms
International law is not silent on the question of the subjects of international law—that is, “those that, to varying extents, have legal status, personality, rights, and duties under international law and whose acts and relationships are the principal concerns of international law.” Restatement (Third) of the Foreign Relations Law of the United States (“Restatement (Third)“), pt. II, at 70 introductory note (emphasis added); see 1 Oppenheim‘s International Law § 33, at 119 (Sir Robert Jennings & Sir Arthur Watts eds., 9th ed. 1996) (“An international person is one who possesses legal personality in international law, meaning one who is a subject of international law so as itself to enjoy rights, duties or powers established in international law, and, generally, the capacity to act on the international plane....” (emphasis added) (footnotes omitted)). Nor does international law leave to individual States the responsibility of defining those subjects. Rather, “[t]he concept of international person is ... derived from international law.” 1 Oppenheim‘s International Law § 33, at 120; see also Restatement (Third), pt. II, at 70 introductory note (“[I]ndividuals and private juridical entities can have any status, capacity, rights, or duties given them by international law or agreement....” (emphasis added)).28
That the subjects of international law are determined by international law, and not individual States, is evident from the decisions of the International Military Tribunal at Nuremberg (“Tribunal“) in the aftermath of the Second World War. The significance of the judgment of the Tribunal—and of the judgments of the tribunals established by the Allied Control Council
The significance of that aspect of the Tribunal‘s judgment was not lost on observers at the time. Justice Jackson, who served as chief prosecutor for the United States for the trial before the Tribunal, explained in his final report to President Truman that “[the Nurnberg trials] for the first time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in International Law,” namely, that the conduct of the leaders of Nazi Germany violated international law, “and that for the commission of such crimes individuals are responsible.” Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes Trial (1946) (emphasis added), reprinted in 20 Temp. L.Q. 338, 342 (1946) (emphasis added). General Telford Taylor, chief prosecutor for the United States for the trials conducted under Allied Control Council Law No. 10, similarly noted in his final report to the Secretary of the Army that “the major legal significance of the Law No. 10 judgments lies ... in those portions of the judgments dealing with the area of personal responsibility for international law crimes.” Brigadier General Telford Taylor, U.S.A., Chief of Counsel for War Crimes, Final Report to the Secretary of the Army on the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 109 (1949); see also note 36, post.29
B. Sosa and Our Precedents Require Us to Look to International Law to Determine the Scope of Liability
In Sosa the Supreme Court instructed the lower federal courts to consider “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.” Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739 (emphasis added). That language requires that we look to international law to determine our jurisdiction over ATS claims against a particular class of defendant, such as corporations.30 That conclusion is reinforced by Justice Breyer‘s reformulation of the issue in his concurring opinion: “The norm [of international law] must extend liability to
The Supreme Court‘s instruction to look to international law to determine the scope of liability under the ATS did not involve a revolutionary interpretation of the statute—in fact, it had long been the law of this Circuit. In Filartiga, we had looked to international law to determine our jurisdiction and to delineate the type of defendant who could be sued. See 630 F.2d at 889 (“[T]he question of federal jurisdiction under the Alien Tort Statute ... requires consideration of the law of nations.“); id. at 880 (“In light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), we find that an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.” (emphasis added)); see also Khulumani, 504 F.3d at 269 (Katzmann, J., concurring) (“We have repeatedly emphasized that the scope of the [ATS‘s] jurisdictional grant should be determined by reference to international law.“). Likewise, in Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995) (Newman, J.), and in Judge Harry T. Edwards‘s notable concurring opinion in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C.Cir.1984) (Edwards, J., concurring)—both cited with approval by the Supreme Court in Sosa—international law provided the rules by which the court decided whether certain conduct violated the law of nations when committed by non-state actors. In Kadic, we held that a private actor could be liable under the law of nations for genocide, war crimes, and crimes against humanity, 70 F.3d at 239-41, but in Tel-Oren, Judge Edwards expressed the view that a private actor could not be liable for torture under the ATS, 726 F.2d at 791-95 (Edwards, J., concurring); see also, e.g., Flores, 414 F.3d at 248-66 (looking to customary international law for the applicable norms).
Since Sosa, we have continued to adhere to the method prescribed in Sosa footnote 20 by looking to customary international law to determine both whether certain conduct leads to ATS liability and whether the scope of liability under the ATS extends to the defendant being sued. As recently as our decision of 2009 in Presbyterian Church, this same panel (including Judge Leval) declared that “footnote 20 of Sosa, while nominally concerned with the liability of non-state actors, supports the broader principle that the scope of liability for ATS violations should be derived from international law.” 582 F.3d at 258 (footnote omitted); see also id. at 261 n. 12 (noting that the court “need not reach ... the question of ‘whether international law extends the scope of liability’ to corporations” (quoting Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739)). In Presbyterian Church, we looked to international law to determine the circumstances in which aiders and abettors could be liable for violations of the customary international law of human rights. Id. at 258-59. We did so because “[r]ecognition of secondary liability is no less significant a decision than whether to recognize a whole new tort in the first place.” Id. at 259. Thus, our holding today is consistent with Presbyterian Church, where we looked to international law to determine not only what conduct is cognizable under the ATS, but also the identity of the persons to whom that conduct is attributable (in that case,
Our interpretation of Sosa is also consistent with Judge Katzmann‘s separate opinion in Khulumani, 504 F.3d at 264 (Katzmann, J., concurring), which this same panel (including Judge Leval) adopted as the law of the Circuit in Presbyterian Church, see 582 F.3d at 258 (“This opinion draws substantially from Judge Katzmann‘s concurring opinion, and adopts his proposed rule as the law of this Circuit.“). In Khulumani, Judge Katzmann observed that aiding and abetting liability—much like corporate liability—“does not constitute a discrete criminal offense but only serves as a more particularized way of identifying the persons involved in the underlying offense.” 504 F.3d at 280 (Katzmann, J., concurring) (quoting United States v. Smith, 198 F.3d 377, 383 (2d Cir.1999) (some internal quotation marks omitted)). Judge Katzmann further explained that “[w]hile [footnote 20 of Sosa] specifically concerns the liability of non-state actors, its general principle is equally applicable to the question of where to look to determine whether the scope of liability for a violation of international law should extend to aiders and abettors.” Id. at 269. He therefore concluded that “to assure itself that it has jurisdiction to hear a claim under the [ATS], [a court] should first determine whether the alleged tort was in fact ‘committed in violation of the law of nations,’
Significantly, it was only because we looked to international law that we were able to recognize a norm of aiding and abetting liability under the ATS. In Khulumani, Judge Katzmann declined to rely on the usual presumption against aiding and abetting liability that applies in the interpretation of domestic statutes. See Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182, 114 S.Ct. 1439, 128 L.Ed.2d 119 (1994) (“[W]hen Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant‘s violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors.“). Instead, Judge Katzmann concluded that Central Bank had no bearing on aiding and abetting liability under the ATS because, “[u]nder the [ATS] the relevant norm is provided not by domestic statute but by the law of nations, and that law extends responsibility for violations of its norms to aiders and abettors.” 504 F.3d at 282 (Katzmann, J., concurring) (emphases added).33
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In sum, we have little difficulty holding that, under international law, Sosa, and our three decades of precedent, we are required to look to international law to determine whether corporate liability for a “violation of the law of nations,”
recognize a whole new tort in the first place.” Presbyterian Church, 582 F.3d at 259. It is, therefore, a decision properly made only by reference to customary international law.
Having concluded that international law controls our inquiry, we next consider what the sources of international law reveal with respect to the existence of a norm of corporate liability under customary international law.
II. Corporate Liability Is Not a Norm of Customary International Law
To attain the status of a rule of customary international law, a norm must be “specific, universal, and obligatory.” Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (quoting with approval the statement of a lower court) (internal quotation marks omitted); see also Flores, 414 F.3d at 248 (“[C]ustomary international law is composed only of those rules that States universally abide by, or accede to, out of a sense of legal obligation and mutual concern.“); Restatement (Third) § 102(2) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.“). Defining such norms “is no simple task,” as “[c]ustomary international law is discerned from myriad decisions made in numerous and varied international and domestic arenas.” Flores, 414 F.3d at 247. The sources consulted are therefore of the utmost importance. As the Supreme Court re-emphasized in Sosa, we look to “those sources we have long, albeit cautiously, recognized“:34
“[W]here there is no treaty, and no controlling executive or legislative act or judicial decision, resort must be had to the customs and usages of civilized nations; and, as evidence of these, to the works of jurists and commentators, who by years of labor, research and experience, have made themselves peculiarly well acquainted with the subjects of which they treat. Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.”
542 U.S. at 733-34, 124 S.Ct. 2739 (emphasis added) (quoting The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290 (1900)); see also United States v. Smith, 18 U.S. (5 Wheat.) 153, 160-61, 5 L.Ed. 57 (1820) (Story, J.) (identifying “the general usage and practice of nations[;] judicial decisions recognising and enforcing that law[;]” and “the works of jurists, writing professedly on public law” as proper sources of customary international law); cf. United States v. Yousef, 327 F.3d 56, 100 n. 33 (2d Cir. 2003) (explaining that, “in the parlance of international law,” “jurists” and “publicists” are used as synonyms for “scholars“). Agreements or declarations that are merely aspirational, and that “do[] not of [their] own force impose obligations as a matter of international law,” are of “little utility” in discerning norms of customary international law. Sosa, 542 U.S. at 734, 124 S.Ct. 2739 (discussing the limited utility of the Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (1948)).
In this Circuit we have long recognized as authoritative the sources of international law identified in Article 38 of the Statute of the International Court of Justice (“ICJ Statute“).35 See Filartiga, 630 F.2d at 880-81 & n. 8 (describing Article 38 as consistent with the Supreme Court‘s historical approach to sources of international law); see also J.L. Brierly, The Law of Nations 56 (Sir Humphrey Waldock ed., 6th ed. 1963) (referring to Article 38 as “a text of the highest authority“); Restatement (Third) § 103 (describing similar sources as evidence of international law). Article 38 provides in relevant part:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognized by civilized nations;
d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists [i.e., scholars or “jurists“] of the various nations, as subsidiary means for the determination of rules of law.
A. International Tribunals
Insofar as international tribunals are established for the specific purpose of imposing liability on those who violate the law of nations, the history and conduct of those tribunals is instructive. We find it particularly significant, therefore, that no international tribunal of which we are aware has ever held a corporation liable for a violation of the law of nations.
1. The Nuremberg Tribunals
The Charter of the International Military Tribunal, commonly known as the “London Charter,” authorized the punishment of the major war criminals of the European Axis following the Second World War. See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (the “London Charter“), Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. The London Charter and the trials at Nuremberg that followed are collectively the single most important source of modern customary international law concerning liability for violations of fundamental human rights.36 As Justice Jackson explained, the London Charter “is a basic charter in the International Law of the future,” and the Nuremberg trials took great strides in “ma[king] explicit and unambiguous” the human rights norms that had “theretofore ... [been] implicit in International Law.” Jackson, Final Report, ante, at 342. And as Judge Katzmann noted in Khulumani: “[C]ourts, international bodies, and scholars have recognized that the principles set out in the London Charter and applied by the International Military Tribunal are significant not only because they have garnered broad acceptance, but also because they were viewed as reflecting and crystallizing preexisting customary international law.” 504 F.3d at 271 (Katzmann, J., concurring).
It is notable, then, that the London Charter, which established the International Military Tribunal at Nuremberg, granted the Tribunal jurisdiction over natural persons only. See London Charter, ante, art. 6, 59 Stat. at 1547 (granting the tribunal jurisdiction to “try and punish persons ... whether as individuals or as members of organizations” — i.e., natural persons (emphases added)); see also Charter of the International Military Tribunal for the Far East, art. 5, Jan. 19, 1946, amended Apr. 26, 1946, 4 Bevans 20, 22 (granting the tribunal jurisdiction over “war criminals who as individuals or as members of organizations are charged with offenses” (emphases added)).
The London Charter also granted the International Military Tribunal the authority to declare organizations “criminal” — and several German government and military organizations, such as the SS and the Gestapo, were, in fact, indicted. London Charter, ante, art. 9, 59 Stat. at 1548 (“At the trial of any individual member of any group or organization the Tribunal may declare ... that the group or organization of which the individual was a member was a criminal organization.“); Ann Tusa & John Tusa, The Nuremberg Trial 425 (1983) (describing the indictment of six organizations). See generally The Nurnberg Trial, 6 F.R.D. 69, 136-43 (describing the structure of the SS and the Gestapo and the criminal activities of their members). Such a declaration following indictment, however, did not result in the organization being punished or having liability assessed against it. Rather, the effect of declaring an organization criminal was merely to facilitate the prosecution of individuals who were members of the organization. See London Charter, ante, art. 10, 59 Stat. at 1548 (“In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individuals to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned.” (emphasis added)).
Echoing the London Charter‘s imposition of liability on natural persons only, the subsequent United States Military Tribunals, established under Control Council Law No. 10, prosecuted corporate executives for their role in violating customary international law during the Second World War, but not the corporate entities themselves.37 See generally Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, in 1 Enactments and Approved Papers of the Control Council and Coordinating Committee, Allied Control Authority Germany 306 (1945), available at http://www.loc.gov/rr/frd/Military_Law/Enactments/Volume-I.pdf. This approach to liability can be seen most clearly in the tribunal‘s treatment of the notorious I.G. Farben chemical company (“I.G. Farben“).
The refusal of the military tribunal at Nuremberg to impose liability on I.G. Farben is not a matter of happenstance or oversight. This corporation‘s production of, among other things, oil, rubber, nitrates, and fibers was harnessed to the purposes of the Nazi state, and it is no exaggeration to assert that the corporation made possible the war crimes and crimes against humanity perpetrated by Nazi Germany, including its infamous programs of looting properties of defeated nations, slave labor, and genocide:
Joseph Borkin, The Crime and Punishment of I.G. Farben 2-3 (1978). Auschwitz was an I.G. Farben slave camp where millions were exterminated by Zyklon B, an insecticide knowingly and intentionally manufactured and provided by I.G. Farben and affiliated corporate entities for a new and lethal use as an asphyxiating agent in the gas chambers at Auschwitz. Id. at 122-23.The depth of the partnership [between the Nazi state and I.G. Farben] was reached at Auschwitz, the extermination center [in Poland], where four million human beings were destroyed in accordance with the “Final Solution of the Jewish Question,” Hitler‘s plan to destroy an entire people. Drawn by the almost limitless reservoir of death camp labor, I.G. [Farben] chose to build a great industrial complex at Auschwitz for the production of synthetic rubber and oil.
Twenty-four executives of Farben were charged, inter alia, with “Planning, Preparation, Initiation, and Waging of Wars of Aggression and Invasions of Other Countries“; “Plunder and Spoliation“; and “Slavery and Mass Murder.” See 7 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 (“The Farben Case“) 11-60 (1952); see also Borkin, ante, at 137 (discussing the indictment of I.G. Farben executives). But the I.G. Farben corporate entity was not charged, nor was it named in the indictment as a criminal organization. In issuing its judgment, the tribunal pointedly observed that “the corporate defendant, Farben, is not before the bar of this Tribunal and cannot be subjected to criminal penalties in these proceedings.” 8 The Farben Case, ante, at 1153. The Tribunal emphasized:
Id. (emphases added).38 Those statements parallel the oft-cited passage of the Nuremberg judgment, made in response to the argument that international law is concerned only with the actions of sovereign states: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The Nurnberg Trial, 6 F.R.D. at 110.We have used the term “Farben” as descriptive of the instrumentality of cohesion in the name of which the enumerated acts of spoliation were committed. But corporations act through individuals and, under the conception of personal individual guilt ... the prosecution, to discharge the burden imposed upon it in this case, must establish by competent proof beyond a reasonable doubt that an individual defendant was either a participant in the illegal act or that, being aware thereof, he authorized or approved it.
In declining to impose corporate liability under international law in the case of the most nefarious corporate enterprise known to the civilized world, while prosecuting the men who led I.G. Farben, the military tribunals established under Control Council Law No. 10 expressly defined liability under the law of nations as liability that could not be divorced from individual moral responsibility. It is thus clear that, at the time of the Nuremberg trials, corporate liability was not recognized as a “specific, universal, and obligatory” norm of customary international law. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (internal quotation marks omitted).
We turn now to international tribunals convened since Nuremberg to determine whether there is any evidence that the concept of corporate liability has coalesced into a “specific, universal, and obligatory” norm.
2. International Tribunals Since Nuremberg
Since Nuremberg, international tribunals have continually declined to hold corporations liable for violations of customary international law. For example, the charters establishing both the International Criminal Tribunal for the former Yugoslavia (“ICTY“) and the International Criminal Tribunal for Rwanda, (“ICTR“) expressly confined the tribunals’ jurisdiction to “natural persons.” See International Criminal Tribunal for the Former Yugoslavia Statute, S.C. Res. 827, U.N. Doc. S/RES/827 (May 25, 1993), adopting The Secretary-General, Report Pursuant to Paragraph 2 of Security Council Resolution 808 (“Report of the Secretary-General“), art. 6, U.N. Doc. S/25704 (May 3, 1993) (“The International Tribunal shall have jurisdiction over natural persons....“); Statute of the International Tribunal for Rwanda, art. 5, S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994) (same); cf. Khulumani, 504 F.3d at 274 (Katzmann, J., concurring) (“[T]he ICTY Statute is particularly significant because the ‘Individual Criminal Responsibility’ section of that statute was intended to codify existing norms of customary international law.“).
The commentary contained in the Report of the Secretary-General of the United Nations on the ICTY reveals that jurisdiction over corporations was considered but expressly rejected: “[T]he ordinary meaning of the term ‘persons responsible for serious violations of international humanitarian law’ would be natural persons to the exclusion of juridical persons.” Report of the Secretary-General, ante, ¶ 50. Moreover, unlike the International Military Tribunal at Nuremberg, the ICTY lacked the authority to declare organizations “criminal.” Id. ¶ 51 (“The question arises ... whether a juridical person, such as an association or organization, may be considered criminal as such and thus its members, for that reason alone, be made subject to the jurisdiction of the International Tribunal. The Secretary-General believes that this concept should not be retained in regard to the International Tribunal. The criminal acts set out in this statute are carried out by natural persons ....“); cf. London Charter, ante, art. 9, 59 Stat. at 1548. Thus, to the extent that the International Military Tribunal at Nuremberg possessed some limited authority to declare corporations criminal — which, as explained above, operated merely as an evidentiary rule for later trials imposing liability on individuals — subsequent tribunals have not retained that procedure.
More recently, the Rome Statute of the ICC also limits that tribunal‘s jurisdiction to “natural persons.” See The Rome Statute of the International Criminal Court (“Rome Statute“) art. 25(1), opened for signature July 17, 1998, 37 I.L.M. 1002, 1016; see also Albin Eser, Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 778 (Antonio Cassese et al. eds., 2002) (“[W]hen reading paragraphs (1), (2), and (3) of Article 25 of the ICC Statute together, there can be no doubt that by limiting criminal responsibility to individual natural persons, the Rome Statute implicitly negates — at least for its own jurisdiction — the punishability of corporations and other legal entities.“). Significantly, a proposal to grant the ICC jurisdiction over corporations and other “juridical” persons was advanced by the French delegation, but the proposal was rejected. See Eser, ante, at 779. As commentators have explained, the French proposal was rejected in part because “criminal liability of corporations is still rejected in many national legal orders” and thus would pose challenges for the ICC‘s principle of “complementarity.”39 Id.; see also Draft Report of the Intersessional Meeting from 19 to 30 January 1998 [Held] in Zuthphen, The Netherlands, in The Statute of the International Criminal Court: A Documentary History 221, 245 n. 79 (M. Cherif Bassiouni ed., 1998) (“There is a deep divergence of views as to the advisability of including criminal responsibility of legal [i.e., juridical] persons in the statute.“); Andrew Clapham, The Question of Jurisdiction Under International Criminal Law Over Legal Persons: Lessons from the Rome Conference on an International Criminal Court, in Liability of Multinational Corporations Under International Law 139, 157 (Menno T. Kamminga & Saman Zia-Zarifi eds., 2000) (“This proposal was finally withdrawn by the French delegation when it became clear that there was no possibility that a text could be adopted by consensus .... For some delegations the whole notion of corporate criminal responsibility was simply ‘alien‘, raising problems of complementarity.” (emphasis added)). The history of the Rome Statute therefore confirms the absence of any generally recognized principle or consensus among States concerning corporate liability for violations of customary international law.
In sum, modern international tribunals make it abundantly clear that, since Nuremberg, the concept of corporate liability for violations of customary international law has not even begun to “ripen[]” into a universally accepted norm of international law. Cf. The Paquete Habana, 175 U.S. at 686, 20 S.Ct. 290 (explaining that a practice can “gradually ripen[] into a rule of international law” through “usage among civilized nations“).
B. International Treaties
Treaties “are proper evidence of customary international law because, and insofar as, they create legal obligations akin to contractual obligations on the States parties to them.” Flores, 414 F.3d at 256. Although all treaties ratified by more than one State provide some evidence of the custom and practice of nations, “a treaty will only constitute sufficient proof of a norm of customary international law if an overwhelming majority of States have ratified the treaty, and those States uniformly and consistently act in accordance with its principles.” Id. (second emphasis added). Moreover, as one distinguished scholar of international law has explained:
The ordinary treaty by which two or more states enter into engagements with one another for some special object can very rarely be used even as evidence to establish the existence of a rule of general law; it is more probable that the very reason of the treaty was to create an obligation which would not have existed by the general law, or to exclude an existing rule which would otherwise have applied.
Brierly, ante, at 57 (emphases added). That a provision appears in one treaty (or more), therefore, is not proof of a well-established norm of customary international law.
One district court in our Circuit erroneously overvalued the importance of a number of international treaties in finding that corporate liability has attained the status of customary international law. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.Supp.2d 289, 316-17 (S.D.N.Y. 2003) (denying defendants’ motion to dismiss). But see Presbyterian Church of Sudan v. Talisman Energy, Inc., 453 F.Supp.2d 633 (S.D.N.Y. 2006) (granting summary judgment to defendants on different grounds), aff‘d, 582 F.3d 244 (2d Cir. 2009). None of the treaties relied upon in the district court‘s 2003 Presbyterian Church opinion have been ratified by the United States, and most of them have not been ratified by other States whose interests would be most profoundly affected by the treaties’ terms.40 Cf. Flores, 414 F.3d at 256-57 (explaining that a treaty‘s evidentiary value is dependent, in part, on the number and “relative influence ... in international affairs” of the States that have ratified it). Those treaties are therefore insufficient — considered either individually or collectively — to demonstrate that corporate liability is universally recognized as a norm of customary international law.
Even if those specialized treaties had been ratified by an “overwhelming majority” of states, id. at 256 — as some recent treaties providing for corporate liability have been, see, e.g., Convention Against Transnational Organized Crime, art. 10(1), adopted Nov. 15, 2000, S. Treaty Doc. 108-16; Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, art. 2, done Dec. 17, 1997, S. Treaty Doc. No. 105-43 — the fact that those treaties impose obligations on corporations in the context of the treaties’ particular subject matter tells us nothing about whether corporate liability for, say, violations of human rights, which are not a subject of those treaties, is universally recognized as a norm of customary international law. Significantly, to find that a treaty embodies or creates a rule of customary international law would mean that the rule applies beyond the limited subject matter of the treaty and to nations that have not ratified it. See 1 Oppenheim‘s International Law § 626, at 1261. To construe those treaties as so-called “law-making” treaties — that is, treaties that codify existing norms of customary international law or crystallize an emerging rule of customary international law — would be wholly inappropriate and without precedent. See id. § 588, at 1203-04 (discussing “law-making” treaties).
As noted above, there is no historical evidence of an existing or even nascent norm of customary international law imposing liability on corporations for violations of human rights. It cannot be said, therefore, that those treaties on specialized questions codify an existing, general rule of customary international law. Nor can those recent treaties, in light of their limited number and specialized subject matter, be viewed as crystallizing an emerging norm of customary international law. See id. § 583, at 1204 (explaining that “relatively extensive participation in a treaty, coupled with a subject matter of general significance and stipulations which accord with the general sense of the international community, do establish for some treaties an influence far beyond the limits of formal participation in them” (footnote omitted)). Furthermore, even if, as a general rule, treaties on a specialized subject matter could be viewed as crystallizing a norm of customary international law (which they generally cannot), it would be inappropriate to do so in this case in light of the recent express rejection in major multilateral treaties of a norm of corporate liability in the context of human rights violations. See, e.g., Rome Statute, ante, art. 25.
Finally, the few specialized treaties imposing liability on corporations have not had such influence that a general rule of corporate liability has become a norm of customary international law. The ICJ in 1969 described the process by which that might occur in the well-known North Sea Continental Shelf Cases, [1969] 8 I.L.M. 340. There, Denmark and the Netherlands had argued that the Federal Republic of Germany was bound by a particular provision of a treaty, which Germany had not ratified, because the rule embodied in the multilateral treaty had become a norm of customary international law. According to the ICJ, accepting that view would require
Id. at 373-74. For a treaty provision to attain the status of a norm of customary international law, the ICJ explained, “[i]t would in the first place be necessary that the provision concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law.” Id. at 374 (emphasis added). Provisions on corporate liability in a handful of specialized treaties cannot be said to have a “fundamentally norm-creating character.” Moreover, as the history of the Rome Statute demonstrates, “still unresolved controversies as to the exact meaning and scope of this notion” of corporate liability “raise further doubts as to the potentially norm-creating character of the rule.” Id. Accordingly, provisions imposing corporate liability in some recent specialized treaties have not established corporate liability as a norm of customary international law.treating [a particular provision of the 1958 Geneva Continental Shelf Convention] as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.
In reaching the contrary conclusion in Presbyterian Church, the judge to whom the case was originally assigned in the district court acknowledged that “most treaties do not bind corporations” but reasoned that “[i]f corporations can be liable for unintentional torts such as oil spills or nuclear accidents, logic would suggest that they can be held liable for intentional torts such as complicity in genocide, slave trading, or torture.” Presbyterian Church, 244 F.Supp.2d at 317 (emphases added). In addition to the reasons discussed above, the district court‘s conclusion was flawed by its use of an improper methodology for discerning norms of customary international law: customary international law does not develop through the “logical” expansion of existing norms. Cf. Yousef, 327 F.3d at 103-04 (“The strictly limited set of crimes subject to universal jurisdiction cannot be expanded by drawing an analogy between some new crime ... and universal jurisdiction‘s traditional subjects.“).41 Rather, as the Supreme Court has explained, it develops, if at all, through the custom and practice “among civilized nations ... gradually ripening into a rule of international law.” Sosa, 542 U.S. at 715, 124 S.Ct. 2739 (quoting The Paquete Habana, 175 U.S. at 686, 20 S.Ct. 290).
It bears underscoring that the purpose of the ATS was not to encourage United States courts to create new norms of customary international law unilaterally. Sosa, 542 U.S. at 728, 124 S.Ct. 2739 (explaining that federal courts have “no congressional mandate to seek out and define new and debatable violations of the law of nations“). Instead, the statute was rooted in the ancient concept of comity among nations and was intended to provide a remedy for violations of customary international law that “threaten[] serious consequences in international affairs.” Id. at 715, 124 S.Ct. 2739 (noting that this concern “was probably on the minds of the men who drafted the ATS“). Unilaterally recognizing new norms of customary international law — that is, norms that have not been universally accepted by the rest of the civilized world — would potentially create friction in our relations with foreign nations and, therefore, would contravene the international comity the statute was enacted to promote.42
We conclude, therefore, that the relatively few international treaties that impose particular obligations on corporations do not establish corporate liability as a “specific, universal, and obligatory” norm of customary international law. Id. at 732, 124 S.Ct. 2739 (internal quotation marks omitted). Although those treaties suggest a trend towards imposing corporate liability in some special contexts, no trend is detectable outside such narrow applications in specialized treaties, and there is nothing to demonstrate that corporate liability has yet been recognized as a norm of the customary international law of human rights.43
C. Works of Publicists
Although the works of publicists (i.e., scholars or “jurists“) can be a relevant source of customary international law, “[s]uch works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.” Sosa, 542 U.S. at 734, 124 S.Ct. 2739 (quoting The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290); see also
In light of the evidence discussed above, it is not surprising that two renowned professors of international law, Professor James Crawford45 and Professor (now Judge) Christopher Greenwood,46 forcefully declared in litigation argued before this panel on the same day as this case that customary international law does not recognize liability for corporations that violate its norms. According to Professor Crawford, “no national court [outside of the United States] and no international judicial tribunal has so far recognized corporate liability, as opposed to individual liability, in a civil or criminal context on the basis of a violation of the law of nations or customary international law.” See Declaration of James Crawford ¶ 10, Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 07-0016 (2d Cir. Jan. 22, 2009) (emphasis added); see also Second Declaration of Christopher Greenwood ¶ 13, Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01 Civ. 9882 (S.D.N.Y. July 10, 2002) (“[T]here is not, and never has been, any assertion of the criminal liability of corporations in international law.“); Michael Koebele, Corporate Responsibility Under the Alien Tort Statute 196 (2009) (“[D]espite trends to the contrary, the view that international law primarily regulates States and in limited instances such as international criminal law, individuals, but not [transnational corporations], is still the prevailing one among international law scholars.“).47 Even those who favor using the ATS as a means of holding corporations accountable for human rights violations reluctantly acknowledge that “the universe of international law, which are ‘the documents or acts proving the consent of States to its rules.‘” Clive Parry, The Sources and Evidences of International Law 2 (1965), quoted with approval in Flores, 414 F.3d at 252, and Yousef, 327 F.3d at 101. It is indisputable that the works of the publicists on which we have relied accurately describe the primary sources of the relevant customary international law — the relevant customs and practices of States. In other words, we have relied on these sources “for trustworthy evidence of what the law really is” and “not for the speculations of their authors concerning what the law ought to be.” The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290.
Judge Leval criticizes us for relying on the affidavits of Professor Crawford and Professor Greenwood because both were expert witnesses hired by the defendants in another case. Yet we fail to see how statements made in an affidavit, under penalty of perjury, are any less reliable than published works whose accuracy is confirmed only by efforts of the student staff of law journals.
We note, moreover, that Judge Leval relies on Beth Stephens, et al., International Human Rights Litigation in U.S. Courts 310 (2d ed. 2008), in support of his contention that corporations can be liable for violations of customary international law under the ATS. Concurring Op. 185. The remaining authors of that text are Judith Chomsky, Jennifer Green, Paul Hoffman, and Michael Ratner. Paul Hoffman happens to be lead counsel to plaintiffs in this very appeal. Judith Chomsky and Jennifer Green have submitted an amicus brief on behalf of plaintiffs in this case and, together with Beth Stephens, have directly represented different plaintiffs pursuing ATS claims against Royal Dutch Petroleum (the defendants here) before this court. See Wiwa v. Royal Dutch Petroleum, 226 F.3d 88, 91 (2d Cir. 2000).
Judge Leval also relies on a publication of the International Commission of Jurists. Concurring Op. 184-85. That, however, is an advocacy organization, in some respects like Amnesty International or Human Rights Watch. See Int‘l Comm. of Jurists, Corporate Complicity & Legal Accountability, at ii (2008), available at http://icj.org/IMG/Volume_1.pdf (“The International Commission of Jurists ... is a non-governmental organization devoted to promoting the understanding and observance of the rule of law and the legal protection of human rights throughout the world.“); id. at vii (explaining that members of the “steering group” for the “Corporate Complicity & Legal Accountability” project included representatives from, among other organizations, Amnesty International and Human Rights Watch); see also http://www.icj.org (follow “About Us” link) (last visited Aug. 20, 2010) (“Through pioneering activities, including inquiry commissions, trial observations, fact-finding missions, public denunciations and quiet diplomacy, the [International Commission of Jurists] has been a powerful advocate for justice.“).
In the words of Judge Leval, we think “[i]t is not self-evident” that the works of such advocates are “what the Supreme Court had in mind in Paquete Habana when it gave cautious approval to consultation of ‘the works of jurists and commentators.‘” Concurring Op. 182 n. 39 (emphasis omitted) (quoting The Paquete Habana, 175 U.S. at 700, 20 S.Ct. 290).
In any event, Judge Leval‘s criticism of our reliance on the affidavits of Professor Crawford and Professor Greenwood is irrelevant because Judge Leval agrees that “international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Concurring Op. 186.
criminal law does not reveal any prosecutions of corporations per se.” Ratner, note 43, ante, at 477.48
*
*
*
Together, those authorities demonstrate that imposing liability on corporations for violations of customary international law has not attained a discernible, much less universal, acceptance among nations of the world in their relations inter se. Because corporate liability is not recognized as a “specific, universal, and obligatory” norm, see Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (internal quotation marks omitted), it is not a rule of customary international law that we may apply under the ATS. Accordingly, insofar as plaintiffs in this action seek to hold only corporations liable for their conduct in Nigeria (as opposed to individuals within those corporations), and only under the ATS, their claims must be dismissed for lack of subject matter jurisdiction.
III. The Concurring Opinion
Judge Leval concedes that “international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Concurring Op. 186. In other words, despite his perplexing but forceful contentions otherwise, Judge Leval does not disagree with Part II of our opinion. What he disputes is our conclusion in Part I that customary international law supplies the rule of decision.
Judge Leval admits that international law is “the place to look” to “determine whether a corporation can be held civilly liable for a violation of international law,” id. at 173-74, but he maintains that we must accept corporate liability based on principles of domestic law unless “the law of nations [has] spoke[n] on the question [and] provid[ed] that acts of corporations are not covered by the law of nations,” id. at 175. He then contends that the law of nations has not, in fact, spoken on the question and that corporate liability is therefore a matter of “remedy” that “international law leaves ... to the independent determination of each State.” id. at 176. In doing so Judge Leval dismisses as a source of authoritative guidance the fact that no international tribunal has ever been accorded jurisdiction over corporations because those tribunals have been charged only with the prosecution of crimes. Id. at 165-70. Finally, Judge Leval accuses us of rejecting corporate civil liability under the ATS merely because there is no norm of corporate civil liability in customary international law, and he argues that this reasoning is inconsistent with our endorsement of individual liability under the ATS. Id. at 152-53.
Judge Leval‘s criticisms distort our holding and betray several fundamental misunderstandings of customary international law. First, Judge Leval attempts to shift to us the burden of identifying a norm of customary international law that supports our “rule.” But it is entirely inappropriate to begin, as Judge Leval apparently begins, with a presumption that a violation of customary international law can be attributed to any defendant unless, and until, a norm of customary international law declares otherwise. This reasoning turns customary international law on its head. Customary international law arises from the customs and practices “among civilized nations ... gradually ripening into a rule of international law.” Sosa, 542 U.S. at 715, 124 S.Ct. 2739 (quoting The Paquete Habana, 175 U.S. at 686, 20 S.Ct. 290). Accordingly, the responsibility lies with those who seek to demonstrate that “international law extends the scope of liability for a violation of a given norm to the perpetrator being sued.” Id. at 732 n. 20, 124 S.Ct. 2739. Judge Leval produces no evidence that international law extends the scope of liability to corporations, and, in fact, he concedes that it does not. Concurring Op. 186 (“It is true that international law, of its own force, imposes no liabilities on corporations or other private juridical entities.“). In any event, although it is not our burden, we have little trouble demonstrating the absence of a norm of corporate liability in customary international law. See Part II, ante.
Second, Judge Leval dismisses the fact that international tribunals have consistently declined to recognize corporate liability as a norm of customary international law; he does so by inventing a distinction between civil and criminal liability in customary international law that is contrary to our ATS jurisprudence. As Judge Katzmann explained in his separate opinion in Khulumani, “[t]his distinction finds no support in our case law, which has consistently relied on criminal law norms in establishing the content of customary international law for purposes of the [ATS].” 504 F.3d at 270 n. 5. Unlike U.S. domestic law, “international law does not maintain [a] kind of hermetic seal between criminal and civil law.” Id. (citing Sosa, 542 U.S. at 762-63, 124 S.Ct. 2739 (Breyer, J., concurring)). Indeed, Judge Katzmann was able to conclude that the scope of customary international law reaches those who aid and abet violations of international law only by looking to the charters of — and the law applied by — the very same international tribunals that Judge Leval ignores. Id. at 270 (observing that liability for aiders and abettors was “applied by the war crimes trials following the Second World War” and “has been repeatedly recognized in numerous international treaties, most notably the Rome Statute of the International Criminal Court, and in the statutes creating the International Criminal Tribunal for the Former Yugoslavia (‘ICTY‘) and the International Criminal Tribunal for Rwanda (‘ICTR‘)“); see also Presbyterian Church, 582 F.3d at 257 n. 7 (“[C]ustomary international law norms prohibiting genocide, war crimes, and crimes against humanity have been developed largely in the context of criminal prosecutions rather than civil proceedings.” (internal quotation marks omitted)). Judge Leval explicitly endorsed Judge Katzmann‘s reasoning in Khulumani by joining the unanimous panel opinion in Presbyterian Church, which expressly adopted Judge Katzmann‘s rule as the law of our Circuit. Presbyterian Church, 582 F.3d at 258. Apparently, Judge Leval would have us look to international criminal tribunals only when they supply a norm with which he agrees.
Third, Judge Leval distorts our analysis by claiming that we hold “that the absence of a universal practice among nations of imposing civil damages on corporations for violations of international law means that under international law corporations are not liable for violations of the law of nations.” Concurring Op. 152 (emphasis added). That is not our holding. We hold that corporate liability is not a norm that we can recognize and apply in actions under the ATS because the customary international law of human rights does not impose any form of liability on corporations (civil, criminal, or otherwise).
Finally, and most importantly, Judge Leval incorrectly categorizes the scope of liability under customary international law — that is, who can be liable for violations of international law — as merely a question of remedy to be determined independently by each state. Id. at 175-76. As we explained above, see Part I.A, ante, the subjects of international law have always been defined by reference to international law itself. Judge Leval is therefore wrong to suggest that “international law takes no position” on the question of who can be liable for violations of international law. Id. at 152.49
Although international law does (as Judge Leval explains) leave remedial questions to States, id. at 175-76, the liability of corporations for the actions of their employees or agents is not a question of remedy.50 Corporate liability imposes responsibility for the actions of a culpable individual on a wholly new defendant — the corporation. In the United States, corporate liability is determined by a body of rules determining which actions of an employee or agent are to be imputed to the corporation.51 In this important respect, corporate liability is akin to accessorial liability, which is a subject of international law not left to individual States. See Presbyterian Church, 582 F.3d at 259 (holding that ”Sosa and our precedents send us to international law to find the standard for accessorial liability” and rejecting the argument that international law relies on domestic law to supply the standard, as a means of enforcement).
The potential for civil damages under the ATS arises only if customary international law recognizes that a particular class of defendant is a subject of international law in the first place. See
CONCLUSION
The ATS provides federal district courts jurisdiction over a tort, brought by an alien only, alleging a “violation of the law of nations or a treaty of the United States.”
No corporation has ever been subject to any form of liability (whether civil, criminal, or otherwise) under the customary international law of human rights. Rather, sources of customary international law have, on several occasions, explicitly rejected the idea of corporate liability. Thus, corporate liability has not attained a discernable, much less universal, acceptance among nations of the world in their relations inter se, and it cannot not, as a result, form the basis of a suit under the ATS.
Acknowledging the absence of corporate liability under customary international law is not a matter of conferring “immunity” on corporations. It is, instead, a recognition that the States of the world, in their relations with one another, see IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.), abrogated on other grounds by Morrison v. Nat‘l Austl. Bank Ltd., ___ U.S. ___, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010), have determined that moral and legal responsibility for heinous crimes should rest on the individual whose conduct makes him or her ”hostis humani generis, an enemy of all mankind.” Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (quoting Filartiga v. Pena-Irala, 630 F.2d 876, 890 (2d Cir. 1980)). Nothing in this opinion limits or forecloses suits under the ATS against a corporation‘s employees, managers, officers, directors, or any other person who commits, or purposefully aids and abets, violations of international law. Moreover, nothing in this opinion limits or forecloses corporate liability under any body of law other than the ATS — including the domestic statutes of other States — and nothing in this opinion limits or forecloses Congress from amending the ATS to bring corporate defendants within our jurisdiction. Corporate liability, however, is simply not “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” recognized as providing a basis for suit under the law prescribed by the ATS — that is, customary international law. Sosa, 542 U.S. at 725, 124 S.Ct. 2739.
We do not know whether the concept of corporate liability will “gradually ripen[] into a rule of international law.” Id. at 715, 124 S.Ct. 2739 (quoting The Paquete Habana, 175 U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320 (1900)). It can do so, however, only by achieving universal recognition and acceptance as a norm in the relations of States inter se. For now, and for the foreseeable future, the Alien Tort Statute does not provide subject matter jurisdiction over claims against corporations.
To summarize, we hold as follows:
(1) Since Filartiga, which in 1980 marked the advent of the modern era of litigation for violations of human rights under the Alien Tort Statute, all of our precedents — and the Supreme Court‘s decision in Sosa, 542 U.S. at 732 n. 20 [124 S.Ct. 2739] — require us to look to international law to determine whether a particular class of defendant, such as corporations, can be liable under the Alien Tort Statute for alleged violations of the law of nations.
(2) The concept of corporate liability for violations of customary international law has not achieved universal recognition or acceptance as a norm in the relations of States with each other. See Vencap, 519 F.2d at 1015. Inasmuch as plaintiffs assert claims against corporations only, their complaint must be dismissed for lack of subject matter jurisdiction.
Accordingly, the September 29, 2006 order of the District Court is AFFIRMED insofar as it dismissed some of plaintiffs’ claims against the corporate defendants and REVERSED insofar as it declined to dismiss plaintiffs’ remaining claims against the corporate defendants.
LEVAL, Circuit Judge, concurring only in the judgment:
The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights. According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims’ claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form. Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims.
Adoption of the corporate form has always offered important benefits and protections to business — foremost among them the limitation of liability to the assets of the business, without recourse to the assets of its shareholders. The new rule offers to unscrupulous businesses advantages of incorporation never before dreamed of. So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot‘s political opponents, or engage in piracy — all without civil liability to victims. By adopting the corporate form, such an enterprise could have hired itself out to operate Nazi extermination camps or the torture chambers of Argentina‘s dirty war, immune from civil liability to its victims. By protecting profits earned through abuse of fundamental human rights protected by international law, the rule my colleagues have created operates in opposition to the objective of international law to protect those rights.
Since Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), was decided in 1980, United States courts, acting under the Alien Tort Statute (ATS), which was passed by the First Congress in 1789, have been awarding compensatory damages to victims of human rights abuses committed in violation of the law of nations. Many supporters of the cause of human rights have celebrated the Filartiga line of cases as an important advance of civilization. Not all, however, have viewed those cases with favor. Some see them as unwarranted meddling by U.S. judges in events that occurred far away, applying a body of law that we did not make, in circumstances carrying a potential, furthermore, to interfere with the President‘s conduct of foreign affairs. See, e.g., Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 805 (D.C. Cir. 1984) (Bork, J., concurring).† In 2004, a substantial minority of the Supreme Court, in Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), would have essentially nullified the ATS and overturned the Filartiga line, by ruling that the ATS did no more than give courts jurisdiction, and that, absent further legislation establishing a legal claim, courts acting under ATS had no authority to grant any substantive relief. The majority of the Supreme Court, however, rejected that argument. The Court ruled that under the ATS, federal courts could award damages for violations of the law of nations. For those who believe the Filarti-
† My colleagues call my identification of Judge Robert Bork as the author of this opinion a “stratagem” or “rhetorical ploy.” It is not. In Tel-Oren, the three judges of the District of Columbia Circuit panel each wrote separate concurring opinions. By identifying the authors in citing to Tel-Oren concurrences, I simply follow the conventional method of distinguishing between separate opinions in the same case. The Supreme Court did the same, see Sosa v. Alvarez-Machain, 542 U.S. 692, 728, 732 & n. 20, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004), and so does the majority opinion here.
ga-Sosa line represents a meaningful advance in the protection of human rights, the majority‘s decision here marks a very bad day.
To understand this controversy, it is important to understand exactly what is the majority‘s rule, how it functions, and in what circumstances. To begin, their rule relates to the most abhorrent conduct—those acts that violate norms of the international law of human rights. The
While my colleagues see nothing strange or problematic in this conclusion, their position is that in any event they have no responsibility for it. They invoke the rule simply because, in their contention, it is commanded by the law of nations.
But there is no basis for this contention. No precedent of international law endorses this rule. No court has ever approved it,* nor is any international tribunal structured with a jurisdiction that reflects it. (Those courts that have ruled on the question have explicitly rejected it.) No treaty or international convention adopts this principle. And no work of scholarship on international law endorses the majority‘s rule. Until today, their concept had no existence in international law.
The majority contend, nevertheless, that unambiguous jurisprudence “lead[s] inescapably” to their conclusion. Maj. Op. 125. However, the reasoning that supports the majority‘s argument is, in my view, illogical, misguided, and based on misunderstandings of precedent.
The argument depends on its observation that international criminal tribunals have been established without jurisdiction to impose criminal punishments on corporations for their violations of international law. From this fact the majority contend an inescapable inference arises that international law does not govern corporations, which are therefore free to engage in conduct prohibited by the rules of international law with impunity.
There is no logic to the argument. The reasons why international tribunals have been established without jurisdiction to impose criminal liability on corporations have to do solely with the theory and the objectives of criminal punishment, and have no bearing on civil compensatory liability. The view is widely held among the nations of the world that criminal punishments (under domestic law, as well as in international law) are inappropriate for cor
The majority next contend that international law does not distinguish between criminal and civil liability. This is simply incorrect. International law distinguishes clearly between them and provides differently for the different objectives of criminal punishment and civil compensatory liability.
The majority then argue that the absence of a universal practice among nations of imposing civil damages on corporations for violations of international law means that under international law corporations are not liable for violations of the law of nations. This argument is as illogical as the first and is based on a misunderstanding of the structure of international law. The position of international law on whether civil liability should be imposed for violations of its norms is that international law takes no position and leaves that question to each nation to resolve. International law, at least as it pertains to human rights, consists primarily of a sparse body of norms, adopting widely agreed principles prohibiting conduct universally agreed to be heinous and inhumane. Having established these norms of prohibited conduct, international law says little or nothing about how those norms should be enforced. It leaves the manner of enforcement, including the question of whether there should be private civil remedies for violations of international law, almost entirely to individual nations. While most nations have not recognized tort liability for violations of international law, the United States, through the
The majority‘s asserted rule is, furthermore, at once internally inconsistent and incompatible with Supreme Court authority and with our prior cases that awarded damages for violations of international law. The absence of a universally accepted rule of international law on tort damages is true as to defendants who are natural persons, as well as to corporations. Because international law generally leaves all aspects of the issue of civil liability to individual nations, there is no rule or custom of international law to award civil damages in any form or context, either as to natural persons or as to juridical ones. If the absence of a universally accepted rule for
If past judges had followed the majority‘s reasoning, we would have had no Nuremberg trials, which for the first time imposed criminal liability on natural persons complicit in war crimes; no subsequent international tribunals to impose criminal liability for violation of international law norms; and no judgments in U.S. courts under the
The rule in cases under the
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I am in full agreement that this Complaint must be dismissed. It fails to state a proper legal claim of entitlement to relief. The Complaint alleges that the Appellants—the parent holding companies at the apex of the huge Royal Dutch Shell international, integrated oil enterprise—are liable under the
I. The improbability that the humanitarian law of nations, which is based in moral judgments reflected in legal systems throughout world and seeks to protect fundamental human rights, would espouse a rule which undermines that objective and lacks any logical justification
A. The opposition of the majority‘s rule to the objectives of international law.
Rules of international law are not, like rocks, mountains, and oceans, unexplained natural phenomena found on the surface of the earth. The rules of international law have been created by a collective human agency representing the nations of the world with a purpose to serve desired objectives. Those rules express the consensus of nations on goals that are shared with virtual unanimity throughout the world.4 Prior to World War II, the enforcement of international law focused primarily on relations among States and problems relating to the sovereign interests of States. It involved, for example, the inviolability of ambassadors in foreign lands, safe conducts, and the outlawing of piracy, which threatened the shared interest of all nations in trade on the high seas. See Sosa, 542 U.S. at 715, 720, 124 S.Ct. 2739. Worldwide revulsion at the Nazi atrocities in the period of World War II, however, focused attention on humanitarian values—values so fundamental that they were seen as shared by the “civilized nations” of the world. Filartiga, 630 F.2d at 881. Beginning with the Nuremberg trials, the focus of international law thus broadened beyond practical concerns of sovereign nations toward universally shared moral objectives. Acts so repugnant that they violated the morality shared by the civilized world were recognized as violations of international law. The law of nations thus came to focus on humanitarian, moral concerns, addressing a small category of particularly “heinous actions—each of which violates definable, universal and obligatory norms“—conduct so heinous that he who commits it is rendered
The majority‘s interpretation of international law, which accords to corporations a free pass to act in contravention of international law‘s norms, conflicts with the humanitarian objectives of that body of law. In order to understand the majority‘s rule, I explore a handful of concrete examples of how it would operate. Because the liability, if any, of a corporation for violations of international law is likely to arise in two somewhat different contexts—that in which the corporation itself inflicts humanitarian abuses, and that in which the corporation aids and abets a local government‘s infliction of the abuses—and because the pertinent considerations in these two circumstances are somewhat different, I discuss them separately.
1) Direct commission of heinous offenses by corporations
a) Slave trading and exploitation of slaves. Among the focuses of the Nuremberg trials was the exploitation of slave labor by the I.G. Farbenindustrie Aktiengesellschaft (“Farben“) and other German companies. The Farben corporation itself was not on trial, as the proceeding was brought solely against its executives for their complicity in the offenses committed by the corporation. Nevertheless, the tribunal found that Farben‘s program of exploitation of slave labor violated the standards of international law.6 Because the Nuremberg tribunal was established with only criminal, and not civil, jurisdiction, it never contemplated imposing civil liability on offenders. No civil proceedings of any kind were brought in that tribunal by the victims of Farben‘s violations against either natural or juridical persons.7
The question thus did not arise at Nuremberg whether international law countenances the imposition of civil liability on a corporation or on any other type of actor for exploitation of slave labor.
Perhaps more pertinent today is commercial exploitation of sex-slavery. Entrepreneurs in child prostitution kidnap unprotected children in poverty stricken areas and hold them in captivity to satisfy sex cravings of customers. Young women, seeking to escape from places where they are oppressed, incur debts to facilitators, who promise to help them, but, when they are unable to pay the entire fee, consign them into sex-slavery, compelling them to perform acts of prostitution a hundred times a day for the profit of their captors until either the debt is considered paid, or, more likely, the woman is so wasted by the abuse she has suffered that she ceases to be a marketable sex object.8 According to the majority‘s rule, an incorporated entity does not violate international law when it conducts such operations, and is free to retain any profit earned through its conduct.
b) Piracy. Once thought to have faded into a past remembered only in romanticized children‘s fables and Gilbert & Sullivan whimsy, piracy now reemerges as a threat to international trade.9 In Somalia, pirates seize vessels in the Indian Ocean and exact large ransom payments from the owners and insurers. In the port of Lagos, Nigeria, armed pirates board anchored vessels waiting for access to the harbor and steal their cargo. My colleagues’ new rule offers secure protection for the profits of piracy so long as the perpetrators take the precaution to incorporate the business.10
The majority opinion goes still further. Because it claims that juridical entities are
c) Genocide. A number of the cases brought before our courts under the
Such a company, however, failing to receive adequate protection from the local authorities, might mount its own protective security force and proceed, either independently or working together with forces of the local government, to exterminate the troublemaking tribes. The complaint under
Under the majority‘s rule, such a corporation would never need to test in court whether it in fact exterminated a tribe, as alleged. It could simply move for the dismissal of the suit, asserting that it is a corporation and therefore by definition could not have violated international law‘s prohibition of genocide. The plaintiffs could bring a successful
2) Aiding and abetting
As just noted, a number of suits, like this one, charge corporations engaged in the extraction of precious resources in remote places with having aided and abetted abuses committed by a foreign government‘s police or military forces against local populations. In all likelihood, corporations like the defendants in this case, when they ask a relatively impecunious local government to render protection to the corporation‘s operations, will contribute money and resources to the local government to help it render the protection the corporation needs for its operations. If the government troops then commit atrocities, the victims might sue the corporation on the theory that it aided and abetted the government‘s brutalities by its contribution of money and resources. Similarly, business corporations engaged in finance or in the sale of food or military supplies might raise funds for, or sell supplies to, a government that is known to violate the law of nations. Victims of that government‘s abuses might sue the corporation, alleging that the corporation‘s profit-motivated provision of finance or supplies, done with awareness of the purchasing government‘s record of atrocities, constitutes aiding and abetting of those atrocities.
At least in this circuit, however, there is no cause for such concern. In Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), Judge Katzmann in his concurring opinion expressed the view that international law does not deem it aiding and abetting in violation of that law to act in a manner that assists a violator unless the assistance is given with a purpose to cause or facilitate the violation. Id. at 277 (Katzmann, J., concurring). Then, in Talisman, we ruled on whether a corporation could be held liable for aiding and abetting under the standards of international law merely because it knew that supplies it furnished to a local government would be used in the commission of human rights abuses. Although confronted with evidence of shocking human rights violations committed by the government of Sudan, we found that there is no such aiding and abetting liability. Following Judge Katzmann‘s analysis, we concluded that the standards of international law admit of aiding and abetting liability only when the accused aider acts with a purpose to bring about the violations of international law. 582 F.3d at 259. In this circuit, supplying financing or military equipment to a local government will not support the imposition of aiding and abetting liability on the corporation for that government‘s abuses unless the corporation acted with a purpose to promote or advance those violations. (For that reason, and as explained in Part VII below, this Complaint must be dismissed for failure to state a proper claim for aiding and abetting liability.)
A true question of tort liability for corporate aiding and abetting in government atrocities would be raised where such a defendant purposely procures the commission of genocide by local government forces. Assume the hypothetical oil exploration company first seeks protection from the local host government from interference with its operations by indigenous tribes. For a period of time, the government forces provide ineffectual protection, but harassment, interference, and sabotage by the tribes continue. Eventually, the frustrated corporate managers say to the local police chief or military commander: “We have been slipping you very handsome sums, but you have done nothing for us. These protestors continue to cut our pipelines, and sabotage our machinery. The time has come for you to bring this harassment to an end. Wipe them out! There will be a generous bonus for you when it is done.” The local government officials comply. Those are facts that would raise an issue of corporate liability for aiding and abetting because the alleged aider and abetter intended, solicited, and deliberately procured the primary actor‘s violations of international law. The rule my colleagues have adopted, however, holds that the corporation has committed no violation and its profits are protected from liability, notwithstanding that it purposely solicited, procured, and caused the
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Consideration of such examples demonstrates beyond possibility of reasonable disagreement that the rule my colleagues attribute to the law of nations operates to the detriment of the objective of international law to protect fundamental human rights. My colleagues’ only response to these examples is that they do not choose to respond to them. Maj. Op. 122. Defenders of the majority opinion might argue that I have chosen extreme and unrepresentative examples to cast the majority‘s rule in an unreasonably pejorative light. It is true that the hypothetical cases I present for examination involve extraordinarily abhorrent conduct. But the reason I raise such abhorrent conduct is because the law of nations, at least in its humanitarian branch, concerns itself only with extreme abhorrent conduct—conduct that draws the unanimous opprobrium of the entire civilized world. The Supreme Court made clear in Sosa that liability is imposed under the
I recognize that pointing out the incompatibility of the majority‘s rule with the objectives of international law does not conclude the argument. If the supposed rule the majority relies on in fact reflects the law of nations and international law indeed does not apply to corporate conduct (as the majority claim), then we must apply that rule in a case brought under the
But neither is the observation irrelevant. Recognition of the humanitarian objectives of the law of nations makes it unlikely that this body of law intends to exempt corporations from its prohibitions or to provide a substantial financial incentive to violate the most fundamental of human rights. Cf. The Amy Warwick, 67 U.S. (2 Black) 635, 670, 17 L.Ed. 459 (1862) (“The law of nations is... founded on the common consent as well as the common sense of the world. It contains no... anomalous doctrine.“). The incompatibility of the majority‘s rule with the objective of the law of nations to protect fundamental human rights warrants skepticism as to whether international law in fact has such a rule. Before reaching a conclusion whether the majority‘s “rule” has indeed been adopted by the nations of the world as a rule of international law, we would want to examine whether the rule has any purported justification that might explain its adoption in spite of its apparent incompatibility with the principles and objectives of the law of nations.
B. The absence of any reason, purpose, or objective for which international law might have adopted such a rule. In asserting that international law exempts corporations from any obligation to comply with its rules, the majority implicitly contend that the nations of the world have some kind of reason, or some shared objective, that might justify the rule. The question then arises what objective the rule would serve. Where a corporation earns profits by exploiting slave labor, or by
Where the legal systems of the world encourage the establishment of juridical entities, endowing them with legal status by giving them authorization to own property, make contracts, employ labor, and bring suits, treating them as exempt from the law‘s commands and immune from suit would serve no rational purpose. In fact, nowhere are they so immunized. E.g., Doug Cassel, Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Nw. J. Int‘l Human Rights 304, 322 (2008) (“I am not aware of any legal system in which corporations cannot be sued for damages when they commit legal wrongs that would be actionable if committed by an individual.“).
My colleagues do not even suggest any purpose or goal the nations of the world might hope to derive from such a rule, and I can think of none. Before accepting my colleagues’ suggestion that a rule so incompatible with the objectives of international law and so lacking in logical justification is in fact a rule of international law, we should demand at least a reasonably persuasive showing based on the precedents of international law. The majority, however, have no such precedents to offer.
II. The absence of precedent for the majority‘s rule
No authoritative source document of international law adopts or in any way approves the majority‘s view that international law authorizes imposing civil awards of compensatory damages on natural persons but leaves corporations free to violate its rules without legal consequences.11
A. No court decisions or other legal precedents espouse the majority‘s rule. No court has ever dismissed a civil suit against a corporation, which alleged a violation of the laws of nations, on the ground that juridical entities have no legal responsibility or liability under that law. No court has ever discussed such a rule with even vaguely implied approval. Quite to the contrary, on many occasions courts have ruled in cases involving corporate defendants in a manner that assumed without discussion that corporations could be held liable.12 To my knowledge there is
The majority‘s view that corporations have neither rights nor obligations under international law is further refuted by two venerable opinions of the Attorney General of the United States. In 1907, the Attorney General rendered an opinion that an American corporation could be held liable under the
there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States....
In sum, the principle that my colleagues contend forms a part of the law established by the universal consensus of the nations of the world—that juridical persons have neither rights nor obligations—has never been addressed with favor in any opinion on behalf of any court and has many times been rejected.
B. No international tribunal is structured with a jurisdiction consistent with the majority‘s rule. If there were international tribunals established with jurisdiction to award civil damages against natural persons but not against juridical entities, this would give significant support to the majority‘s contention that the conventions of international law attach importance to whether a person against whom compensatory liability is sought is a natural person or a juridical entity. But there is no international tribunal established with such jurisdictional restrictions.
The international tribunals that have been established to date with jurisdiction over private persons have concerned themselves only with criminal punishment.16 None has ever had jurisdiction to consider a private civil remedy of any kind either against a natural person or a juridical enti
C. Quoting out of context from a footnote in the Supreme Court‘s Sosa opinion, the majority attribute to it a meaning opposite to what it intends. Quoting a snippet of dictum taken out of context from a footnote in the Supreme Court‘s Sosa opinion, the majority opinion incorrectly attributes to the Court support for the majority‘s contention that international law distinguishes between natural persons (who can be civilly liable) and corporations (who cannot). To the extent the Sosa opinion says anything on the subject, it communicates the opposite of what the majority attribute to it.
The majority assert that in footnote 20 of Justice Souter‘s opinion, the Supreme Court instructed the lower courts to consider in ruling in
The Sosa suit was brought by Alvarez-Machain, a Mexican doctor believed by U.S. government authorities to have participated in the torture and murder by a Mexican drug cartel of an agent of the U.S. Drug Enforcement Administration. The allegation under the
The Justices of the Supreme Court all agreed that Alvarez‘s claims under the
The majority of the Court rejected the minority view that the
Justice Souter then turned parenthetically to a concern brought into focus by the D.C. Circuit‘s decision in Tel-Oren and this court‘s decision in Kadic.17 Judge
Far from implying that natural persons and corporations are treated differently for purposes of civil liability under
III. The deficiencies of the majority‘s reasoning
In view of the complete absence of precedential support for their rule, the majority‘s position rests solely on arguments.
A. The refusal to empower international criminal tribunals to impose criminal punishment on corporations (for reasons which depend solely on the suitability of criminal punishment to corporations) in no way implies that international law exempts corporations from its rules. The only fact of international law to which the majority can point as evidence of its view that international law does not apply to juridical persons is the fact that international criminal tribunals have not exercised authority to impose criminal punishments on them. According to the majority, it follows inescapably that juridical entities are not subject to international law. The argument is simply a non sequitur.18
The majority are absolutely correct that international criminal tribunals have consistently been established without jurisdiction to impose criminal punishments on corporations. At the start of modern prosecution by international tribunals for violations of the law of nations, the military tribunals at Nuremberg, established under the London Charter and Control Council Law No. 10 to punish those responsible for the Nazi atrocities, found that the Farben corporation violated the standards of the law of nations and therefore imposed punishment on the responsible Farben personnel, but did not prosecute the corporation. The subsequent international criminal tribunals have also been established with jurisdiction over only natural persons. In the recent establishment of the International Criminal Court (ICC) under the Rome Statute, July 17, 1998, 37 I.L.M. 999, 2187 U.N.T.S. 90, a proposal advanced by France to extend the court‘s jurisdiction to include the prosecution of corporations and other juridical persons was defeated. On this basis the majority declare it “abundantly clear,” Maj. Op. 137 (although furnishing no explanation for this abundant clarity), that the prohibitions of international law do not apply to corporations.
The reasons why the jurisdiction of international criminal tribunals has been limited to the prosecution of natural persons, as opposed to juridical entities, relate to the nature and purposes of criminal punishment, and have no application to the very different nature and purposes of civil compensatory liability. According to views widely shared in the world, an indispensable element to the justification of criminal punishment is criminal intent.19
Many courts and writers have taken the position that, because criminal intent cannot exist in an artificial entity that exists solely as a juridical construct and can form no intent of any kind, it is an anomaly to view a corporation as criminal.20 In addition, criminal punishment does not achieve its principal objectives when it is imposed on an abstract entity that exists only as a legal construct. Criminal punishment seeks to impose meaningful punishment—in other words, to inflict, for salutary effect, a measure of suffering on persons who have violated society‘s rules. 1 Charles E. Torcia, Wharton‘s Criminal Law § 1, at 2 (15th ed. 1993) (“The ‘criminal’ law attempts to force obedience—or to discourage disobedience—by punishing offenders.“). The infliction of punitive suffer
The very sources the majority cite make clear that the reason for withholding crimi
The refusal of international organizations to impose criminal liability of corporations—for reasons having to do solely with a corporation‘s perceived inability to act with a criminal intent and the inefficacy of criminal punishment to achieve its goals when applied to a corporation—in no way implies that international law deems corporations exempt from international law. As the Chairman of the Rome Statute‘s Drafting Committee has explained, despite the diversity of views concerning corporate criminal liability, “all positions now accept in some form or another the principle that a legal entity, private or
The purposes of civil tort liability are very different from the purposes of criminal punishment. A principal objective of civil tort liability is to compensate victims of illegal conduct for the harms inflicted on them and to restore to them what is rightfully theirs.22 If a corporation harms vic
B. The majority incorrectly assert that international law does not distinguish between criminal and civil liability; in fact, international law does distinguish between the two, and leaves issues of private civil liability to individual States. In an effort to defend their illogical leap from the fact that international tribunals have not exercised criminal jurisdiction over juridical persons to the conclusion that juridical entities cannot violate international law and thus cannot be sued under the
In every instance of the establishment of an international tribunal with jurisdiction over private actors, the tribunal has been given exclusively criminal jurisdiction.24
For instance, the London Charter established the International Military Tribunal at Nuremberg “for the just and prompt trial and punishment of the major war criminals of the European Axis.” Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (the “London Charter“), § I, art. 1, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 279. Control Council Law No. 10 established the U.S. Military Tribunal for the “prosecution” and “punishment” of “war criminals and other similar offenders.” Control Council Law 10, preamble, reprinted in I Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, at xvi (1950). The International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda were established to prosecute and punish war criminals.25 The parties to the Rome Statute of the International Criminal Court “[a]ffirm that the most serious crimes of concern to the international community as a whole must not go unpunished.” Rome Statute, preamble, ¶ 4.Consistent with their constituting charters, international criminal tribunals have exercised only criminal jurisdiction to punish offenders. None has ever exercised a power to make compensatory civil awards to victims.26 These tribunals have on occasion made clear that the criminal violations they found may give rise to a claim for civil compensatory liability, and at times, have explicitly said that conduct which does not justify criminal punishment may nonetheless support a claim for compensatory damages.27
The ceding to States of the fashioning of appropriate remedies to enforce the norms of the law of nations is readily apparent in the source documents. Characteristically, multilateral treaties protecting human rights include few details. They generally define the rights and duties in question, and direct contracting States to protect such rights under their local laws by appropriate means, sometimes, as noted above, commanding criminal punishment, but rarely dictating any aspects of civil liability. For example, in the Genocide Convention, the “crime of genocide” is defined as a number of “acts” committed with “intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
In this respect, the Convention is typical. The major instruments that codify the humanitarian law of nations define forms of conduct that are illegal under international law, and obligate States to take appropriate steps to prevent the conduct.31 They do not instruct on whether, how, or under what circumstances a State may impose civil compensatory liability. They leave those questions to be resolved by each individual nation.
For their next argument, the majority construct the following syllogism. 1) To determine whether a corporation can be held civilly liable for violation of international law, the place to look is to international law. 2) Principles of local law, even those accepted throughout the world, are not rules of international law, unless they are generally accepted throughout the civilized world as obligatory rules of international law. 3) There is no general acceptance in the world of a rule of international law imposing civil liability on corporate defendants for violations of international law. Ergo, international law does not allow for imposition of civil liability on corporations.
I have no quarrel with any of the three premises. If properly understood and applied, each is correct. The problem lies in how they are used in the majority opinion and, in particular, the spurious leap from these propositions to the majority‘s conclusion. Despite the surface plausibility of the majority‘s argument as it is stated, when one scratches below the surface, the majority‘s argument is illogical, internally inconsistent, contrary to international law, and incompatible with rulings of both the Supreme Court and this circuit.
I have no disagreement with the first proposition, that the place to look for answers whether any set of facts constitutes a violation of international law is to international law. As improbable as it may seem that international law would give a free pass to corporations to abuse fundamental human rights, one cannot assume the answers to questions of international law without first exploring its provisions. And if we found that international law in fact exempts corporations from liability for violating its norms, we would be forced to accept that answer whether it seemed reasonable to us or not.
But international law does not provide that juridical entities are exempt. And as for civil liability of both natural and juridical persons, the answer given by the law of nations (as discussed above) is that each State is free to decide that question for itself. While most nations of the world have not empowered their courts to impose civil liability for violations of the law of nations,32 the United States, by enacting the ATS, has authorized civil suits for violation of the law of nations.33
In short, the majority‘s contention that there can be no civil remedy for a violation of the law of nations unless that particular form of civil remedy has been adopted throughout the world misunderstands how the law of nations functions. Civil liability under the ATS for violation of the law of nations is not awarded because of a perception that international law commands civil liability throughout the world. It is awarded in U.S. courts because the law of nations has outlawed certain conduct, leaving it to each State to resolve questions of civil liability, and the United States has chosen through the ATS to impose civil liability. The majority‘s ruling defeats the objective of international law to allow each nation to formulate its own approach to the enforcement of international law.
I turn to the majority‘s second and third propositions in support of its syllogism—that principles of local law, even if accepted throughout the world, are not rules of international law unless they are generally accepted throughout the civilized world as obligatory rules of international law and that there is no widespread practice in the world of imposing civil liability for violation of the rules of international law. These propositions are also true, but they are irrelevant to this controversy. If a damage award under the ATS were premised on the theory that international law commands that violators of its norms be liable
A further flaw in the majority‘s reasoning is its identification of corporate civil liability as the principle that has failed to achieve universal approval as a part of the law of nations. The majority‘s thesis is that when a corporation commits a violation of the law of nations, the victims may sue the natural persons who acted for the corporation, but may not sue the corporation. In the majority‘s view, that is because there is no widespread acceptance in the world of corporate civil liability as a rule of international law. See Maj. Op. 120-21 (“[T]here would need to be not only a few, but so many sources of international law calling for corporate liability that the norm could be regarded as ‘universal.’ “).
But this is a mistaken description of international law. While it is true that there is no rule of international law making corporations civilly liable, that is merely the inevitable consequence of the fact that there is no rule of international law making any private person civilly liable—regardless of whether the person is natural or juridical—and that international tribunals, which have been established to criminally prosecute violations of international law, have never been vested with authority to impose civil, compensatory liability. If the absence of widespread agreement in the world as to civil liability bars imposing liability on corporations, it bars imposing liability on natural persons as well.
The majority‘s argument thus conflicts with the authority of this court and the Supreme Court. The point of the ATS is to provide a civil remedy to victims of torts committed in violation of the law of nations. In spite of the clear absence of a rule of international law providing for civil liability, we have repeatedly imposed civil liability under the ATS, and the Supreme Court expressly stated in Sosa, rejecting the views of the Court minority, that civil tort liability does lie under the ATS. The absence of a wide consensus imposing civil liability has never been construed as barring civil liability. The majority‘s argument that such absence of wide consensus bars imposition of liability on a corporation places the majority in irreconcilable conflict with the holdings of this court and the teachings of the Supreme Court.
D. Taking out of context Sosa‘s reference to a “norm,” which must command virtually universal acceptance as a rule of international law to qualify as a rule of international law, the majority opinion attributes to that concept a meaning the Supreme Court could not possibly have intended.
The majority claim to find sup-
This is not what the Supreme Court meant. What the Court was addressing in its reference to “norms” was standards of conduct. Some norms (or standards)—those prescribing the most egregious and universally condemned forms of conduct, including genocide, war crimes, and slavery—express rules of the law of nations. Other norms of conduct, even though widely accepted and enforced in the world as rules of local law, are not rules of the law of nations and are therefore not obligatory on States. What was required was that the particular standard of conduct violated by the defendant be generally accepted as a mandatory rule of international law.
A reading of Sosa, and of the cases it describes in this discussion as “generally consistent” with its view, makes clear that all of them are discussing the distinctions between conduct that does, and conduct that does not, violate the law of nations. Reinforcing this limitation, the Sosa opinion quoted with approval this court‘s reference in Filártiga to conduct that renders one ”hostis humani generis, an enemy of all mankind,” 630 F.2d at 890, Judge Edwards’ formulation—“a handful of heinous actions—each of which violates definable, universal, obligatory norms,” Tel-Oren, 726 F.2d at 781 (Edwards, J., concurring), and the Ninth Circuit‘s similar observation that “[a]ctionable violations of international law must be of a norm that is specific, universal, and obligatory,” In re Estate of Marcos Human Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994). The discussion in Sosa used the word “norms” to refer to standards of conduct.
To be sure, the distinction between conduct that does and conduct that does not violate the law of nations can turn on whether the conduct is done by or on behalf of a State or by a private actor independently of a State. Sosa and Tel-Oren both spoke of forms of conduct—arbitrary detention and torture—that might violate the law of nations only if done by or on behalf of a State and not if done by a private actor acting independently of the State. But that is a completely different issue from the majority‘s proposition. The majority are not speaking of conduct which, because done by an actor of specified character, does not violate the law of nations. By definition, when conduct does not violate the law of nations, it cannot be the basis of tort liability under the ATS for violation of the law of nations. The majority‘s rule encompasses conduct that indisputably does violate the law of nations, including for example slavery, genocide, piracy, and official torture (done under color of State law)—conduct for which the natural person tortfeasors will be held liable under ATS, but for which, the majority insist, a corporation that caused the conduct to be done and that profited from it, cannot be held liable. Nothing in Sosa inferentially supports or even discusses this question.
The majority‘s claim to find support for their position in the Supreme Court‘s reference to the need for a norm to enjoy universal acceptance to qualify as a rule of international law is simply a misunderstanding of the Supreme Court‘s discussion.34
The majority attempt to bolster their argument by employing the arcane terminology of international law. They assert that a corporation is not a “subject” of international law. Maj. Op. 125-26. The majority explain the significance of this term to be that only subjects of international law have “rights, duties, and liabilities” under international law. Maj. Op. 118. Because, according to the majority, a corporation is not a subject of the law of nations, it may neither bring suit for violations of the law of nations nor be sued for offenses under the law of nations.
The majority, however, cite no authority in support of their assertion that a corporation is not a subject of international law and is therefore incapable of being a plaintiff or a defendant in an action based on a violation of the law of nations. And there is strong authority to the contrary.
The idea that an entity was or was not a “subject” of international law had greatest prominence when the rules of international law focused on the sovereign interests of States in their relations with one another. To the extent that a particular rule of international law pertains only to the relationship among States, it can be correct to say that only States are subjects. However, as the law of nations evolved to recognize that “individuals and private juridical entities can have any status, capacity, rights, or duties given them by international law or agreement,” Restatement (Third) of the Foreign Relations Law of the United States, pt. II, introductory note,35 that terminology has come to mean nothing more than asking whether the particular norm applies to the type of individual or entity charged with violating it, as some norms apply only to States and others apply to private non-state actors.
As early as the Nuremberg trials, which represented the dawn of the modern enforcement of the humanitarian component
For example, in the Farben case, the Farben personnel were charged in five counts with wide-ranging violations of international law, including plunder of occupied properties. VIII Farben Trial, at 1129. Nine defendants were found guilty on this count. The tribunal‘s judgment makes clear that the Farben company itself committed violations of international law. Describing the applicable law, the tribunal stated:
Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justified ..., is in violation of international law.... Similarly where a private individual or a juristic person becomes a party to unlawful confiscation of public or private property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to the confiscation constitutes conduct in violation of [international law].
Id. at 1132-33 (emphasis added). Describing Farben‘s activities, the tribunal wrote: “[W]e find that the proof establishes beyond a reasonable doubt that offenses against property as defined in Control Council Law No. 10 were committed by Farben, and that these offenses were connected with, and an inextricable part of the German policy for occupied countries as above described.... The action of Farben and its representatives, under these circumstances, cannot be differentiated from acts of plunder or pillage committed by officers, soldiers, or public officials of the German Reich.” Id. at 1140. Then—after concluding that Farben violated international law—the tribunal imposed criminal liability on Farben‘s employees because of their complicity in violations committed by Farben.
As discussed above in Part II.A, two opinions of the Attorney General of the United States further refute the majority‘s view that corporations have neither rights nor obligations under international law. In 1907, the Attorney General rendered an opinion that an American corporation could be held liable under the ATS to Mexican nationals if the defendant‘s “diversion of the water [of the Rio Grande] was an injury to substantial rights of citizens of Mexico under the principles of international law or by treaty.” 26 Op. Att‘y Gen. 252, 253 (1907). And in 1795, shortly after the enactment of the ATS, the Attorney General opined that a British corporation could pursue a civil action under the ATS for injury caused to it in violation of international law by American citizens who, in concert with a French fleet, had attacked a settlement managed by the corporation in Sierra Leone in violation of international law. See 1 Op. Att‘y Gen. 57 (1795).
This court similarly recognized claims on behalf of juridical entities (a corporation, a trust, and a partnership) against Cuba,
V. The absence of scholarly support for the majority‘s rule
The majority contend that the “teachings of the most highly qualified publicists of the various nations” support their strange view of international law. Maj. Op. 133 n. 36. The opinion seems to suggest that all those works of scholarship that discuss the actual state of the law, as opposed to those which advocate for the scholars’ aspirational preferences, agree with the majority‘s view. I have discovered no published work of scholarship that supports the majority‘s rule. While they cite eminent works of scholarship for many other propositions that I do not dispute, none of those works supports, or even addresses, the majority‘s claim that corporations are exempted by international law from the obligation to comply with its rules.
The majority open their discussion by quoting the Supreme Court‘s well known observation in The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900), that “the works of jurists and commentators who by years of labor, research, and experience have made themselves peculiarly well acquainted with the subjects of which they treat” can furnish valuable “evidence” of customary international law. Id. at 700, 20 S.Ct. 290 (emphasis added). The Supreme Court relied on the leading treatises in the field, such as Wharton‘s Digest of the International Law of the United States and Wheaton‘s treatise on international law, as well as on “leading French treatises on international law,” such as De Cussy‘s Phases et Causes Celebres du Droit Maritime des Nations, Ortolan‘s Regles Internationales et Diplomatie de la Mer, and De Boeck‘s de la Propriete Privee Ennemie sous Pavillon Ennemi.
The majority opinion, in contrast, does not cite a single published work of scholarship—no treatise on the law of nations, no published book on the subject, and no article in a scholarly journal—in support of its position.38 If the prescriptions of interna-
The majority opinion claims that its view is supported in two unpublished documents—affidavits by law professors submitted in another litigation by corporate defendants in an effort to get the case against them dismissed.39 (The majority opinion ignores opposing affidavits filed in the same litigation.) My colleagues assert that those affidavits by two renowned professors of international law, Professors James Crawford and Christopher Greenwood, “have forcefully declared ... that customary international law does not recognize liability for corporations that violate its norms.” Maj. Op. 143. This characterization is not strictly speaking false but any implication that the professors’ affidavits support the majority‘s view—that corporate violations of international law can give rise to civil liability of the natural persons who acted for the corporation but not of the corporation itself—is completely unwarranted.
Professor Crawford‘s affidavit, which was filed by the corporate defendant in Presbyterian Church of the Sudan v. Talisman Energy, Inc., Dkt. No. 07-0016, does not discuss, much less espouse, the majority‘s theory. Its subject matter is very limited. The affidavit was prepared in response to a question put to the litigants during argument of the appeal by Judge Cabranes. Judge Cabranes requested further briefing on the question:
What country or international judicial tribunal has recognized corporate liability, as opposed to individual liability, in a civil or criminal context on the basis of a violation of the law of nations or customary international law?
Professor Crawford makes clear in his affidavit that he limits himself to answering that question—whether any international or foreign judicial decision has imposed liability on a corporation “under international law as such.” Crawford Decl. ¶ 5. The Professor answers that he knows of no such decision.40
Professor Crawford‘s affidavit furthermore does not address the rule the majority attribute to international law. International tribunals do not have jurisdiction to impose civil liability on private actors, and the fact that other nations’ courts have not awarded civil damages against corporations does not support the majority‘s theory that the absence of judgments imposing civil liability somehow bars a national court, such as a U.S. court acting under the ATS, from imposing civil liability on a corporation for its violation of international law.
I do not contend that the law of nations imposes civil damages, either on corporations or on natural persons. Quite to the contrary, the law of nations does not take a position on civil liability of either natural persons or corporations. It leaves the question of civil liability to each nation to resolve for itself. By passing the ATS, Congress resolved that question for the United States, unlike the great majority of nations, in favor of civil liability. Nothing in Professor Crawford‘s affidavit is to the contrary.
In fact, Professor Crawford‘s affidavit seems rather to express oblique support for my view. In noting that no national tribunal outside the United States has imposed civil liability on a corporation on the basis of a violation of the law of nations, the Professor notes the need for a “clarification.” He then explains,
When the terms of an international treaty become part of the law of a given state—whether (as in most common law jurisdictions) by being enacted by parliament or (as in many civil law jurisdictions) by virtue of constitutional approval and promulgation which give a self-executing treaty the force of law—corporations may be civilly liable for wrongful conduct contrary to the enacted terms of the treaty just as they may be liable for any other conduct recognized as unlawful by that legal system.
Id. ¶ 4 (emphasis added). That is more or less the circumstance when a plaintiff sues in U.S. courts under the ATS to impose civil compensatory liability for a violation international law. The ATS provides jurisdiction over “a tort only, committed in violation of the law of nations or a treaty of the United States.”
The majority also quote from an affidavit of Professor Christopher Greenwood, filed in the district court in the Talisman case. The majority‘s quotation from the Greenwood affidavit contributes nothing to this dispute. According to the majority, the Professor‘s affidavit states, “[T]here is not, and never has been, any assertion of the criminal liability of corporations in international law.” Maj. Op. 143. As I have explained above, I have no quarrel with that assertion, but it has no bearing on whether corporations may be held civilly liable under ATS for violations of international law. The reasons international tribunals do not impose criminal liability on corporations have to do only with the nature of criminal liability and a widespread perception that criminal liability is neither theoretically sound nor practically efficacious when imposed on a juridical entity. This says nothing about the imposition of compensatory civil liability.42
No work of scholarship cited in the majority opinion supports the majority‘s rule, and many works of scholarship assert the contrary.
VI. Response to the majority‘s criticism of my arguments
There is no inconsistency between my present position and my prior endorsement in Talisman of the reasoning set forth by Judge Katzmann in Khulumani. The majority assert that the position I now take contradicts the position I took in Talisman when I approved the reasoning Judge Katzmann set forth in Khulumani. They say I now “ignore” the international tribunals whose rulings I and Judge Katzmann previously found controlling, that I ignore “the second step” of Judge Katzmann‘s approach, and that I “look to international tribunals only when they supply a norm with which [I agree].” Maj. Op. 146-47. These criticisms misunderstand both Judge Katzmann‘s arguments and mine. There is no inconsistency between my prior endorsement of the views Judge Katzmann expressed in Khulumani and those I express here. I do not ignore the judgments of international tribunals. I merely decline to draw illogical and unwarranted conclusions from them.
In Khulumani, one of the main issues in dispute was whether civil liability for violations of international law may be imposed on an actor who participated in the violation of an international law norm as an aider and abetter. The district court had dismissed claims against alleged aiders and abetters on the ground that international law recognized no civil liability for aiding and abetting. See Ntsebeza v. Citigroup, Inc., 346 F.Supp.2d 538, 554 (S.D.N.Y. 2004). Although numerous judgments in criminal proceedings had imposed criminal liability for aiding and abetting, the district court accorded them no significance, because they were criminal judgments which the district court believed were inapplicable to civil liability. Judge Katzmann found this reasoning erroneous
I agree completely with Judge Katzmann‘s reasoning. It does not follow, however, that if international tribunals withhold criminal liability from juridical entities for reasons that have nothing to do with whether they violated the conduct norms of international law, but result only from a perceived inappropriateness of imposing criminal judgments on artificial entities, there has been no violation of the norms of international law. Nothing in Judge Katzmann‘s opinion suggests that he would adopt the majority‘s position or that he would disagree with mine.
As I have made clear, I do not oppose looking to the instruments of international law to determine whether there has been a violation of international law. That is exactly where one should look. And if they answer the question, that answer is determinative. What I oppose is drawing illogical and unwarranted inferences from the judgments of international tribunals, especially when those inferences are used to support rules that undermine the objectives of international law.
The majority likewise attribute to Judge Katzmann the proposition that there is no distinction in international law between criminal and civil liability. Maj. Op. 147. Once again quoting out of context, the majority misunderstand Judge Katzmann‘s opinion. As noted above, the district court in Khulumani had disregarded the opinions of international tribunals which found violations based on aiding and abetting on the ground that those sources imposed criminal, and not civil, responsibility. Judge Katzmann‘s observation meant nothing more than that the district court was wrong to consider criminal judgments irrelevant to whether conduct constituted a violation of international law for purposes of civil liability. Judge Katzmann did not endorse, or even comment on, the majority‘s new proposition that withholding of criminal liability for a reason having nothing to do with whether the conduct norms of international law have been violated requires the conclusion that there has been no violation of international law. Nothing in Judge Katzmann‘s opinion suggests that, in considering the norms that may be violated by a private actor without State involvement, international law distinguishes between the liability of natural and juridical persons. Cf. Khulumani, 504 F.3d at 282 (Katzmann, J., concurring) (“We have repeatedly treated the issue of whether corporations may be held liable under the AT[S] as indistinguishable from the question of whether private individuals may be.“).
The majority‘s other criticisms of my opinion merely restate their arguments. I have answered these above.
VII. The Complaint must be dismissed because its factual allegations fail to plead a violation of the law of nations.
Although I do not share my colleagues’ understanding of international law, I am in complete agreement that the claims against Appellants must be dismissed.48 That is because the pertinent allegations of the Complaint fall short of mandatory standards established by decisions of this court and the Supreme Court. We recently held in Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009), that liability under the ATS for aiding and abetting in a violation of international human rights lies only where the aider and abettor acts with a purpose to bring about the abuse of human rights. Id. at 259. Furthermore, the Supreme Court ruled in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), that a complaint is insufficient as a matter of law unless it pleads specific facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678, 129 S.Ct. 1937. When read together, Talisman and Iqbal establish a requirement that, for a complaint to properly allege a defendant‘s complicity in human rights abuses perpetrated by officials of a foreign government, it must plead specific facts supporting a reasonable inference that the defendant acted with a purpose of bringing about the abuses. The allegations against Appellants in these appeals do not satisfy this standard. While the Complaint plausibly alleges that Appellants knew of human rights abuses committed by officials of the government of Nigeria and took actions which contributed indirectly to the commission of those offenses, it does not contain allegations supporting a reasonable inference that Appellants acted with a purpose of bringing about the alleged abuses.
A. Factual and procedural background
Because the majority opinion focuses on the legal issue of whether international law allows a U.S. court to impose liability on a corporation, it is necessary to set out the allegations of the Complaint and the history of prior proceedings in detail.
1) Parties. As the majority note, Plaintiffs are, or were, residents of the Ogoni region of Nigeria. Plaintiffs allege that they (and others similarly situated whom they undertake to represent as a class) were victims of human rights abuses committed by the government of Nigeria, through its military and police forces, with the aid of Shell. “Shell,” as the designation is used in the Complaint and this opinion, refers collectively to the Royal Dutch Petroleum Company and Shell Transport and Trading Company PLC.49
2) Allegations of the complaint. Plaintiffs’ suit asserts the liability of Shell on the ground that Shell aided and abetted Nigerian government forces in the commission of various human rights abuses, directed against Plaintiffs. The Complaint alleges the following:
Since 1958, SPDC, has been engaged in oil exploration and production in Nigeria, conducting extensive operations in the Ogoni region.50 Ogoni residents initiated the Movement for Survival of Ogoni People (MOSOP) to protest environmental damage caused by SPDC‘s operations. Beginning in 1993, the Nigerian military engaged in a campaign of violence against MOSOP and the Ogoni, which was “instigated, planned, facilitated, conspired, and cooperated in” by Shell and SPDC.
In February 1993, following a demand by MOSOP for royalties for the Ogoni people, Shell and SPDC officials met in the Netherlands and England in February 1993 to “formulate a strategy to suppress MOSOP and to return to Ogoniland.” In April 1993, SPDC called for assistance from government troops. The Nigerian government troops fired on Ogoni residents protesting a new pipeline, killing eleven. Later, SPDC‘s divisional manager wrote to the Governor of Rivers State (in which Ogoni is located) and requested “the usual assistance” to protect the progress of SPDC‘s further work on the pipeline. In August through October 1993, the Nigerian military attacked Ogoni villages, killing large numbers of civilians. SPDC provided a helicopter and boats for reconnaissance, provided transportation to the Nigerian forces involved, provided SPDC property as a staging area for the attacks, and provided food and compensation to the soldiers involved in the attacks. In an operation in October 1993, SPDC employees accompanied Nigerian military personnel in an SPDC charter bus to a village where the military personnel fired on unarmed villagers.
In December 1993, SPDC‘s managing director, with the approval of Shell, asked the Nigerian Police Inspector General to increase security in exchange for providing Nigerian forces with salary, housing, equipment, and vehicles. Shortly thereafter, the Nigerian government created the Rivers State Internal Security Task Force (ISTF). Shell and SPDC provided financial support for the ISTF‘s operations, as well as transportation, food, and ammunition for its personnel. In April 1994, the Rivers State Military Administrator ordered the ISTF to “‘sanitize’ Ogoniland, in order to ensure that those ‘carrying out ventures ... within Ogoniland are not molested.‘” The head of the ISTF responded in May that “Shell operations still impossible unless ruthless military operations
From May to August 1994, the ISTF engaged in numerous nighttime raids on Ogoni towns and villages. During these raids, the ISTF “broke into homes, shooting or beating anyone in their path, including the elderly, women and children, raping, forcing villagers to pay ‘settlement fees,’ bribes and ransoms to secure their release, forcing villagers to flee and abandon their homes, and burning, destroying or looting property,” and killed at least fifty Ogoni residents. Plaintiffs and others were arrested and detained without formal charges and without access to a civilian court system, some for more than four weeks. In the detention facility, Plaintiffs and others were beaten and were provided inadequate medical care, food, and sanitary facilities. SPDC officials “frequently visited the ... detention facility” and “regularly provided food and logistical support for the soldiers” who worked there.
In 1994, the Nigerian military created a “Special Tribunal” to try leaders of MOSOP, including Dr. Barinem Kiobel, a Rivers State politician who objected to the tactics of the ISTF and supported MOSOP. Counsel to those brought before the Special Tribunal were “subjected to actual or threatened beatings or other physical harm.” The Complaint alleges also that, with Shell‘s complicity, witnesses were bribed to give false testimony before the Special Tribunal. In January 1995, the Nigerian military violently put down a protest against Shell‘s operations and the Special Tribunal, and the protesters who were detained were subjected to “floggings, beatings and other torture[,] and money was extorted to obtain releases.” Dr. Kiobel and others were condemned to death by the Special Tribunal and executed in November 1995.
3) Prior proceedings. In September 2002, Plaintiffs filed a putative class action in the United States District Court for the Southern District of New York alleging torts in violation of the law of nations, pursuant to the ATS. The amended complaint filed in May 2004 (“the Complaint“) charged seven counts of violations of the law of nations against Shell and SPDC. With respect to each count, the Complaint alleged that Shell and SPDC “aided and abetted,” “facilitated,” “participated in,” “conspired with,” and/or “cooperated with” the Nigerian military in its violations of the law of nations.
Shell moved to dismiss on several grounds, including that the Complaint failed to state a violation of the law of nations with the specificity required by the Supreme Court‘s ruling in Sosa. Kiobel v. Royal Dutch Petroleum Co., 456 F.Supp.2d 457, 459 (S.D.N.Y. 2006).51 The district court granted the motion in part and denied it in part.
The court first determined that “where a cause of action for violation of an international norm is viable under the ATS, claims for aiding and abetting that violation are viable as well.” Id. at 463-64. Turning to the substantive counts, the district court dismissed the claims of aiding and abetting property destruction, forced exile, extrajudicial killing, and violation of the rights to life, liberty, security, and association, on the ground that international law did not define those violations, as alleged, with the particularity required by Sosa. By contrast, the court denied the motion to dismiss the claims that Shell aided and abetted the Nigerian govern-
The district court certified its order for interlocutory appeal pursuant to
B. Adequacy of the pleadings against Shell
Shell contends the Complaint does not sufficiently plead facts that would render it liable for aiding and abetting Nigeria‘s violations of the law of nations.52 In my view, this argument is dispositive.
1) Standard of review. Whether a complaint asserts a claim upon which relief may be granted is a question of law. This court reviews a district court‘s ruling on such a question de novo. See Chapman v. N.Y. State Div. for Youth, 546 F.3d 230, 235 (2d Cir. 2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Iqbal, 129 S.Ct. at 1949 (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Facial plausibility” means that the plaintiff‘s factual pleadings “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. A complaint that pleads facts that are “merely consistent with” a defendant‘s liability is not plausible. Id.
Conclusory allegations that the defendant violated the standards of law do not satisfy the need for plausible factual allegations. Twombly, 550 U.S. at 555 (holding that “courts are not bound to accept as true a legal conclusion couched as a factual allegation” (internal quotation marks omitted)); see also Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.” (internal quotation marks and citation omitted) (second alteration in original)). This requirement applies to pleadings of intent as well as conduct. See Iqbal, 129 S.Ct. at 1954.
2) Inadequacy of the pleadings. The Complaint asserts three theories of Shell‘s liability. First, it alleges that Shell itself aided and abetted the government of Nigeria in the government‘s commission of various human rights violations against the Ogoni. Alternatively, it asserts that Shell is liable on either of two theories for the actions of its subsidiary SPDC—either as SPDC‘s alter ego, or as SPDC‘s principal on an agency theory. I address each theory in turn.
a) Shell‘s direct involvement as aider and abetter. The Complaint pleads in a general manner that Shell willfully ... aided and abetted SPDC
It pleads also in conclusory form that the Nigerian military‘s campaign of violence against the Ogoni was “instigated, planned, facilitated, conspired and cooperated in” by Shell. Such pleadings are merely a conclusory accusation of violation of a legal standard and do not withstand the test of Twombly and Iqbal. They fail to “state a claim upon which relief can be granted.”
The Complaint goes on to assert (1) that SPDC and Shell met in Europe in February 1993 and “formulate[d] a strategy to suppress MOSOP and to return to Ogoniland,” (2) that “[b]ased on past behavior, Shell and SPDC knew that the means to be used [by the Nigerian military] in that endeavor would include military violence against Ogoni civilians,” and (3) that “Shell and SPDC” provided direct, physical support to the Nigerian military and police operations conducted against the Ogoni by, for example, providing transportation to the Nigerian forces; utilizing Shell property as a staging area for attacks; and providing food, clothing, gear, and pay for soldiers involved.
These allegations are legally insufficient to plead a valid claim of aiding and abetting because they do not support a reasonable inference that Shell provided substantial assistance to the Nigerian government with a purpose to advance or facilitate the Nigerian government‘s violations of the human rights of the Ogoni people. As outlined in Judge Katzmann‘s opinion in Khulumani and adopted as the grounds of our recent decision in Talisman, “a defendant may be held liable under international law for aiding and abetting the violation of that law by another [only if] the defendant (1) provides practical assistance to the principal which has a substantial effect on the perpetration of the crime, and (2) does so with the purpose of facilitating the commission of that crime.” Talisman, 582 F.3d at 258 (emphasis added) (quoting Khulumani, 504 F.3d at 277).
The allegation that representatives of Shell and its Nigerian subsidiary met in Europe “to formulate a strategy to suppress MOSOP and to return to Ogoniland” implies neither an intent to violate human rights nor the provision of substantial assistance in human rights abuses. Neither of the alleged goals—to “suppress MOSOP” and “return to Ogoniland“—implies that human rights abuses would be involved in carrying them out. The additional allegation that Shell “knew” the Nigerian military would use “military violence against Ogoni civilians” as part of the effort to suppress MOSOP also does not support an inference that Shell intended for such violence to occur.53 As
The further allegations of providing physical support to the operations of the Nigerian military and police, including transportation, use of SPDC property for staying, food, clothing, gear, and pay for soldiers fail for the same reasons as those which compelled the award of judgment to the defendant in Talisman. In Talisman, the evidence showed that Talisman Energy, an oil developer with operations in Sudan, had improved roads and air strips used by the Sudanese military to stage attacks on civilians, paid royalties to the Sudanese government, and provided fuel for military aircraft that participated in bombing missions. Talisman, 582 F.3d at 261-62. We ruled that the suit could not be maintained because the evidence failed to show a purpose of facilitating the Sudanese government‘s human rights abuses. The plaintiffs’ evidence showed that the oil company provided assistance to the Sudanese government in order to receive security required for the defendant‘s oil exploration, and was sufficient to show the assistance was provided with knowledge that the Sudanese government would use the defendant‘s assistance in the infliction of human rights abuses. The evidence, however, was insufficient to support the inference of a purpose on the defendant‘s part to facilitate human rights abuses. Id.
Similarly, in this case, Shell is alleged to have provided financial support and other assistance to the Nigerian forces with knowledge that they would engage in human rights abuses. But the Complaint fails to allege facts (at least sufficiently to satisfy the Iqbal standard) showing a purpose to advance or facilitate human rights abuses. The provision of assistance to the Nigerian military with knowledge that the Nigerian military would engage in human rights abuses does not support an inference of a purpose on Shell‘s part to advance or facilitate human rights abuses. An enterprise engaged in finance may well provide financing to a government, in order to earn profits derived from interest payments, with the knowledge that the government‘s operations involve infliction of human rights abuses. Possession of such knowledge would not support the inference that the financier acted with a purpose to advance the human rights abuses. Likewise, an entity engaged in petroleum exploration and extraction may well provide financing and assistance to the local government in order to obtain protection needed for the petroleum operations with knowledge that the government acts abusively in providing the protection. Knowledge of the government‘s repeated pattern of abuses and expectation that they will be repeated, however, is not the same as a purpose to advance or facilitate such abuses, and the difference is significant for this inquiry.
In sum, the pleadings do not assert facts which support a plausible assertion that Shell rendered assistance to the Nigerian military and police for the purpose of facilitating human rights abuses, as opposed to rendering such assistance for the purpose of obtaining protection for its petroleum operations with awareness that Nigerian forces would act abusively. In circumstances where an enterprise requires protection in order to be able to carry out its operations, its provision of
b) Vicarious liability of Shell for the acts of SPDC.55 In addition to asserting Shell‘s liability for its own acts of aiding and abetting in human rights violations, the Complaint asserts that Shell is liable for the acts of its subsidiary SPDC, either as an alter ego or as a principal for the acts of its agent because Shell “dominated and controlled SPDC.” “It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation ... is not liable for the acts of its subsidiaries.” United States v. Bestfoods, 524 U.S. 51, 61 (1998). However, this principle of corporate separateness may be disregarded when a subsidiary acts as an agent of its parent. See Kingston Dry Dock Co. v. Lake Champlain Transp. Co., 31 F.2d 265, 267 (2d Cir. 1929) (L. Hand, J.). The Restatement (Second) of Agency § 1 defines agency as “the fiduciary relationship which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” A principal is liable for the acts of an agent acting within the scope of the agency. See Meyer v. Holley, 537 U.S. 280, 285 (2003); Karibian v. Columbia University, 14 F.3d 773, 780 (2d Cir. 1994); Restatement (Second) of Agency § 219. A principal may also be liable for the unauthorized acts of its agent if, for example, the agent‘s conduct is aided by the existence of the agency relationship, Restate-
A parent corporation may also be held liable for the acts of its subsidiary when the subsidiary is merely an alter ego of the parent. Alter ego liability exists when a parent or owner uses the corporate form “to achieve fraud, or when the corporation has been so dominated by an individual or another corporation (usually a parent corporation), and its separate identity so disregarded, that it primarily transacted the dominator‘s business rather than its own.” Gartner v. Snyder, 607 F.2d 582, 586 (2d Cir. 1979) (interpreting New York law). In deciding whether to pierce the corporate veil, “courts look to a variety of factors, including the intermingling of corporate and [shareholder] funds, undercapitalization of the corporation, failure to observe corporate formalities such as the maintenance of separate books and records, failure to pay dividends, insolvency at the time of a transaction, siphoning off of funds by the dominant shareholder, and the inactivity of other officers and directors.” Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 18 (2d Cir. 1996).
The Complaint alleges that, “[s]ince operations began in Nigeria in 1958, Shell has dominated and controlled SPDC.” This conclusory allegation does not satisfy the Iqbal requirement to plead facts that plausibly support an inference that would justify disregard of the corporate form or a finding of an agency relationship. The further allegations described above—that Shell and SPDC representatives met in Europe after November 1992 to discuss strategies for suppressing MOSOP and that SPDC did certain acts with the approval of Shell—are likewise insufficient.
Ordinarily, subsidiary corporations are not deemed to be the agents of their corporate parents. See Kingston Dry Dock, 31 F.2d at 267 (“Control through the ownership of shares does not fuse the corporations, even when the directors are common to each.“). The Complaint does not even plead that Shell and SPDC had an agreement establishing an agency relationship. Cf. Cleveland v. Caplaw Enters., 448 F.3d 518, 523 (2d Cir. 2006) (finding a pleading of corporate agency adequate where the complaint incorporated by reference an agency agreement). Nor does it plead facts showing that they conducted their operations in an agency relationship.56 The allegations that Shell approved certain conduct undertaken by SPDC does not show an agency relationship.
Similarly, a claim sufficient to “overcome the presumption of separateness afforded to related corporations,” De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 70 (2d Cir. 1996) (internal quotation marks omitted), is not established by the bare allegation that one corporation dominated and controlled another. No facts alleged in the Complaint plausibly support the inference that SPDC was a mere instrument
Accordingly, on the facts alleged, the Complaint fails to plead a basis for a claim of agency or alter ego liability.
CONCLUSION
For the foregoing reasons, I agree with the majority that all of the claims pleaded against the Appellants must be dismissed. I cannot, however, join the majority‘s creation of an unprecedented concept of international law that exempts juridical persons from compliance with its rules. The majority‘s rule conflicts with two centuries of federal precedent on the ATS, and deals a blow to the efforts of international law to protect human rights.
Notes
The majority opinion further asserts that “no international tribunal has ever held a corporation liable for a violation of the law of nations,” Maj. Op. 120, and that “no corporation has ever been subject to any form of liability under the customary international law of human rights,” Maj. Op. 121. The fact is, however, that no international tribunal has ever considered whether a corporation or a natural person can be held civilly liable in damages for violation of the customary law of nations, because no international tribunal has ever exercised civil jurisdiction over private actors.
The majority describe their ruling as answering a “question that has been lurking for some time in our ATS jurisprudence.” Maj. Op. 124. It is not the case, however, that judges have struggled uncomfortably with this problem for decades. While the
Albin Eser, Individual Criminal Responsibility, in 1 The Rome Statute of the International Criminal Court 767, 774-75 (Antonio Cassese et al. eds., 2002) (emphasis added) (footnote omitted). See VI Trials of War Criminals Before the Nuernberg Military Tribunals (1952) (the “Flick Trial“); VII, VIII Trials of War Criminals Before the Nuernberg Military Tribunals (1952) (the “Farben Trial“); IX Trials of War Criminals Before the Nuernberg Military Tribunals (1950) (the “Krupp Trial“).[T]he first instrument providing general requirements for individual responsibility in a binding manner was the Charter of the International Military Tribunal (IMT) in Nuremberg: aside from establishing individual responsibility for certain crimes against peace, war crimes, and crimes against humanity (Article 6), it partially covered the early stages of planning and preparation and certain types of complicity, declared the official position of defendants, including Heads of State or other government officials, as not freeing them from responsibility (Article 7) and recognized superior orders, if at all, as mitigating circumstances at most (Article 8).
Customary international law, however, is developed through the customs and practices of States, not by what “makes ... sense” to a judge, by the “policy reason[s]” recognized by a judge, or by what a judge regards as “a bedrock tenet of American law.” See Sosa, 542 U.S. at 738, 124 S.Ct. 2739 (refusing to accept plaintiff‘s argument because “in the present, imperfect world, it expresses an aspiration that exceeds any binding customary rule having the specificity we require“); accord Nestle, No. CV 05-5133, slip op. at 135 (“Sosa prohibits courts from substituting abstract aspirations — or even pragmatic concerns — in place of specific international rules.“).
Nor is customary international law developed through “parity of reasoning,” as some scholars have suggested. See Harold Hongju Koh, Separating Myth from Reality About Corporate Responsibility Litigation, 7 J. Int‘l Econ. L. 263, 265 (2004) (suggesting that because corporations may have some “rights” under international law, “by parity of reasoning, they must have duties as well“).
Another aspect of the majority‘s citation of Professor Crawford‘s declaration requires clarification. The majority opinion quotes the declaration as saying, “[n]o national court [outside the United States] and no international judicial tribunal has so far recognized corporate liability, as opposed to individual liability, in a civil or criminal context on the basis of a violation of the law of nations.” Maj. Op. 143 (first emphasis added). The manner of presenting the quotation could lead the reader to understand that the Professor, like the majority, is saying that when a corporation violates the law of nations, that law recognizes civil liability of natural persons who acted for the corporation, but not of the corporations. That is not what the Professor was saying. When Professor Crawford responded that no national court outside the United States or international judicial tribunal had imposed corporate liability, “as opposed to individual liability,” he was merely adhering to the precise question asked. He was not suggesting, as the majority opinion does, that civil liability of natural persons is judged differently from civil liability of corporations. His affidavit contains no discussion whatsoever of whether any national court or international judicial tribunal has recognized civil liability of natural persons, and he makes no statement one way or the other on the question of such liability.We recognize, of course, that customary international law is not a “static” body of law incapable of evolution or growth. As we explained thirty years ago in Filartiga, “courts must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today.” 630 F.2d at 881 (emphasis added). Nevertheless, “[t]he requirement that a rule command the ‘general assent of civilized nations’ to become binding upon them all is a stringent one.” Id. For the reasons stated by Judge Friendly in Vencap, 519 F.2d at 1015, the movement towards imposing criminal liability on corporations as a matter of domestic law does not, on its own, create a norm of customary international law — particularly in light of the “express international accords,” Filartiga, 630 F.2d at 888, which categorically reject imposing liability on corporations, see, e.g., Rome Statute, ante, art. 25.
Int‘l Comm. of Jurists, Corporate Complicity & Legal Accountability (2008), available at http://www.icj.org/default.asp?nodeID=350&langage=1&myPage=Publications.The 1907 opinion of Attorney General Bonaparte declares (again, without any analysis or citation of authority) that the ATS would “provide a forum and a right of action against a corporation. 26 Op. Att‘y Gen. 250, 253 (1907). It is, therefore, directly at odds with the Supreme Court‘s decision in Sosa, which held that the ATS is jurisdictional only and does not create any kind of right of action. Sosa, 542 U.S. at 713-14, 124 S.Ct. 2739. In light of that conflict with Sosa, the opinion of Attorney General Bonaparte is a dubious authority on which to rely in interpreting the ATS. Cf. Sosa, 542 U.S. at 721, 124 S.Ct. 2739 (citing the 1795 opinion of Attorney General Bradford because Bradford — unlike, apparently, Attorney General Bonaparte — “understood the ATS to provide jurisdiction over what must have amounted to common law causes of action“).
The 1795 opinion of Attorney General Bradford, furthermore, concludes only that a “company” can bring suit against an individual under the ATS. See 1 Op. Att‘y Gen. 57, 58-59 (1795) (opining that “the Sierra Leone Company,” which maintained the “colony of Sierra Leone,” could bring suit under the ATS against “certain American citizens trading to the coast of Africa” for their actions in “join[ing] ... a French fleet in attacking the settlement, and plundering or destroying the property of British subjects on that coast“). As an initial matter, it is far from clear that the Attorney General‘s conclusions in 1795 about the “Sierra Leone Company” necessarily apply to modern juridical entities. Even if they do, the question addressed by Attorney General Bradford is whether a “company” could bring suit against certain individuals. We agree that ATS suits can be brought against individuals, and we have no occasion here to determine whether a “company” is an “alien” that can bring such a suit. See
In any event, we doubt that Judge Leval truly believes that we should rely on the opinion of Attorney General Bradford, for his interpretation of the ATS could be read to prohibit any ATS suit seeking compensation for violations of international law committed on foreign soil. In concluding that the Sierra Leone Company could bring suit against the American individuals involved in the French attack on the colony, Attorney General Bradford circumscribes his opinion, appearing to conclude that the Company could not bring suit for the actions taken by the Americans in a foreign country, but rather, could sue only for the actions taken by the Americans on the “high seas.” See 1 Op. Att‘y Gen. at 58 (“So far, therefore, as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts .... But crimes committed on the high seas are within the jurisdiction of the district and circuit courts of the United States ....“). We need not address here the open issue of whether the ATS applies “extraterritorially.” See note 10, ante. Were we to take up that issue, however, and were we to adopt Judge Leval‘s approach and follow the opinion of Attorney General Bradford, we very well could conclude that the ATS does not apply extraterritorially, and thus we would dismiss this and the vast majority of recent ATS suits on the ground that the violations of customary international law alleged by plaintiffs “originated or took place in a foreign country.” 1 Op. Att‘y Gen. at 58. Again, we doubt that Judge Leval truly endorses Attorney General Bradford‘s approach.
See infra note 46.Others rely on improper sources of customary international law to find a norm of corporate liability. See e.g., Louis Henkin, The Universal Declaration at 50 and the Challenge of Global Markets, 25 Brook. J. Int‘l L. 17, 25 (1999) (“Every individual and every organ of society excludes no one, no company, no market, no cyberspace. The Universal Declaration applies to them all.“); cf. Sosa, 542 U.S. at 734, 124 S.Ct. 2739 (explaining that the Universal Declaration of Human Rights “does not of its own force impose obligations as a matter of international law” and, therefore, is of “little utility” in discerning norms of customary international law); note 34, ante.
By “Complaint,” I refer to the amended complaint filed in May 2004. See infra Part VII.A.3.