The Alien Tort Statute and federal common law: a new approach.

• Author: Wuerth, Ingrid
• Position: Re-Examining Customary International Law and the Federal Courts

International human rights cases brought under the Alien Tort Statute (ATS) (1) raise a host of issues: whether the alleged conduct violates well-established international law, (2) the applicability and scope of various forms of secondary liability, (3) the contours of state action, (4) the extension of liability to private individuals and corporations, (5) the possible award of punitive damages, (6) application of alter ego and veil piercing doctrines, (7) whether plaintiffs must exhaust their remedies, (8) and so on. After Sosa v. Alvarez-Machain, (9) courts and commentators have generally understood some of these issues as governed by federal common law (10) and others by international law; the choice between these two sources of law is often presented as binary. (11) Some forms of this approach can be analogized to Bivens (12) actions, with federal common law providing the cause of action and remedy, while international law supplies the conduct-regulating rules of decision. (13) It may be fair to say that the binary approach has become the prevailing narrative of ATS litigation.

There is, however, another way to understand the relationship between federal common law (14) and international law in ATS cases. Federal common law might be understood as applying to all of these aspects of ATS litigation, including the substantive standard for liability, although some aspects of that federal common law (including the substantive standard of liability) are closely linked to international law. Thus, the relationship between federal common law and international law is not binary but instead is best understood on a continuum, with certain aspects of ATS litigation governed by federal common law that is tightly linked to international law, other aspects governed by federal common law that is not derived from international norms, and still others that fall somewhere in between. The extent to which federal common law is tied to international law in ATS cases is determined then by the inferred intentions of Congress and separation of powers because these are the bases upon which the development of federal common law in ATS cases is authorized after Sosa. (15) Congressional authorization and separation-of-powers considerations are linked, however, to the content of international law. Finally, according to this approach, the federal common law applied in ATS cases is best understood as sui generis--it is its own enclave of federal common law that is not necessarily binding or preemptive outside the context of ATS litigation. (16) These distinctions would not make a difference in the outcome of Sosa, of course. Whether we call it customary international law, or "international law cure common law," (17) Alvarez-Machain's ATS claim based on short-term unlawful detention did not meet the high bar imposed by the Sosa Court. (18) Nevertheless, applying international law as part of a federal common law that governs all aspects of ATS may change the outcome of cases that turn on issues like secondary and corporate liability.

Moreover, it is preferable on descriptive, doctrinal, and normative grounds, as Part I below explains. Part I begins by describing the prevailing views on federal common law and the rule of decision in ATS cases. It then explains that applying federal common law to all substantive issues in ATS cases is preferable. In short, no issues in ATS cases are actually resolved through application of "pure" international law--instead, the law applied is filtered through the particular history and origins of the ATS itself, along with other factors unique to the United States. Descriptively, the federal common law approach is more accurate. Doctrinally, courts and litigants have wasted much time and energy choosing between "international" and "domestic" law, neither of which alone provides a satisfactory resolution of most contested issues. Normatively, federal courts may avoid (in whole or in part) the charge that they misunderstand customary international law, and they may be in a position to develop some norms of customary international law that are not yet fully developed, depending in part on the intentions of Congress and the executive branch. Part I concludes by explaining how a federal common law approach would work, although one might agree that federal common law applies to all aspects of ATS litigation but disagree with the specific conclusions reached here about congressional intent and deference to the executive branch. Parts II and III explain how issues of secondary and corporate liability would be analyzed under the federal common law approach. The examples explored in this section illustrate why the choice between international and domestic law are not satisfactory. Part IV explores how the international law of prescriptive jurisdiction limits the kinds of ATS cases that can go forward.

1. FEDERAL COMMON LAW AND THE RULE OF DECISION IN ATS CASES

   The Court in Sosa held that, based on the ATS, federal courts can recognize a private cause of action for violations of international law that are "accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" (19) of assaults against ambassadors, safe conducts, and piracy. The Sosa Court was clear that the modern ATS cause of action is generated by federal common law (circumscribed by the content of modern international law); (20) it was less clear about the nature of the substantive, rule-of-decision law applied in ATS cases.

   1. The Rule-of-Decision Law Applied in ATS Cases

      There are, roughly speaking, three possibilities. First, customary international law might be a different kind of federal common law than the federal common law that provides the cause of action. Under one version of this view, customary international law is already federal common law without the need for incorporation by a federal statute, but other issues in ATS litigation would presumably be governed by the standard post-Erie (21) federal common law, which does need some basis in domestic positive law. (22) As international law does not itself provide a civil cause of action for ATS cases, presumably that aspect of ATS litigation would be covered by this second form of federal common law, consistent with the language in Sosa itself. (23) The federal common law that provides the cause of action is to be developed by the courts as other post-Erie common law; the substantive rule of decision is, on the other hand, simply supplied by customary international law as developed independent of the U.S. courts themselves. Sosa does not, however, compel the view that two different kinds of federal common law are at work in ATS cases.

      Another possibility is that customary international law in ATS cases is not any sort of federal common law at all, but is simply applied directly as international law, (24) like the application of foreign law in some cases in U.S. courts. (25) This may be how some courts understand what they are doing post-Sosa, (26) but this view is not compelled by the Sosa case itself. It is in tension with the original application of international law under the ATS because that law was understood as part of the general law in 1789 (27) (thus the cause of action and rule of decision law did not come from different sources), although all approaches would be in some tension with the original. In any event, under both this approach and the first, federal courts simply apply customary international law as the rule of decision, but at least in theory do not control its development and content, even as applied in federal courts (although they do partially control the creation of a cause of action or remedy). (28)

      Advanced here is a third possibility: both the cause of action and the rule of decision in ATS cases after Sosa are governed by the same kind of judge-made, post-Erie federal common law. This approach does not have a natural constituency in the academy, as it tracks neither the "modernist" (29) nor the "revisionist" (30) views that emerged prior to Sosa and which have dominated much of the scholarship since. (31) Revisionists argue that customary international law is not part of domestic U.S. law unless the political branches incorporate it into domestic law; they tend not to like federal common law. Modernists argue that customary international law is part of federal common law even without incorporation by the political branches and generally see ATS litigation as applying customary international law that has independent status as federal common law even outside the ATS context. In my view, however, understanding virtually all issues in ATS litigation as governed by federal common law, (32) the development of which is understood to have been authorized by Congress through the enactment of the ATS, (33) makes the most sense in the post-Erie ATS landscape created in Sosa.

      This approach might seem foreclosed by the Court's conclusion in Sosa that, as enacted in 1789, the ATS was jurisdictional only, and did not give courts the power to create new causes of action or "mold substantive law." (34) In discussing the post-Erie application of the ATS, however, the Court acknowledges that judges "will find a substantial element of discretionary judgment in the decision," (35) that "federal courts may derive some substantive law in a common law way," (36) and that courts are, in fact, creating causes of action based on international law. (37) Equally significantly, the key limitation that Sosa places on modern ATS litigation--it must "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized" (38)--is unchanged by viewing the international law applied in ATS cases, as well as the cause of action itself, as federal common law. Moreover, this approach is preferable on descriptive, doctrinal, and...