488 COLUMBIA LAW REVIEW [Vol. 107:457
valid statute.
As such, the appropriate role of the federal court system
is to interpret the statute and “say what the law is.”
174
Forging federal
rules of decision here is no more unusual than it is for other unclear
federal statutes.
175
A second possible basis for competence to fashion federal common
law in ATS cases rests on the idea that customary international law is part
of the federal common law,
and federal courts are thus free to interpret
customary international law by referring to the works of jurists and
commentators
as well as the practice of nations.
176
This approach is
more problematic, however, because it seems a little circular: To answer
the first step of the Kimbell Foods inquiry by saying that a federal court can
create federal common law in ATS cases because international law is federal
common law simply dodges the question of whether the RDA applies.
Hence, the key difference between the first and second justifications
is subtle but important:
Whereas the first justification looks to
international law as one of many possible sources to flesh out federal statutory
law, the second approach conflates that idea with the issue of the
binding
power international law has on federal law, perhaps even viewing
international
law as superseding federal law.
178
177
In addition to not recognizing the ability of Congress to change customary
international law as applied in the United States, the argument
that
international law is, of its own force, federal common law leads to a
conundrum:
In such situations, despite their stated intentions to apply
174. Some questions have been raised about the constitutionality of certain types of
ATS suits, particularly when an alien sues another alien in U.S. federal court. See Fallon et
al., supra note 163, at 755–58 (noting questions about constitutionality of ATS jurisdiction
in cases not falling within diversity jurisdiction); see also supra note 49 (noting this issue).
175. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
176. See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of
our law . . . .”).
177. See id.
178. See, e.g., George, supra note 20, at 44 (suggesting possibility that international
law can preempt federal law in same way that federal law preempts state law). Indeed, this
is the mistake that the Unocal court made, see Unocal, 395 F.3d at 949 (applying
international law qua international law). But it seems fairly obvious that Congress could
pass a statute changing the particular ways in which customary international law is applied
in the United States. Not only is the ability to define the “law of nations” one of Congress’s
enumerated powers, see U.S. Const. art. I, § 8, cl. 10, but the Torture Victim Protection
Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2000)), as
well as the ATS itself, provide examples of congressional changes to customary
international law as applied in the United States. See also Born, supra note 80, at 21 &
n.112 (“If a subsequent federal statute requires a result contrary to preexisting principles
of international law, then U.S. courts must give Congress’s legislation priority.”); Brad R.
Roth, The Enduring Significance of State Sovereignty, 56 Fla. L. Rev. 1017, 1031–32 (2004)
(“In the domestic law of the United States, any effect of customary international law . . . is
displaced by a ‘controlling executive or legislative act.’”). But see Curtis A. Bradley,
International Delegations, The Structural Constitution, and Non-Self-Execution, 55 Stan.
L. Rev. 1557, 1582 n.116 (2003) (suggesting, though ultimately rejecting, idea that ATS
could be viewed as federal choice of law provision, similar to RDA, delegating to
international system ability to make federal law).
2007] ATS RULES OF DECISION 489
international law, federal courts will inevitably apply some form of their
own law. The system with which federal judges are most familiar is the
American federal system; federal judges and lawyers arguing cases in federal
courts will look at the world through the lens of American federal
law.
The chief disadvantage to this will be the undue influence given
to federal courts in determining standards that apply to entirely different
sovereign peoples with different cultures and political histories.
179
In contrast to these two arguments favoring the use of federal common
law in ATS
cases, a competing jurisdictional argument suggests that
federal
common law should not be used.
In some ATS situations, constitutional
jurisdictional
questions can be avoided by conceiving of the
action as one based on the diversity jurisdiction instead of the federal
question jurisdiction.
181
On this reasoning, the RDA would apply with
full force, and state law would have to be used for all questions—includ-
182
180
179. See Casto, supra note 4, at 477 (noting temptation that would exist for judges
creating international law causes of action to default to their own legal system and citing
application of punitive damages in Filartiga, which would not have occurred in noncommon
law system, as evidence); see also Filartiga v. Pena-Irala, 577 F. Supp. 860, 864–65
(E.D.N.Y.
1984) (looking to “international” law to find availability of punitive damages for
victims
of torture after concluding such damages were unavailable under Paraguayan law).
180. See Roth, supra note 178, at 1045 (arguing that “bounded pluralism,” which
requires respect for sovereign implementation of international law, can “serve[ ] to protect
the poor and weak states from the divergent interests, as well as from the overbearing
values, of the rich and strong states”); see also Bradley, Customary International Law, supra
note 16, at 427 (noting unique role political branches play in determining whether to
enforce international law); Gordon A. Christenson, Customary International Human
Rights Law in Domestic Court Decisions, 25 Ga. J. Int’l & Comp. L. 225, 246 (1996)
(noting that only violation of “the basic human rights in its own formal law” should permit
another state to try to apply its own remedy because “a peoples [sic] should be encouraged
to develop free-standing institutions capable of meeting minimum conditions even in
hierarchical, non-liberal societies”); cf. sources cited supra note 56 (noting democratic
deficit of international law as applied in United States). On this view, rather than
permitting countries to become compliant with international standards, failure to respect
sovereignty leads federal courts to impose standards unduly influenced by the U.S. system.
But see Xuncax v. Gramajo, 886 F. Supp. 162, 192 (D. Mass. 1995) (“[M]unicipal law is illtailored
for cases grounded on violations of the law of nations.”).
Application of state law
during the second step of the Kimbell Foods process avoids this dilemma, at least insofar as it
leads to the application of state law to in-state actors.
181. The question of which jurisdictional head ATS cases fall under is a complicated
one. See, e.g., Curtis A. Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L.
587, 590–92 (2002) (rejecting federal question and admiralty jurisdictional prongs of
Article III in favor of alienage jurisdiction as constitutional basis for establishing
jurisdiction for ATS in federal courts); William S. Dodge, Bridging Erie: Customary
International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12 Tulsa J. Comp.
& Int’l L. 87, 100 (2004) (arguing that Sosa established that federal question jurisdiction
served as constitutional basis for ATS cases).
182. See supra note 174 and accompanying text (noting constitutional jurisdiction
questions).
490 COLUMBIA LAW REVIEW [Vol. 107:457
ing the choice of law issue itself.
If a court were to adopt reasoning
similar to that suggested by the statutory history,
183
this approach would
be very appealing, particularly for cases against domestic corporations.
184
But, largely due to fears of states meddling in international affairs, this
approach has probably been foreclosed by Sosa’s decision to apply federal
common law.
186
Thus, it seems clear that the ATS permits a range of federal common
law creation at least through the first justification, though the question
still remains whether the policy embodied in the RDA—and subsequent
case law favoring the use of state law when possible—dictates that state
law should be used as federal law instead of fashioning a new federal rule.
Part III.B, in describing the general principles that should be considered
in the choice of law inquiry, addresses this question.
B. Choice of Law in Federal Courts
The Restatement (Second) of Conflict of Laws contains principles
Section 6
describes the Restatement’s governing principles. After instructing
courts to follow applicable statutory directions in section 6(1), it lists
seven factors to be considered in the absence of a statutory directive:
followed by federal courts in deciding choice of law issues.
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular
issue,
(d)
the protection of justified expectations,
(e)
the basic policies underlying the particular field of law,
(f)
certainty, predictability and uniformity of result, and
(g)
ease in the determination and application of the law to be
applied.
188
183. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (“The conflict
of laws rules to be applied by [federal courts] must conform to those prevailing in [the
forum’s] state courts.”).
184. See supra Part I.A (describing possibility that ATS was intended to incorporate
state law causes of action).
185. This assumes that the corporation’s citizenship is diverse from the alien, as
defined by 28 U.S.C. § 1332(c)(1) (2000) (defining corporate citizenship as existing in
place of incorporation and principal place of business).
186. See supra Part I.B.
187. See Restatement (Second) of Conflict of Laws § 6 (1971) (listing principles that
govern choice of law); see also Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002)
(referring to Restatement principles to determine what law to apply); id. at 967–68
(Reinhardt, J., concurring) (also referring to Restatement principles to come to different
conclusion); Cruz v. United States, 387 F. Supp. 2d 1057, 1070 (N.D. Cal. 2005) (“Federal
choice-of-law rules follow the approach of the Restatement (Second) of Conflict of
Laws . . . .”).
188. Restatement (Second) of Conflict of Laws § 6(2); see also id. § 6(1) (stating that
deference must be given to statutory commands before applying these factors).
187
185
2007] ATS RULES OF DECISION 491
A comment to this section further indicates that this list is not all
inclusive and that no single factor predominates over all other factors.
An additional factor to consider in the ATS context is the strong presumption
in federal courts that foreign affairs are committed by the Constitution
to the federal government,
which focuses the inquiry on
whether state law in the field has been preempted by federal law.
190
In section 145, these general principles are referenced to determine
what source of tort law should be used.
The governing idea is that “the
local law of the state which, with respect to [the tort] issue [before the
court], has the most significant relationship to the occurrence and the
parties under the principles stated in § 6” should be used.
191
The Restatement
goes on to state four additional factors that should be considered
when applying section 6, including the location of the injury, the
location
of the conduct causing the injury, the nationality and place of
incorporation
and business of the parties, and the location of the center
of
the relationship between the parties.
193
The Unocal majority argued that the Restatement factors balanced in
favor of applying international law.
In the majority’s view, every factor
came out in favor of applying international law.
194
But in making this
determination, the court made several questionable decisions, and the
balancing of the Restatement factors should have led them to apply the
law of the forum.
195
1. Needs of the International System. — The Unocal majority placed particular
emphasis on the need of the international system to provide a
remedy
for jus cogens violations.
In doing so, it reasoned that since
domestic law must conform to jus cogens norms, any domestic law that
did not conform to those norms was invalid.
196
As a result, the court
concluded, there was no harm in applying international law because domestic
law is required to be a mirror image of international jus cogens
norms.
198
197
189. See id. § 6 cmt. c.
190. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 62 n.9 (1941) (noting “[t]he
importance of national power in all matters relating to foreign affairs and the inherent
danger of state action in this field”); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 791 (D.C. Cir. 1984) (Edwards, J., concurring) (“[S]tate courts are inappropriate fora
for resolution of issues implicating foreign affairs.”).
191. See Restatement (Second) of Conflict of Laws § 145.
192. Id. § 145(1).
193. Id. § 145(2).
194. See Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002). For some reason,
the court did not mention section 145 in its opinion. The needs of the international
system, the policies of the forum, the protection of justified expectations, uniformity of
result, ease of determination and application of law, and the basic policy underlying the
field of law were determinative for the Unocal court.
195. See id.
196. See id. at 948.
197. See id.
198. See id.
192
189
492 COLUMBIA LAW REVIEW [Vol. 107:457
The mistake the court made, however, was in assuming that, in embodying
a universal norm, jus cogens principles could only take one particular
form.
In reality, however, many different formulations of the
same principle can satisfy the core of a jus cogens principle.
The majority
could have avoided its mistake by asking itself the following question:
Could it be said that, as applied to jus cogens violations, the forum
standard did not satisfy international standards? The Unocal court noted
that the forum standard does not permit aiding and abetting liability for
providing “moral support” to the principal offender as the international
standard does,
but this characteristic does not make it any more inconsistent
with jus cogens norms than providing only criminal remedies (to
the
exclusion of civil remedies) would.
200
As long as some remedy is provided,
international law is satisfied.
202
201
That international norms can be embodied in different ways is further
supported by the nature of international law.
Unlike domestic law,
which is composed of both binding legislative and binding judicial directives,
international law as incorporated into the federal common law is
ascertained
by looking to the works of jurists, the practices of nations, and
the
product of commentators.
Importantly, both federal and state
courts are part of the tribunals issuing decisions that make up the body of
international law. That is, unlike domestic laws, the content of international
law cannot be ascertained from any single authoritative international
source.
Domestic sources of law, insofar as they are consonant with
the general trends of international law, are themselves actually part of
international law.
204
203
199
199. See, e.g., Bradley, Customary International Law, supra note 16, at 427–28
(describing courts’ deferral to political branches when determining how to implement
international law); see also Handel v. Artukovic, 601 F. Supp. 1421, 1428 (C.D. Cal. 1985)
(“To imply a cause of action from the law of nations would completely defeat the critical
right of the sovereign to determine whether and how international rights should be
enforced in that municipality.”); cf. Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1115 (9th Cir.
2006) (Bybee, J., dissenting) (stating that exhaustion of remedies requirement for ATS
would “respect[ ] the processes by which another nation has constituted itself and is worthy
to be considered part of the community of nations”). A philosophical justification for
permitting each country to determine how to implement international law is given by
Roth, supra note 178, at 1045 (arguing that “[b]ounded pluralism” protects weaker states
from overreaching by strong states); see also supra note 180 (discussing justification for
respect of sovereignty in application of international law).
200. See Unocal, 395 F.3d at 951.
201. See discussion supra note 58. Interestingly enough, the majority noted that
some actions can be considered criminal in one jurisdiction but subject to only civil
sanctions in another, though it failed to appreciate how this distinction impacted its
argument. See Unocal, 395 F.3d at 949 (“[W]hat is a crime in one jurisdiction is often a
tort in another jurisdiction . . . .”).
202. Cf. Sarei, 456 F.3d at 1117–18 (Bybee, J., dissenting) (noting arguments that
international law violation is not complete until state fails to provide remedy).
203. See The Paquete Habana, 175 U.S. 677, 700 (1900).
204. See Stephens & Ratner, supra note 90, at 54 (noting that domestic court
decisions, as well as international agreements, may need to be referenced to determine
2007] ATS RULES OF DECISION 493
The Unocal concurrence took issue with the majority’s use of international
law because of the inclusion, as part of the aiding and abetting
standard,
of the possibility that “moral support” could serve as the basis
for
complicity liability.
In addition to being a relatively new addition
to the definition of aiding and abetting liability even in international law,
this particular hook for liability was absent from the relevant domestic
standard.
206
205
To escape the concurrence’s disagreement with the “moral
support” prong of the international standard, the majority simply asserted
that it was not adopting that portion of the international standard.
At that point, however, the as-adopted international standard
mimics the domestic standard, not the other way around; the adopted
standard is no longer identical to the international one, and there was no
reason to dismiss the domestic standard. Indeed, in conceding that the
international standard they adopted did not include the “moral support”
prong, the majority essentially did nothing more than adopt what would
have been the state standard, albeit by a different name and by looking at
international instead of domestic precedents.
207
208
The Unocal majority apparently too hastily assumed that the only international
need implicated in this choice of law question was the need to
enforce
violations of jus cogens norms.
While such an international need
is undoubtedly present, the Restatement suggests that this portion of the
conflicts analysis also has additional dimensions: “The factors listed in
Subsection (2) of the rule of § 6 . . . [are, inter alia,] concerned with the
international law); see also Restatement (Third) of the Foreign Relations Law of the
United States § 102(2) (1987) (“Customary international law results from a general and
consistent practice of states followed by them from a sense of legal obligation.”); cf. Adamu
v. Pfizer, Inc., 399 F. Supp. 2d 495, 501 (S.D.N.Y. 2005) (“Whether and how the United
States reacts to violations of international law are domestic questions that determine if a
cause of action exists.”); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 84
(E.D.N.Y. 2005) (“Courts are not precluded from referring to appropriate state or national
law for analogies to fill in procedural—and even substantive—gaps left in international law
as it is shaped so it can be enforced in a reasonable way.”).
205. See Unocal, 395 F.3d at 967–68 (Reinhardt, J., concurring).
206. See id. at 948 & n.23, 951 & n.28 (majority opinion) (noting that international
and domestic standards for civil aiding and abetting liability are substantially similar other
than international provision for “moral support”).
207. See id. at 949 n.24 (“Because ‘moral support’ is not part of the standard we
adopt today, the concurrence’s discussion . . . is beside the point.”).
208. Casto predicted that this outcome would result if U.S. judges fashioned an
“international” common law of torts: “Judges in the United States would be sorely tempted
to . . . conform[ ] the international cause of action to existing domestic law.” Casto, supra
note 4, at 477; see also Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995) (“The law of
nations generally does not create private causes of action to remedy its violations, but
leaves to each nation the task of defining the remedies that are available for international
law violations.”); Lillich, supra note 26, at 210–12 (noting use of international law to
supplement Paraguayan law in determining remedy for Filartiga). It is possible that this is
the approach that Congress intended. See Stephens & Ratner, supra note 90, at 123
(noting that legislative history of TVPA suggests liberal approach to finding ATS
remedies).
494 COLUMBIA LAW REVIEW [Vol. 107:457
fact that in multistate cases it is essential that the rules of decision promote
mutually harmonious and beneficial relationships in the interdependent
community, federal or international.”
When a domestic rule
satisfies the demands placed upon it by binding international law norms,
there is simply no reason to displace it; doing so can only lead to potential
conflict between the forum state and the international system.
209
2. Policies of the Forum. — In weighing this factor, both the concurrence
and the majority gave controlling weight to federal policies embodied
by the ATS
to provide remedies for international human rights violations
and failed to consider the current federal presumption in favor of
using
state law as the rule of decision, embodied not just in the RDA but
also
in Supreme Court precedent.
Aside from such federalism-based
reasons for applying state law, the forum state has its own interests in
applying its own rule of law to corporations under its jurisdiction.
210
For
example, the forum in which a corporate ATS case is brought—usually
the state where the corporation has a main place of business and personal
jurisdiction is not in question—has a definite interest in promulgating
aiding and abetting liability rules to govern the behavior of businesses
within the forum.
Further, comment (e) to section 6 of the Restatement
(Second) of Conflict of Laws notes that “[e]very rule of law . . . was
designed
to achieve one or more purposes. . . . If the purposes sought to
be
achieved by a local . . . rule would be furthered by its application to
212
209. Restatement (Second) of Conflict of Laws § 145 cmt. b (1971).
210. See supra Part III.A.
211. In addition to generally being concerned with law of nations violations—
211
historically part of state common law even if now preempted by federal law, see supra note
48—states have an identifiable interest in not permitting corporations chartered under
their laws to be used in ways the policy of the state prohibits. More directly, the particular
actions of which the corporation is accused would most likely be illegal if committed within
the state, and decisions or other actions leading to the corporate assistance of the
international law violations might take place within the forum state. See, e.g., Beth
Stephens, Corporate Accountability: International Human Rights Litigation Against
Corporations in US Courts, in Liability of Multinational Corporations Under International
Law, supra note 28, at 209, 223 (noting that “courts are . . . more likely to apply US law”
when plaintiffs show that significant tortious acts such as important decisions took place in
United States). Though this latter view appears to have been rejected as applied to tort
suits against the United States, see Sosa v. Alvarez-Machain, 542 U.S. 692, 711–12 (2004),
the reasoning of the rejection—that acceptance of the “headquarters” theory would
invalidate the foreign territory exception to the FTCA—does not apply to domestic
corporations since they have no right to claim the sovereign immunity that the FTCA
waives. But see Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 501–02 (S.D.N.Y. 2005)
(concluding, as applied to state claims, that state choice of law rules did not permit
application of state law on similar theory).
212. See Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277, 296 (1990)
(noting that on “significant contacts” approach to choice of law, purposes of forum law
should determine significance of contacts). This would suggest that state aiding and
abetting laws—designed to control behavior of corporations within the forum—should
play a prominent role. Cf. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107–08 (2d
Cir. 2000) (acknowledging Britain’s interest in adjudicating case involving British
corporations but declining to transfer venue to Britain for other reasons).
2007] ATS RULES OF DECISION 495
out-of-state facts, this is a weighty reason [to use it].”
Given the large
interest states have in regulating the conduct of their corporations, this
factor appears to favor application of state law, at least when it is not
inconsistent with federal policies.
213
3. Justified Expectations, Uniformity of Result, and Ease of Determination
and Application of Law. — The Unocal court argued that international law
was favored by these elements of the Restatement’s test because the standard
it adopted had its roots in the Nuremberg trials.
Reliance upon
the Nuremberg trials and the recently promulgated I.C.T.Y. and I.C.T.R.
standard of aiding and abetting liability
215
214
is vulnerable, however, to the
objections made by the concurrence: The standard is relatively new and
was promulgated by an ad hoc tribunal for application to violations arising
from a specific mass atrocity in a specific geographic location.
As
such, it is difficult to know exactly how future international tribunals will
interpret or modify the standard, making the application of the standard
difficult to predict and subject to frequent change. Furthermore, this approach
has the additional weakness of failing to account for the requirement,
imposed by Central
Bank
and largely followed by international law
itself,
that civil aiding and abetting liability can only be imposed if done
so
explicitly.
217
Use of the state law standard would provide a more thorough and
familiar body of law for courts to apply in such cases.
Rather than
needing to second guess how international tribunals would decide similar
issues, federal courts hearing ATS cases could simply look to far more
accessible and prolific domestic decisions applying state law. The greater
certainty obtained by using familiar state court decisions would come at a
price, however: At least minor variations between the states are likely to
develop, an outcome that has been criticized for not taking proper account
of the needs of the international system.
219
218
As has already been
noted, however, this objection does not acknowledge the interest nations
213. Restatement (Second) of Conflict of Laws § 6 cmt. e.
214. See Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002).
215. See id. at 950 (relying upon I.C.T.Y. and I.C.T.R. standard).
216. See id. at 965 (Reinhardt, J., concurring).
217. See supra Part II.B.
218. Cf. Unocal, 395 F.3d at 965 (Reinhardt, J., concurring) (favoring use of federal
common law for same reasons).
219. See Andrew Ridenour, Doe v. Unocal Corp., Apples and Oranges: Why Courts
Should Use International Standards to Determine Liability for Violation of the Law of
Nations Under the Alien Tort Claims Act, 9 Tul. J. Int’l & Comp. L. 581, 597–98 (2001)
(criticizing lower court decision in Unocal for looking to municipal law because that
approach disregards fundamental differences between international and municipal
systems); see also Richard A. Conn, Jr., Note, The Alien Tort Statute: International Law as
the Rule of Decision, 49 Fordham L. Rev. 874, 885 (1981) (“The application of traditional
conflict of laws theories to section 1350 international tort cases is undesirable
[sic]
because the interests of the international community will rarely be taken into
consideration.”). But see id. at 888 (“[T]he interest of a concerned jurisdiction [may be]
strong enough to override the interest of the international system . . . .”).
216
valid statute.
As such, the appropriate role of the federal court system
is to interpret the statute and “say what the law is.”
174
Forging federal
rules of decision here is no more unusual than it is for other unclear
federal statutes.
175
A second possible basis for competence to fashion federal common
law in ATS cases rests on the idea that customary international law is part
of the federal common law,
and federal courts are thus free to interpret
customary international law by referring to the works of jurists and
commentators
as well as the practice of nations.
176
This approach is
more problematic, however, because it seems a little circular: To answer
the first step of the Kimbell Foods inquiry by saying that a federal court can
create federal common law in ATS cases because international law is federal
common law simply dodges the question of whether the RDA applies.
Hence, the key difference between the first and second justifications
is subtle but important:
Whereas the first justification looks to
international law as one of many possible sources to flesh out federal statutory
law, the second approach conflates that idea with the issue of the
binding
power international law has on federal law, perhaps even viewing
international
law as superseding federal law.
178
177
In addition to not recognizing the ability of Congress to change customary
international law as applied in the United States, the argument
that
international law is, of its own force, federal common law leads to a
conundrum:
In such situations, despite their stated intentions to apply
174. Some questions have been raised about the constitutionality of certain types of
ATS suits, particularly when an alien sues another alien in U.S. federal court. See Fallon et
al., supra note 163, at 755–58 (noting questions about constitutionality of ATS jurisdiction
in cases not falling within diversity jurisdiction); see also supra note 49 (noting this issue).
175. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
176. See The Paquete Habana, 175 U.S. 677, 700 (1900) (“International law is part of
our law . . . .”).
177. See id.
178. See, e.g., George, supra note 20, at 44 (suggesting possibility that international
law can preempt federal law in same way that federal law preempts state law). Indeed, this
is the mistake that the Unocal court made, see Unocal, 395 F.3d at 949 (applying
international law qua international law). But it seems fairly obvious that Congress could
pass a statute changing the particular ways in which customary international law is applied
in the United States. Not only is the ability to define the “law of nations” one of Congress’s
enumerated powers, see U.S. Const. art. I, § 8, cl. 10, but the Torture Victim Protection
Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note (2000)), as
well as the ATS itself, provide examples of congressional changes to customary
international law as applied in the United States. See also Born, supra note 80, at 21 &
n.112 (“If a subsequent federal statute requires a result contrary to preexisting principles
of international law, then U.S. courts must give Congress’s legislation priority.”); Brad R.
Roth, The Enduring Significance of State Sovereignty, 56 Fla. L. Rev. 1017, 1031–32 (2004)
(“In the domestic law of the United States, any effect of customary international law . . . is
displaced by a ‘controlling executive or legislative act.’”). But see Curtis A. Bradley,
International Delegations, The Structural Constitution, and Non-Self-Execution, 55 Stan.
L. Rev. 1557, 1582 n.116 (2003) (suggesting, though ultimately rejecting, idea that ATS
could be viewed as federal choice of law provision, similar to RDA, delegating to
international system ability to make federal law).
2007] ATS RULES OF DECISION 489
international law, federal courts will inevitably apply some form of their
own law. The system with which federal judges are most familiar is the
American federal system; federal judges and lawyers arguing cases in federal
courts will look at the world through the lens of American federal
law.
The chief disadvantage to this will be the undue influence given
to federal courts in determining standards that apply to entirely different
sovereign peoples with different cultures and political histories.
179
In contrast to these two arguments favoring the use of federal common
law in ATS
cases, a competing jurisdictional argument suggests that
federal
common law should not be used.
In some ATS situations, constitutional
jurisdictional
questions can be avoided by conceiving of the
action as one based on the diversity jurisdiction instead of the federal
question jurisdiction.
181
On this reasoning, the RDA would apply with
full force, and state law would have to be used for all questions—includ-
182
180
179. See Casto, supra note 4, at 477 (noting temptation that would exist for judges
creating international law causes of action to default to their own legal system and citing
application of punitive damages in Filartiga, which would not have occurred in noncommon
law system, as evidence); see also Filartiga v. Pena-Irala, 577 F. Supp. 860, 864–65
(E.D.N.Y.
1984) (looking to “international” law to find availability of punitive damages for
victims
of torture after concluding such damages were unavailable under Paraguayan law).
180. See Roth, supra note 178, at 1045 (arguing that “bounded pluralism,” which
requires respect for sovereign implementation of international law, can “serve[ ] to protect
the poor and weak states from the divergent interests, as well as from the overbearing
values, of the rich and strong states”); see also Bradley, Customary International Law, supra
note 16, at 427 (noting unique role political branches play in determining whether to
enforce international law); Gordon A. Christenson, Customary International Human
Rights Law in Domestic Court Decisions, 25 Ga. J. Int’l & Comp. L. 225, 246 (1996)
(noting that only violation of “the basic human rights in its own formal law” should permit
another state to try to apply its own remedy because “a peoples [sic] should be encouraged
to develop free-standing institutions capable of meeting minimum conditions even in
hierarchical, non-liberal societies”); cf. sources cited supra note 56 (noting democratic
deficit of international law as applied in United States). On this view, rather than
permitting countries to become compliant with international standards, failure to respect
sovereignty leads federal courts to impose standards unduly influenced by the U.S. system.
But see Xuncax v. Gramajo, 886 F. Supp. 162, 192 (D. Mass. 1995) (“[M]unicipal law is illtailored
for cases grounded on violations of the law of nations.”).
Application of state law
during the second step of the Kimbell Foods process avoids this dilemma, at least insofar as it
leads to the application of state law to in-state actors.
181. The question of which jurisdictional head ATS cases fall under is a complicated
one. See, e.g., Curtis A. Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L.
587, 590–92 (2002) (rejecting federal question and admiralty jurisdictional prongs of
Article III in favor of alienage jurisdiction as constitutional basis for establishing
jurisdiction for ATS in federal courts); William S. Dodge, Bridging Erie: Customary
International Law in the U.S. Legal System After Sosa v. Alvarez-Machain, 12 Tulsa J. Comp.
& Int’l L. 87, 100 (2004) (arguing that Sosa established that federal question jurisdiction
served as constitutional basis for ATS cases).
182. See supra note 174 and accompanying text (noting constitutional jurisdiction
questions).
490 COLUMBIA LAW REVIEW [Vol. 107:457
ing the choice of law issue itself.
If a court were to adopt reasoning
similar to that suggested by the statutory history,
183
this approach would
be very appealing, particularly for cases against domestic corporations.
184
But, largely due to fears of states meddling in international affairs, this
approach has probably been foreclosed by Sosa’s decision to apply federal
common law.
186
Thus, it seems clear that the ATS permits a range of federal common
law creation at least through the first justification, though the question
still remains whether the policy embodied in the RDA—and subsequent
case law favoring the use of state law when possible—dictates that state
law should be used as federal law instead of fashioning a new federal rule.
Part III.B, in describing the general principles that should be considered
in the choice of law inquiry, addresses this question.
B. Choice of Law in Federal Courts
The Restatement (Second) of Conflict of Laws contains principles
Section 6
describes the Restatement’s governing principles. After instructing
courts to follow applicable statutory directions in section 6(1), it lists
seven factors to be considered in the absence of a statutory directive:
followed by federal courts in deciding choice of law issues.
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative
interests of those states in the determination of the particular
issue,
(d)
the protection of justified expectations,
(e)
the basic policies underlying the particular field of law,
(f)
certainty, predictability and uniformity of result, and
(g)
ease in the determination and application of the law to be
applied.
188
183. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941) (“The conflict
of laws rules to be applied by [federal courts] must conform to those prevailing in [the
forum’s] state courts.”).
184. See supra Part I.A (describing possibility that ATS was intended to incorporate
state law causes of action).
185. This assumes that the corporation’s citizenship is diverse from the alien, as
defined by 28 U.S.C. § 1332(c)(1) (2000) (defining corporate citizenship as existing in
place of incorporation and principal place of business).
186. See supra Part I.B.
187. See Restatement (Second) of Conflict of Laws § 6 (1971) (listing principles that
govern choice of law); see also Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002)
(referring to Restatement principles to determine what law to apply); id. at 967–68
(Reinhardt, J., concurring) (also referring to Restatement principles to come to different
conclusion); Cruz v. United States, 387 F. Supp. 2d 1057, 1070 (N.D. Cal. 2005) (“Federal
choice-of-law rules follow the approach of the Restatement (Second) of Conflict of
Laws . . . .”).
188. Restatement (Second) of Conflict of Laws § 6(2); see also id. § 6(1) (stating that
deference must be given to statutory commands before applying these factors).
187
185
2007] ATS RULES OF DECISION 491
A comment to this section further indicates that this list is not all
inclusive and that no single factor predominates over all other factors.
An additional factor to consider in the ATS context is the strong presumption
in federal courts that foreign affairs are committed by the Constitution
to the federal government,
which focuses the inquiry on
whether state law in the field has been preempted by federal law.
190
In section 145, these general principles are referenced to determine
what source of tort law should be used.
The governing idea is that “the
local law of the state which, with respect to [the tort] issue [before the
court], has the most significant relationship to the occurrence and the
parties under the principles stated in § 6” should be used.
191
The Restatement
goes on to state four additional factors that should be considered
when applying section 6, including the location of the injury, the
location
of the conduct causing the injury, the nationality and place of
incorporation
and business of the parties, and the location of the center
of
the relationship between the parties.
193
The Unocal majority argued that the Restatement factors balanced in
favor of applying international law.
In the majority’s view, every factor
came out in favor of applying international law.
194
But in making this
determination, the court made several questionable decisions, and the
balancing of the Restatement factors should have led them to apply the
law of the forum.
195
1. Needs of the International System. — The Unocal majority placed particular
emphasis on the need of the international system to provide a
remedy
for jus cogens violations.
In doing so, it reasoned that since
domestic law must conform to jus cogens norms, any domestic law that
did not conform to those norms was invalid.
196
As a result, the court
concluded, there was no harm in applying international law because domestic
law is required to be a mirror image of international jus cogens
norms.
198
197
189. See id. § 6 cmt. c.
190. See, e.g., Hines v. Davidowitz, 312 U.S. 52, 62 n.9 (1941) (noting “[t]he
importance of national power in all matters relating to foreign affairs and the inherent
danger of state action in this field”); see also Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 791 (D.C. Cir. 1984) (Edwards, J., concurring) (“[S]tate courts are inappropriate fora
for resolution of issues implicating foreign affairs.”).
191. See Restatement (Second) of Conflict of Laws § 145.
192. Id. § 145(1).
193. Id. § 145(2).
194. See Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002). For some reason,
the court did not mention section 145 in its opinion. The needs of the international
system, the policies of the forum, the protection of justified expectations, uniformity of
result, ease of determination and application of law, and the basic policy underlying the
field of law were determinative for the Unocal court.
195. See id.
196. See id. at 948.
197. See id.
198. See id.
192
189
492 COLUMBIA LAW REVIEW [Vol. 107:457
The mistake the court made, however, was in assuming that, in embodying
a universal norm, jus cogens principles could only take one particular
form.
In reality, however, many different formulations of the
same principle can satisfy the core of a jus cogens principle.
The majority
could have avoided its mistake by asking itself the following question:
Could it be said that, as applied to jus cogens violations, the forum
standard did not satisfy international standards? The Unocal court noted
that the forum standard does not permit aiding and abetting liability for
providing “moral support” to the principal offender as the international
standard does,
but this characteristic does not make it any more inconsistent
with jus cogens norms than providing only criminal remedies (to
the
exclusion of civil remedies) would.
200
As long as some remedy is provided,
international law is satisfied.
202
201
That international norms can be embodied in different ways is further
supported by the nature of international law.
Unlike domestic law,
which is composed of both binding legislative and binding judicial directives,
international law as incorporated into the federal common law is
ascertained
by looking to the works of jurists, the practices of nations, and
the
product of commentators.
Importantly, both federal and state
courts are part of the tribunals issuing decisions that make up the body of
international law. That is, unlike domestic laws, the content of international
law cannot be ascertained from any single authoritative international
source.
Domestic sources of law, insofar as they are consonant with
the general trends of international law, are themselves actually part of
international law.
204
203
199
199. See, e.g., Bradley, Customary International Law, supra note 16, at 427–28
(describing courts’ deferral to political branches when determining how to implement
international law); see also Handel v. Artukovic, 601 F. Supp. 1421, 1428 (C.D. Cal. 1985)
(“To imply a cause of action from the law of nations would completely defeat the critical
right of the sovereign to determine whether and how international rights should be
enforced in that municipality.”); cf. Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1115 (9th Cir.
2006) (Bybee, J., dissenting) (stating that exhaustion of remedies requirement for ATS
would “respect[ ] the processes by which another nation has constituted itself and is worthy
to be considered part of the community of nations”). A philosophical justification for
permitting each country to determine how to implement international law is given by
Roth, supra note 178, at 1045 (arguing that “[b]ounded pluralism” protects weaker states
from overreaching by strong states); see also supra note 180 (discussing justification for
respect of sovereignty in application of international law).
200. See Unocal, 395 F.3d at 951.
201. See discussion supra note 58. Interestingly enough, the majority noted that
some actions can be considered criminal in one jurisdiction but subject to only civil
sanctions in another, though it failed to appreciate how this distinction impacted its
argument. See Unocal, 395 F.3d at 949 (“[W]hat is a crime in one jurisdiction is often a
tort in another jurisdiction . . . .”).
202. Cf. Sarei, 456 F.3d at 1117–18 (Bybee, J., dissenting) (noting arguments that
international law violation is not complete until state fails to provide remedy).
203. See The Paquete Habana, 175 U.S. 677, 700 (1900).
204. See Stephens & Ratner, supra note 90, at 54 (noting that domestic court
decisions, as well as international agreements, may need to be referenced to determine
2007] ATS RULES OF DECISION 493
The Unocal concurrence took issue with the majority’s use of international
law because of the inclusion, as part of the aiding and abetting
standard,
of the possibility that “moral support” could serve as the basis
for
complicity liability.
In addition to being a relatively new addition
to the definition of aiding and abetting liability even in international law,
this particular hook for liability was absent from the relevant domestic
standard.
206
205
To escape the concurrence’s disagreement with the “moral
support” prong of the international standard, the majority simply asserted
that it was not adopting that portion of the international standard.
At that point, however, the as-adopted international standard
mimics the domestic standard, not the other way around; the adopted
standard is no longer identical to the international one, and there was no
reason to dismiss the domestic standard. Indeed, in conceding that the
international standard they adopted did not include the “moral support”
prong, the majority essentially did nothing more than adopt what would
have been the state standard, albeit by a different name and by looking at
international instead of domestic precedents.
207
208
The Unocal majority apparently too hastily assumed that the only international
need implicated in this choice of law question was the need to
enforce
violations of jus cogens norms.
While such an international need
is undoubtedly present, the Restatement suggests that this portion of the
conflicts analysis also has additional dimensions: “The factors listed in
Subsection (2) of the rule of § 6 . . . [are, inter alia,] concerned with the
international law); see also Restatement (Third) of the Foreign Relations Law of the
United States § 102(2) (1987) (“Customary international law results from a general and
consistent practice of states followed by them from a sense of legal obligation.”); cf. Adamu
v. Pfizer, Inc., 399 F. Supp. 2d 495, 501 (S.D.N.Y. 2005) (“Whether and how the United
States reacts to violations of international law are domestic questions that determine if a
cause of action exists.”); In re Agent Orange Prod. Liab. Litig., 373 F. Supp. 2d 7, 84
(E.D.N.Y. 2005) (“Courts are not precluded from referring to appropriate state or national
law for analogies to fill in procedural—and even substantive—gaps left in international law
as it is shaped so it can be enforced in a reasonable way.”).
205. See Unocal, 395 F.3d at 967–68 (Reinhardt, J., concurring).
206. See id. at 948 & n.23, 951 & n.28 (majority opinion) (noting that international
and domestic standards for civil aiding and abetting liability are substantially similar other
than international provision for “moral support”).
207. See id. at 949 n.24 (“Because ‘moral support’ is not part of the standard we
adopt today, the concurrence’s discussion . . . is beside the point.”).
208. Casto predicted that this outcome would result if U.S. judges fashioned an
“international” common law of torts: “Judges in the United States would be sorely tempted
to . . . conform[ ] the international cause of action to existing domestic law.” Casto, supra
note 4, at 477; see also Kadic v. Karadzic, 70 F.3d 232, 246 (2d Cir. 1995) (“The law of
nations generally does not create private causes of action to remedy its violations, but
leaves to each nation the task of defining the remedies that are available for international
law violations.”); Lillich, supra note 26, at 210–12 (noting use of international law to
supplement Paraguayan law in determining remedy for Filartiga). It is possible that this is
the approach that Congress intended. See Stephens & Ratner, supra note 90, at 123
(noting that legislative history of TVPA suggests liberal approach to finding ATS
remedies).
494 COLUMBIA LAW REVIEW [Vol. 107:457
fact that in multistate cases it is essential that the rules of decision promote
mutually harmonious and beneficial relationships in the interdependent
community, federal or international.”
When a domestic rule
satisfies the demands placed upon it by binding international law norms,
there is simply no reason to displace it; doing so can only lead to potential
conflict between the forum state and the international system.
209
2. Policies of the Forum. — In weighing this factor, both the concurrence
and the majority gave controlling weight to federal policies embodied
by the ATS
to provide remedies for international human rights violations
and failed to consider the current federal presumption in favor of
using
state law as the rule of decision, embodied not just in the RDA but
also
in Supreme Court precedent.
Aside from such federalism-based
reasons for applying state law, the forum state has its own interests in
applying its own rule of law to corporations under its jurisdiction.
210
For
example, the forum in which a corporate ATS case is brought—usually
the state where the corporation has a main place of business and personal
jurisdiction is not in question—has a definite interest in promulgating
aiding and abetting liability rules to govern the behavior of businesses
within the forum.
Further, comment (e) to section 6 of the Restatement
(Second) of Conflict of Laws notes that “[e]very rule of law . . . was
designed
to achieve one or more purposes. . . . If the purposes sought to
be
achieved by a local . . . rule would be furthered by its application to
212
209. Restatement (Second) of Conflict of Laws § 145 cmt. b (1971).
210. See supra Part III.A.
211. In addition to generally being concerned with law of nations violations—
211
historically part of state common law even if now preempted by federal law, see supra note
48—states have an identifiable interest in not permitting corporations chartered under
their laws to be used in ways the policy of the state prohibits. More directly, the particular
actions of which the corporation is accused would most likely be illegal if committed within
the state, and decisions or other actions leading to the corporate assistance of the
international law violations might take place within the forum state. See, e.g., Beth
Stephens, Corporate Accountability: International Human Rights Litigation Against
Corporations in US Courts, in Liability of Multinational Corporations Under International
Law, supra note 28, at 209, 223 (noting that “courts are . . . more likely to apply US law”
when plaintiffs show that significant tortious acts such as important decisions took place in
United States). Though this latter view appears to have been rejected as applied to tort
suits against the United States, see Sosa v. Alvarez-Machain, 542 U.S. 692, 711–12 (2004),
the reasoning of the rejection—that acceptance of the “headquarters” theory would
invalidate the foreign territory exception to the FTCA—does not apply to domestic
corporations since they have no right to claim the sovereign immunity that the FTCA
waives. But see Adamu v. Pfizer, Inc., 399 F. Supp. 2d 495, 501–02 (S.D.N.Y. 2005)
(concluding, as applied to state claims, that state choice of law rules did not permit
application of state law on similar theory).
212. See Larry Kramer, Rethinking Choice of Law, 90 Colum. L. Rev. 277, 296 (1990)
(noting that on “significant contacts” approach to choice of law, purposes of forum law
should determine significance of contacts). This would suggest that state aiding and
abetting laws—designed to control behavior of corporations within the forum—should
play a prominent role. Cf. Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 107–08 (2d
Cir. 2000) (acknowledging Britain’s interest in adjudicating case involving British
corporations but declining to transfer venue to Britain for other reasons).
2007] ATS RULES OF DECISION 495
out-of-state facts, this is a weighty reason [to use it].”
Given the large
interest states have in regulating the conduct of their corporations, this
factor appears to favor application of state law, at least when it is not
inconsistent with federal policies.
213
3. Justified Expectations, Uniformity of Result, and Ease of Determination
and Application of Law. — The Unocal court argued that international law
was favored by these elements of the Restatement’s test because the standard
it adopted had its roots in the Nuremberg trials.
Reliance upon
the Nuremberg trials and the recently promulgated I.C.T.Y. and I.C.T.R.
standard of aiding and abetting liability
215
214
is vulnerable, however, to the
objections made by the concurrence: The standard is relatively new and
was promulgated by an ad hoc tribunal for application to violations arising
from a specific mass atrocity in a specific geographic location.
As
such, it is difficult to know exactly how future international tribunals will
interpret or modify the standard, making the application of the standard
difficult to predict and subject to frequent change. Furthermore, this approach
has the additional weakness of failing to account for the requirement,
imposed by Central
Bank
and largely followed by international law
itself,
that civil aiding and abetting liability can only be imposed if done
so
explicitly.
217
Use of the state law standard would provide a more thorough and
familiar body of law for courts to apply in such cases.
Rather than
needing to second guess how international tribunals would decide similar
issues, federal courts hearing ATS cases could simply look to far more
accessible and prolific domestic decisions applying state law. The greater
certainty obtained by using familiar state court decisions would come at a
price, however: At least minor variations between the states are likely to
develop, an outcome that has been criticized for not taking proper account
of the needs of the international system.
219
218
As has already been
noted, however, this objection does not acknowledge the interest nations
213. Restatement (Second) of Conflict of Laws § 6 cmt. e.
214. See Doe I v. Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002).
215. See id. at 950 (relying upon I.C.T.Y. and I.C.T.R. standard).
216. See id. at 965 (Reinhardt, J., concurring).
217. See supra Part II.B.
218. Cf. Unocal, 395 F.3d at 965 (Reinhardt, J., concurring) (favoring use of federal
common law for same reasons).
219. See Andrew Ridenour, Doe v. Unocal Corp., Apples and Oranges: Why Courts
Should Use International Standards to Determine Liability for Violation of the Law of
Nations Under the Alien Tort Claims Act, 9 Tul. J. Int’l & Comp. L. 581, 597–98 (2001)
(criticizing lower court decision in Unocal for looking to municipal law because that
approach disregards fundamental differences between international and municipal
systems); see also Richard A. Conn, Jr., Note, The Alien Tort Statute: International Law as
the Rule of Decision, 49 Fordham L. Rev. 874, 885 (1981) (“The application of traditional
conflict of laws theories to section 1350 international tort cases is undesirable
[sic]
because the interests of the international community will rarely be taken into
consideration.”). But see id. at 888 (“[T]he interest of a concerned jurisdiction [may be]
strong enough to override the interest of the international system . . . .”).
216
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