Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:06-cv-00627-JMS-TAB-Jane E. Magnus-Stinson, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before BAUER, POSNER, and MANION, Circuit Judges.
This suit under the Alien Tort Statute, 28 U.S.C. § 1350, pits 23 Liberian children against the Firestone Natural Rubber Company, which operates a 118,000-acre rubber plantation in Liberia through a subsidiary; various Firestone affiliates and officers were also joined as defendants. The district court granted summary judgment in favor of all the defendants, but the plaintiffs have appealed only from the judgment in favor of Firestone Natural Rubber Company.
The plaintiffs charge Firestone with utilizing hazardous child labor on the plantation in violation of customary international law. The Alien Tort Statute confers on the federal courts jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." The principal issues presented by the appeal are whether a corporation or any other entity that is not a natural person (the defendant is a limited liability company rather than a conventional business corporation) can be liable under the Alien Tort Statute, and, if so, whether the evidence presented by the plaintiffs created a triable issue of whether the defendant has violated "customary international law."
And what is "customary international law"? "International law is part of our law, and . . . where 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." The Paquete Habana, 175 U.S. 677, 700 (1900); see also Sampson v. Federal Republic of Germany, 250 F.3d 1145, 1149-50 (7th Cir. 2001); Restatement (Third) of Foreign Relations Law § 102(2) (1987); Curtis A. Bradley & Mitu Gulati, "Withdrawing from International Custom," 120 Yale L.J. 202, 208-15 (2010). "The determination of what offenses violate customary international law . . . is no simple task. Customary international law is discerned from myriad decisions made in numerous and varied international and domestic arenas. Further- more, the relevant evidence of customary international law is widely dispersed and generally unfamiliar to lawyers and judges. These difficulties are compounded by the fact that customary international law-as the term itself implies-is created by the general customs and practices of nations and therefore does not stem from any single, definitive, readily-identifiable source. All of these characteristics give the body of customary international law a 'soft, indeterminate character.' " Flores v. Southern Peru Copper Corp., 414 F.3d 233, 247-48 (2d Cir. 2003), quoting Louis Henkin, International Law: Politics and Values 29 (1995). Customary international law thus resembles common law in its original sense as law arising from custom rather than law that is formally promulgated. See 1 William Blackstone, Commentaries on the Laws of England 67-70 (1765).
The Alien Tort Statute was enacted in 1789, when the principal violations of customary international law were piracy, mistreatment of ambassadors, and violation of safe conducts. Sosa v. Alvarez-Machain, 542 U.S. 692, 715 (2004); 4 Blackstone, supra, at 68 (1769). But in using the broad term "law of nations" Congress allowed the coverage of the statute to change with changes in customary international law. As cautiously stated by the Supreme Court, "the door is still ajar [for further independent judicial recognition of actionable international norms] subject to vigilant doorkeeping, and thus open to a narrow class of international norms today." Sosa v. Alvarez-Machain, supra, 542 U.S. at 729.
The concept of customary international law is disquieting in two respects. First, there is a problem of notice: a custom cannot be identified with the same confidence as a provision in a legally authoritative text, such as a statute or a treaty. (Modern common law doesn't present that problem; it is a body of judge-created doctrine, not of amorphous custom.) Second, there is a problem of legitimacy-and for democratic countries it is a problem of democratic legitimacy. Customary international legal duties are imposed by the international community (ideally, though rarely-given the diversity of the world's 194 nations-by consensus), rather than by laws promulgated by the obligee's local community. Both problems are conspicuous in the Alien Tort Statute, which contains no clarifying language, although since it's just a statute, Congress could curtail its scope; the statute therefore is not a blanket delegation of lawmaking to the democratically unaccountable international community of custom creators.
The two problems we've just noted are serious enough to have persuaded the Supreme Court in Sosa to limit the statute's scope to "the customs and usages of civilized nations," 542 U.S. at 734 (quoting The Paquete Habana, supra, 175 U.S. at 700), that are "specific, universal, and obligatory," 542 U.S. at 732 (quoting In re Estate of Marcos Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994)), and "accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms" (that is, violation of safe conducts, infringement of the rights of ambassadors, and piracy). 542 U.S. at 725. But like so many statements of legal doctrine, this one is suggestive rather than precise; taken literally it could be easily refuted. No norms are truly "universal"; "universal" is inconsistent with "accepted by the civilized world"; "obligatory" is the conclusion not the premise; and some of the most widely accepted international norms are vague, such as "genocide" and "torture." See, e.g., Ryan Park, "Proving Genocidal Intent: International Precedent and ECCC Case 002," 63 Rutgers L. Rev. 129, 133-38 (2010); Michael W. Lewis, "A Dark Descent into Reality: Making the Case for an Objective Definition of Torture," 67 Wash. & Lee L. Rev. 77, 82-84 (2010); Sanford Levinson, "In Quest of a 'Common Conscience': Reflections on the Current Debate about Torture," 1 J. Nat'l Security Law & Policy 231, 252 (2005). The Court's effort at definition illustrates rather than solves the problems of notice and legitimacy and is best understood as the statement of a mood-and the mood is one of caution.
Firestone draws on that mood for its arguments against liability. Its first argument is that conduct by a corporation or any other entity that doesn't have a heart-beat (we'll use "corporation" to cover all such entities) can never be a violation of customary international law, no matter how heinous the conduct. So, according to Firestone, a pirate can be sued under the Alien Tort Statute but not a pirate corporation (Pirates of the Indian Ocean, Inc., with its headquarters and principal place of business in Somalia; cf. U.N. Security Council, "Report of the Monitoring Group on Somalia Pursuant to Security Council Resolution 1853 (2008)" 99 (Feb. 26, 2010).) Firestone argues that because corporations, unlike individuals, have never been prosecuted for criminal violations of customary international law, there cannot be a norm, let alone a "universal" one, forbidding them to commit crimes against humanity and other acts that the civilized world abhors.
The issue of corporate liability under the Alien Tort Statute seems to have been left open in an enigmatic footnote in Sosa, 542 U.S. at 732 n. 20 (but since it's a Supreme Court footnote, the parties haggle over its meaning, albeit to no avail). All but one of the cases at our level hold or assume (mainly the latter) that corporations can be liable. Romero v. Drummond Co., 552 F.3d 1303, 1315 (11th Cir. 2008); Herero People's Reparations Corp. v. Deutsche Bank, A.G., 370 F.3d 1192, 1193, 1195 (D.C. Cir. 2004); Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 91-92 (2d Cir. 2000); Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 163 (5th Cir. 1999); see also Abdullahi v. Pfizer, Inc., 562
F.3d 163, 174(2d Cir. 2009); Sarei v. Rio Tinto, PLC, 550 F.3d 822, 831 (9th Cir. 2008) (en banc). (Our court hasn't ad-dressed the issue.) The outlier is the split decision in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), which indeed held that because corporations have never been prosecuted, whether criminally or civilly, for violating customary international law, there can't be said to be a principle of customary international law that binds a corporation.
The factual premise of the majority opinion in the Kiobel case is incorrect. At the end of the Second World War the allied powers dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations-and did so on the authority of customary international law. E.g., Control Council Law No. 2, "Providing for the Termination and Liquidation of the Nazi Organizations," Oct. 10, 1945, reprinted in 1 Enactments and Approved Papers of the Control Council and Coordinating Committee 131 (1945); Control Council Law No. 9, "Providing for the Seizure of Property Owned by I.G. Farbenindustrie and the Control Thereof," Nov. 30, 1945, reprinted in 1 id. 225, www.loc.gov/rr/frd/Military_Law/enactments-home.html (visited June 24, 2011). The second of these Control Orders found that I.G. Farben (the German chemical cartel) had "knowingly and prominently engaged in building up and maintaining the German war potential," and it ordered the seizure of all its assets and that some of them be made "available for reparations." Id.
And suppose no corporation had ever been punished for violating customary international law. There is always a first time for litigation to enforce a norm; there has to be. There were no multinational prosecutions for aggression and crimes against humanity before the Nuremberg Tribunal was created. "Prosecutorial responses to international crimes have occurred at both the national and international levels, with varying degrees of success. The first international tribunal was the Nuremberg IMT [International Military Tribunal] which sat between 1945 and 1946 to prosecute high-ranking Nazis." Robert Cryer, "International Criminal Law," ...