kiobel v. royal dutch petroleum coosaka.law.miami.edu/~schnably/kiobel-2d-cir.pdf · kiobel v....

111KIOBEL v. ROYAL DUTCH PETROLEUM CO.Cite as 621 F.3d 111 (2nd Cir. 2010)

male juror would be stricken. See UnitedStates v. Alvarado, 923 F.2d 253, 255–56(2d Cir.1991) (‘‘Only a rate of minoritychallenges significantly higher than the mi-nority percentage of the venire would sup-port a statistical inference of discrimina-tion.’’). Third, although Paris’s counselhad announced that he was going to strikewomen jurors because of their gender, theGovernment had made no such statementabout male jurors.

District courts have broad latitude toconsider the totality of the circumstanceswhen determining whether a party hasraised an inference of discrimination. Bat-son, 476 U.S. at 96–97, 98 n. 21, 106 S.Ct.1712. Based on the record here, we con-clude that the district court did not abuseits discretion in determining that Paris hadfailed to make a prima facie showing ofdiscrimination by the Government in itsexercise of its peremptory strikes.

CONCLUSION

We have considered Paris’s remainingarguments on appeal and conclude thatthey are without merit.

For the foregoing reasons, the judgmentof conviction and sentence are AF-FIRMED.

,

Esther KIOBEL, individually and on be-half of her late husband, Dr. BarinemKiobel, Bishop Augustine NumeneJohn–Miller, Charles Baridorn Wiwa,Israel Pyakene Nwidor, KendricksDorle Nwikpo, Anthony B. Kote–Wi-tah, Victor B. Wifa, Dumle J. Kunenu,Benson Magnus Ikari, Legbara Tony

Idigima, Pius Nwinee, Kpobari Tusi-ma, individually and on behalf of hislate father, Clement Tusima, Plain-tiffs–Appellants–Cross–Appellees,

v.

ROYAL DUTCH PETROLEUM CO.,Shell Transport and Trading CompanyPLC, Defendants–Appellees–Cross–Appellants,

Shell Petroleum Development CompanyOf 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.

Background: Nigerian residents filed pu-tative class action, under Alien Tort Stat-ute (ATS), claiming that Dutch, British,and Nigerian corporations engaged in oilexploration and production aided and abet-ted Nigerian government in committinghuman rights abuses in violation of law ofnations. The United States District Courtfor the Southern District of New York,Kimba M. Wood, J., 456 F.Supp.2d 457,dismissed claims against corporate defen-dants in part, and certified entire order forinterlocutory appeal. Parties cross-appeal-ed.

Holdings: The Court of Appeals, Jose A.Cabranes, Circuit Judge, held that:

(1) customary international law governsscope of ATS liability;

(2) in matter of first impression, ATS doesnot confer jurisdiction over claimsagainst corporations; and

(3) corporate defendants were not subjectto ATS liability, as they were not sub-ject to liability under customary inter-national law.

Affirmed in part and reversed in part.

112 621 FEDERAL REPORTER, 3d SERIES

Leval, Circuit Judge, filed opinion concur-ring only in judgment.

1. Aliens, Immigration, and CitizenshipO763

The Alien Tort Statute (ATS) providesjurisdiction over (1) tort actions, (2)brought by aliens only, (3) for violations ofthe law of nations, also called customaryinternational law, including, as a generalmatter, war crimes and crimes against hu-manity, in other words, crimes in whichthe perpetrator can be called hostis huma-ni generis, an enemy of all mankind. 28U.S.C.A. § 1350.

2. International Law O1

The ‘‘law of nations,’’ also called ‘‘cus-tomary international law,’’ includes onlythose standards, rules or customs (1) af-fecting the relationship between states orbetween an individual and a foreign state,and (2) used by those states for theircommon good and/or in dealings inter se.

See publication Words and Phras-es for other judicial constructionsand definitions.


The fact that a legal norm is found inmost or even all civilized nations does notmake that norm a part of customary inter-national law.

4. Federal Courts O776, 794

Court of Appeals reviews de novo adistrict court’s dismissal for failure to statea claim, assuming all well-pleaded, noncon-clusory, factual allegations in the complaintto be true. Fed.Rules Civ.Proc.Rule12(b)(6), 28 U.S.C.A.

5. Federal Courts O776

Court of Appeals reviews questions ofsubject matter jurisdiction de novo.

6. Courts O89

When questions of jurisdiction havebeen passed on in prior decisions sub silen-tio, Court of Appeals does not consideritself bound when a subsequent case finallybrings the jurisdictional issue before thecourt; rather, the court addresses the ju-risdictional challenge.

7. Action O3

Aliens, Immigration, and CitizenshipO766

The Alien Tort Statute (ATS) is ajurisdictional statute only; the ATS cre-ates no cause of action. 28 U.S.C.A.§ 1350.


International law, not domestic law,governs the scope of liability for violationsof customary international law under theAlien Tort Statute (ATS). 28 U.S.C.A.§ 1350.


The ‘‘subjects of international law’’ arethose that, to varying extents, have legalstatus, personality, rights, and duties un-der international law and whose acts andrelationships are the principal concerns ofinternational law. Rest. 3rd, Restatementof the Foreign Relations Law of the Unit-ed States, Part II, introductory note.



International law does not leave toindividual states the responsibility of defin-ing those who are subjects of internationallaw; rather, the concept of internationalperson is derived from international law.Rest. 3rd, Restatement of the Foreign Re-lations Law of the United States, Part II,introductory note.



Court of Appeals is required to look tointernational law to determine its jurisdic-tion over Alien Tort Statute (ATS) claimsagainst a particular class of defendant,such as corporations. 28 U.S.C.A. § 1350.


Although the Alien Tort Statute(ATS) limits only the category of plaintiffwho may bring suit, namely, aliens, theATS’s requirement that a claim be predi-cated on a violation of the law of nationsincorporates any limitation arising fromcustomary international law on who canproperly be named a defendant. 28U.S.C.A. § 1350.


For a claim under the Alien TortureStatute (ATS), federal courts look to cus-tomary international law to determine bothwhether certain conduct leads to ATS lia-bility and whether the scope of liabilityunder the ATS extends to the defendantbeing sued. 28 U.S.C.A. § 1350.

14. International Law O1To attain the status of a rule of cus-

tomary international law, a norm must bespecific, universal, and obligatory. Rest.3rd, Restatement of the Foreign RelationsLaw of the United States § 102(2).

15. International Law O2Customary international law is dis-

cerned from myriad decisions made in nu-merous and varied international and do-mestic arenas.

16. International Law O2To define norms of customary interna-

tional law, where there is no treaty, and nocontrolling executive or legislative act orjudicial decision, resort must be had to the

customs and usages of civilized nations,and, as evidence of these, to the works ofjurists and commentators, who by years oflabor, research and experience, have madethemselves peculiarly well acquainted withthe subjects of which they treat.

17. International Law O2Agreements or declarations that are

merely aspirational, and that do not oftheir own force impose obligations as amatter of international law, are of littleutility in discerning norms of customaryinternational law.

18. International Law O2Treaties are proper evidence of cus-

tomary international law because, and in-sofar as, they create legal obligations akinto contractual obligations on the statesthat are parties to the treaties.

19. International Law O2Although all treaties ratified by more

than one state provide some evidence ofthe custom and practice of nations, a trea-ty will only constitute sufficient proof of anorm of customary international law if anoverwhelming majority of states have rati-fied the treaty, and those states uniformlyand consistently act in accordance with itsprinciples.

20. Treaties O7So-called ‘‘law-making treaties’’ are

treaties that codify existing norms of cus-tomary international law or crystallize anemerging rule of customary internationallaw.


21. International Law O2Customary international law does not

develop through the logical expansion ofexisting norms; rather, customary interna-tional law develops, if at all, through thecustom and practice among civilized na-


tions gradually ripening into a rule of in-ternational law.


Customary international law is devel-oped through the customs and practices ofstates, not by what makes sense to a feder-al judge, by the policy reasons recognizedby the judge, or by what the judge regardsas a bedrock tenet of American law.

23. International Law O2Customary international law is not de-

veloped through parity of reasoning.

24. International Law O2Affidavits, treatises, or other works of

publicists are, in the nature of things, sub-sidiary or secondary sources of interna-tional law, useful in explicating or clarify-ing an established legal principle or bodyof law, by shedding light on a particularquestion of international law, or on theprimary sources of international law, whichare the documents or acts proving theconsent of states to its rules.


Corporate liability is not a rule ofcustomary international law applicable un-der the Alien Tort Statute (ATS), becausecorporate liability is not recognized as aspecific, universal, and obligatory norm;imposing liability on corporations for viola-tions of customary international law hasnot attained a discernible, much less uni-versal, acceptance among nations of theworld in their relations. 28 U.S.C.A.§ 1350.


Nigerian residents’ class action claimthat Dutch, British, and Nigerian oil cor-porations aided and abetted Nigerian gov-ernment in committing human rights abus-es in violation of law of nations was not

subject to jurisdiction, under Alien TortStatute (ATS), providing jurisdiction overtort brought by alien alleging violation oflaw of nations or treaty of United States,since ATS jurisdiction did not extend tocivil actions against corporations under lawof nations that did not recognize corporateliability as specific, universal, and obligato-ry norm. 28 U.S.C.A. § 1350.


International Law O2Customary international law arises

from the customs and practices among civ-ilized nations gradually ripening into a ruleof international law; accordingly, the re-sponsibility lies with those who seek todemonstrate that international law extendsthe scope of liability for a violation of agiven norm to the perpetrator being sued.

28. International Law O1Unlike domestic law, international law

does not maintain a kind of hermetic sealbetween criminal and civil law.


Corporate liability is not a norm thatis recognizable and applicable in actionsunder the Alien Tort Statute (ATS) be-cause the customary international law ofhuman rights does not impose any form ofliability on corporations, whether civil,criminal, or otherwise. 28 U.S.C.A.§ 1350.

30. Action O1, 14The question of the scope of liability,

that is, who can be held liable for wrongfulconduct, is not a question of remedy; rath-er, ‘‘remedies’’ refer to precisely what theplaintiff may recover after resorting to thelaw.



31. Action O1, 14

Whether a plaintiff is entitled to mon-ey damages, declaratory relief, an injunc-tion, or specific performance are all ques-tions of remedy, but whether a particularremedy can be enforced against a certainindividual or entity is not a question ofremedy; it is a question of the scope ofliability.

32. Corporations O423

International Law O1

Corporate liability is determined by abody of rules determining which actions ofan employee or agent are to be imputed tothe corporation; in this important respect,corporate liability is akin to accessorialliability, which is a subject of internationallaw not left to individual states.


Under the Alien Tort Statute (ATS),suits are not foreclosed against a corpora-tion’s employees, managers, officers, di-rectors, or any other person who commits,or purposefully aids and abets, violationsof international law. 28 U.S.C.A. § 1350.


Alien Tort Statute (ATS) does notprovide subject matter jurisdiction overclaims against corporations. 28 U.S.C.A.§ 1350.

Paul L. Hoffman, Schonbrun DeSimoneSeplow Harris & Hoffman, LLP, Venice,CA (Stephen A. Whinston, Carey R. D’Avi-no, Keino R. Robinson, Berger & Mon-

tague, P.C., Philadelphia, PA, on the brief),for Plaintiffs–Appellants–Cross–Appellees.

Rowan D. Wilson (Rory O. Millson,Thomas G. Rafferty, Michael T. Reynolds,on the brief), Cravath, Swaine & MooreLLP, New York, NY, for Defendants–Ap-pellees–Cross–Appellants.

Jeffrey J. Keyes, Briggs and Morgan,P.A., Minneapolis, MN (Mark Girouard,Halleland Lewis Nilan & Johnson, Minne-apolis, MN, on the brief), for amici curiaeInternational Law Professors in support ofPlaintiffs–Appellants.

Naomi Roht–Arriaza, San Francisco,CA, for amici curiae International LawScholars Cherif Bassiouni, et al. in supportof Plaintiffs–Appellants.

Judith Brown Chomsky (Jennifer M.Green, on the brief), Center for Constitu-tional Rights, New York, NY (Marcos Si-mons, Richard Herz, Earthrights Interna-tional, Washington, DC, on the brief), foramici curiae Wiwa Plaintiffs in support ofPlaintiffs–Appellants.

William Aceves, California WesternSchool of Law, San Diego, CA, for amicicuriae International Law Scholars in sup-port of Plaintiffs–Appellants.

Before: JACOBS, Chief Judge, LEVAL,and CABRANES, Circuit Judges.

Judge LEVAL concurs only in thejudgment of the Court dismissing thecomplaint and files a separate opinion.

JOS iE A. CABRANES, Circuit Judge:

[1] Once again we consider a casebrought under the Alien Tort Statute(‘‘ATS’’), 28 U.S.C. § 1350,1 a jurisdictionalprovision unlike any other in American lawand of a kind apparently unknown to anyother legal system in the world. Passedby the first Congress in 1789, the ATS lay

1. ‘‘The district courts shall have original juris-diction of any civil action by an alien for atort only, committed in violation of the law of

nations or a treaty of the United States.’’ 28U.S.C. § 1350.


largely dormant for over 170 years.Judge Friendly called it a ‘‘legal Loheng-rin’’—‘‘no one seems to know whence itcame.’’ 2 Then, in 1980, the statute wasgiven new life, when our Court first recog-nized in Filartiga v. Pena–Irala that theATS provides jurisdiction over (1) tort ac-tions, (2) brought by aliens (only), (3) forviolations of the law of nations (also called‘‘customary international law’’ 3) including,as a general matter, war crimes andcrimes against humanity—crimes in whichthe perpetrator can be called ‘‘hostis hu-mani generis, an enemy of all mankind.’’ 4

Since that time, the ATS has given riseto an abundance of litigation in U.S. dis-trict courts. For the first fifteen yearsafter Filartiga—that is, from 1980 to themid–1990s—aliens brought ATS suits inour 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 as1997.5

Such civil lawsuits, alleging heinouscrimes condemned by customary interna-tional law, often involve a variety of issuesunique to ATS litigation, not least the factthat the events took place abroad and introubled or chaotic circumstances. Theresulting complexity and uncertainty—combined with the fact that juries hearingATS claims are capable of awarding multi-billion-dollar verdicts 6—has led many de-fendants to settle ATS claims prior to tri-al.7 Thus, our Court has published onlynine significant decisions on the ATS since1980 (seven of the nine coming in the lastdecade),8 and the Supreme Court in its

2. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2dCir.1975) (Friendly, J.), abrogated on othergrounds by Morrison v. Nat’l Austl. Bank Ltd.,––– U.S. ––––, 130 S.Ct. 2869, 177 L.Ed.2d535 (2010).

3. In this opinion we use the terms ‘‘law ofnations’’ and ‘‘customary international law’’interchangeably. See Flores v. S. Peru CopperCorp., 414 F.3d 233, 237 n. 2 (2d Cir.2003)(explaining that, in the context of ATS juris-prudence, ‘‘we have consistently used theterm ‘customary international law’ as a syn-onym for the term the ‘law of nations’ ’’); seealso The Estrella, 17 U.S. (4 Wheat.) 298, 307,4 L.Ed. 574 (1819) (referring to non-treaty-based law of nations as the ‘‘the customaryTTT law of nations’’).

4. Filartiga v. Pena–Irala, 630 F.2d 876, 890(2d Cir.1980); see also Sosa v. Alvarez–Ma-chain, 542 U.S. 692, 724–25, 732, 124 S.Ct.2739, 159 L.Ed.2d 718 (2004) (Souter, J.)(quoting this reference in Filartiga with ap-proval and identifying that case as the ‘‘birthof the modern line of [ATS] cases’’). In lightof the universal recognition of Filartiga as thefont of ATS litigation—including by Judge Le-val, see Concurring Op. 150 (‘‘Since FilartigaTTT was decided in 1980, United Statescourts, acting under the Alien Tort Statute TTT

have been awarding compensatory damages

to the victims of human rights abuses com-mitted in violation of the law of nations.’’)—we do not understand Judge Leval’s assertionthat our decision conflicts with ‘‘two centu-ries’’ of precedent. Concurring Op. 195–196.

5. The first ATS case brought against a corpo-rate defendant appears to have been Doe v.Unocal Corp., 963 F.Supp. 880 (C.D.Cal.1997), aff’d in part and rev’d in part, 395 F.3d932 (9th Cir.2002).

6. In one ATS case, for example, a jury consid-ering damages after a default judgment re-turned a $4.5 billion verdict against RadovanKaradzic, former president of the self-pro-claimed Bosnian–Serb republic of Srpska, for‘‘acts of genocide TTT committed in Bosnia–Herzegovina by individuals under [his] com-mand and control.’’ Doe I v. Karadzic, No. 93Civ. 0878, 2001 WL 986545, at *1, 2001 U.S.Dist. LEXIS 12928, at *1–2 (S.D.N.Y. Aug. 28,2001).

7. See, e.g., Lisa Girion, Unocal to Settle RightsClaims, L.A. Times, Dec. 14, 2004, at A1; JadMouawad, Shell Agrees to Settle Abuse Casefor Millions, N.Y. Times, June 9, 2009, at B1.

8. We count among the significant ATS casesdecided by our Court: Filartiga, 630 F.2d


entire history has decided only one ATScase.9

Because appellate review of ATS suitshas been so uncommon, there remain anumber of unresolved issues lurking in ourATS jurisprudence—issues that we havesimply had no occasion to address in thehandful of cases we have decided in thethirty years since the revival of the ATS.This case involves one such unresolvedissue: Does the jurisdiction granted by theATS extend to civil actions brought againstcorporations under the law of nations? 10

Plaintiffs are residents of Nigeria whoclaim that Dutch, British, and Nigerian

corporations engaged in oil exploration andproduction aided and abetted the Nigeriangovernment in committing violations of thelaw of nations. They seek damages underthe ATS, and thus their suit may proceedonly if the ATS provides jurisdiction overtort actions brought against corporationsunder customary international law.

[2] A legal culture long accustomed toimposing liability on corporations may, atfirst blush, assume that corporations mustbe subject to tort liability under the ATS,just as corporations are generally liable intort under our domestic law (what interna-tional law calls ‘‘municipal law’’).11 But the

876; Kadic v. Karadzic, 70 F.3d 232 (2d Cir.1995), Wiwa v. Royal Dutch Petroleum Co.,226 F.3d 88 (2d Cir.2000); Bigio v. The Coca–Cola Co., 239 F.3d 440 (2d Cir.2000); Flores,414 F.3d 233; Khulumani v. Barclay Nat’lBank Ltd., 504 F.3d 254 (2d Cir.2007); Viet.Assoc. for Victims of Agent Orange v. DowChem. Co., 517 F.3d 104 (2d Cir.2008); Ab-dullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir.2009); Presbyterian Church of Sudan v. Talis-man Energy, Inc., 582 F.3d 244 (2d Cir.2009).

9. Sosa, 542 U.S. 692, 124 S.Ct. 2739.

10. The question of corporate liability has beenidentified as recently as 2009 in PresbyterianChurch as an open question in our Circuit.See 582 F.3d at 261 n. 12 (‘‘We will alsoassume, without deciding, that corporationsTTT may be held liable for the violations ofcustomary international law that plaintiffs al-lege.’’). Others have also acknowledged, ei-ther explicitly or implicitly, that the questionremains unanswered. See, e.g., Khulumani,504 F.3d at 282–83 (Katzmann, J., concur-ring) (noting that, because defendants did notraise the issue, the Court need not reach thequestion of corporate liability); id. at 321–25(Korman, J., concurring in part and dissent-ing in part) (expressing the view that corpora-tions cannot be held liable under the ATS);Brief of the United States as Amicus Curiae inOpposition to the Petition for a Writ of Certio-rari 9 n. 2, Pfizer Inc. v. Abdullahi, No. 09–34(May 28, 2010) (urging the Supreme Courtnot to ‘‘grant certiorari in this case to consid-er whether suits under the ATS can bebrought against private corporations’’ be-

cause ‘‘[t]hat question was not addressed bythe court below’’ and was not ‘‘fairly includedin the scope of TTT the questions presented’’(internal quotation marks omitted)). And atleast one district court in another circuit hasrecently held that there is no corporate liabili-ty under the ATS. Doe v. Nestle, No. CV 05–5133, slip op. at 120–60 (C.D.Cal. Sept. 8,2010).

We decline to address several other lurkingquestions, including whether the ATS applies‘‘extraterritorially,’’ see Conditional Cross–Pe-tition for a Writ of Certiorari 14–17, Presbyte-rian Church of Sudan v. Talisman Energy,Inc., No. 09–1418 (May 20, 2010), or whetherexhaustion of domestic remedies is requiredfor claims that arise in a foreign forum, seeSosa, 542 U.S. at 733 n. 21, 124 S.Ct. 2739(noting that the Supreme Court ‘‘would cer-tainly consider this requirement in an appro-priate case’’). We do not reach those ques-tions here because we conclude that we lackjurisdiction over plaintiffs’ claims insofar asthey are asserted only against corporations.

11. The idea that corporations are ‘‘persons’’with duties, liabilities, and rights has a longhistory in American domestic law. See, e.g.,N.Y. Cent. & Hudson River R.R. Co. v. UnitedStates, 212 U.S. 481, 492, 29 S.Ct. 304, 53L.Ed. 613 (1909) (rejecting the argument that,‘‘owing to the nature and character of itsorganization and the extent of its power andauthority, a corporation cannot commit acrime’’). See generally Leonard Orland, Cor-porate Criminal Liability § 2.03–2.04 (2006)(discussing the policy behind, and history of,


substantive law that determines our juris-diction under the ATS is neither the do-mestic law of the United States nor thedomestic law of any other country. Byconferring subject matter jurisdiction overa limited number of offenses defined bycustomary international law, the ATS re-quires federal courts to look beyond rulesof domestic law—however well-establishedthey may be—to examine the specific anduniversally accepted rules that the nationsof the world treat as binding in theirdealings with one another.12 As JudgeFriendly carefully explained, customary in-ternational law includes only ‘‘those stan-dards, rules or customs (a) affecting therelationship between states or between anindividual and a foreign state, and (b) usedby those states for their common goodand/or in dealings inter se.’’ 13

[3] Our recognition of a norm of liabili-ty as a matter of domestic law, therefore,cannot create a norm of customary inter-national law. In other words, the fact thatcorporations are liable as juridical personsunder domestic law does not mean thatthey are liable under international law(and, therefore, under the ATS). More-over, the fact that a legal norm is found inmost or even all ‘‘civilized nations’’ doesnot make that norm a part of customaryinternational law. As we explained in Fi-lartiga:

[T]he mere fact that every nation’s mu-nicipal [i.e., domestic] law may prohibit

theft does not incorporate ‘‘the EighthCommandment, ‘Thou Shalt not steal’TTT into the law of nations.’’ It is onlywhere the nations of the world havedemonstrated that the wrong is of mutu-al, and not merely several, concern, bymeans of express international accords,that a wrong generally recognized be-comes an international law violationwithin the meaning of the [ATS].14

Accordingly, absent a relevant treaty ofthe United States—and none is relied onhere—we must ask whether a plaintiffbringing an ATS suit against a corporationhas alleged a violation of customary inter-national law.

The singular achievement of internation-al law since the Second World War hascome in the area of human rights, wherethe subjects of customary internationallaw—i.e., those with international rights,duties, and liabilities—now include notmerely states, but also individuals. Thisprinciple was most famously applied by theInternational Military Tribunal at Nurem-berg. As Justice Robert H. Jackson, chiefprosecutor for the United States at Nu-remberg, explained:

[The Nurnberg trials] for the first timemade explicit and unambiguous whatwas theretofore, as the Tribunal has de-clared, implicit in International Law,namely, that to prepare, incite, or wagea war of aggression TTT and that to

corporate criminal liability). It is an ideathat continues to evolve in complex and unex-pected ways. See, e.g., Citizens United v. Fed.Election Comm’n, 558 U.S. 50, 130 S.Ct. 876,––– L.Ed.2d –––– (2010). The history of cor-porate rights and obligations under domesticlaw is, however, entirely irrelevant to the is-sue before us—namely, the treatment of cor-porations as a matter of customary interna-tional law.

12. See Sosa, 542 U.S. at 732, 124 S.Ct. 2739(quoting with approval the statement of alower court that rules of customary interna-

tional law must be ‘‘specific, universal, andobligatory’’ (internal quotation marks omit-ted)); Flores, 414 F.3d at 248 (‘‘[C]ustomaryinternational law is composed only of thoserules that States universally abide by, or ac-cede to, out of a sense of legal obligation andmutual concern.’’).

13. Vencap, 519 F.2d at 1015 (internal quota-tion marks omitted).

14. 630 F.2d at 888 (quoting Vencap, 519 F.2dat 1015) (alteration omitted).


persecute, oppress, or do violence to in-dividuals or minorities on political, ra-cial, or religious grounds in connectionwith such a war, or to exterminate, en-slave, or deport civilian populations, isan international crime, and that for thecommission of such crimes individualsare responsible.

Robert H. Jackson, Final Report to thePresident Concerning the Nurnberg WarCrimes Trial (1946) (emphasis added), re-printed in 20 Temp. L.Q. 338, 342 (1946).15

From the beginning, however, the prin-ciple of individual liability for violations ofinternational law has been limited to natu-ral persons—not ‘‘juridical’’ persons suchas corporations—because the moral re-sponsibility for a crime so heinous andunbounded as to rise to the level of an‘‘international crime’’ has rested solelywith the individual men and women whohave perpetrated it. As the Nurembergtribunal unmistakably set forth in explain-ing the rationale for individual liability forviolations of international law: ‘‘Crimesagainst international law are committed bymen, not by abstract entities, and only bypunishing individuals who commit such

crimes can the provisions of internationallaw be enforced.’’ The Nurnberg Trial(United States v. Goering), 6 F.R.D. 69,110 (Int’l Military Trib. at Nuremberg1946) (rejecting the argument that onlystates could be liable under internationallaw).

After Nuremberg, as new internationaltribunals have been created, the customaryinternational law of human rights has re-mained focused not on abstract entities buton the individual men and women whohave committed international crimes uni-versally recognized by the nations of theworld. This principle has taken its mostvivid form in the recent design of theInternational Criminal Court (‘‘ICC’’). Al-though there was a proposal at the RomeConference to grant the ICC jurisdictionover corporations and other ‘‘juridical’’persons, that proposal was soundly reject-ed, and the Rome Statute, the ICC’s const-itutive document, hews to the tenet setforth in Nuremberg that internationalnorms should be enforced by the punish-ment of the individual men and womenwho violate them.16

15. See also Brigadier General Telford Taylor,U.S.A., Chief of Counsel for War Crimes, Fi-nal Report to the Secretary of the Army on theNuernberg War Crimes Trials Under ControlCouncil Law No. 10, at 109 (1949) (‘‘[T]hemajor legal significance of the [Nuernberg]judgments lies, in my opinion, in those por-tions of the judgments dealing with the area ofpersonal responsibility for international lawcrimes.’’ (emphasis in original)).

16. See The Rome Statute of the InternationalCriminal Court (‘‘Rome Statute’’) art. 25(1),opened for signature July 17, 1998, 37 I.L.M.1002, 1016 (limiting the ICC’s jurisdiction to‘‘natural persons’’); see also Albin Eser, Indi-vidual Criminal Responsibility, in 1 The RomeStatute of the International Criminal Court767, 778–79 (Antonio Cassese et al. eds.,2002).

The United States has not ratified the RomeStatute. Under the Clinton Administration,

the U.S. delegation voted against the textadopted in Rome in 1998, in part because ofconcerns that the treaty ‘‘could inhibit theability of the United States to use its militaryto meet alliance obligations and participate inmultinational operations, including humani-tarian interventions.’’ Diane F. Orentlicher,Unilateral Multilateralism: United States Poli-cy Toward the International Criminal Court,36 Cornell Int’l L.J. 415, 419 (2004) (quotingthe testimony, before the Senate Foreign Re-lations Committee, of David J. Scheffer, Am-bassador–at–Large for War Crimes Issues andHead of the U.S. delegation at the RomeConference). Despite those concerns, theUnited States signed the Rome Statute onDecember 31, 2000, the last day it was openfor signature, under the outgoing Clinton Ad-ministration. Id. at 421. See generally Flores,414 F.3d at 256 (explaining the meaning andsignificance of signing an international agree-ment); United States v. Yousef, 327 F.3d 56,94 n. 28 (2d Cir.2003) (same). On May 6,


In short, because customary internation-al law imposes individual liability for alimited number of international crimes—including war crimes, crimes against hu-manity (such as genocide), and torture—we have held that the ATS provides juris-diction over claims in tort against individu-als who are alleged to have committedsuch crimes. As we explain in detail be-low, however, customary international lawhas steadfastly rejected the notion of cor-porate liability for international crimes,and no international tribunal has ever helda corporation liable for a violation of thelaw of nations.

We must conclude, therefore, that inso-far as plaintiffs bring claims under theATS against corporations, plaintiffs fail toallege violations of the law of nations, andplaintiffs’ claims fall outside the limitedjurisdiction provided by the ATS.

We emphasize that the question beforeus is not whether corporations are ‘‘im-mune’’ from suit under the ATS: Thatformulation improperly assumes that thereis a norm imposing liability in the firstplace.17 Rather, the question before us, asthe Supreme Court has explained, ‘‘iswhether international law extends thescope of liability for a violation of a given

norm to the perpetrator being sued, if thedefendant is a private actor such as acorporation or individual.’’ 18 Looking tointernational law, we find a jurisprudence,first set forth in Nuremberg and repeatedby every international tribunal of which weare aware, that offenses against the law ofnations (i.e., customary international law)for violations of human rights can becharged against States and against individ-ual men and women but not against juridi-cal persons such as corporations. As aresult, although customary internationallaw has sometimes extended the scope ofliability for a violation of a given norm toindividuals, it has never extended thescope of liability to a corporation.19

* * *

We pause briefly to acknowledge andreply to the separate opinion of our col-league, Judge Leval. As an initial matter,we are perplexed by Judge Leval’s re-peated insistence that there is no ‘‘basis’’for our holding because ‘‘[n]o precedent ofinternational law endorses’’ it. See, e.g.,Concurring Op. 151. In an ATS suit, wemay apply only those international normsthat are ‘‘specific, universal, and obligato-ry.’’ 20 As a result, the responsibility of

2002, the Bush Administration notified theUnited Nations that the United States did notintend to become a party, an act popularlyreferred to as ‘‘un sign[ing].’’ Orentlicher,ante, at 421; see also Press Release, U.S.Dep’t of Def., Secretary Rumsfeld Statementon the ICC Treaty (May 6, 2002) (noting theUnited States’ concern about ‘‘the lack ofadequate checks and balances on powers ofthe ICC prosecutors and judges; the dilutionof the U.N. Security Council’s authority overinternational criminal prosecutions; and thelack of an effective mechanism to preventpoliticized prosecutions of American service-members and officials’’). However limited thevalue of the Rome Statute in determiningwhat customary international law is, a dem-onstrated lack of consensus amongst its signa-tories about a particular norm is valuableevidence of what customary international law

is not. See Sosa, 542 U.S. at 732, 124 S.Ct.2739 (quoting with approval the statementthat rules of international law must be ‘‘spe-cific, universal, and obligatory’’ (emphasisadded) (internal quotation marks omitted)).

17. Thus it is equally misleading to say that weare giving ‘‘a free pass’’ to corporations.Concurring Op. 155.

18. Sosa, 542 U.S. at 732 n. 20, 124 S.Ct. 2739

19. Our use of the term ‘‘corporation’’—andour holding—is limited to private juridicalentities such as defendants.

20. Sosa, 542 U.S. at 732, 124 S.Ct. 2739(quoting with approval the statement of alower court) (internal quotation marks omit-ted). See generally Part II, post.


establishing a norm of customary interna-tional law lies with those wishing to invokeit, and in the absence of sources of interna-tional law endorsing (or refuting) a norm,the norm simply cannot be applied in a suitgrounded on customary international lawunder the ATS. Thus, even if there were,as Judge Leval claims, an absence ofsources of international law addressingcorporate liability,21 that supposed lack ofauthority would actually support our hold-ing. By contrast, to support Judge Leval’sproposed rule, there would need to be notonly a few, but so many sources of interna-tional law calling for corporate liabilitythat the norm could be regarded as ‘‘uni-versal.’’ As it happens, no corporation hasever been subject to any form of liabilityunder the customary international law ofhuman rights, and thus the ATS, the reme-dy Congress has chosen, simply does notconfer jurisdiction over suits against cor-porations.22

Although Judge Leval condemns ourholding, he in fact agrees with much of ouropinion. He concedes, for example, that‘‘[i]t is true that international law, of its

own force, imposes no liabilities on corpo-rations or other private juridical entities.’’Concurring Op. 186; see also id. (explain-ing that it ‘‘is entirely accurate’’ that ‘‘in-ternational law imposes no liabilities onprivate juridical persons’’); id. at 185–86(‘‘[I]t is absolutely correct that the rules ofinternational law TTT do not provide forany form of liability of corporations.’’). Hesimilarly has ‘‘no quarrel’’ with the ‘‘prem-ise[ ]’’ that international law is ‘‘the placeto look’’ to determine whether corporationscan be held liable for violations of interna-tional law. Id. at 174–175. He concludes,however, that international law does notsupply an answer to that question. In hisview, the question of corporate liability ismerely a matter of ‘‘remedy’’ that ‘‘inter-national law leaves TTT to the independentdetermination of each State.’’ Id. at 176.

We agree with Judge Leval that wheth-er to enact a civil remedy for violations ofcustomary international law is a matter tobe determined by each State; the UnitedStates has done so in enacting the ATS.But the ATS does not specify who is liable;

21. In fact, as we discuss below, there areample sources of international law explicitlyrejecting corporate liability. See generallyPart II, post.

22. As we explain in detail below, see generallyPart II, post, every international tribunal toconfront the question of whether the liabilityof non-state actors for violations of customaryinternational law should extend to both natu-ral and juridical persons has considered andrejected corporate liability. We do not restour analysis of customary international lawon the district court ATS decisions on whichJudge Leval relies. Concurring Op. 161–62 n.14. Indeed, even if we were to accord thosedistrict court cases the merit Judge Levalseems to believe they deserve, the opinions ofdomestic courts citing domestic courts alonefor propositions of customary internationallaw do not constitute evidence of a ‘‘specific,universal, and obligatory’’ norm of the kindnecessary to impose judgment under the ATS.Sosa, 542 U.S. at 732, 124 S.Ct. 2739.

Moreover, contrary to Judge Leval’s claimthat the Nuremberg ‘‘tribunals found that cor-porations violated the law of nations,’’ seeConcurring Op. 180 & n. 36 (emphasis added)(citing 6 Trials of War Criminals Before theNuernberg Military Tribunals Under ControlCouncil Law No. 10 (‘‘The Flick Case ’’)(1952); 7, 8 Trials of War Criminals Before theNuernberg Military Tribunals Under ControlCouncil Law No. 10 (‘‘The Farben Case ’’)(1952); 9 Trials of War Criminals Before theNuernberg Military Tribunals Under ControlCouncil Law No. 10 (‘‘The Krupp Case ’’)(1950)), no tribunal at Nuremberg had thejurisdiction to charge—let alone impose judg-ment on—a corporation. As Judge Leval cor-rectly points out, this jurisdictional bar didnot inhibit the tribunals’ ability to bring indi-vidual criminal defendants to justice foratrocities committed in violation of the cus-tomary international law of human rights.Id.


it imposes liability only for a ‘‘violation ofthe law of nations,’’ 28 U.S.C. § 1350, andthus it leaves the question of the natureand scope of liability—who is liable forwhat—to customary international law. Aswe explain in detail below, therefore,whether a defendant is liable under theATS depends entirely upon whether thatdefendant is subject to liability under cus-tomary international law. It is inconceiva-ble that a defendant who is not liableunder customary international law couldbe liable under the ATS.

We will not embark on a lengthy tan-gent in response to Judge Leval’s many‘‘hypothetical cases,’’ Concurring Op. 159,in which corporations would not, under ourholding, be liable under the ATS. We noteonly that nothing in this opinion limits orforecloses suits under the ATS against theindividual perpetrators of violations of cus-tomary international law—including theemployees, managers, officers, and di-rectors of a corporation—as well as anyone

who purposefully aids and abets a violationof customary international law. Nor doesanything in this opinion limit or foreclosecriminal, administrative, or civil actionsagainst any corporation under a body oflaw other than customary internationallaw—for example, the domestic laws ofany State. And, of course, nothing in thisopinion limits or forecloses legislative ac-tion by Congress.

* * *

Lastly, we wish to note that we do nottake lightly the passion with which JudgeLeval disagrees with our holding. We arekeenly aware that he calls our reasoning‘‘illogical’’ on nine separate occasions. SeeConcurring Op. 151, 152, 154, 165, 166 n.18, 168, 164, 174, 185, 186. Nor is it loston us that he calls our conclusions‘‘strange,’’ id. at 151, 179–80, 180–81,23 orthat he repeatedly criticizes our analysis as‘‘internally inconsistent,’’ id. at 152 – 53,153, 174.24 We must, however, leave it to

23. Although Judge Leval calls our holding‘‘strange’’ and ‘‘illogical,’’ Concurring Op.151, it is, in fact, neither novel nor eccentric.Rather, it appears to be the same ruleadopted by Congress in enacting the TortureVictim Protection Act of 1991 (‘‘TVPA’’),Pub.L. No. 102–256, 106 Stat. 73 (codified at28 U.S.C. § 1350 note). The TVPA creates acivil damages remedy against ‘‘[a]n individu-al, who, under actual or apparent authority,or color of law, of any foreign nation TTT

subjects an individual to torture TTT or TTT

extrajudicial killing.’’ Id. § 2(a)(1)-(2) (em-phases added); Bowoto v. Chevron Corp., 621F.3d 1116, 1126 (9th Cir.2010) (holding that‘‘the TVPA does not apply to corporations’’).Indeed, as Judge Korman observed in hisseparate opinion in Khulumani:

Under the TVPA, the term ‘‘individual’’ de-scribes both those who can violate its pro-scriptions against torture, as well as thosewho can be victims of tortureTTTT ‘‘[B]othfrom context and common sense only natu-ral persons can be the ‘individual’ victimsof acts that inflict ‘severe pain and suffer-ing.’ Because the TVPA uses the sameterm ‘individual’ to identify offenders, the

definition of ‘individual’ within the statuteappears to refer to a human being, suggest-ing that only natural persons can violate theAct.’’

504 F.3d at 323–24 (Korman, J., concurringin part and dissenting in part) (emphasis add-ed) (citation omitted) (quoting In re AgentOrange Prod. Liab. Litig., 373 F.Supp.2d 7, 56(E.D.N.Y.2005)); accord Mujica v. OccidentalPetroleum Corp., 381 F.Supp.2d 1164, 1176(C.D.Cal.2005) (holding that corporations arenot ‘‘individuals’’ under the TVPA); cf. 1U.S.C. § 1 (‘‘In determining the meaning ofany Act of Congress, unless context indicatesotherwise TTT the word[ ] ‘person’ TTT in-clude[s] corporations TTT as well as individu-als TTTT’’ (emphasis added)).

24. Suggesting the panel majority is in leaguewith leading opponents of the modern ATSjurisprudence, Judge Leval even goes so far asto attempt an increasingly popular rhetoricalploy among legal scholars of a certain schoolof thought: what might be called the ‘‘reduc-tio ad Borkum.’’ See Concurring Op. 150 – 51(quoting Tel–Oren v. Libyan Arab Republic,726 F.2d 774, 805 (D.C.Cir.1984) (Bork, J.,


the reader to decide whether any of JudgeLeval’s charges, individually or in combi-nation, are a fair reading of our opinion.In so doing we are confident that if oureffort is misguided, higher judicial authori-ty is available to tell us so.

BACKGROUND

These cross-appeals come to us from theUnited States District Court for the South-ern District of New York (Kimba M.Wood, Judge ). At this stage of the pro-ceedings, we accept as true all nonconclu-sory factual allegations relevant to thisdecision. See Ashcroft v. Iqbal, ––– U.S.––––, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d868 (2009).

I. Factual Background

Plaintiffs, who are, or were, residents ofthe Ogoni Region of Nigeria, allege thatdefendants Royal Dutch Petroleum Com-pany (‘‘Royal Dutch’’) and Shell Transportand Trading Company PLC (‘‘Shell’’),through a subsidiary named Shell Petro-leum Development Company of Nigeria,Ltd. (‘‘SPDC’’), aided and abetted the Ni-gerian government in committing humanrights abuses directed at plaintiffs. RoyalDutch and Shell are holding companiesincorporated respectively in the Nether-lands and the United Kingdom.25 SPDC isincorporated in Nigeria. All defendantsare corporate entities—that is, ‘‘juridical’’persons, rather than ‘‘natural’’ persons.

SPDC has been engaged in oil explora-tion and production in the Ogoni region ofNigeria since 1958. In response toSPDC’s activities, residents of the Ogoniregion organized a group named the‘‘Movement for Survival of Ogoni People’’to protest the environmental effects of oilexploration in the region. According toplaintiffs, in 1993 defendants responded byenlisting the aid of the Nigerian govern-ment to suppress the Ogoni resistance.Throughout 1993 and 1994, Nigerian mili-tary forces are alleged to have shot andkilled Ogoni residents and attacked Ogonivillages—beating, raping, and arrestingresidents and destroying or looting proper-ty—with the assistance of defendants.Specifically, plaintiffs allege that defen-dants, inter alia, (1) provided transporta-tion to Nigerian forces, (2) allowed theirproperty to be utilized as a staging groundfor attacks, (3) provided food for soldiersinvolved in the attacks, and (4) providedcompensation to those soldiers.

Plaintiffs brought claims against defen-dants under the ATS for aiding and abet-ting the Nigerian government in allegedviolations of the law of nations. Specifical-ly, plaintiffs brought claims of aiding andabetting (1) extrajudicial killing; (2)crimes against humanity; (3) torture orcruel, inhuman, and degrading treatment;(4) arbitrary arrest and detention; (5) vio-lation of the rights to life, liberty, security,and association; (6) forced exile; and (7)property destruction.

concurring)); cf. Leo Strauss, Natural Rightand History 42–43 (1950) (‘‘[W]e must avoidthe fallacy that in the last decades has fre-quently been used as a substitute for the re-ductio ad absurdum: the reductio ad Hitle-rum. A view is not refuted by the fact that ithappens to have been shared by Hitler.’’).We do not adhere to any school of thought onthe ATS. In any event, we have faith that ourreaders will understand that a view is notrefuted by the fact that it happens to have

been shared by The Honorable Robert H.Bork, sometime Alexander M. Bickel Profes-sor of Law at Yale Law School, SolicitorGeneral of the United States, and UnitedStates Circuit Judge for the District of Colum-bia Circuit.

25. Because of changes in corporate form,Shell Petroleum N.V. and Shell Transport andTrading Company, Ltd. are the successors tothe named defendants Royal Dutch and Shell.


II. Procedural History

Plaintiffs commenced this lawsuit by fil-ing a putative class action complaint inSeptember 2002, which was amended inMay 2004. They alleged that defendantsaided and abetted, or were otherwise com-plicit in, violations of the law of nations bythe Nigerian government. Relying on theSupreme Court’s June 2004 decision inSosa 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 Courtdismissed plaintiffs’ claims for aiding andabetting property destruction; forced ex-ile; extrajudicial killing; and violations ofthe rights to life, liberty, security, andassociation. The District Court reasonedthat customary international law did notdefine those violations with the particulari-ty required by Sosa. See Kiobel v. RoyalDutch Petroleum Co., 456 F.Supp.2d 457,464–65, 467 (S.D.N.Y.2006). The DistrictCourt denied defendants’ motion to dis-miss with respect to the remaining claimsof aiding and abetting arbitrary arrest anddetention; crimes against humanity; andtorture or cruel, inhuman, and degradingtreatment. See id. at 465–67. Recogniz-ing the importance of the issues presentedand the substantial grounds for differenceof opinion, the District Court certified itsentire order for interlocutory appeal pur-suant to 28 U.S.C. § 1292(b). See id. at467–68.

DISCUSSION

[4, 5] We review de novo a districtcourt’s dismissal for failure to state aclaim, see Fed.R.Civ.P. 12(b)(6), assumingall well-pleaded, nonconclusory factual alle-gations in the complaint to be true. SeeIqbal, 129 S.Ct. at 1949–50; Selevan v.N.Y. Thruway Auth., 584 F.3d 82, 88 (2dCir.2009). We also review questions ofsubject matter jurisdiction de novo. See

Bank of N.Y. v. First Millennium, Inc.,607 F.3d 905, 920 (2d Cir.2010); Flores v.S. Peru Copper Corp., 414 F.3d 233, 241(2d Cir.2003).

[6] As we have explained above, thisappeal presents a question that has beenlurking for some time in our ATS jurispru-dence. Since our first case upholdingclaims brought under the ATS in 1980, seeFilartiga v. Pena–Irala, 630 F.2d 876 (2dCir.1980), our Court has never directlyaddressed whether our jurisdiction underthe ATS extends to civil actions againstcorporations, see Presbyterian Church ofSudan v. Talisman Energy, Inc., 582 F.3d244, 261 n. 12 (2d Cir.2009) (assuming,without deciding, that corporations may beliable for violations of customary interna-tional law); Khulumani v. Barclay Nat’lBank Ltd., 504 F.3d 254, 282–83 (2d Cir.2007) (Katzmann, J., concurring) (notingthat, because defendants did not raise theissue, the Court need not reach the ques-tion of whether corporations may be liablefor violations of customary internationallaw); id. at 321–25 (Korman, J., concurringin part and dissenting in part) (expressingthe view that corporations cannot be heldliable under the ATS). We have, in thepast, decided ATS cases involving corpora-tions without addressing the issue of cor-porate liability. See, e.g., Abdullahi v.Pfizer, Inc., 562 F.3d 163 (2d Cir.2009),cert. denied, ––– U.S. ––––, 130 S.Ct. 3541,––– L.Ed.2d –––– (2010); Flores, 414 F.3d233; Wiwa v. Royal Dutch Petroleum Co.,226 F.3d 88 (2d Cir.2000). But that factdoes not foreclose consideration of the is-sue here. As the Supreme Court has held,‘‘when questions of jurisdiction have beenpassed on in prior decisions sub silentio,’’the Court ‘‘has never considered itselfbound when a subsequent case finallybrings 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-


phasis added); see also Webster v. Fall,266 U.S. 507, 511, 45 S.Ct. 148, 69 L.Ed.411 (1925) (‘‘Questions which merely lurkin the record, neither brought to the atten-tion of the court nor ruled upon, are not tobe considered as having been so decided asto constitute precedents.’’); Garay v. Slat-tery, 23 F.3d 744, 745 n.2 (2d Cir.1994)(finding it necessary to address jurisdic-tional challenge despite prior cases assum-ing jurisdiction). The same rule applieshere.

In answering the question presented weproceed in two steps. First, we considerwhich body of law governs the question—international law or domestic law—andconclude that international law governs.26

Second, we consider what the sources ofinternational law reveal with respect towhether corporations can be subject toliability for violations of customary inter-national law. We conclude that thosesources lead inescapably to the conclusionthat the customary international law ofhuman rights has not to date recognizedliability for corporations that violate itsnorms.

I. Customary International Law Gov-erns Our Inquiry

[7] The ATS grants federal districtcourts jurisdiction over claims ‘‘by an alienfor a tort only, committed in violation ofthe law of nations or a treaty of the UnitedStates.’’ 28 U.S.C. § 1350.27 In 2004, the

Supreme Court held in Sosa that the ATSis a jurisdictional statute only; it createsno cause of action, Justice Souter ex-plained, because its drafters understoodthat ‘‘the common law would provide acause of action for the modest number ofinternational law violations with a potentialfor personal liability at the time.’’ 542U.S. at 724, 124 S.Ct. 2739. Indeed, at thetime of its adoption, the ATS ‘‘enabledfederal courts to hear claims in a verylimited category defined by the law ofnations and recognized at common law.’’Id. at 712, 124 S.Ct. 2739. These included‘‘three specific offenses against the law ofnations addressed by the criminal law ofEngland [and identified by Blackstone]:violation of safe conducts, infringement ofthe rights of ambassadors, and piracy’’—each a rule ‘‘binding individuals for thebenefit of other individuals[, which] over-lapped with the norms of state relation-ships.’’ Id. at 715, 124 S.Ct. 2739 (citing 4W. Blackstone, Commentaries on theLaws of England 68 (1769)).

The Supreme Court did not, however,limit the jurisdiction of the federal courtsunder the ATS to those three offensesrecognized by the law of nations in 1789.Instead, the Court in Sosa held that feder-al courts may recognize claims ‘‘based onthe present-day law of nations’’ providedthat the claims rest on ‘‘norm[s] of interna-tional character accepted by the civilizedworld and defined with a specificity compa-

26. The Supreme Court has long recognizedthat ‘‘where there is no treaty and no control-ling executive or legislative act or judicialdecision,’’ customary ‘‘[i]nternational law ispart of our law.’’ The Paquete Habana, 175U.S. 677, 700, 20 S.Ct. 290, 44 L.Ed. 320(1900). In Sosa, the Court explained that theATS was enacted ‘‘on the understanding thatthe common law would provide a cause ofaction for the modest number of internationallaw violations with a potential for personalliability.’’ 542 U.S. at 724, 124 S.Ct. 2739(emphasis added).

27. The statute originally provided that thefederal district courts ‘‘shall TTT have cogni-zance, concurrent with the courts of the sev-eral States, or the circuit courts, as the casemay be, of all causes where an alien sues for atort only in violation of the law of nations or atreaty of the United States.’’ Act of Sept. 24,1789, ch. 20, § 9, 1 Stat. 77. The SupremeCourt has attributed no significance to itssubsequent amendment. See Sosa, 542 U.S.at 713 n. 10, 124 S.Ct. 2739.


rable to the features of the 18th-centuryparadigms [the Court had] recognized.’’Id. at 725, 124 S.Ct. 2739.

[8] The Supreme Court cautioned that‘‘the determination whether a norm is suf-ficiently definite to support a cause of ac-tion should (and, indeed, inevitably must)involve an element of judgment about thepractical consequences of making thatcause available to litigants in the federalcourts.’’ Id. at 732–33, 124 S.Ct. 2739(footnote omitted). The Court also ob-served that ‘‘a related consideration iswhether international law extends thescope of liability for a violation of a givennorm to the perpetrator being sued, if thedefendant is a private actor such as acorporation or an individual.’’ Id. at 732 n.20, 124 S.Ct. 2739 (emphasis added). Weconclude—based on international law,Sosa, and our own precedents—that inter-national law, and not domestic law, gov-erns the scope of liability for violations ofcustomary international law under theATS.

A. International Law Defines theScope of Liability for Violationsof Its Norms

[9, 10] International law is not silenton the question of the subjects of interna-tional law—that is, ‘‘those that, to varyingextents, have legal status, personality,rights, and duties under international lawand whose acts and relationships are theprincipal concerns of international law.’’

Restatement (Third) of the Foreign Rela-tions Law of the United States (‘‘Restate-ment (Third)’’), pt. II, at 70 introductorynote (emphasis added); see 1 Oppenheim’sInternational Law § 33, at 119 (Sir Rob-ert Jennings & Sir Arthur Watts eds., 9thed. 1996) (‘‘An international person is onewho possesses legal personality in interna-tional law, meaning one who is a subject ofinternational law so as itself to enjoyrights, duties or powers established in in-ternational law, and, generally, the capaci-ty to act on the international plane TTTT’’(emphasis added) (footnotes omitted)).Nor does international law leave to individ-ual States the responsibility of definingthose subjects. Rather, ‘‘[t]he concept ofinternational person is TTT derived frominternational law.’’ 1 Oppenheim’s Inter-national Law § 33, at 120; see also Re-statement (Third), pt. II, at 70 introducto-ry note (‘‘[I]ndividuals and private juridicalentities can have any status, capacity,rights, or duties given them by interna-tional law or agreement TTTT’’ (emphasisadded)).28

That the subjects of international laware determined by international law, andnot individual States, is evident from thedecisions of the International Military Tri-bunal at Nuremberg (‘‘Tribunal’’) in theaftermath of the Second World War. Thesignificance of the judgment of the Tribu-nal—and of the judgments of the tribunalsestablished by the Allied Control Council

28. The Restatement observes that ‘‘[i]ndividu-als may be held liable for offenses againstinternational law, such as piracy, war crimes,or genocide’’ and that ‘‘[c]orporations fre-quently are vehicles through which rights un-der international economic law are asserted.’’Restatement (Third), pt. II., at 71 introductorynote (emphasis added); cf. 1 Oppenheim’s In-ternational Law § 33, at 120 (‘‘[T]he subjectsof law in any legal system are not necessarilyidentical in their nature or in the extent oftheir rights, and their nature depends upon

the needs of the community; an internationalperson need not possess all the internationalrights, duties and powers normally possessedby states.’’ (footnote omitted) (internal quota-tion marks omitted)). It goes without sayingthat the question we are dealing with here iswhether corporations are subjects of the cus-tomary international law of human rights, notwhether they are subjects of treaty-based ‘‘in-ternational economic law.’’ See generallyPart II.B, post.


pusuant to Council Control Law No. 10(Dec. 20, 1945), see Part II.A.1, post—wasnot simply that it recognized genocide andaggressive war as violations of internation-al law. The defining legal achievement ofthe Nuremberg trials is that they explicitlyrecognized individual liability for the vio-lation of specific, universal, and obligatorynorms of the customary international lawof human rights. In its judgment the Tri-bunal noted that the defendants had ar-gued that ‘‘international law is concernedwith the actions of sovereign states, andprovides no punishment for individuals.’’The Nurnberg Trial (United States v.Goering), 6 F.R.D. 69, 110 (Int’l MilitaryTrib. at Nuremberg 1946). The Tribunalrejected that view, however, declaring that‘‘international law imposes duties and lia-bilities upon individuals as well as uponstates’’ and that ‘‘individuals can be pun-ished for violations of international law.’’Id. (emphasis added).

The significance of that aspect of theTribunal’s judgment was not lost on ob-servers at the time. Justice Jackson, whoserved as chief prosecutor for the UnitedStates for the trial before the Tribunal,explained in his final report to PresidentTruman that ‘‘[the Nurnberg trials] for thefirst time made explicit and unambiguouswhat was theretofore, as the Tribunal hasdeclared, implicit in International Law,’’namely, that the conduct of the leaders ofNazi Germany violated international law,‘‘and that for the commission of suchcrimes individuals are responsible.’’ Rob-ert H. Jackson, Final Report to the Presi-dent Concerning the Nurnberg WarCrimes Trial (1946) (emphasis added), re-

printed in 20 Temp. L.Q. 338, 342 (1946)(emphasis added). General Telford Tay-lor, chief prosecutor for the United Statesfor the trials conducted under Allied Con-trol Council Law No. 10, similarly noted inhis final report to the Secretary of theArmy that ‘‘the major legal significance ofthe Law No. 10 judgments lies TTT inthose portions of the judgments dealingwith the area of personal responsibilityfor international law crimes.’’ BrigadierGeneral Telford Taylor, U.S.A., Chief ofCounsel for War Crimes, Final Report tothe Secretary of the Army on the Nuern-berg War Crimes Trials Under ControlCouncil Law No. 10, at 109 (1949); seealso note 36, post.29

B. Sosa and Our Precedents RequireUs to Look to International Lawto Determine the Scope of Liabili-ty

[11, 12] In Sosa the Supreme Court in-structed the lower federal courts to consid-er ‘‘whether international law extends thescope of liability for a violation of a givennorm to the perpetrator being sued, if thedefendant is a private actor such as acorporation or individual.’’ Sosa, 542 U.S.at 732 n. 20, 124 S.Ct. 2739 (emphasisadded). That language requires that welook to international law to determine ourjurisdiction over ATS claims against a par-ticular class of defendant, such as corpora-tions.30 That conclusion is reinforced byJustice Breyer’s reformulation of the issuein his concurring opinion: ‘‘The norm [ofinternational law] must extend liability to

29. Under Judge Leval’s approach, the exten-sion of the scope of liability to individuals atNuremberg was not a detectable advance ofinternational law. That is because, in hisview, international law merely ‘‘establishe[s]TTT norms of prohibited conduct’’ and leavesindividual States to determine the scope ofliability. Concurring Op. 152. That view findsno support in international law.

30. Although the text of the ATS limits only thecategory of plaintiff who may bring suit(namely, ‘‘aliens’’), its requirement that aclaim be predicated on a ‘‘violation of the lawof nations’’ incorporates any limitation aris-ing from customary international law on whoproperly can be named a defendant. See 28U.S.C. § 1350.


the type of perpetrator (e.g., a private ac-tor) the plaintiff seeks to sue.’’ See id. at760, 124 S.Ct. 2739 (Breyer, J., concurring)(emphasis added) (citing id. at 732 n. 20,124 S.Ct. 2739 majority opinion).

The Supreme Court’s instruction to lookto international law to determine the scopeof liability under the ATS did not involve arevolutionary interpretation of the stat-ute—in fact, it had long been the law ofthis Circuit. In Filartiga, we had lookedto international law to determine our juris-diction and to delineate the type of defen-dant who could be sued. See 630 F.2d at889 (‘‘[T]he question of federal jurisdictionunder the Alien Tort Statute TTT requiresconsideration of the law of nations.’’); id.at 880 (‘‘In light of the universal condem-nation of torture in numerous internationalagreements, and the renunciation of tor-ture as an instrument of official policy byvirtually all of the nations of the world (inprinciple if not in practice), we find that anact of torture committed by a state officialagainst one held in detention violates es-tablished norms of the international law ofhuman rights, and hence the law of na-tions.’’ (emphasis added)); see also Khulu-mani, 504 F.3d at 269 (Katzmann, J., con-curring) (‘‘We have repeatedly emphasizedthat the scope of the [ATS’s] jurisdictionalgrant should be determined by referenceto international law.’’). Likewise, in Kadicv. Karadzic, 70 F.3d 232 (2d Cir.1995)(Newman, J.), and in Judge Harry T. Ed-wards’s notable concurring opinion in Tel–Oren v. Libyan Arab Republic, 726 F.2d774, 775 (D.C.Cir.1984) (Edwards, J., con-curring)—both cited with approval by theSupreme Court in Sosa—international lawprovided the rules by which the court de-cided whether certain conduct violated thelaw of nations when committed by non-state actors. In Kadic, we held that aprivate actor could be liable under the lawof nations for genocide, war crimes, and

crimes against humanity, 70 F.3d at 239–41, but in Tel–Oren, Judge Edwards ex-pressed the view that a private actor couldnot be liable for torture under the ATS,726 F.2d at 791–95 (Edwards, J., concur-ring); see also, e.g., Flores, 414 F.3d at254–66 (looking to customary internationallaw for the applicable norms).

[13] Since Sosa, we have continued toadhere to the method prescribed in Sosafootnote 20 by looking to customary inter-national law to determine both whethercertain conduct leads to ATS liability andwhether the scope of liability under theATS extends to the defendant being sued.As recently as our decision of 2009 inPresbyterian Church, this same panel (in-cluding Judge Leval) declared that ‘‘foot-note 20 of Sosa, while nominally concernedwith the liability of non-state actors, sup-ports the broader principle that the scopeof liability for ATS violations should bederived from international law.’’ 582 F.3dat 258 (footnote omitted); see also id. at261 n. 12 (noting that the court ‘‘need notreach TTT the question of ‘whether interna-tional law extends the scope of liability’ tocorporations’’ (quoting Sosa, 542 U.S. at732 n. 20, 124 S.Ct. 2739)). In Presbyteri-an Church, we looked to international lawto determine the circumstances in whichaiders and abettors could be liable forviolations of the customary internationallaw of human rights. Id. at 258–59. Wedid so because ‘‘[r]ecognition of secondaryliability is no less significant a decisionthan whether to recognize a whole newtort in the first place.’’ Id. at 259. Thus,our holding today is consistent with Pres-byterian Church, where we looked to in-ternational law to determine not only whatconduct is cognizable under the ATS, butalso the identity of the persons to whomthat conduct is attributable (in that case,


aiders and abettors).31

Our interpretation of Sosa is also consis-tent with Judge Katzmann’s separate opin-ion in Khulumani, 504 F.3d at 264 (Katz-mann, J., concurring), which this samepanel (including Judge Leval) adopted asthe law of the Circuit in PresbyterianChurch, see 582 F.3d at 258 (‘‘This opiniondraws substantially from Judge Katz-mann’s concurring opinion, and adopts hisproposed rule as the law of this Circuit.’’).In Khulumani, Judge Katzmann observedthat aiding and abetting liability—muchlike corporate liability—‘‘ ‘does not consti-tute a discrete criminal offense but onlyserves as a more particularized way ofidentifying the persons involved’ in theunderlying offense.’’ 504 F.3d at 280(Katzmann, J., concurring) (quoting Unit-ed States v. Smith, 198 F.3d 377, 383 (2dCir.1999) (some internal quotation marksomitted)). Judge Katzmann further ex-

plained that ‘‘[w]hile [footnote 20 of Sosa ]specifically concerns the liability of non-state actors, its general principle is equallyapplicable to the question of where to lookto determine whether the scope of liabilityfor a violation of international law shouldextend to aiders and abettors.’’ Id. at 269.He therefore concluded that ‘‘to assureitself that it has jurisdiction to hear a claimunder the [ATS], [a court] should firstdetermine whether the alleged tort was infact ‘committed in violation of the law ofnations,’ 28 U.S.C. § 1350, and whetherthis law would recognize the defendants’responsibility for that violation.’’ Id. at270 (emphasis added); see also id. at 281(‘‘Because aiding and abetting is a general-ly applicable means of identifying whoshould be held responsible for a particularact, TTT it is TTT reasonable to considerwhether the theory is accepted as a gener-al principle of customary international

31. Judge Leval’s assertion that we quote Sosaout of context and distort the SupremeCourt’s reasoning is unwarranted. We inter-pret Sosa here exactly the way we did inPresbyterian Church, 582 F.3d at 258, 261 n.12. We acknowledge that the Court in Sosawas not addressing the question of corporateliability under the ATS. Thus, the Court infootnote 20 had no occasion to draw a dis-tinction between natural persons and juridicalpersons. That fact does not obscure footnote20’s fundamental point: courts must look tocustomary international law to determine the‘‘scope’’ of liability under the ATS. That istrue not only when a court is questioningwhether the scope of liability under the ATSincludes private actors (as opposed to stateactors), but also when a court is questioningwhether the scope of liability under the ATSincludes juridical persons (as opposed to nat-ural persons). The proposition that we arerequired to look to international law to deter-mine whether corporations can be held liableunder the ATS is not only compelled by Sosaand consistent with our precedents, it is alsoa proposition with which Judge Leval doesnot disagree. Concurring Op. 173–74 (ex-plaining that he has ‘‘no quarrel’’ with thepremise that ‘‘[t]o determine whether a cor-

poration can be held civilly liable for a viola-tion of international law, the place to look isto international law ’’ (emphasis added)); seealso id. at 174 (‘‘[I]f we found that interna-tional law in fact exempts corporations fromliability for violating its norms, we would beforced to accept that answer whether it seemsreasonable to us or not.’’).

Not only does Judge Leval agree that wemust look to customary international law inresolving the question before us, but he alsoagrees that the customary international law ofhuman rights imposes no liability on corpora-tions. Concurring Op. 186 (‘‘It is true thatinternational law, of its own force, imposesno liabilities on corporations or other privatejuridical entities.’’). Yet beyond those signifi-cant points of agreement our analyses di-verge. We believe that the absence of a normof corporate liability in international law endsour inquiry and deprives us of jurisdiction toconsider plaintiffs’ claims against corporatedefendants. Under Judge Leval’s approach,the absence of the relevant norm in interna-tional law merely permits a court to proceeda step further, to domestic law, in search ofthat norm. We respectfully submit that it isJudge Leval’s approach, and not our own,that is utterly lacking in support in precedent.


law TTTT’’ (emphases added)).32

Significantly, it was only because welooked to international law that we wereable to recognize a norm of aiding andabetting liability under the ATS. In Khu-lumani, Judge Katzmann declined to relyon the usual presumption against aidingand abetting liability that applies in theinterpretation of domestic statutes. SeeCent. Bank of Denver, N.A. v. First Inter-state 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 underwhich a person may sue and recover dam-ages from a private defendant for the de-fendant’s violation of some statutory norm,there is no general presumption that theplaintiff may also sue aiders and abet-tors.’’). Instead, Judge Katzmann con-cluded that Central Bank had no bearingon aiding and abetting liability under theATS because, ‘‘[u]nder the [ATS] the rele-vant norm is provided not by domesticstatute but by the law of nations, and thatlaw extends responsibility for violations ofits norms to aiders and abettors.’’ 504

F.3d at 282 (Katzmann, J., concurring)(emphases added).33

* * *

In sum, we have little difficulty holdingthat, under international law, Sosa, andour three decades of precedent, we arerequired to look to international law todetermine whether corporate liability for a‘‘violation of the law of nations,’’ 28 U.S.C.§ 1350, is a norm ‘‘accepted by the civi-lized world and defined with a specificity’’sufficient to provide a basis for jurisdictionunder the ATS, Sosa, 542 U.S. at 725, 124S.Ct. 2739. We have looked to interna-tional law to determine whether state offi-cials, see Filartiga, 630 F.2d at 880, pri-vate individuals, see Kadic, 70 F.3d at 239–41, and aiders and abettors, see Presbyte-rian Church, 582 F.3d at 258–59, can beheld liable under the ATS. There is noprincipled basis for treating the questionof corporate liability differently. Like theissue of aiding and abetting liability,whether corporations can be liable for al-leged violations of the law of nations ‘‘is noless significant a decision than whether to

32. Judge Leval suggests that Judge Katz-mann’s approach in Khulumani requires acourt to look only to whether a defendant’sconduct violated customary international law.Concurring Op. 186–88. But that is only thefirst step of Judge Katzmann’s approach. AsJudge Katzmann carefully explained: ‘‘[T]oassure itself that it has jurisdiction to hear aclaim under the [ATS], [a court] should firstdetermine whether the alleged tort was in fact‘committed in violation of the law of nations,’28 U.S.C. § 1350, and whether this law wouldrecognize the defendants’ responsibility for thatviolation.’’ Khulumani, 504 F.3d at 270 (em-phasis added). In asserting that his views areconsistent with his endorsement of JudgeKatzmann’s concurring opinion in Khuluma-ni, Judge Leval simply ignores the secondstep of Judge Katzmann’s approach.

33. Judge Katzmann declined to reach thequestion of corporate liability in his concur-ring opinion in Khulumani because that ques-tion was ‘‘not raised by the defendants on

appeal and therefore the issue was not briefedby the parties.’’ Id. at 282. Judge Katzmannobserved, however, that our Court had re-peatedly assumed that corporations can beliable under the ATS because private individu-als are liable under the statute, see id. (citingBigio v. The Coca–Cola, 239 F.3d 440, 447 (2dCir.2000); Flores, 414 F.3d at 244), and hesuggested that the Supreme Court may havedone the same, id. at 283 (noting that Sosaclassified both corporations and individualsas private actors (citing Sosa, 542 U.S. at 732n. 20, 124 S.Ct. 2739)). Nonetheless, whatev-er Judge Katzmann’s view on the ultimatequestion of corporate liability under the ATS,his reasoning in Khulumani leads to the ines-capable conclusion that customary interna-tional law governs the question. We adoptedthat reasoning in Presbyterian Church in de-ciding the standards for aiding and abettingliability and we employ the same reasoningtoday in deciding whether corporations canbe liable under the ATS.


recognize a whole new tort in the firstplace.’’ Presbyterian Church, 582 F.3d at259. It is, therefore, a decision properlymade only by reference to customary in-ternational law.

Having concluded that international lawcontrols our inquiry, we next considerwhat the sources of international law re-veal with respect to the existence of anorm of corporate liability under custom-ary international law.

II. Corporate Liability Is Not a Normof Customary International Law

[14–17] To attain the status of a rule ofcustomary international law, a norm mustbe ‘‘specific, universal, and obligatory.’’Sosa, 542 U.S. at 732, 124 S.Ct. 2739 (quot-ing with approval the statement of a lowercourt) (internal quotation marks omitted);see also Flores, 414 F.3d at 248 (‘‘[C]us-tomary international law is composed onlyof those rules that States universally abideby, or accede to, out of a sense of legalobligation and mutual concern.’’); Restate-ment (Third) § 102(2) (‘‘Customary inter-national law results from a general andconsistent practice of states followed bythem from a sense of legal obligation.’’).Defining such norms ‘‘is no simple task,’’as ‘‘[c]ustomary international law is dis-cerned from myriad decisions made in nu-merous and varied international and do-mestic arenas.’’ Flores, 414 F.3d at 247.The sources consulted are therefore of theutmost importance. As the SupremeCourt re-emphasized in Sosa, we look to‘‘those sources we have long, albeit cau-tiously, recognized’’:

‘[W]here there is no treaty, and no con-trolling executive or legislative act orjudicial decision, resort must be had tothe customs and usages of civilized na-tions; and, as evidence of these, to theworks of jurists and commentators, whoby years of labor, research and experi-ence, have made themselves peculiarlywell acquainted with the subjects ofwhich they treat. Such works are re-sorted to by judicial tribunals, not forthe speculations of their authors con-cerning what the law ought to be, butfor trustworthy evidence of what the lawreally is.’

542 U.S. at 733–34, 124 S.Ct. 2739 (empha-sis added) (quoting The Paquete Habana,175 U.S. at 700, 20 S.Ct. 290); see alsoUnited States v. Smith, 18 U.S. (5 Wheat.)153, 160–61, 5 L.Ed. 57 (1820) (Story, J.)(identifying ‘‘the general usage and prac-tice of nations[;] TTT judicial decisions re-cognising and enforcing that law[;]’’ and‘‘the works of jurists, writing professedlyon public law’’ as proper sources of cus-tomary international law); cf. UnitedStates v. Yousef, 327 F.3d 56, 100 n. 33 (2dCir.2003) (explaining that, ‘‘in the parlanceof international law,’’ ‘‘jurists’’ and ‘‘publi-cists’’ are used as synonyms for ‘‘schol-ars’’). Agreements or declarations thatare merely aspirational, and that ‘‘do[ ] notof [their] own force impose obligations as amatter of international law,’’ are of ‘‘littleutility’’ in discerning norms of customaryinternational law. Sosa, 542 U.S. at 734,124 S.Ct. 2739 (discussing the limited utili-ty of the Universal Declaration of HumanRights, G.A. Res. 217A (III), U.N. Doc.A/810 (1948)).34

34. Our holding in Flores is consistent with theSupreme Court’s rejection of the propositionthat the Universal Declaration of HumanRights is an authoritative source of customaryinternational law. 414 F.3d at 259–62 (ex-plaining that the Universal Declaration of Hu-man Rights is ‘‘not [a] proper source[ ] of

customary international law because [it is]merely aspirational and [was] never intendedto be binding on member States of the UnitedNations’’). And it is consistent with the viewsof several of our sister Circuits. See, e.g.,Igartua–De La Rosa v. United States, 417 F.3d145, 150 (1st Cir.2005) (en banc) (‘‘The Uni-


In this Circuit we have long recognizedas authoritative the sources of internation-al law identified in Article 38 of the Statuteof the International Court of Justice (‘‘ICJStatute’’).35 See Filartiga, 630 F.2d at880–81 & n. 8 (describing Article 38 asconsistent with the Supreme Court’s his-torical approach to sources of internationallaw); see also J.L. Brierly, The Law ofNations 56 (Sir Humphrey Waldock ed.,6th ed. 1963) (referring to Article 38 as ‘‘atext of the highest authority’’); Restate-ment (Third) § 103 (describing similarsources as evidence of international law).Article 38 provides in relevant part:

1. The Court, whose function is to de-cide in accordance with international lawsuch disputes as are submitted to it,shall apply:

a. international conventions, whethergeneral or particular, establishingrules expressly recognized by the con-testing states;

b. international custom, as evidenceof a general practice accepted as law;

c. the general principles of law rec-ognized by civilized nations;

d. subject to the provisions of Article59, judicial decisions and the teachingsof the most highly qualified publicists[i.e., scholars or ‘‘jurists’’] of the vari-ous nations, as subsidiary means forthe determination of rules of law.

ICJ Statute, art. 38, June 26, 1945, 59 Stat.1055, 1060, 33 U.N.T.S. 993 (emphasis add-ed). With those principles in mind, weconsider whether the sources of interna-tional law reveal that corporate liabilityhas attained universal acceptance as a ruleof customary international law.

A. International Tribunals

Insofar as international tribunals are es-tablished for the specific purpose of impos-ing liability on those who violate the law ofnations, the history and conduct of thosetribunals is instructive. We find it partic-ularly significant, therefore, that no inter-national tribunal of which we are awarehas ever held a corporation liable for aviolation of the law of nations.

1. The Nuremberg Tribunals

The Charter of the International Mili-tary Tribunal, commonly known as the‘‘London Charter,’’ authorized the punish-ment of the major war criminals of theEuropean Axis following the Second WorldWar. See Agreement for the Prosecutionand Punishment of the Major War Crimi-nals of the European Axis (the ‘‘LondonCharter’’), Aug. 8, 1945, 59 Stat. 1544, 82U.N.T.S. 279. The London Charter andthe trials at Nuremberg that followed arecollectively the single most importantsource of modern customary internationallaw concerning liability for violations of

versal Declaration of Human Rights is preca-tory: that is, it creates aspirational goals butnot legal obligations, even as betweenstates.’’); Haitian Refugee Ctr. v. Gracey, 809F.2d 794, 816 n. 17 (D.C.Cir.1987) (notingthat the Universal Declaration of Humanrights ‘‘is merely a nonbinding resolution, nota treaty, adopted by the United Nations Gen-eral Assembly’’).

35. The ICJ Statute is an integral part of theUnited Nations Charter, a treaty ratified bythe United States in 1945. See Flores, 414F.3d at 250 n. 24 (discussing the United

States’ ratification of the United NationsCharter). Article 38 sets forth the sourcesrelied upon by the International Court of Jus-tice (‘‘ICJ’’) to determine international law.See Yousef, 327 F.3d at 100. As we explainedin Flores, ‘‘the [ICJ] is a multinational [judi-cial] body charged with discerning and apply-ing international law.’’ 414 F.3d at 250 n.24; see also id. at 251 n. 25 (noting that,under Article 59 of the ICJ statute, a ‘‘deci-sion of the [ICJ] has no binding force exceptbetween the parties and in respect of thatparticular case’’).


fundamental human rights.36 As JusticeJackson explained, the London Charter ‘‘isa basic charter in the International Law ofthe future,’’ and the Nuremberg trials tookgreat strides in ‘‘ma[king] explicit and un-ambiguous’’ the human rights norms thathad ‘‘theretofore TTT [been] implicit in In-ternational Law.’’ Jackson, Final Report,ante, at 342. And as Judge Katzmannnoted in Khulumani: ‘‘[C]ourts, interna-tional bodies, and scholars have recognizedthat the principles set out in the LondonCharter and applied by the International

Military Tribunal are significant not onlybecause they have garnered broad accep-tance, but also because they were viewedas reflecting and crystallizing preexistingcustomary international law.’’ 504 F.3d at271 (Katzmann, J., concurring).

It is notable, then, that the LondonCharter, which established the Interna-tional Military Tribunal at Nuremberg,granted the Tribunal jurisdiction over nat-ural persons only. See London Charter,ante, art. 6, 59 Stat. at 1547 (granting the

36. Before the Second World War, internation-al law provided few protections of the humanrights of individuals. Hersch Lauterpacht, AnInternational Bill of the Rights of Man 47(1945). Such modest recognition of humanrights as existed before the First World Warinvolved assertions of a right of humanitarianintervention for the protection of oppressedreligious groups. See Louis B. Sohn & Thom-as Buergenthal, International Protection ofHuman Rights 137–211 (1973); see also Bri-erly, ante, at 291–92. In the period after thatwar the League of Nations undertook for thefirst time an international regime to protectracial, religious, or linguistic minorities. SeeSohn & Buergenthal, ante, at 213–335; Brier-ly, ante, at 292. As an authoritative work onthe travaux preparatoire, or ‘‘legislative histo-ry,’’ of the 1998 Rome Statute of the Interna-tional Criminal Court has observed:

[T]he first instrument providing general re-quirements for individual responsibility in abinding manner was the Charter of the In-ternational Military Tribunal (IMT) in Nu-remberg: aside from establishing individualresponsibility for certain crimes againstpeace, war crimes, and crimes against hu-manity (Article 6), it partially covered theearly stages of planning and preparationand certain types of complicity, declaredthe official position of defendants, includingHeads of State or other government offi-cials, as not freeing them from responsibili-ty (Article 7) and recognized superior or-ders, if at all, as mitigating circumstancesat most (Article 8).

Albin Eser, Individual Criminal Responsibili-ty, in 1 The Rome Statute of the InternationalCriminal Court 767, 774–75 (Antonio Casseseet al. eds., 2002) (emphasis added) (footnoteomitted).

We rely here on the ‘‘teachings of the mosthighly qualified publicists of the various na-tions.’’ ICJ Statute, ante, art. 38; see note 35,ante; note 47, post. Professor Cassese, co-editor of a multi-volume work on the historyof the Rome Statute, is Professor of Interna-tional Law at the University of Florence andformer President of the International Crimi-nal Tribunal for the former Yugoslavia. Pro-fessor Brierly was the Chichele Professor ofInternational Law in the University of Oxford.Sir Hersch Lauterpacht was the Whewell Pro-fessor of Public International Law in the Uni-versity of Cambridge and later would serve asa Judge of the International Court of Justice.See Lauterpacht Centre for International Law,Sir Hersch Lauterpacht, 1897–1960, http://www.lcil.cam.ac.uk/about the centre/sirhersch lauterpacht.php (last visited Aug. 20,2010). Louis B. Sohn was the Bemis Profes-sor of International Law and the John HarveyGregory Lecturer in International Organiza-tion at the Harvard Law School. ThomasBuergenthal was a Professor of InternationalLaw at the Law School of the State Universityof New York (Buffalo) and the George Wash-ington University and now serves as a Judgeof the International Court of Justice. SirHumphrey Waldock, editor of the sixth edi-tion of Brierly’s The Law of Nations, was atthe time of publication the Chichele Professorof Public International Law in the Universityof Oxford and a member of the InternationalLaw Commission. See Sir Humphrey Wal-dock, 77; Head of International Court, N.Y.Times, Aug. 18, 1981, at B19. He previouslyserved as president of the European Commis-sion on Human Rights and later became ajudge and president of the International Courtof Justice. Id.


tribunal jurisdiction to ‘‘try and punishpersons TTT whether as individuals or asmembers of organizations’’—i.e., naturalpersons (emphases added)); see also Char-ter of the International Military Tribunalfor 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 asmembers of organizations are charged withoffenses’’ (emphases added)).

The London Charter also granted theInternational Military Tribunal the author-ity to declare organizations ‘‘criminal’’—and several German government and mili-tary organizations, such as the SS and theGestapo, were, in fact, indicted. LondonCharter, ante, art. 9, 59 Stat. at 1548 (‘‘Atthe trial of any individual member of anygroup or organization the Tribunal maydeclare TTT that the group or organizationof which the individual was a member wasa criminal organization.’’); Ann Tusa &John Tusa, The Nuremberg Trial 425(1983) (describing the indictment of sixorganizations). See generally The Nurn-berg Trial, 6 F.R.D. at 136–43 (describingthe structure of the SS and the Gestapoand the criminal activities of their mem-bers). Such a declaration following indict-ment, however, did not result in the organ-ization being punished or having liabilityassessed against it. Rather, the effect ofdeclaring an organization criminal wasmerely to facilitate the prosecution of indi-viduals who were members of the organi-zation. See London Charter, ante, art. 10,59 Stat. at 1548 (‘‘In cases where a groupor organization is declared criminal by theTribunal, the competent national authorityof any Signatory shall have the right to

bring individuals to trial for membershiptherein before national, military or occupa-tion courts. In any such case the crimi-nal nature of the group or organization isconsidered proved and shall not be ques-tioned.’’ (emphasis added)).

Echoing the London Charter’s imposi-tion of liability on natural persons only, thesubsequent United States Military Tribu-nals, established under Control CouncilLaw No. 10, prosecuted corporate execu-tives for their role in violating customaryinternational law during the Second WorldWar, but not the corporate entities them-selves. See generally Control Council LawNo. 10, Punishment of Persons Guilty ofWar Crimes, Crimes Against Peace andAgainst Humanity, in 1 Enactments andApproved Papers of the Control Counciland Coordinating Committee, Allied Con-trol Authority Germany 306 (1945), avail-able at http://www.loc.gov/rr/frd/MilitaryLaw/Enactments/Volume–I.pdf.37 This ap-proach to liability can be seen most clearlyin the tribunal’s treatment of the notoriousI.G. Farben chemical company (‘‘I.G. Far-ben’’).

The refusal of the military tribunal atNuremberg to impose liability on I.G. Far-ben is not a matter of happenstance oroversight. This corporation’s productionof, among other things, oil, rubber, ni-trates, and fibers was harnessed to thepurposes of the Nazi state, and it is noexaggeration to assert that the corporationmade possible the war crimes and crimesagainst humanity perpetrated by NaziGermany, including its infamous programsof looting properties of defeated nations,slave labor, and genocide:

37. Control Council Law No. 10 was enacted‘‘[i]n order to give effect to the terms of TTT

the London Agreement of 8 August 1945, andthe Charter issued pursuant thereto [i.e., theLondon Charter] and in order to establish auniform legal basis in Germany for the prose-

cution of war criminals and other similaroffenders, other than those dealt with by theInternational Military Tribunal.’’ ControlCouncil Law No. 10, preamble, ante (empha-sis added).


The depth of the partnership [betweenthe Nazi state and I.G. Farben] wasreached at Auschwitz, the exterminationcenter [in Poland], where four millionhuman beings were destroyed in accor-dance with the ‘‘Final Solution of theJewish Question,’’ Hitler’s plan to de-stroy an entire people. Drawn by thealmost limitless reservoir of death camplabor, I.G. [Farben] chose to build agreat industrial complex at Auschwitzfor the production of synthetic rubberand oil.

Joseph Borkin, The Crime and Punish-ment of I.G. Farben 2–3 (1978). Aus-chwitz was an I.G. Farben slave campwhere millions were exterminated by Zyk-lon B, an insecticide knowingly and inten-tionally manufactured and provided by I.G.Farben and affiliated corporate entities fora new and lethal use as an asphyxiatingagent in the gas chambers at Auschwitz.Id. at 122–23.

Twenty-four executives of Farben werecharged, inter alia, with ‘‘Planning, Prepa-ration, Initiation, and Waging of Wars ofAggression and Invasions of Other Coun-tries’’; ‘‘Plunder and Spoliation’’; and‘‘Slavery and Mass Murder.’’ See 7 Trialsof War Criminals Before the NuernbergMilitary Tribunals Under Control Coun-cil Law No. 10 (‘‘The Farben Case ’’) 11–60(1952); see also Borkin, ante, at 137 (dis-cussing the indictment of I.G. Farben ex-ecutives). But the I.G. Farben corporateentity was not charged, nor was it namedin the indictment as a criminal organiza-tion. In issuing its judgment, the tribunalpointedly observed that ‘‘the corporate de-fendant, Farben, is not before the bar of

this Tribunal and cannot be subjected tocriminal penalties in these proceedings.’’8 The Farben Case, ante, at 1153. TheTribunal emphasized:

We have used the term ‘‘Farben’’ asdescriptive of the instrumentality of co-hesion in the name of which the enumer-ated acts of spoliation were committed.But corporations act through individualsand, under the conception of personalindividual guilt TTT the prosecution, todischarge the burden imposed upon it inthis case, must establish by competentproof beyond a reasonable doubt that anindividual defendant was either a par-ticipant in the illegal act or that, beingaware thereof, he authorized or ap-proved it.

Id. (emphases added).38 Those statementsparallel the oft-cited passage of the Nu-remberg judgment, made in response tothe argument that international law is con-cerned only with the actions of sovereignstates: ‘‘Crimes against international laware committed by men, not by abstractentities, and only by punishing individualswho commit such crimes can the provisionsof international law be enforced.’’ TheNurnberg Trial, 6 F.R.D. at 110.

In declining to impose corporate liabilityunder international law in the case of themost nefarious corporate enterprise knownto the civilized world, while prosecutingthe men who led I.G. Farben, the militarytribunals established under Control Coun-cil Law No. 10 expressly defined liabilityunder the law of nations as liability thatcould not be divorced from individualmoral responsibility. It is thus clear that,

38. The tribunal also noted that ‘‘one may notutilize the corporate structure to achieve animmunity from criminal responsibility for ille-gal acts.’’ Id. Accordingly, ‘‘where privateindividuals, including juristic persons, pro-ceed to exploit the military occupancy by ac-quiring private property against the will and

consent of the former owner, such action TTT

is in violation of international law.’’ Id. at1132. In other words, individuals who com-mit violations of customary international lawdo not immunize themselves from liability byacting through the corporate form.


at the time of the Nuremberg trials, corpo-rate liability was not recognized as a ‘‘spe-cific, universal, and obligatory’’ norm ofcustomary international law. See Sosa,542 U.S. at 732, 124 S.Ct. 2739 (internalquotation marks omitted).

We turn now to international tribunalsconvened since Nuremberg to determinewhether there is any evidence that theconcept of corporate liability has coalescedinto a ‘‘specific, universal, and obligatory’’norm.

2. International TribunalsSince Nuremberg

Since Nuremberg, international tribu-nals have continually declined to hold cor-porations liable for violations of customaryinternational law. For example, the char-ters establishing both the InternationalCriminal Tribunal for the former Yugo-slavia (‘‘ICTY’’) and the InternationalCriminal Tribunal for Rwanda, or(‘‘ICTR’’) expressly confined the tribunals’jurisdiction to ‘‘natural persons.’’ See In-ternational Criminal Tribunal for the For-mer Yugoslavia Statute, S.C. Res. 827,U.N. Doc. S/RES/827 (May 25, 1993),adopting The Secretary–General, ReportPursuant to Paragraph 2 of Security Coun-cil Resolution 808 (‘‘Report of the Secre-tary–General’’), art. 6, U.N. Doc. S/25704(May 3, 1993) (‘‘The International Tribunalshall have jurisdiction over natural per-sons TTTT’’); Statute of the InternationalTribunal 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 ICTYStatute is particularly significant becausethe ‘Individual Criminal Responsibility’section of that statute was intended tocodify existing norms of customary inter-national law.’’).

The commentary contained in the Re-port of the Secretary–General of the Unit-ed Nations on the ICTY reveals that juris-

diction over corporations was consideredbut expressly rejected: ‘‘[T]he ordinarymeaning of the term ‘persons responsiblefor serious violations of international hu-manitarian law’ would be natural personsto the exclusion of juridical persons.’’ Re-port of the Secretary–General, ante, ¶ 50.Moreover, unlike the International Mili-tary Tribunal at Nuremberg, the ICTYlacked the authority to declare organiza-tions ‘‘criminal.’’ Id. ¶ 51 (‘‘The questionarises TTT whether a juridical person, suchas an association or organization, may beconsidered criminal as such and thus itsmembers, for that reason alone, be madesubject to the jurisdiction of the Interna-tional Tribunal. The Secretary–Generalbelieves that this concept should not beretained in regard to the International Tri-bunal. The criminal acts set out in thisstatute are carried out by natural personsTTTT’’); cf. London Charter, ante, art. 9, 59Stat. at 1548. Thus, to the extent that theInternational Military Tribunal at Nurem-berg possessed some limited authority todeclare corporations criminal—which, asexplained above, operated merely as anevidentiary rule for later trials imposingliability on individuals—subsequent tribu-nals have not retained that procedure.

More recently, the Rome Statute of theICC also limits that tribunal’s jurisdictionto ‘‘natural persons.’’ See The RomeStatute of the International CriminalCourt (‘‘Rome Statute’’) art. 25(1), openedfor signature July 17, 1998, 37 I.L.M.1002, 1016; see also Albin Eser, Individ-ual Criminal Responsibility, in 1 TheRome Statute of the International Crimi-nal Court 767, 778 (Antonio Cassese etal. eds., 2002) (‘‘[W]hen reading para-graphs (1), (2), and (3) of Article 25 ofthe ICC Statute together, there can beno doubt that by limiting criminal respon-sibility to individual natural persons, theRome Statute implicitly negates—at least


for its own jurisdiction—the punishabilityof corporations and other legal entities.’’).Significantly, a proposal to grant the ICCjurisdiction over corporations and other‘‘juridical’’ persons was advanced by theFrench delegation, but the proposal wasrejected. See Eser, ante, at 779. As com-mentators have explained, the Frenchproposal was rejected in part because‘‘criminal liability of corporations is stillrejected in many national legal orders’’and thus would pose challenges for theICC’s principle of ‘‘complementarity.’’ 39

Id.; see also Draft Report of the Interses-sional Meeting from 19 to 30 January1998 [Held ] in Zuthphen, The Nether-lands, in The Statute of the InternationalCriminal Court: A Documentary History221, 245 n. 79 (M. Cherif Bassiouni ed.,1998) (‘‘There is a deep divergence ofviews as to the advisability of includingcriminal responsibility of legal [i.e., juridi-cal] persons in the statute.’’); AndrewClapham, The Question of JurisdictionUnder International Criminal Law OverLegal Persons: Lessons from the RomeConference on an International CriminalCourt, in Liability of Multinational Cor-porations Under International Law 139,157 (Menno T. Kamminga & Saman Zia–Zarifi eds., 2000) (‘‘This proposal was fi-nally withdrawn by the French delegationwhen it became clear that there was nopossibility that a text could be adoptedby consensus TTTT For some delegationsthe whole notion of corporate criminal re-sponsibility was simply ‘alien’, raisingproblems of complementarity.’’ (emphasisadded)). The history of the Rome Stat-ute therefore confirms the absence of anygenerally recognized principle or consen-sus among States concerning corporate li-ability for violations of customary interna-tional law.

In sum, modern international tribunalsmake it abundantly clear that, since Nu-remberg, the concept of corporate liabilityfor violations of customary internationallaw has not even begun to ‘‘ripen[ ]’’ into auniversally accepted norm of internationallaw. Cf. The Paquete Habana, 175 U.S. at686, 20 S.Ct. 290 (explaining that a prac-tice can ‘‘gradually ripen[ ] into a rule ofinternational law’’ through ‘‘usage amongcivilized nations’’).

B. International Treaties

[18, 19] Treaties ‘‘are proper evidenceof customary international law because,and insofar as, they create legal obli-gations akin to contractual obligations onthe States parties to them.’’ Flores, 414F.3d at 256. Although all treaties rati-fied by more than one State provide someevidence of the custom and practice ofnations, ‘‘a treaty will only constitute suf-ficient proof of a norm of customary in-ternational law if an overwhelming ma-jority of States have ratified the treaty,and those States uniformly and consis-tently act in accordance with its princi-ples.’’ Id. (second emphasis added).Moreover, as one distinguished scholar ofinternational law has explained:

The ordinary treaty by which two ormore states enter into engagements withone another for some special object canvery rarely be used even as evidence toestablish the existence of a rule of gen-eral law; it is more probable that thevery reason of the treaty was to createan obligation which would not have ex-isted by the general law, or to excludean existing rule which would otherwisehave applied.

39. ‘‘Complementarity’’ is the principle, em-bodied in the Rome Statute, by which the ICCdeclines to exercise jurisdiction over a case

that is simultaneously being investigated orprosecuted by a State having jurisdiction overit. See Rome Statute, ante, art. 17.


Brierly, ante, at 57 (emphases added).That a provision appears in one treaty (ormore), therefore, is not proof of a well-established norm of customary interna-tional law.

One district court in our Circuit errone-ously overvalued the importance of a num-ber of international treaties in finding thatcorporate liability has attained the statusof customary international law. See Pres-byterian Church of Sudan v. TalismanEnergy, Inc., 244 F.Supp.2d 289, 316–17(S.D.N.Y.2003) (denying defendants’ mo-tion to dismiss). But see PresbyterianChurch of Sudan v. Talisman Energy,Inc., 453 F.Supp.2d 633 (S.D.N.Y.2006)(granting summary judgment to defen-dants on different grounds), aff’d, 582 F.3d244 (2d Cir.2009). None of the treatiesrelied upon in the district court’s 2003Presbyterian Church opinion have beenratified by the United States, and most ofthem have not been ratified by otherStates whose interests would be most pro-foundly affected by the treaties’ terms.40

Cf. Flores, 414 F.3d at 256–57 (explainingthat a treaty’s evidentiary value is depen-dent, in part, on the number and ‘‘relativeinfluence TTT in international affairs’’ ofthe States that have ratified it). Thosetreaties are therefore insufficient—consid-ered either individually or collectively—todemonstrate that corporate liability is uni-

versally recognized as a norm of custom-ary international law.

[20] Even if those specialized treatieshad been ratified by an ‘‘overwhelmingmajority’’ of states, id. at 256—as somerecent treaties providing for corporate lia-bility have been, see, e.g., ConventionAgainst Transnational Organized Crime,art. 10(1), adopted Nov. 15, 2000, S. TreatyDoc. 108–16; Convention on CombatingBribery of Foreign Public Officials in In-ternational Business Transactions, art. 2,done Dec. 17, 1997, S. Treaty Doc. No.105–43—the fact that those treaties imposeobligations on corporations in the contextof the treaties’ particular subject mattertells us nothing about whether corporateliability for, say, violations of humanrights, which are not a subject of thosetreaties, is universally recognized as anorm of customary international law.Significantly, to find that a treaty embod-ies or creates a rule of customary interna-tional law would mean that the rule appliesbeyond the limited subject matter of thetreaty and to nations that have not rati-fied it. See 1 Oppenheim’s InternationalLaw § 626, at 1261. To construe thosetreaties as so-called ‘‘law-making’’ trea-ties—that is, treaties that codify existingnorms of customary international law orcrystallize an emerging rule of customaryinternational law—would be wholly inap-propriate and without precedent. See id.

40. The district court relied on the followingtreaties: (1) Convention Concerning the Ap-plication of the Principles of the Right toOrganise and to Bargain Collectively, adoptedJuly 1, 1949, 96 U.N.T.S. 257 (not ratified bythe United States); (2) Convention on ThirdParty Liability in the Field of Nuclear Energy,done July 29, 1960, amended Jan. 28, 1964,956 U.N.T.S. 263 (not ratified by the UnitedStates, China, the Soviet Union, or Germany);(3) International Convention on Civil Liabilityfor Oil Pollution Damage, done Nov. 29, 1969,973 U.N.T.S. 3 (not ratified by the UnitedStates, China, or the Soviet Union); (4) Vien-na Convention on Civil Liability for Nuclear

Damage, done May 21, 1963, 1063 U.N.T.S.265 (not ratified by the United States, China,France, Germany, or the United Kingdom);(5) Convention Relating to Civil Liability inthe Field of Maritime Carriage of NuclearMaterial, done Dec. 17, 1971, 974 U.N.T.S.255 (not ratified by the United States, China,the Soviet Union, or the United Kingdom);and (6) Convention on Civil Liability for OilPollution Damage Resulting from Explorationfor and Exploitation of Seabed Mineral Re-sources, done Dec. 17, 1976, reprinted at 16I.L.M. 1450 (signed by six States but ratifiedby none). Presbyterian Church, 244F.Supp.2d at 317.


§ 583, at 1203–04 (discussing ‘‘law-making’’treaties).

As noted above, there is no historicalevidence of an existing or even nascentnorm of customary international law im-posing liability on corporations for viola-tions of human rights. It cannot be said,therefore, that those treaties on specializedquestions codify an existing, general ruleof customary international law. Nor canthose recent treaties, in light of their limit-ed number and specialized subject matter,be viewed as crystallizing an emergingnorm of customary international law. Seeid. § 583, at 1204 (explaining that ‘‘rela-tively extensive participation in a treaty,coupled with a subject matter of generalsignificance and stipulations which accordwith the general sense of the internationalcommunity, do establish for some treatiesan influence far beyond the limits of for-mal participation in them’’ (footnote omit-ted)). Furthermore, even if, as a generalrule, treaties on a specialized subject mat-ter could be viewed as crystallizing a normof customary international law (which theygenerally cannot), it would be inappropri-ate to do so in this case in light of therecent express rejection in major multilat-eral treaties of a norm of corporate liabili-ty in the context of human rights viola-tions. See, e.g., Rome Statute, ante, art.25.

Finally, the few specialized treaties im-posing liability on corporations have nothad such influence that a general rule ofcorporate liability has become a norm ofcustomary international law. The ICJ in1969 described the process by which thatmight occur in the well-known North SeaContinental Shelf Cases, [1969] 8 I.L.M.340. There, Denmark and the Nether-lands had argued that the Federal Repub-lic of Germany was bound by a particularprovision of a treaty, which Germany hadnot ratified, because the rule embodied in

the multilateral treaty had become a normof customary international law. Accordingto the ICJ, accepting that view would re-quire

treating [a particular provision of the1958 Geneva Continental Shelf Conven-tion] as a norm-creating provision whichhas constituted the foundation of, or hasgenerated a rule which, while only con-ventional or contractual in its origin, hassince passed into the general corpus ofinternational law, and is now accepted assuch by the opinio juris, so as to havebecome binding even for countries whichhave never, and do not, become partiesto the Convention. There is no doubtthat this process is a perfectly possibleone and does from time to time occur: itconstitutes indeed one of the recognizedmethods by which new rules of custom-ary international law may be formed.At the same time this result is not light-ly to be regarded as having been at-tained.

Id. at 373–74. For a treaty provision toattain the status of a norm of customaryinternational law, the ICJ explained, ‘‘[i]twould in the first place be necessary thatthe provision concerned should, at allevents potentially, be of a fundamentallynorm-creating character such as could beregarded as forming the basis of a generalrule of law.’’ Id. at 374 (emphasis added).Provisions on corporate liability in a hand-ful of specialized treaties cannot be said tohave a ‘‘fundamentally norm-creating char-acter.’’ Moreover, as the history of theRome Statute demonstrates, ‘‘still unre-solved controversies as to the exact mean-ing and scope of this notion’’ of corporateliability ‘‘raise further doubts as to thepotentially norm-creating character of therule.’’ Id. Accordingly, provisions impos-ing corporate liability in some recent spe-cialized treaties have not established cor-porate liability as a norm of customaryinternational law.


[21–23] In reaching the contrary con-clusion in Presbyterian Church, the judgeto whom the case was originally assignedin the district court acknowledged that‘‘most treaties do not bind corporations’’but reasoned that ‘‘[i]f corporations can beliable for unintentional torts such as oilspills or nuclear accidents, logic wouldsuggest that they can be held liable forintentional torts such as complicity in ge-nocide, slave trading, or torture.’’ Presby-terian Church, 244 F.Supp.2d at 317 (em-phases added). In addition to the reasonsdiscussed above, the district court’s conclu-sion was flawed by its use of an impropermethodology for discerning norms of cus-tomary international law: customary inter-national law does not develop through the‘‘logical’’ expansion of existing norms. Cf.Yousef, 327 F.3d at 103–04 (‘‘The strictlylimited set of crimes subject to universaljurisdiction cannot be expanded by draw-ing an analogy between some new crimeTTT and universal jurisdiction’s traditional

subjects.’’). Rather, as the Supreme Courthas explained, it develops, if at all, throughthe custom and practice ‘‘among civilizednations TTT gradually ripening into a ruleof international law.’’ Sosa, 542 U.S. at715, 124 S.Ct. 2739 (quoting The PaqueteHabana, 175 U.S. at 686, 20 S.Ct. 290).41

It bears underscoring that the purposeof the ATS was not to encourage UnitedStates courts to create new norms of cus-tomary international law unilaterally.Sosa, 542 U.S. at 728, 124 S.Ct. 2739 (ex-plaining that federal courts have ‘‘no con-gressional mandate to seek out and definenew and debatable violations of the law ofnations’’). Instead, the statute was rootedin the ancient concept of comity amongnations and was intended to provide aremedy for violations of customary inter-national law that ‘‘threaten[ ] serious con-sequences in international affairs.’’ Id. at715, 124 S.Ct. 2739 (noting that this con-cern ‘‘was probably on the minds of themen who drafted the ATS’’). Unilaterally

41. Another district court in our Circuit hassimilarly allowed claims against corporate de-fendants to proceed under the ATS despiteacknowledging the ‘‘strength of authority sup-porting’’ the argument that corporate liabilityis not recognized as a norm of customaryinternational law. In re Agent Orange Prod.Liab. Litig., 373 F.Supp.2d 7, 56 (E.D.N.Y.2005) (Weinstein, J.); id. at 57 (noting that‘‘in the Nuremberg trials, this point of lack ofcorporate liability appeared to have been ex-plicitly stated’’). Judge Weinstein rejectedthe argument that corporations cannot be lia-ble under the ATS because, among otherthings, ‘‘[l]imiting civil liability to individualswhile exonerating the corporation TTT makeslittle sense in today’s world,’’ and ‘‘[d]efen-dants present[ed] no policy reason why corpo-rations should be uniquely exempt from tortliability under the ATS,’’ and ‘‘even if it werenot true that international law recognizes cor-porations as defendants’’ they could still besued under the ATS because ‘‘an ATS claim isa federal common law claim and it is a bed-rock tenet of American law that corporationscan be held liable for their torts.’’ Id. at 58,59 (emphases added).

Customary international law, however, isdeveloped through the customs and practicesof States, not by what ‘‘makes TTT sense’’ to ajudge, by the ‘‘policy reason[s]’’ recognized bya judge, or by what a judge regards as ‘‘abedrock tenet of American law.’’ See Sosa,542 U.S. at 738, 124 S.Ct. 2739 (refusing toaccept plaintiff’s argument because ‘‘in thepresent, imperfect world, it expresses an aspi-ration that exceeds any binding customaryrule having the specificity we require’’); ac-cord Nestle, No. CV 05–5133, slip op. at 135(‘‘Sosa prohibits courts from substituting ab-stract aspirations—or even pragmatic con-cerns—in place of specific internationalrules.’’).

Nor is customary international law devel-oped through ‘‘parity of reasoning,’’ as somescholars have suggested. See Harold HongjuKoh, Separating Myth from Reality About Cor-porate Responsibility Litigation, 7 J. Int’lEcon. L. 263, 265 (2004) (suggesting thatbecause corporations may have some ‘‘rights’’under international law, ‘‘by parity of reason-ing, they must have duties as well’’).


recognizing new norms of customary inter-national law—that is, norms that have notbeen universally accepted by the rest ofthe civilized world—would potentially cre-ate friction in our relations with foreignnations and, therefore, would contravenethe international comity the statute wasenacted to promote.42

We conclude, therefore, that the rela-tively few international treaties that im-pose particular obligations on corporationsdo not establish corporate liability as a

‘‘specific, universal, and obligatory’’ normof customary international law. Id. at 732,124 S.Ct. 2739 (internal quotation marksomitted). Although those treaties suggesta trend towards imposing corporate liabili-ty in some special contexts, no trend isdetectable outside such narrow applica-tions in specialized treaties, and there isnothing to demonstrate that corporate lia-bility has yet been recognized as a norm ofthe customary international law of humanrights.43

42. As the Supreme Court recognized in Sosa,some ATS litigation has already threatenedinternational comity by prompting objectionsfrom foreign governments. 542 U.S. at 733n. 21, 124 S.Ct. 2739 (noting that the govern-ment of South Africa had objected to litiga-tion against ‘‘various corporations alleged tohave participated in, or abetted, the regime ofapartheid that formerly controlled South Afri-ca’’); see also Khulumani, 504 F.3d at 297(Korman, J., concurring in part and dissent-ing in part) (noting that the governments ofthe United Kingdom and Canada had alsoexpressed ‘‘profound concern’’ over the apar-theid litigation).

43. A few words on ‘‘general principles oflaw’’ are in order. See ICJ Statute, ante, art.38(1)(c) (identifying ‘‘general principles oflaw recognized by civilized nations’’ as asource of customary international law); Re-statement (Third) § 102 cmt. l. (‘‘Generalprinciples are a secondary source of interna-tional law, resorted to for developing interna-tional law interstitially in special circum-stances.’’ (emphasis added)); see also StevenR. Ratner, Corporations and Human Rights:A Theory of Legal Responsibility, 111 Yale L.J.443, 451 (2001) (‘‘[D]omestic legal principlesmatter only to the extent they are shared bymany different legal systems and, even then,are subsidiary to treaties and customary law.’’(emphasis added)). As one leading authorityon the subject has observed, for much of thetwentieth century corporate criminal liabilitywas a unique feature of American law, withmost European legal systems subscribing tothe view that ‘‘guilt is personal, not vicarious,and that penal sanctions should be directed atculpable corporate people, not the corporateentity.’’ See Leonard Orland, Corporate Crim-inal Liability § 5.03[A] (2006) (explaining

that the ‘‘traditional French model [whichwas influential throughout Europe] declaredthat a corporation is incapable of committinga crime—a principle derived from humanitar-ian concerns of personal criminal liability es-tablished during the French Revolution.’’(emphasis added)). The fact that corporatecriminal liability has recently obtained great-er acceptance in Europe, see id. § 5.03[C]—although interesting as a matter of compara-tive law—does not demonstrate that corporateliability has attained the status of a norm ofcustomary international law, see Filartiga, 630F.2d at 888 (explaining that customary inter-national law consists of norms that are ‘‘ofmutual, and not merely several, concern’’);Vencap, 519 F.2d at 1015 (explaining thatinternational law concerns the dealings ofstates ‘‘inter se ’’ and that ‘‘[w]e cannot sub-scribe to the view that the Eighth Amendment‘Thou shalt not steal’ is part of the law ofnations’’ simply because ‘‘every civilized na-tion doubtless has this as a part of its legalsystem’’ (some internal quotation marks omit-ted)); see also Flores, 414 F.3d at 249 (‘‘Evenif conduct is universally proscribed by Statesin their domestic law, that fact is not neces-sarily significant or relevant for purposes ofcustomary international law.’’).

We recognize, of course, that customaryinternational law is not a ‘‘static’’ body of lawincapable of evolution or growth. As we ex-plained thirty years ago in Filartiga, ‘‘courtsmust interpret international law not as it wasin 1789, but as it has evolved and existsamong the nations of the world today.’’ 630F.2d at 881 (emphasis added). Nevertheless,‘‘[t]he requirement that a rule command the‘general assent of civilized nations’ to becomebinding upon them all is a stringent one.’’ Id.For the reasons stated by Judge Friendly in


C. Works of Publicists

Although the works of publicists (i.e.,scholars or ‘‘jurists’’) can be a relevantsource of customary international law,‘‘[s]uch works are resorted to by judicialtribunals, not for the speculations of theirauthors concerning what the law ought tobe, but for trustworthy evidence of whatthe law really is.’’ Sosa, 542 U.S. at 734,

124 S.Ct. 2739 (quoting The Paquete Ha-bana, 175 U.S. at 700, 20 S.Ct. 290); seealso ICJ Statute, ante, art. 38(1)(d), 59Stat. at 1060 (directing the ICJ to apply‘‘judicial decisions and the teachings of themost highly qualified publicists of the vari-ous nations, as subsidiary means for thedetermination of rules of law.’’ (emphasisadded)); see note 47, post.44

Vencap, 519 F.2d at 1015, the movement to-wards imposing criminal liability on corpora-tions as a matter of domestic law does not, onits own, create a norm of customary interna-tional law—particularly in light of the ‘‘ex-press international accords,’’ Filartiga, 630F.2d at 888, which categorically reject impos-ing liability on corporations, see, e.g., RomeStatute, ante, art. 25.

44. Judge Leval makes much out of two ‘‘ven-erable’’ opinions of Attorneys General of theUnited States in which the Attorney Generalappears to have assumed that corporationscan sue or be sued under the ATS. See Con-curring Op. 162–63. Our reasons for placinglittle weight on those opinions should be ap-parent on their face. Most importantly, nei-ther opinion does anything more than baldlydeclare that a corporation can sue under theATS (in the case of the 1795 opinion of Attor-ney General William Bradford) or that a cor-poration can be sued under the ATS (in thecase of the 1907 opinion of Attorney GeneralCharles L. Bonaparte). Unlike the works ofpublicists on which we have relied as a sec-ondary source of customary international law,neither opinion gives any basis for its assump-tions about customary international law.

The 1907 opinion of Attorney General Bo-naparte declares (again, without any analysisor 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 oddswith the Supreme Court’s decision in Sosa,which held that the ATS is jurisdictional onlyand does not create any kind of right of ac-tion. Sosa, 542 U.S. at 713–14, 124 S.Ct.2739. In light of that conflict with Sosa, theopinion of Attorney General Bonaparte is adubious authority on which to rely in inter-preting the ATS. Cf. Sosa, 542 U.S. at 721,124 S.Ct. 2739 (citing the 1795 opinion ofAttorney General Bradford because Brad-

ford—unlike, apparently, Attorney GeneralBonaparte—‘‘understood the ATS to providejurisdiction over what must have amounted tocommon law causes of action’’).

The 1795 opinion of Attorney General Brad-ford, furthermore, concludes only that a‘‘company’’ can bring suit against an individu-al under the ATS. See 1 Op. Att’y Gen. 57, 58–59 (1795) (opining that ‘‘the Sierra LeoneCompany,’’ which maintained the ‘‘colony ofSierra Leone,’’ could bring suit under the ATSagainst ‘‘certain American citizens trading tothe coast of Africa’’ for their actions in‘‘join[ing] TTT a French fleet in attacking thesettlement, and plundering or destroying theproperty of British subjects on that coast’’).As an initial matter, it is far from clear thatthe Attorney General’s conclusions in 1795about the ‘‘Sierra Leone Company’’ necessari-ly apply to modern juridical entities. Even ifthey do, the question addressed by AttorneyGeneral Bradford is whether a ‘‘company’’could bring suit against certain individuals.We agree that ATS suits can be broughtagainst individuals, and we have no occasionhere to determine whether a ‘‘company’’ is an‘‘alien’’ that can bring such a suit. See 28U.S.C. § 1350. (‘‘The district courts shallhave original jurisdiction of any civil actionby an alien for a tort only, committed inviolation of the law of nations or a treaty ofthe United States.’’ (emphasis added)). Wehold only that, regardless of who brings it,when a suit is brought for ‘‘a tort TTT commit-ted in violation of the law of nations,’’ we lacksubject matter jurisdiction insofar as the suitis brought against a corporation.

In any event, we doubt that Judge Levaltruly believes that we should rely on the opin-ion of Attorney General Bradford, for his in-terpretation of the ATS could be read to pro-hibit any ATS suit seeking compensation forviolations of international law committed onforeign soil. In concluding that the SierraLeone Company could bring suit against the


[24] In light of the evidence discussedabove, it is not surprising that two re-nowned professors of international law,Professor James Crawford 45 and Profes-sor (now Judge) Christopher Greenwood,46

forcefully declared in litigation argued be-fore this panel on the same day as thiscase that customary international law doesnot recognize liability for corporations thatviolate its norms. According to ProfessorCrawford, ‘‘no national court [outside ofthe United States] and no internationaljudicial tribunal has so far recognized cor-porate liability, as opposed to individualliability, in a civil or criminal context onthe basis of a violation of the law of nationsor customary international law.’’ See Dec-laration of James Crawford ¶ 10, Presbyte-

rian Church of Sudan v. Talisman Ener-gy, Inc., No. 07–0016 (2d Cir. Jan. 22,2009) (emphasis added); see also SecondDeclaration 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 thecriminal liability of corporations in interna-tional law.’’); Michael Koebele, CorporateResponsibility Under the Alien Tort Stat-ute 196 (2009) (‘‘[D]espite trends to thecontrary, the view that international lawprimarily regulates States and in limitedinstances such as international criminallaw, individuals, but not [transnational cor-porations], is still the prevailing one amonginternational law scholars.’’).47 Even those

American individuals involved in the Frenchattack on the colony, Attorney General Brad-ford circumscribes his opinion, appearing toconclude that the Company could not bringsuit for the actions taken by the Americans ina foreign country, but rather, could sue onlyfor the actions taken by the Americans on the‘‘high seas.’’ See 1 Op. Att’y Gen. at 58 (‘‘Sofar, therefore, as the transactions complainedof originated or took place in a foreign coun-try, they are not within the cognizance of ourcourtsTTTT But crimes committed on the highseas are within the jurisdiction of the districtand circuit courts of the United StatesTTTT’’).We need not address here the open issue ofwhether the ATS applies ‘‘extraterritorially.’’See note 10, ante. Were we to take up thatissue, however, and were we to adopt JudgeLeval’s approach and follow the opinion ofAttorney General Bradford, we very wellcould conclude that the ATS does not applyextraterritorially, and thus we would dismissthis and the vast majority of recent ATS suitson the ground that the violations of custom-ary international law alleged by plaintiffs‘‘originated or took place in a foreign coun-try.’’ 1 Op. Att’y Gen. at 58. Again, wedoubt that Judge Leval truly endorses Attor-ney General Bradford’s approach.

45. Professor Crawford is the Whewell Profes-sor of International Law in the University ofCambridge, England, Director of the Lauter-pacht Centre for International Law at Cam-bridge, and co-editor of a preeminent peer-reviewed international law journal, The Brit-

ish Yearbook of International Law. He was amember of the International Law Commis-sion (‘‘ILC’’) of the United Nations from1992–2001 and served as its Special Rapport-eur on State Responsibility. He was princi-pally responsible for the ILC Draft Statute forthe International Criminal Court in 1994.See Declaration of James Crawford, ante,¶¶ 2–4; Lauterpacht Centre for InternationalLaw, Professor James Crawford, Director,http://www.lcil.cam.ac.uk/people/professorjames crawford.php (last visited Aug. 20,2010); note 47, post.

46. At the time of making his declaration, Pro-fessor Greenwood was a professor of interna-tional law at the London School of Econom-ics. He has since been appointed as a judgeof the ICJ. Judge Greenwood’s prior experi-ence includes serving as counsel before theICJ, the European Court of Human Rights,and the ICTY. See note 47, post.

47. In relying on the affidavits of ProfessorCrawford and Professor Greenwood, as wellas on treatises or other works of ‘‘publicists,’’see Yousef, 327 F.3d at 100 n. 33, we aremindful that such works are, in the nature ofthings, ‘‘subsidiary’’ or secondary sources ofinternational law, ‘‘useful in explicating orclarifying an established legal principle orbody of law,’’ by ‘‘shed[ding] light on a partic-ular question of international law,’’ id. at 101,or on the primary sources of international


who favor using the ATS as a means ofholding corporations accountable for hu-man rights violations reluctantly acknowl-edge that ‘‘the universe of international

criminal law does not reveal any prosecu-tions of corporations per se.’’ Ratner,note 43, ante, at 477.48

* * *

law, which are ‘‘the documents or acts prov-ing the consent of States to its rules.’’ CliveParry, The Sources and Evidences of Interna-tional Law 2 (1965), quoted with approval inFlores, 414 F.3d at 252, and Yousef, 327 F.3dat 101. It is indisputable that the works ofthe publicists on which we have relied accu-rately describe the primary sources of therelevant customary international law—the rel-evant customs and practices of States. Inother words, we have relied on these sources‘‘for trustworthy evidence of what the lawreally is’’ and ‘‘not for the speculations oftheir authors concerning what the law oughtto be.’’ The Paquete Habana, 175 U.S. at 700,20 S.Ct. 290.

Judge Leval criticizes us for relying on theaffidavits of Professor Crawford and ProfessorGreenwood because both were expert wit-nesses hired by the defendants in anothercase. Yet we fail to see how statements madein an affidavit, under penalty of perjury, areany less reliable than published works whoseaccuracy is confirmed only by efforts of thestudent staff of law journals.

We note, moreover, that Judge Leval relieson Beth Stephens, et al., International HumanRights Litigation in U.S. Courts 310 (2d ed.2008), in support of his contention that corpo-rations can be liable for violations of custom-ary international law under the ATS. Concur-ring Op. 185. The remaining authors of thattext are Judith Chomsky, Jennifer Green, PaulHoffman, and Michael Ratner. Paul Hoffmanhappens to be lead counsel to plaintiffs in thisvery appeal. Judith Chomsky and JenniferGreen have submitted an amicus brief onbehalf of plaintiffs in this case and, togetherwith Beth Stephens, have directly representeddifferent plaintiffs pursuing ATS claimsagainst Royal Dutch Petroleum (the defen-dants here) before this court. See Wiwa v.Royal Dutch Petroleum, 226 F.3d 88, 91 (2dCir.2000).

Judge Leval also relies on a publication ofthe International Commission of Jurists.Concurring Op. 184–85. That, however, is anadvocacy organization, in some respects likeAmnesty International or Human RightsWatch. See Int’l Comm. of Jurists, CorporateComplicity & Legal Accountability, at ii(2008), available at http://icj.org/IMG/

Volume 1.pdf (‘‘The International Commis-sion of Jurists TTT is a non-governmental or-ganization devoted to promoting the under-standing and observance of the rule of lawand the legal protection of human rightsthroughout the world.’’); id. at vii (explainingthat members of the ‘‘steering group’’ for the‘‘Corporate Complicity & Legal Accountabili-ty’’ project included representatives from,among other organizations, Amnesty Interna-tional and Human Rights Watch); see alsohttp://www.icj.org (follow ‘‘About Us’’ link)(last visited Aug. 20, 2010) (‘‘Through pio-neering activities, including inquiry commis-sions, trial observations, fact-finding missions,public denunciations and quiet diplomacy, the[International Commission of Jurists] hasbeen a powerful advocate for justice.’’).

In the words of Judge Leval, we think ‘‘[i]tis not self-evident’’ that the works of suchadvocates are ‘‘what the Supreme Court hadin mind in Paquete Habana when it gavecautious approval to consultation of ‘theworks of jurists and commentators.’ ’’ Con-curring Op. 182 n. 39 (emphasis omitted)(quoting The Paquete Habana, 175 U.S. at700, 20 S.Ct. 290).

In any event, Judge Leval’s criticism of ourreliance on the affidavits of Professor Craw-ford and Professor Greenwood is irrelevantbecause Judge Leval agrees that ‘‘internation-al law, of its own force, imposes no liabilitieson corporations or other private juridical en-tities.’’ Concurring Op. 186.

48. Tellingly, most proponents of corporate li-ability under customary international lawdiscuss the subject as merely a possibility ora goal, rather than an established norm ofcustomary international law. See, e.g., Men-no T. Kamminga & Saman Zia–Zarifi, Intro-duction to Liability of Multinational Corpora-tions Under International Law, ante, at 1, 8(acknowledging ‘‘the unsatisfactory state ofinternational law regarding the status of[multinational corporations] and their im-pact’’ but asserting that ‘‘[i]t now seems pos-sible, indeed highly probable, that a regimeof international legal liability for [multina-tional corporations] can and will be devel-oped ’’ (emphasis added)); Ratner, note 43,


[25, 26] Together, those authoritiesdemonstrate that imposing liability on cor-porations for violations of customary inter-national law has not attained a discernible,much less universal, acceptance among na-tions of the world in their relations interse. Because corporate liability is not rec-ognized as a ‘‘specific, universal, and oblig-atory’’ norm, see Sosa, 542 U.S. at 732, 124S.Ct. 2739 (internal quotation marks omit-ted), it is not a rule of customary interna-tional law that we may apply under theATS. Accordingly, insofar as plaintiffs inthis action seek to hold only corporationsliable for their conduct in Nigeria (as op-posed to individuals within those corpora-tions), and only under the ATS, theirclaims must be dismissed for lack of sub-ject matter jurisdiction.

III. The Concurring Opinion

Judge Leval concedes that ‘‘internation-al law, of its own force, imposes no liabili-ties on corporations or other private jurid-ical entities.’’ Concurring Op. 186. Inother words, despite his perplexing butforceful contentions otherwise, Judge Le-

val does not disagree with Part II of ouropinion. What he disputes is our conclu-sion in Part I that customary internationallaw supplies the rule of decision.

Judge Leval admits that internationallaw is ‘‘the place to look’’ to ‘‘determinewhether a corporation can be held civillyliable for a violation of international law,’’id. at 173–74, but he maintains that wemust accept corporate liability based onprinciples of domestic law unless ‘‘the lawof nations [has] spoke[n] on the question[and] provid[ed] that acts of corporationsare not covered by the law of nations,’’ id.at 175. He then contends that the law ofnations has not, in fact, spoken on thequestion and that corporate liability istherefore a matter of ‘‘remedy’’ that ‘‘in-ternational law leaves TTT to the indepen-dent determination of each State.’’ Id. at176. In doing so Judge Leval dismisses asa source of authoritative guidance the factthat no international tribunal has everbeen accorded jurisdiction over corpora-tions because those tribunals have beencharged only with the prosecution ofcrimes. Id. at 165 – 70. Finally, Judge

ante, at 449 (‘‘This Article posits a theory ofcorporate responsibility for human rightsprotection. Building upon the traditionalparadigm whereby international law general-ly places duties on states and, more recently,individuals, I consider whether and how theinternational legal process might provide forhuman rights obligations directly on corpora-tions. My thesis is that international lawshould and can provide for such obligationsTTTT’’ (emphasis added)); Beth Stephens, TheAmorality of Profit: Transnational Corpora-tions and Human Rights, 20 Berkeley J. Int’lL. 45, 46 (2002) (‘‘Over the fifty years sincethe Holocaust, the international communityhas recognized that governments can be heldliable for abuses directed at both their owncitizens and foreigners, during war and whenat peace—and that individuals can be heldaccountable as well. Today, the abuses ofthe Holocaust are contributing to the develop-ment of new approaches to human rights ac-countability, this time focusing on corporate

human rights violations TTTT’’ (emphasis add-ed)); id. at 47 (‘‘Both domestic governmentsand international organizations have dancedaround [the topic of corporate liability], urg-ing voluntary codes of conduct rather thanseeking to impose binding rules of law.’’ (em-phasis added)).

Others rely on improper sources of custom-ary international law to find a norm of corpo-rate liability. See e.g., Louis Henkin, The Uni-versal Declaration at 50 and the Challenge ofGlobal Markets, 25 Brook. J. Int’l L. 17, 25(1999) (‘‘Every individual and every organ ofsociety excludes no one, no company, no mar-ket, no cyberspace. The Universal Declara-tion applies to them all.’’); cf. Sosa, 542 U.S.at 734, 124 S.Ct. 2739 (explaining that theUniversal Declaration of Human Rights ‘‘doesnot of its own force impose obligations as amatter of international law’’ and, therefore, isof ‘‘little utility’’ in discerning norms of cus-tomary international law); note 34, ante.


Leval accuses us of rejecting corporatecivil liability under the ATS merely be-cause there is no norm of corporate civilliability in customary international law,and he argues that this reasoning is incon-sistent with our endorsement of individualliability under the ATS. Id. at 152 – 53.

[27] Judge Leval’s criticisms distortour holding and betray several fundamen-tal misunderstandings of customary inter-national law. First, Judge Leval attemptsto shift to us the burden of identifying anorm of customary international law thatsupports our ‘‘rule.’’ But it is entirelyinappropriate to begin, as Judge Leval ap-parently begins, with a presumption that aviolation of customary international lawcan be attributed to any defendant unless,and until, a norm of customary internation-al law declares otherwise. This reasoningturns customary international law on itshead. Customary international law arisesfrom the customs and practices ‘‘amongcivilized nations TTT gradually ripeninginto a rule of international law.’’ Sosa, 542U.S. at 715, 124 S.Ct. 2739 (quoting ThePaquete Habana, 175 U.S. at 686, 20 S.Ct.290). Accordingly, the responsibility lieswith those who seek to demonstrate that‘‘international law extends the scope ofliability for a violation of a given norm tothe perpetrator being sued.’’ Id. at 732 n.20, 124 S.Ct. 2739. Judge Leval producesno evidence that international law extendsthe scope of liability to corporations, and,in fact, he concedes that it does not. Con-curring Op. 186 (‘‘It is true that interna-tional law, of its own force, imposes noliabilities on corporations or other privatejuridical entities.’’). In any event, al-though it is not our burden, we have littletrouble demonstrating the absence of anorm of corporate liability in customaryinternational law. See Part II, ante.

[28] Second, Judge Leval dismisses thefact that international tribunals have con-

sistently declined to recognize corporateliability as a norm of customary interna-tional law; he does so by inventing a dis-tinction between civil and criminal liabilityin customary international law that is con-trary to our ATS jurisprudence. As JudgeKatzmann explained in his separate opin-ion in Khulumani, ‘‘[t]his distinction findsno support in our case law, which hasconsistently relied on criminal law normsin establishing the content of customaryinternational law for purposes of the[ATS].’’ 504 F.3d at 270 n. 5. Unlike U.S.domestic law, ‘‘international law does notmaintain [a] kind of hermetic seal betweencriminal and civil law.’’ Id. (citing Sosa,542 U.S. at 762–63, 124 S.Ct. 2739 (Breyer,J., concurring)). Indeed, Judge Katzmannwas able to conclude that the scope ofcustomary international law reaches thosewho aid and abet violations of internationallaw only by looking to the charters of—and the law applied by—the very sameinternational tribunals that Judge Levalignores. Id. at 270 (observing that liabilityfor aiders and abettors was ‘‘applied by thewar crimes trials following the SecondWorld War’’ and ‘‘has been repeatedly rec-ognized in numerous international treaties,most notably the Rome Statute of the In-ternational Criminal Court, and in the stat-utes creating the International CriminalTribunal for the Former Yugoslavia(‘ICTY’) and the International CriminalTribunal for Rwanda (‘ICTR’)’’); see alsoPresbyterian Church, 582 F.3d at 257 n. 7(‘‘[C]ustomary international law normsprohibiting genocide, war crimes, andcrimes against humanity have been devel-oped largely in the context of criminalprosecutions rather than civil proceed-ings.’’ (internal quotation marks omitted)).Judge Leval explicitly endorsed JudgeKatzmann’s reasoning in Khulumani byjoining the unanimous panel opinion inPresbyterian Church, which expressly


adopted Judge Katzmann’s rule as the lawof our Circuit. Presbyterian Church, 582F.3d at 258. Apparently, Judge Levalwould have us look to international crimi-nal tribunals only when they supply anorm with which he agrees.

[29] Third, Judge Leval distorts ouranalysis by claiming that we hold ‘‘that theabsence of a universal practice among na-tions of imposing civil damages on corpo-rations for violations of international lawmeans that under international law corpo-rations are not liable for violations of thelaw of nations.’’ Concurring Op. 152 (em-phasis added). That is not our holding.We hold that corporate liability is not anorm that we can recognize and apply inactions under the ATS because the cus-tomary international law of human rightsdoes not impose any form of liability oncorporations (civil, criminal, or otherwise).

Finally, and most importantly, JudgeLeval incorrectly categorizes the scope ofliability under customary internationallaw—that is, who can be liable for viola-

tions of international law—as merely aquestion of remedy to be determined inde-pendently by each state. Id. at 175–76.As we explained above, see Part I.A, ante,the subjects of international law have al-ways been defined by reference to interna-tional law itself. Judge Leval is thereforewrong to suggest that ‘‘international lawtakes no position’’ on the question of whocan be liable for violations of internationallaw. Id. at 152.49

[30–32] Although international lawdoes (as Judge Leval explains) leave reme-dial questions to States, id. at 175–76, theliability of corporations for the actions oftheir employees or agents is not a questionof remedy.50 Corporate liability imposesresponsibility for the actions of a culpableindividual on a wholly new defendant—thecorporation. In the United States, corpo-rate liability is determined by a body ofrules determining which actions of an em-ployee or agent are to be imputed to thecorporation.51 In this important respect,

49. Judge Leval relies on the works of OscarSchachter and Louis Henkin for a generaland undisputed proposition: ‘‘ ‘There is nogeneral requirement in international law thatStates provide [civil remedies to private per-sons]. By and large, international law leavesit to them to meet their obligations in suchways as the State determines.’ ’’ ConcurringOp. 172 (quoting Oscar Schachter, Interna-tional Law in Theory and Practice 240 (1991));see also id. at 173 n. 30 (‘‘The internationalsystem requires that a State meet its interna-tional obligations, but ordinarily the law hasnot required that a state meet those obli-gations in a particular way or through partic-ular institutions or laws.’’ (emphasis omitted)(quoting Louis Henkin, International Law:Politics, Values and Functions 88 (1990))).We agree, of course, that nothing in interna-tional law prohibits the United States fromproviding a civil remedy against corporationsfor violations of the law of nations (nor couldit). The Congress of the United States hassimply not chosen to do so, opting instead toprovide a civil remedy—by conferring juris-diction over torts committed in violation of

the law of nations—but leaving the questionof who can be sued to the law of nations. See28 U.S.C. § 1350.

50. Even in our domestic law, the question ofthe scope of liability—that is, who can be heldliable for wrongful conduct—is not a questionof remedy. Remedies refer to ‘‘precisely whatthe plaintiff may recover after resorting to thelaw.’’ Edward D. Re & Joseph R. Re, Reme-dies 2 (6th ed. 2005) (emphasis added) (inter-nal quotation marks omitted). Whether aplaintiff is entitled to money damages, declar-atory relief, an injunction, or specific per-formance are all questions of remedy. Seegenerally id. at xi-xiii. Whether a particularremedy—money damages, an injunction,etc.—can be enforced against a certain indi-vidual or entity is not a question of remedy; itis a question of the scope of liability.

51. We note that, even within our federal sys-tem, there are a variety of approaches todetermining how the courts are to impute to acorporation the conduct and intent of its em-


corporate liability is akin to accessorialliability, which is a subject of internationallaw not left to individual States. See Pres-byterian Church, 582 F.3d at 259 (holdingthat ‘‘Sosa and our precedents send us tointernational law to find the standard foraccessorial liability’’ and rejecting the ar-gument that international law relies ondomestic law to supply the standard, as ameans of enforcement).

The potential for civil damages underthe ATS arises only if customary interna-tional law recognizes that a particularclass of defendant is a subject of interna-tional law in the first place. See 28 U.S.C.§ 1350 (providing jurisdiction over ‘‘tortsTTT committed in violation of the law ofnations ’’ (emphasis added)). Contrary toJudge Leval’s suggestion, therefore, indi-vidual liability under the ATS is whollyconsistent with our holding today. Con-gress chose in the ATS to grant jurisdic-tion over torts committed ‘‘in violation ofthe law of nations,’’ id., and since theNuremberg trials, customary internationallaw has recognized individual liability forthe violation of international human rights.Thus, the ATS merely permits courts torecognize a remedy (civil liability) for hei-nous crimes universally condemned by thefamily of nations against individuals al-ready recognized as subjects of interna-tional law. To permit courts to recognizecorporate liability under the ATS, howev-er, would require, at the very least, adifferent statute—one that goes beyondproviding jurisdiction over torts committed

‘‘in violation of the law of nations’’ to au-thorize suits against entities that are notsubjects of customary international law.

CONCLUSION

The ATS provides federal district courtsjurisdiction over a tort, brought by analien only, alleging a ‘‘violation of the lawof nations or a treaty of the UnitedStates.’’ 28 U.S.C. § 1350. When an ATSsuit is brought under the ‘‘law of nations,’’also known as ‘‘customary internationallaw,’’ jurisdiction is limited to those casesalleging a violation of an internationalnorm that is ‘‘specific, universal, and oblig-atory.’’ Sosa v. Alvarez–Machain, 542U.S. 692, 732, 124 S.Ct. 2739, 159 L.Ed.2d718 (2004) (quoting with approval thestatement of a lower court); see alsoFlores v. S. Peru Copper Corp., 414 F.3d233, 238 (2d Cir.2003) (‘‘[C]ustomary inter-national law is composed only of thoserules that States universally abide by, oraccede to, out of a sense of legal obligationand mutual concern.’’).

No corporation has ever been subject toany form of liability (whether civil, crimi-nal, or otherwise) under the customaryinternational law of human rights. Rath-er, sources of customary international lawhave, on several occasions, explicitly re-jected the idea of corporate liability.Thus, corporate liability has not attained adiscernable, much less universal, accep-tance among nations of the world in theirrelations inter se, and it cannot not, as a

ployees or agents. See, e.g., 7 U.S.C.§ 2(a)(1)(B) (adopting respondeat superiorprinciples for regulatory actions brought bythe Commodity Exchange Commission); Kol-stad v. Am. Dental Ass’n, 527 U.S. 526, 119S.Ct. 2118, 144 L.Ed.2d 494 (1999) (limitingapplicability of respondeat superior in civilclaims for punitive damages under Title VII);Faragher v. City of Boca Raton, 524 U.S. 775,118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (lim-iting applicability of respondeat superior in

civil actions for sexual harassment); Burling-ton Indus., Inc. v. Ellerth, 524 U.S. 742, 118S.Ct. 2257, 141 L.Ed.2d 633 (1998) (same).Yet, in arguing that corporate liability existsunder the ATS, Judge Leval does not evenexplain where that norm of liability derivesfrom (federal statute, federal common law,state law perhaps?), much less attempt tospecify which among the different standardsof corporate liability courts should apply inATS cases.


result, form the basis of a suit under theATS.

[33] Acknowledging the absence ofcorporate liability under customary inter-national 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 IITv. Vencap, Ltd., 519 F.2d 1001, 1015 (2dCir.1975) (Friendly, J.), abrogated on othergrounds by Morrison v. Nat’l Austl. BankLtd., ––– U.S. ––––, 130 S.Ct. 2869, 177L.Ed.2d 535 (2010), have determined thatmoral and legal responsibility for heinouscrimes should rest on the individual whoseconduct makes him or her ‘‘ ‘hostis huma-ni generis, an enemy of all mankind.’ ’’Sosa 542 U.S. at 732, 124 S.Ct. 2739 (quot-ing Filartiga v. Pena–Irala, 630 F.2d 876,890 (2d Cir.1980)). Nothing in this opinionlimits or forecloses suits under the ATSagainst a corporation’s employees, manag-ers, officers, directors, or any other personwho commits, or purposefully aids andabets, violations of international law.Moreover, nothing in this opinion limits orforecloses corporate liability under anybody of law other than the ATS—includingthe domestic statutes of other States—andnothing in this opinion limits or foreclosesCongress from amending the ATS to bringcorporate defendants within our jurisdic-tion. Corporate liability, however, is sim-ply not ‘‘accepted by the civilized worldand defined with a specificity comparableto the features of the 18th-century para-digms’’ recognized as providing a basis forsuit under the law prescribed by theATS—that is, customary international law.Sosa, 542 U.S. at 725, 124 S.Ct. 2739.

[34] We do not know whether the con-cept of corporate liability will ‘‘graduallyripen[ ] into a rule of international law.’’Id. at 715, 124 S.Ct. 2739 (quoting ThePaquete Habana, 175 U.S. 677, 700, 20S.Ct. 290, 44 L.Ed. 320 (1900)). It can do

so, however, only by achieving universalrecognition and acceptance as a norm inthe relations of States inter se. For now,and for the foreseeable future, the AlienTort Statute does not provide subject mat-ter jurisdiction over claims against corpo-rations.

To summarize, we hold as follows:

(1) Since Filartiga, which in 1980marked the advent of the modern era oflitigation for violations of human rightsunder the Alien Tort Statute, all of ourprecedents—and the Supreme Court’s de-cision in Sosa, 542 U.S. at 732 n. 20 [124S.Ct. 2739]—require us to look to interna-tional law to determine whether a particu-lar class of defendant, such as corpora-tions, can be liable under the Alien TortStatute for alleged violations of the law ofnations.

(2) The concept of corporate liability forviolations of customary international lawhas not achieved universal recognition oracceptance as a norm in the relations ofStates with each other. See Vencap, 519F.2d at 1015. Inasmuch as plaintiffs as-sert claims against corporations only, theircomplaint must be dismissed for lack ofsubject matter jurisdiction.

Accordingly, the September 29, 2006 or-der of the District Court is AFFIRMEDinsofar as it dismissed some of plaintiffs’claims against the corporate defendantsand REVERSED insofar as it declined todismiss plaintiffs’ remaining claims againstthe corporate defendants.

LEVAL, Circuit Judge, concurring onlyin the judgment:

The majority opinion deals a substantialblow to international law and its undertak-ing to protect fundamental human rights.According to the rule my colleagues havecreated, one who earns profits by commer-cial exploitation of abuse of fundamental


human rights can successfully shield thoseprofits from victims’ claims for compensa-tion simply by taking the precaution ofconducting the heinous operation in thecorporate form. Without any support ineither the precedents or the scholarship ofinternational law, the majority take theposition that corporations, and other jurid-ical entities, are not subject to internation-al law, and for that reason such violators offundamental human rights are free to re-tain any profits so earned without liabilityto their victims.

Adoption of the corporate form has al-ways offered important benefits and pro-tections to business—foremost amongthem the limitation of liability to the assetsof the business, without recourse to theassets of its shareholders. The new ruleoffers to unscrupulous businesses advan-tages of incorporation never beforedreamed of. So long as they incorporate(or act in the form of a trust), businesseswill now be free to trade in or exploitslaves, employ mercenary armies to dodirty work for despots, perform genocidesor operate torture prisons for a despot’spolitical opponents, or engage in piracy—all without civil liability to victims. Byadopting the corporate form, such an en-terprise could have hired itself out to oper-ate Nazi extermination camps or the tor-ture chambers of Argentina’s dirty war,immune from civil liability to its victims.By protecting profits earned throughabuse of fundamental human rights pro-tected by international law, the rule mycolleagues have created operates in opposi-

tion to the objective of international law toprotect those rights.

Since Filartiga v. Pena–Irala, 630 F.2d876 (2d Cir.1980), was decided in 1980,United States courts, acting under theAlien Tort Statute (ATS),1 which waspassed by the First Congress in 1789, havebeen awarding compensatory damages tovictims of human rights abuses committedin violation of the law of nations. Manysupporters of the cause of human rightshave celebrated the Filartiga line of casesas an important advance of civilization.Not all, however, have viewed those caseswith favor. Some see them as unwarrant-ed meddling by U.S. judges in events thatoccurred far away, applying a body of lawthat we did not make, in circumstancescarrying a potential, furthermore, to inter-fere with the President’s conduct of for-eign affairs. See, e.g., Tel–Oren v. LibyanArab Republic, 726 F.2d 774, 805 (D.C.Cir.1984) (Bork, J., concurring).† In 2004, asubstantial minority of the Supreme Court,in Sosa v. Alvarez–Machain, 542 U.S. 692,124 S.Ct. 2739, 159 L.Ed.2d 718, wouldhave essentially nullified the ATS andoverturned the Filartiga line, by rulingthat the ATS did no more than give courtsjurisdiction, and that, absent further legis-lation establishing a legal claim, courtsacting under ATS had no authority togrant any substantive relief. The majorityof the Supreme Court, however, rejectedthat argument. The Court ruled that un-der the ATS, federal courts could awarddamages for violations of the law of na-tions. For those who believe the Filarti-

1. ‘‘The district courts shall have original juris-diction of any civil action by an alien for atort only, committed in violation of the law ofnations or a treaty of the United States.’’ 28U.S.C. § 1350.

† My colleagues call my identification of JudgeRobert Bork as the author of this opinion a‘‘stratagem’’ or ‘‘rhetorical ploy.’’ It is not.In Tel–Oren, the three judges of the District ofColumbia Circuit panel each wrote separate

concurring opinions. By identifying the au-thors in citing to Tel–Oren concurrences, Isimply follow the conventional method of dis-tinguishing between separate opinions in thesame 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.2d718 (2004), and so does the majority opinionhere.


ga–Sosa line represents a meaningful ad-vance in the protection of human rights,the majority’s decision here marks a verybad day.

To understand this controversy, it is im-portant to understand exactly what is themajority’s rule, how it functions, and inwhat circumstances. To begin, their rulerelates to the most abhorrent conduct—those acts that violate norms of the inter-national law of human rights. The ATSgives U.S. courts jurisdiction to award tortdamages to aliens who are victims of suchatrocities. According to the majority, incases where the norms of the law of na-tions were violated by a corporation (orother juridical entity), compensatory dam-ages may be awarded under the ATSagainst the corporation’s employees, natu-ral persons who acted in the corporation’sbehalf, but not against the corporationthat commanded the atrocities and earnedprofits by committing them. The corpora-tion, according to my colleagues, has notviolated international law, and is indeedincapable of doing so because internationallaw does not apply to the conduct of corpo-rations. Accordingly, a corporation whichhas earned profits by abuse of fundamen-tal human rights—as by slave trading—isfree to retain those profits without liabili-ty.

While my colleagues see nothing strangeor problematic in this conclusion, their po-sition is that in any event they have noresponsibility for it. They invoke the rulesimply because, in their contention, it iscommanded 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 structuredwith a jurisdiction that reflects it. (Thosecourts that have ruled on the questionhave explicitly rejected it.) No treaty orinternational convention adopts this princi-ple. And no work of scholarship on inter-national law endorses the majority’s rule.Until today, their concept had no existencein international law.

The majority contend, nevertheless, thatunambiguous jurisprudence ‘‘lead[s] ines-capably’’ to their conclusion. Maj. Op. 125.However, the reasoning that supports themajority’s argument is, in my view, illogi-cal, misguided, and based on misunder-standings of precedent.

The argument depends on its observa-tion that international criminal tribunalshave been established without jurisdictionto impose criminal punishments on corpo-rations for their violations of internationallaw. From this fact the majority contendan inescapable inference arises that inter-national law does not govern corporations,which are therefore free to engage in con-duct prohibited by the rules of internation-al law with impunity.

There is no logic to the argument. Thereasons why international tribunals havebeen established without jurisdiction to im-pose criminal liability on corporationshave to do solely with the theory and theobjectives of criminal punishment, andhave no bearing on civil compensatory lia-bility. The view is widely held among thenations of the world that criminal punish-ments (under domestic law, as well as in-ternational law) are inappropriate for cor-

* Since the writing of this opinion, in the fewdays before filing, a California district courtdismissed an ATS action in part on the basisof its acceptance of the majority’s view thatcustomary international law does not apply tocorporations. Doe v. Nestle, S.A., No. CV 05–5133 SVW (JTLx), slip op. at 120 (C.D.Cal.

Sept. 8, 2010). To the extent I note in variousplaces throughout this opinion that no courthas ever spoken favorably of the majority’sproposition that corporations are exemptfrom the rules of international law, I modifythat statement to except the opinion filed lastweek in California.


porations. This view derives from twoperceptions: First, that criminal punish-ment can be theoretically justified onlywhere the defendant has acted with crimi-nal intent—a condition that cannot existwhen the defendant is a juridical constructwhich is incapable of having an intent; andsecond, that criminal punishments arepointless and counterproductive when im-posed on a fictitious juridical entity be-cause they fail to achieve the punitive ob-jectives of criminal punishment. Forthese reasons many nations in their do-mestic laws impose criminal punishmentsonly on natural persons, and not on juridi-cal ones. In contrast, the imposition ofcivil liability on corporations serves per-fectly the objective of civil liability to com-pensate victims for the wrongs inflicted onthem and is practiced everywhere in theworld. The fact that international tribu-nals do not impose criminal punishmenton corporations in no way supports theinference that corporations are outside thescope of international law and thereforecan incur no civil compensatory liabilityto victims when they engage in conductprohibited by the norms of internationallaw.

The majority next contend that interna-tional law does not distinguish betweencriminal and civil liability. This is simplyincorrect. International law distinguishesclearly between them and provides differ-ently for the different objectives of crimi-nal punishment and civil compensatory lia-bility.

The majority then argue that the ab-sence of a universal practice among na-tions of imposing civil damages on corpora-tions for violations of international lawmeans that under international law corpo-rations are not liable for violations of thelaw of nations. This argument is as illogi-cal as the first and is based on a misunder-standing of the structure of internationallaw. The position of international law on

whether civil liability should be imposedfor violations of its norms is that interna-tional law takes no position and leaves thatquestion to each nation to resolve. Inter-national law, at least as it pertains tohuman rights, consists primarily of asparse body of norms, adopting widelyagreed principles prohibiting conduct uni-versally agreed to be heinous and inhu-mane. Having established these norms ofprohibited conduct, international law sayslittle or nothing about how those normsshould be enforced. It leaves the mannerof enforcement, including the question ofwhether there should be private civil reme-dies for violations of international law, al-most entirely to individual nations. Whilemost nations have not recognized tort lia-bility for violations of international law, theUnited States, through the ATS, has optedto impose civil compensatory liability onviolators and draws no distinction in itslaws between violators who are naturalpersons and corporations. The majority’sargument that national courts are at liber-ty to award civil damages for violations ofinternational law solely against naturalpersons and not against corporations hasno basis in international law and, further-more, nullifies the intention of internation-al law to leave the question of civil liabilityto be decided separately by each nation.

The majority’s asserted rule is, further-more, at once internally inconsistent andincompatible with Supreme Court authori-ty and with our prior cases that awardeddamages for violations of international law.The absence of a universally accepted ruleof international law on tort damages istrue as to defendants who are natural per-sons, as well as to corporations. Becauseinternational law generally leaves all as-pects of the issue of civil liability to indi-vidual nations, there is no rule or customof international law to award civil damagesin any form or context, either as to naturalpersons or as to juridical ones. If theabsence of a universally accepted rule for


the award of civil damages against corpo-rations means that U.S. courts may notaward damages against a corporation, thenthe same absence of a universally acceptedrule for the award of civil damages againstnatural persons must mean that U.S.courts may not award damages against anatural person. But the majority opinionconcedes (as it must) that U.S. courts mayaward damages against the corporation’semployees when a corporation violates therule of nations. Furthermore, our circuitand others have for decades awarded dam-ages, and the Supreme Court in Sosamade clear that a damage remedy does lieunder the ATS. The majority opinion isthus internally inconsistent and is logicallyincompatible with both Second Circuit andSupreme Court authority.

If past judges had followed the majori-ty’s reasoning, we would have had no Nu-remberg trials, which for the first timeimposed criminal liability on natural per-sons complicit in war crimes; no subse-quent international tribunals to imposecriminal liability for violation of interna-tional law norms; and no judgments inU.S. courts under the ATS, compensatingvictims for the violation of fundamentalhuman rights.

The rule in cases under the ATS is quitesimple. The law of nations sets worldwidenorms of conduct, prohibiting certain uni-versally condemned heinous acts. Thatbody of law, however, takes no position on

whether its norms may be enforced by civilactions for compensatory damages. Itleaves that decision to be separately decid-ed by each nation. See infra Part III.B.The ATS confers on the U.S. courts juris-diction to entertain civil suits for violationsof the law of nations. In the UnitedStates, if a plaintiff in a suit under theATS shows that she is the victim of a tortcommitted in violation of the norms of thelaw of nations,2 the court has jurisdictionto hear the case and to award compensato-ry damages against the tortfeasor. Thatis what the Supreme Court explained inSosa. No principle of domestic or interna-tional law supports the majority’s conclu-sion that the norms enforceable throughthe ATS—such as the prohibition by inter-national law of genocide, slavery, warcrimes, piracy, etc.—apply only to naturalpersons and not to corporations, leavingcorporations immune from suit and free toretain profits earned through such acts.3

* * * * * *I am in full agreement that this Com-

plaint must be dismissed. It fails to statea proper legal claim of entitlement to re-lief. The Complaint alleges that the Ap-pellants—the parent holding companies atthe apex of the huge Royal Dutch Shellinternational, integrated oil enterprise—are liable under the ATS on the theorythat their actions aided the government ofNigeria in inflicting human rights abuseson the Ogoni peoples in the jungles of

2. The majority concede that ‘‘federal courtsmay recognize claims ‘based on the present-day law of nations.’ ’’ Maj. Op. 125. Wheretheir opinion departs from precedent is itscontention that courts may not recognize aclaim against ‘‘a particular class of defen-dant’’ unless international tribunals regularlyimpose liability on that type of defendant.Maj. Op. 127–28, 148, 149. As I explainbelow, there is no legal basis for this novelrequirement.

3. The majority protest that their rule is notone of ‘‘immunity’’ but rather one of absence

of liability. Maj. Op. 149. Because their ruleprovides that, when a corporation is sued, itcan have the suit dismissed on the groundthat it is a corporation, it seems to me to beindistinguishable from an immunity. Butnothing turns on whether we call it an immu-nity, an exemption, a protection, an absenceof liability, or any other name. My reasonsfor rejecting the rule are that there is nosupport or justification for it in precedent,scholarship, reason, experience, or morality.None of this would change if the rule werecalled by a different name.


Nigeria. The allegations fall short of man-datory pleading standards. We recentlyheld in Presbyterian Church of Sudan v.Talisman Energy, Inc., 582 F.3d 244 (2dCir.2009), that liability under the ATS foraiding and abetting in a violation of inter-national human rights lies only where theaider and abettor acts with a purpose tobring about the abuse of human rights.Furthermore, the Supreme Court ruled inAshcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009), that a com-plaint is insufficient as a matter of lawunless it pleads specific facts supporting aplausible inference that the defendant vio-lated the plaintiff’s legal rights. Puttingtogether these two rules, the complaint inthis action would need to plead specificfacts that support a plausible inferencethat the Appellants aided the governmentof Nigeria with a purpose to bring aboutthe Nigerian government’s alleged viola-tions of the human rights of the plaintiffs.As explained in greater detail below, seeinfra Part VII, the allegations of the Com-plaint do not succeed in meeting that test.I therefore agree with the majority thatthe claims against the Appellants must bedismissed, but not on the basis of thesupposed rule of international law the ma-jority have fashioned.

I. The improbability that the humani-tarian law of nations, which is basedin moral judgments reflected in legalsystems throughout world and seeksto protect fundamental humanrights, would espouse a rule whichundermines that objective and lacksany logical justification

A. The opposition of the majority’srule to the objectives of international law.

Rules of international law are not, likerocks, mountains, and oceans, unexplainednatural phenomena found on the surface ofthe earth. The rules of international lawhave been created by a collective humanagency representing the nations of theworld with a purpose to serve desired ob-jectives. Those rules express the consen-sus of nations on goals that are sharedwith virtual unanimity throughout theworld.4 Prior to World War II, the en-forcement of international law focused pri-marily on relations among States andproblems relating to the sovereign inter-ests of States. It involved, for example,the inviolability of ambassadors in foreignlands, safe conducts, and the outlawing ofpiracy, which threatened the shared inter-est 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 Naziatrocities in the period of World War II,however, focused attention on humanitari-an values—values so fundamental thatthey were seen as shared by the ‘‘civilizednations’’ of the world. Filartiga, 630 F.2dat 881. Beginning with the Nurembergtrials, the focus of international law thusbroadened beyond practical concerns ofsovereign nations toward universallyshared moral objectives. Acts so repug-nant that they violated the morality sharedby the civilized world were recognized asviolations of international law. The law ofnations thus came to focus on humanitari-an, moral concerns, addressing a small cat-egory of particularly ‘‘heinous actions—each of which violates definable, universaland obligatory norms’’—conduct so hei-nous that he who commits it is rendered

4. See The Amy Warwick, 67 U.S. (2 Black)635, 670, 17 L.Ed. 459 (1862) (‘‘The law ofnations is also called the law of nature; it isfounded on the common consent as well asthe common sense of the world. It containsno TTT anomalous doctrine.’’); Oscar

Schachter, International Law in Theory andPractice 2 (1991) (‘‘[I]nternational law TTT ismore than a given body of rules and obli-gations. It involves purposive activities un-dertaken by governments, directed to a vari-ety of social ends.’’).


‘‘hostis humani generis, an enemy of allmankind.’’ Sosa, 542 U.S. at 732, 124S.Ct. 2739 (quoting Filartiga, 630 F.2d at890, and Tel–Oren v. Libyan Arab Repub-lic, 726 F.2d 774, 781 (D.C.Cir.1984) (Ed-wards, J., concurring)). These acts aregenerally understood to include such ex-treme, universally condemned conduct asgenocide, exploitation of slaves, warcrimes, and, in certain circumstances, im-prisonment without cause and torture.5

The law of nations undertakes an emphaticstance of opposition to such acts.

The majority’s interpretation of interna-tional law, which accords to corporations afree pass to act in contravention of inter-national law’s norms, conflicts with thehumanitarian objectives of that body oflaw. In order to understand the majori-ty’s rule, I explore a handful of concreteexamples of how it would operate. Be-cause the liability, if any, of a corporationfor violations of international law is likelyto arise in two somewhat different con-texts—that in which the corporation itselfinflicts humanitarian abuses, and that inwhich the corporation aids and abets alocal government’s infliction of the abus-

es—and because the pertinent consider-ations in these two circumstances aresomewhat different, I discuss them sepa-rately.

1) Direct commission of heinous of-fenses by corporations

a) Slave trading and exploitation ofslaves. Among the focuses of the Nurem-berg trials was the exploitation of slavelabor by the I.G. Farbenindustrie Ak-tiengesellschaft (‘‘Farben’’) and other Ger-man companies. The Farben corporationitself was not on trial, as the proceedingwas brought solely against its executivesfor their complicity in the offenses commit-ted by the corporation. Nevertheless, thetribunal found that Farben’s program ofexploitation of slave labor violated thestandards of international law.6 Becausethe Nuremberg tribunal was establishedwith only criminal, and not civil, jurisdic-tion, it never contemplated imposing civilliability on offenders. No civil proceedingsof any kind were brought in that tribunalby the victims of Farben’s violationsagainst either natural or juridical persons.7

5. See, e.g., Sosa, 542 U.S. at 732, 737, 124S.Ct. 2739 (torture, slave trade, prolongedarbitrary detention committed as a matter ofstate policy, and piracy); Kadic v. Karadzic,70 F.3d 232, 240, 243 (2d Cir.1995) (geno-cide, war crimes, and torture and summaryexecution committed in the course of geno-cide or war crimes); In re Ferdinand Marcos,Human Rights Litig., 25 F.3d 1467, 1475 (9thCir.1994) (torture); see also Restatement(Third) of the Foreign Relations Law of theUnited States § 404 (1987) (genocide, warcrimes, piracy, slave trade, and attacks on orhijacking of aircraft).

6. VIII Trials of War Criminals Before theNuernberg Military Tribunals 1173–74 (1952)(the ‘‘Farben Trial’’) (‘‘Charged with the re-sponsibility of meeting fixed production quo-tas, Farben yielded to the pressure of theReich Labor Office and utilized involuntaryforeign workers in many of its plants. It isenough to say here that the utilization of

forced labor, unless done under such circum-stances as to relieve the employer [the Farbencompany] of responsibility, constitutes a vio-lation of [international law].’’); see also IXTrials of War Criminals Before the NuernbergMilitary Tribunals 1375–76 (1950) (the‘‘Krupp Trial’’) (‘‘[T]hroughout German in-dustry in general, and the firm of Krupp andits subsidiaries in particular, prisoners of warof several nations including French, Belgian,Dutch, Polish, Yugoslav, Russian, and Italianmilitary internees were employed in arma-ment production in violation of the laws andcustoms of war.’’).

7. The majority contend that the failure of theNuremberg tribunal to impose civil damageson Farben shows that international law doesnot impose damages on corporations. Maj.Op. 135–36. This argument demonstrates theillogic and internal inconsistency of the ma-jority’s position. The Nuremberg tribunal


The question thus did not arise at Nurem-berg whether international law counte-nances the imposition of civil liability on acorporation or on any other type of actorfor exploitation of slave labor.

Perhaps more pertinent today is com-mercial exploitation of sex-slavery. En-trepreneurs in child prostitution kidnapunprotected children in poverty strickenareas and hold them in captivity to satisfysex cravings of customers. Young women,seeking to escape from places where theyare oppressed, incur debts to facilitators,who promise to help them, but, when theyare unable to pay the entire fee, consignthem into sex-slavery, compelling them toperform acts of prostitution a hundredtimes a day for the profit of their captorsuntil either the debt is considered paid, or,more likely, the woman is so wasted bythe abuse she has suffered that she ceasesto be a marketable sex object.8 According

to the majority’s rule, an incorporated en-tity does not violate international lawwhen it conducts such operations, and isfree to retain any profit earned throughits conduct.

b) Piracy. Once thought to have fadedinto a past remembered only in romanti-cized children’s fables and Gilbert & Sulli-van whimsy, piracy now reemerges as athreat to international trade.9 In Somalia,pirates seize vessels in the Indian Oceanand exact large ransom payments from theowners and insurers. In the port of La-gos, Nigeria, armed pirates board an-chored vessels waiting for access to theharbor and steal their cargo. My col-leagues’ new rule offers secure protectionfor the profits of piracy so long as theperpetrators take the precaution to incor-porate the business.10

The majority opinion goes still further.Because it claims that juridical entities are

also did not impose liability for civil damageson Farben’s executives whom it convictedcriminally. If the fact that Nuremberg didnot impose civil liability on the Farben corpo-ration means that international law does notallow for civil liability of corporations, thenthe fact that Nuremberg did not impose civilliability on Farben’s guilty personnel mustmean that international law does not allowfor civil liability of natural persons. Yet themajority concede that such natural personsare liable for civil damages. The Nurembergtribunal simply did not contemplate questionsof civil liability, nor has any subsequent inter-national tribunal. As I explain below, the lawof nations has simply not ventured into deter-minations with respect to civil liability. Ithas left that question to individual nations.

8. See Trafficking Victims Protection Reau-thorization Act of 2005, Pub.L. 109–164, § 2,119 Stat. 3558, 3558 (Jan. 10, 2006) (notingthat an estimated 600,000 to 800,000 individ-uals are trafficked across international bor-ders each year and exploited through forcedlabor and commercial sex exploitation, ofwhich 80% are women and girls); UnitedNations Office on Drugs and Crime, GlobalReport on Trafficking in Persons 48–50 (Feb.

2009), available at http://www.unodc.org/documents/Global Report on TIP.pdf (notingapproximately 14,900 incidents of humantrafficking were reported in 2006, 79% ofwhich involved sexual exploitation).

9. See generally Lauren Ploch et al., Cong.Research Serv., Piracy Off the Horn of Africa(Sept. 28, 2009); Peter Chalk, The MaritimeDimension of International Security: Terror-ism, Piracy, and Challenges for the UnitedStates 6 (RAND 2008).

10. The possibility of pirates operating throughthe corporate form is not far-fetched. Ac-cording to a recent United Nations report,Somali pirates essentially operate as limitedpartnerships, in which investors make invest-ments of money, weaponry, and equipment inexchange for ‘‘Class A’’ and ‘‘Class B’’ partic-ipations in the profits of piracy operations.Rep. of the Monitoring Group on SomaliaPursuant to Security Council Resolution 1853(2008), U.N. Doc. No. S/2010/91, at 99 (Mar.10, 2010). The profits of such an operationcan be substantial, as in the case of the MVFaina, which was released in February 2009for $3.2 million ransom. See Piracy Off theHorn of Africa, supra, at 10–11.


not ‘‘subjects’’ of international law andhave neither rights nor obligations underit, they can neither sue nor be sued forviolations of international law. According-ly, the seizure by pirates of a vessel ownedby a corporation (as virtually all commer-cial vessels are) would not violate interna-tional law’s prohibition of piracy, and thevessel’s corporate owner, from which aransom had been extorted as the price offreeing its ship, would have no remedyunder the ATS or any other comparableprovision in any other nation.

c) Genocide. A number of the casesbrought before our courts under the ATS,including this one, are brought againstbusiness corporations engaged in extrac-tion of precious resources from mines,wells, or forests in remote, sparsely popu-lated areas. At times, local tribesmen ha-rass and hinder the corporation’s opera-tions, resenting the despoliation of theirhabitat and the failure to share with themthe wealth taken from what they see astheir land. The corporation solicits theprotection of that nation’s police or mili-tary forces. Most of the suits we haveseen, like this one, have accused the defen-dant corporations of aiding and abettingthe local government in the latter’s abuseof the rights of those indigenous persons.

Such a company, however, failing to re-ceive adequate protection from the localauthorities, might mount its own protectivesecurity force and proceed, either indepen-dently or working together with forces ofthe local government, to exterminate thetroublemaking tribes. The complaint un-der ATS in such a case would charge thatthe corporation itself committed genocidein order to protect its business operationsfrom harassment and increase its profits.

Under the majority’s rule, such a corpo-ration would never need to test in courtwhether it in fact exterminated a tribe, asalleged. It could simply move for the

dismissal of the suit, asserting that it is acorporation and therefore by definitioncould not have violated international law’sprohibition of genocide. The plaintiffscould bring a successful ATS suit againstthe hirelings who carried out the genocidefor the corporation (in the unlikely eventthey could be sued in a court that providedfor civil liability). But as for the corpora-tion itself, which committed a genocide toincrease its profits, the suit will be dis-missed on the ground that the defendant isa corporation.

2) Aiding and abetting

As just noted, a number of suits, likethis one, charge corporations engaged inthe extraction of precious resources in re-mote places with having aided and abettedabuses committed by a foreign govern-ment’s police or military forces againstlocal populations. In all likelihood, corpo-rations like the defendants in this case,when they ask a relatively impecuniouslocal government to render protection tothe corporation’s operations, will contrib-ute money and resources to the local gov-ernment to help it render the protectionthe corporation needs for its operations.If the government troops then commitatrocities, the victims might sue the cor-poration on the theory that it aided andabetted the government’s brutalities by itscontribution of money and resources.Similarly, business corporations engagedin finance or in the sale of food or mili-tary supplies might raise funds for, or sellsupplies to, a government that is knownto violate the law of nations. Victims ofthat government’s abuses might sue thecorporation, alleging that the corporation’sprofit-motivated provision of finance orsupplies, done with awareness of the pur-chasing government’s record of atrocities,constitutes aiding and abetting of thoseatrocities.


Many argue with considerable force thatimposition of liability in such circum-stances would go too far in impeding legiti-mate business, by making a business cor-poration responsible for the illegal conductof local government authorities that is be-yond the corporation’s control, and whichthe corporation may even deplore. Theshoemaker who makes Hitler’s shoesshould not be held responsible for Hitler’satrocities, even if the shoemaker knowsthat a pair of shoes will help Hitler accom-plish his horrendous agenda. Concerns ofthis nature might well give pause to acourt contemplating the imposition of lia-bility on a business corporation for aidingand abetting in a government’s infliction ofhuman rights abuses, where the corpora-tion did not promote, solicit, or desire theviolation of human rights.

At least in this circuit, however, there isno cause for such concern. In Khulumaniv. Barclay National Bank Ltd., 504 F.3d254 (2d Cir.2007), Judge Katzmann in hisconcurring opinion expressed the view thatinternational law does not deem it aidingand abetting in violation of that law to actin a manner that assists a violator unlessthe assistance is given with a purpose tocause or facilitate the violation. Id. at 277(Katzmann, J., concurring). Then, in Tal-isman, we ruled on whether a corporationcould be held liable for aiding and abettingunder the standards of international lawmerely because it knew that supplies itfurnished to a local government would beused in the commission of human rightsabuses. Although confronted with evi-dence of shocking human rights violationscommitted by the government of Sudan,we found that there is no such aiding andabetting liability. Following Judge Katz-mann’s analysis, we concluded that thestandards of international law admit ofaiding and abetting liability only when theaccused aider acts with a purpose to bringabout the violations of international law.

582 F.3d at 259. In this circuit, supplyingfinancing or military equipment to a localgovernment will not support the impositionof aiding and abetting liability on the cor-poration for that government’s abuses un-less the corporation acted with a purposeto promote or advance those violations.(For that reason, and as explained in PartVII below, this Complaint must be dis-missed for failure to state a proper claimfor aiding and abetting liability.)

A true question of tort liability for cor-porate aiding and abetting in governmentatrocities would be raised where such adefendant purposely procures the commis-sion of genocide by local governmentforces. Assume the hypothetical oil explo-ration company first seeks protection fromthe local host government from interfer-ence with its operations by indigenoustribes. For a period of time, the govern-ment forces provide ineffectual protection,but harassment, interference, and sabo-tage by the tribes continue. Eventually,the frustrated corporate managers say tothe local police chief or military command-er: ‘‘We have been slipping you very hand-some sums, but you have done nothing forus. These protestors continue to cut ourpipelines, and sabotage our machinery.The time has come for you to bring thisharassment to an end. Wipe them out!There will be a generous bonus for youwhen it is done.’’ The local governmentofficials comply. Those are facts thatwould raise an issue of corporate liabilityfor aiding and abetting because the allegedaider and abetter intended, solicited, anddeliberately procured the primary actor’sviolations of international law. The rulemy colleagues have adopted, however,holds that the corporation has committedno violation and its profits are protectedfrom liability, notwithstanding that it pur-posely solicited, procured, and caused the


genocide in order to render its operationsmore profitable.

* * * * * *

Consideration of such examples demon-strates beyond possibility of reasonabledisagreement that the rule my colleaguesattribute to the law of nations operates tothe detriment of the objective of interna-tional law to protect fundamental humanrights. My colleagues’ only response tothese examples is that they do not chooseto respond to them. Maj. Op. 122. De-fenders of the majority opinion might ar-gue that I have chosen extreme and unrep-resentative examples to cast the majority’srule in an unreasonably pejorative light.It is true that the hypothetical cases Ipresent for examination involve extraordi-narily abhorrent conduct. But the reasonI raise such abhorrent conduct is becausethe law of nations, at least in its humani-tarian branch, concerns itself only withextreme abhorrent conduct—conduct thatdraws the unanimous opprobrium of theentire civilized world. The Supreme Courtmade clear in Sosa that liability is imposedunder the ATS for conduct that is con-demned throughout the civilized world andthat renders one the ‘‘enemy of all man-kind.’’ Sosa, 542 U.S. at 732, 124 S.Ct.2739. Suits alleging ordinary, less repug-nant, less universally condemned torts (in-cluding the allegations in Sosa itself of atemporary abduction of an alleged criminalto bring him to answer criminal charges)will be dismissed whether brought againsta natural person or a corporation becauseof failure to plead a violation of the law ofnations. The effect of the majority’s ruleis to immunize the profits earned from themost heinous acts known to mankind.

I recognize that pointing out the incom-patibility of the majority’s rule with theobjectives of international law does notconclude the argument. If the supposedrule the majority relies on in fact reflects

the law of nations and international lawindeed does not apply to corporate conduct(as the majority claim), then we must ap-ply that rule in a case brought under theATS regardless of whether we find it illog-ical or incompatible with the objectives ofinternational law. Law is not always logi-cal.

But neither is the observation irrelevant.Recognition of the humanitarian objectivesof the law of nations makes it unlikely thatthis body of law intends to exempt corpo-rations from its prohibitions or to providea substantial financial incentive to violatethe most fundamental of human rights.Cf. The Amy Warwick, 67 U.S. (2 Black)635, 670, 17 L.Ed. 459 (1862) (‘‘The law ofnations is TTT founded on the commonconsent as well as the common sense of theworld. It contains no TTT anomalous doc-trine.’’). The incompatibility of the majori-ty’s rule with the objective of the law ofnations to protect fundamental humanrights warrants skepticism as to whetherinternational law in fact has such a rule.Before reaching a conclusion whether themajority’s ‘‘rule’’ has indeed been adoptedby the nations of the world as a rule ofinternational law, we would want to exam-ine whether the rule has any purportedjustification that might explain its adoptionin spite of its apparent incompatibility withthe principles and objectives of the law ofnations.

B. The absence of any reason, purpose,or objective for which international lawmight have adopted such a rule. In as-serting that international law exempts cor-porations from any obligation to complywith its rules, the majority implicitly con-tend that the nations of the world havesome kind of reason, or some shared objec-tive, that might justify the rule. The ques-tion then arises what objective the rulewould serve. Where a corporation earnsprofits by exploiting slave labor, or by


causing or soliciting a genocide in order toreduce its operating costs, what objectivewould the nations of the world seek by arule that subjects the foot soldiers of theenterprise to compensatory liability to thevictims but holds that the corporation hascommitted no offense and is free to retainits profits, shielded from the claims ofthose it has abused?

Where the legal systems of the worldencourage the establishment of juridicalentities, endowing them with legal statusby giving them authorization to own prop-erty, make contracts, employ labor, andbring suits, treating them as exempt fromthe law’s commands and immune from suitwould serve no rational purpose. In fact,nowhere are they so immunized. E.g.,Doug Cassel, Corporate Aiding and Abet-ting of Human Rights Violations: Confu-sion in the Courts, 6 Nw. J. Int’l HumanRights 304, 322 (2008) (‘‘I am not aware ofany legal system in which corporationscannot be sued for damages when they

commit legal wrongs that would be action-able if committed by an individual.’’).

My colleagues do not even suggest anypurpose or goal the nations of the worldmight hope to derive from such a rule, andI can think of none. Before accepting mycolleagues’ suggestion that a rule so in-compatible with the objectives of interna-tional law and so lacking in logical justifi-cation is in fact a rule of international law,we should demand at least a reasonablypersuasive showing based on the prece-dents of international law. The majority,however, have no such precedents to offer.

II. The absence of precedent for themajority’s rule

No authoritative source document of in-ternational law adopts or in any way ap-proves the majority’s view that interna-tional law authorizes imposing civil awardsof compensatory damages on natural per-sons but leaves corporations free to violateits rules without legal consequences.11

11. The majority’s characterization of the factsupon which their theory rests is occasionallysubject to dispute. For example, the opinionasserts that ‘‘customary international law hassteadfastly rejected the notion of corporateliability for international crimes.’’ Maj. Op.120. The opinion refers to ‘‘a jurisprudence,first set forth in Nuremberg and repeated byevery international tribunal of which we areaware, that offenses against the law of nationsTTT can be enforced against States and indi-vidual men and women but not against juridi-cal persons such as corporations.’’ Id. Itmaintains, ‘‘there are ample sources of inter-national law explicitly rejecting corporate lia-bility.’’ Maj. Op. 121 n. 21. However, themost that can be asserted as fact, as opposedto argument, is that international tribunalshave not been empowered to exercise crimi-nal jurisdiction over corporations or civil ju-risdiction over any sort of private actor.

The majority opinion further asserts that‘‘no international tribunal has ever held acorporation liable for a violation of the law ofnations,’’ Maj. Op. 120, and that ‘‘no corpora-tion has ever been subject to any form ofliability under the customary international

law of human rights,’’ Maj. Op. 121. The factis, however, that no international tribunal hasever considered whether a corporation or anatural person can be held civilly liable indamages for violation of the customary law ofnations, because no international tribunal hasever exercised civil jurisdiction over privateactors.

The majority describe their ruling as an-swering a ‘‘question that has been lurking forsome time in our ATS jurisprudence.’’ Maj.Op. 124. It is not the case, however, thatjudges have struggled uncomfortably with thisproblem for decades. While the ATS hasbeen in our law for over 200 years and washeld to apply in actions both by and againstcorporations as early as 1795, 1 Op. Att’yGen. 57, 59 (1795), and 1907, 26 Op. Att’yGen. 250, 253 (1907), it was only four yearsago that corporate immunity was first arguedto our court and only eight years ago that itwas first argued to a district court. See Khu-lumani v. Barclay Nat’l Bank Ltd., 504 F.3d254, 282 (2d Cir.2007); Presbyterian Churchof Sudan v. Talisman Energy, Inc., 244F.Supp.2d 289, 319 (S.D.N.Y.2003).


A. No court decisions or other legalprecedents espouse the majority’s rule.No court has ever dismissed a civil suitagainst a corporation, which alleged a vio-lation of the laws of nations, on the groundthat juridical entities have no legal respon-sibility or liability under that law. Nocourt has ever discussed such a rule witheven vaguely implied approval. Quite tothe contrary, on many occasions courtshave ruled in cases involving corporatedefendants in a manner that assumedwithout discussion that corporations couldbe held liable.12 To my knowledge there is

only one opinion by a judge which hasspoken favorably of such a principle, andthat was a single judge’s dissenting opin-ion. See Khulumani v. Barclay Nat’lBank Ltd., 504 F.3d 254, 292 (2d Cir.2007)(Korman, J., concurring in part and dis-senting in part).13 Since that dissentingjudge aired his view, numerous corpora-tions have moved for the dismissal of theircases on the ground that juridical entitiesare exempted from civil liability by the lawof nations. Every court that has passedon the question has rejected the conten-tion.14

12. See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d163 (2d Cir.2009) (holding that allegation thata corporate defendant engaged in non-consen-sual medical experimentation on human sub-jects stated a claim under the ATS for viola-tions of law of nations), cert. denied, ––– U.S.––––, 130 S.Ct. 3541, ––– L.Ed.2d ––––; Sareiv. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir.2007) (concluding that nonfrivolous claimsagainst international mining corporation forvicarious liability for violations of jus cogensnorms were sufficient to warrant exercise offederal jurisdiction under the ATS), vacated inpart on other grounds, 550 F.3d 822 (9th Cir.2008) (en banc); Doe I v. Unocal Corp., 395F.3d 932 (9th Cir.2002) (concluding that aprivate party—such as Unocal, a corpora-tion—may be subject to suit under the ATS foraiding and abetting violations of customaryinternational law and for violations of certainjus cogens norms without any showing ofstate action), reh’g en banc granted, 395 F.3d978 (9th Cir.2003), appeal dismissed, 403 F.3d708 (9th Cir.2005); Aguinda v. Texaco, Inc.,303 F.3d 470 (2d Cir.2002) (dismissing ATScase against corporate defendant on forumnon conveniens grounds, because courts ofEcuador provided adequate alternative fo-rum); Wiwa v. Royal Dutch Petroleum Co.,226 F.3d 88 (2d Cir.2000) (reversing districtcourt’s dismissal of ATS complaint againstcorporations on forum non conveniensgrounds, and affirming district court’s rulingthat corporations were subject to personaljurisdiction in New York); Jota v. Texaco,Inc., 157 F.3d 153 (2d Cir.1998) (vacatingdistrict court’s dismissal of ATS case againstcorporation on forum non conveniensgrounds and remanding for further proceed-ings); Bowoto v. Chevron Corp., 557F.Supp.2d 1080 (N.D.Cal.2008) (denying oil

company defendants’ motion for summaryjudgment on claims that U.S. corporation,acting through its Nigerian subsidiary, aidedand abetted violations of laws of nations;case proceeded to trial before jury, whichfound in favor of defendants); Licea v. Cura-cao Drydock Co., 584 F.Supp.2d 1355(S.D.Fla.2008) ($80 million ATS judgmentagainst defendant corporation for human traf-ficking and forced labor); Chowdhury v.WorldTel Bangladesh Holding, Ltd., No. 08Civ. 1659(BMC) (E.D.N.Y. Aug. 6, 2009), ECFNo. 48 ($1.5 million ATS jury verdict enteredagainst defendant holding company for tor-ture), appeal filed, No. 09–4483–cv (2d Cir.);see also Hilao v. Estate of Marcos, 103 F.3d767, 776–77 (9th Cir.1996) (affirming $2 bil-lion ATS class award against estate of formerpresident of Philippines for gross humanrights violations committed during his reign).(The majority’s rule would immunize an es-tate or trust equally with a corporation, as itapplies to all juridical entities.)

13. Judge Katzmann wrote in response, ‘‘Thisargument [that corporations may not be heldliable under the ATS] was not raised by thedefendants on appeal and therefore the issuewas not briefed by the parties. It is perhapsnot surprising that neither the defendants northe United States raised this issue as a bar toliability: We have repeatedly treated the issueof whether corporations may be held liableunder the AT[S] as indistinguishable from thequestion of whether private individuals maybe.’’ Khulumani, 504 F.3d at 282 (Katz-mann, J., concurring).


The majority’s view that corporationshave neither rights nor obligations underinternational law is further refuted by twovenerable opinions of the Attorney Generalof the United States. In 1907, the Attor-ney General rendered an opinion that anAmerican corporation could be held liableunder the ATS to Mexican nationals if thedefendant’s ‘‘diversion of the water [of theRio Grande] was an injury to substantialrights of citizens of Mexico under the prin-ciples of international law or by treaty.’’26 Op. Att’y Gen. 252, 253 (1907). And in1795, shortly after the enactment of theATS, the Attorney General opined that aBritish corporation could pursue a civilaction under the ATS for injury caused toit in violation of international law byAmerican citizens who, in concert with a

French fleet, had attacked a settlementmanaged by the corporation in SierraLeone in violation of international law.See 1 Op. Att’y Gen. 57 (1795). AttorneyGeneral William Bradford explained:

there can be no doubt that the companyor individuals who have been injured bythese acts of hostility have a remedy bya civil suit in the courts of the UnitedStates; jurisdiction being expressly giv-en to these courts in all cases where analien sues for a tort only, in violation ofthe laws of nations, or a treaty of theUnited StatesTTTT

Id. at 59. Cf. Sosa, 542 U.S. at 721, 124S.Ct. 2739 (‘‘Bradford TTT made it clearthat a federal court was open for the pros-ecution of a tort action growing out of theepisode.’’).15

14. Sinaltrainal v. Coca–Cola Co., 578 F.3d1252, 1263 (11th Cir.2009) (‘‘In addition toprivate individual liability, we have also rec-ognized corporate defendants are subject toliability under the ATS and may be liable forviolations of the law of nations.’’ (citingRomero v. Drummond Co., Inc., 552 F.3d1303, 1315 (11th Cir.2008) (‘‘The text of theAlien Tort Statute provides no express excep-tion for corporations, and the the law of thisCircuit is that [ATS] grants jurisdiction fromcomplaints of torture against corporate defen-dants.’’))); Al–Quraishi v. Nakhla, No. Civ.No. 08–1696, 2010 WL 3001986, at *39(D.Md. July 29, 2010) (‘‘There is no basis fordifferentiating between private individualsand corporations [under the ATS]TTTT’’); Inre S. African Apartheid Litig., 617 F.Supp.2d228, 254–55 (S.D.N.Y.2009) (Scheindlin, J.)(rejecting argument that corporate liabilitycannot be imposed under the ATS); In re XEServs. Alien Tort Litig., 665 F.Supp.2d 569,588 (E.D.Va.2009) (‘‘Nothing in the ATS orSosa may plausibly be read to distinguishbetween private individuals and corporations;indeed, Sosa simply refers to both individualsand entities as ‘private actors.’ TTT [T]here isno identifiable principle of civil liability whichwould distinguish between individual andcorporate defendants in these circum-stances.’’ (internal citations omitted)); seealso In re Agent Orange Prod. Liab. Litig., 373

F.Supp.2d 7, 58 (E.D.N.Y.2005) (Weinstein,J.) (‘‘A corporation is not immune from civillegal action based on international law.’’);Presbyterian Church of Sudan v. Talisman En-ergy, Inc., 374 F.Supp.2d 331, 335 (S.D.N.Y.2005) (Cote, J.) (‘‘Talisman’s argument thatcorporate liability under international law isnot TTT sufficiently accepted in internationallaw to support an ATS claim is misguided.’’);Talisman, 244 F.Supp.2d 289, 319 (S.D.N.Y.2003) (Schwartz, J.) (‘‘A private corporationis a juridical person and has no per se immu-nity under U.S. domestic or internationallawTTTT [W]here plaintiffs allege jus cogensviolations, corporate liability may follow.’’);cf. In re S. African Apartheid Litig., No. 02MDL 1499(SAS), 2009 WL 5177981, at *2(S.D.N.Y. Dec. 31, 2009) (denying motion forcertification of interlocutory appeal, becausethere are not ‘‘substantial grounds for dis-agreement on the issue of whether ATS ex-tends liability to corporations’’); PresbyterianChurch of Sudan v. Talisman Energy, Inc., No.01 Civ. 9882(DLC), 2005 WL 2082847, at *3–*4 (S.D.N.Y. Aug. 30, 2005) (same); but seediscussion of Doe v. Nestle, at footnote* onpage 3, supra.

15. Although the Supreme Court relied on At-torney General Bradford’s 1795 in Sosa, themajority’s only response to these AttorneyGeneral opinions is that they ‘‘do [no]thing


In sum, the principle that my colleaguescontend forms a part of the law establishedby the universal consensus of the nationsof the world—that juridical persons haveneither rights nor obligations—has neverbeen addressed with favor in any opinionon behalf of any court and has many timesbeen rejected.

B. No international tribunal is struc-tured with a jurisdiction consistent withthe majority’s rule. If there were interna-tional tribunals established with jurisdic-tion to award civil damages against naturalpersons but not against juridical entities,this would give significant support to themajority’s contention that the conventionsof international law attach importance towhether a person against whom compensa-tory liability is sought is a natural personor a juridical entity. But there is no inter-national tribunal established with such ju-risdictional restrictions.

The international tribunals that havebeen established to date with jurisdictionover private persons have concerned them-selves only with criminal punishment.16

None has ever had jurisdiction to considera private civil remedy of any kind—eitheragainst a natural person or a juridical enti-

ty. No international tribunal furnishes aprecedent for the majority’s rule. (I dis-cuss below, in Part III, the fallacy of themajority’s argument that the restriction ofcriminal punishments for violations of thelaw of nations to natural persons reflectsan intention in international law to immu-nize juridical entities from civil compensa-tory liability.)

C. Quoting out of context from a foot-note in the Supreme Court’s Sosa opinion,the majority attribute to it a meaningopposite to what it intends. Quoting asnippet of dictum taken out of contextfrom a footnote in the Supreme Court’sSosa opinion, the majority opinion incor-rectly attributes to the Court support forthe majority’s contention that internationallaw distinguishes between natural persons(who can be civilly liable) and corporations(who cannot). To the extent the Sosaopinion says anything on the subject, itcommunicates the opposite of what themajority attribute to it.

The majority assert that in footnote 20of Justice Souter’s opinion, the SupremeCourt instructed the lower courts to con-sider in ruling in ATS claims ‘‘whetherinternational law extends the scope of lia-

more than baldly declare’’ conclusions whichthe majority consider erroneous. Maj. Op.142 n. 44. (They add the irrelevancy that oneof the opinions would require dismissal of thissuit on a completely different ground.)

16. The majority find it ‘‘particularly signifi-cant’’ that no international (criminal) tribunalhas ever held ‘‘a corporation liable for a viola-tion of the law of nations.’’ Maj. Op. 132.This misunderstands the role of such tribunalsin the enforcement of the law of the nations.The primary, and prior to the twentieth centu-ry, the exclusive, means of applying and en-forcing the requirements of customary inter-national law was the domestic law of civilizednations. The very actions that were ‘‘upper-most’’ in the First Congress’s mind in passingthe ATS—piracy, violations of safe conduct,and offenses against ambassadors—had been

punished not by an international tribunal butby the domestic courts of England under thedomestic law of England. See Sosa, 542 U.S.at 715, 719, 124 S.Ct. 2739; 4 William Black-stone, Commentaries *66. Only beginning inWorld War I, with the advent of the Perma-nent Court of International Justice, did inter-national law also provide an internationalcourt for enforcing these requirements. And,until the establishment of the InternationalCriminal Court, it provided courts to enforceinternational law against individuals only onan ad hoc basis, convening to carry out judg-ment for particular violations of internationallaw—for example, in Nazi Germany, the for-mer Yugoslavia, and Rwanda. Such tribunalshave exercised only criminal jurisdiction.They have never entertained claims of civilliability directed against either corporationsor natural persons.


bility for a violation of a given norm to theperpetrator being sued, if the defendant isa private actor such as a corporation or anindividual.’’ Maj. Op. 125–26, 127–28. Ac-cording to the majority opinion, the quotedfragment means that when the defendantis a private actor, such as a natural personor a corporation, a determinative questionwill be whether well established norms ofinternational law impose liability on such aperpetrator—and the answer may be dif-ferent depending on whether the actor is anatural person or a corporation. If read incontext, however, the passage means thecontrary.

The Sosa suit was brought by Alvarez–Machain, a Mexican doctor believed byU.S. government authorities to have par-ticipated in the torture and murder by aMexican drug cartel of an agent of theU.S. Drug Enforcement Administration.The allegation under the ATS assertedthat the defendant Sosa, acting on behalfof the U.S. government, had helped toseize Alvarez in Mexico and bring him tothe United States to stand trial for his rolein the murder. Alvarez was eventuallyacquitted of the crime. He contended thathis abduction violated the law of nationsand thus presented a basis for tort liabilityunder the ATS.

The Justices of the Supreme Court allagreed that Alvarez’s claims under theATS should be dismissed because the ille-gal conduct he asserted did not violate thelaw of nations. What divided the Justiceswas whether damages may ever be award-ed in a suit under the ATS. The minority,taking essentially the position asserted byJudge Bork in Tel–Oren, argued that inthe absence of further legislation supply-ing a cause of action, a U.S. court had nobasis to award damages because the ATSdid no more than confer jurisdiction, and

no statute furnished a cause of action. SeeSosa, 542 U.S. at 750, 124 S.Ct. 2739 (Sca-lia, J., concurring in the judgment).

The majority of the Court rejected theminority view that the ATS can have nopractical application unless and until somefuture Congress passes additional statutesmaking the law of nations enforceable in aU.S. court. Citing the 1795 opinion ofAttorney General Bradford, 1 Op. Att’yGen. 57, and reaffirming that ‘‘the domes-tic law of the United States recognizes thelaw of nations,’’ 542 U.S. at 729–30, 124S.Ct. 2739, Justice Souter’s opinion con-strued the intent of the First Congress inpassing the ATS as ‘‘furnish[ing] jurisdic-tion for a relatively modest set of actions’’by private actors, which implicated theinterests of States. See id. at 715, 720, 124S.Ct. 2739. The Court majority noted thatthe ATS originally was meant to authorizelitigation of a ‘‘narrow set of common lawactions derived from the law of nations,’’id. at 721, 124 S.Ct. 2739, but that in thepresent day, federal courts retained au-thority to decide claims arising under new‘‘international norm[s] intended to protectindividuals,’’ id. at 730, 124 S.Ct. 2739.Recognizing, however, ‘‘good reasons for arestrained conception of the discretion fed-eral courts should exercise in considering anew cause of action of this kind,’’ the Courtcautioned that a claim based on the ‘‘pres-ent-day law of nations [should] rest on anorm of international character acceptedby the civilized world and defined with aspecificity comparable to the features ofthe 18th-century paradigms.’’ Id. at 725,124 S.Ct. 2739.

Justice Souter then turned parentheti-cally to a concern brought into focus bythe D.C. Circuit’s decision in Tel–Oren andthis court’s decision in Kadic.17 Judge

17. The European Commission also raised thisconcern as amicus curiae. See Br. of Amicus

Curiae the European Comm’n in Supp. ofNeither Party, at 10, Sosa v. Alvarez–Machain,


Edwards in Tel–Oren and this circuit inKadic had each contemplated that certainforms of conduct were violations of inter-national law, as opposed to violations oflocal law, only when done by a State (orunder color of a State’s law) and not whendone by a private actor acting indepen-dently of a State. (This resulted frominternational law’s primary focus on theconcerns and conduct of States.) JudgeEdwards concluded that, while torturepracticed by a State violated the law ofnations, there was no wide consensus thattorture, if done independently by a privateactor, constituted a violation of the law ofnations. Tel–Oren, 726 F.2d at 794–95(Edwards, J., concurring). Kadic re-flected on the same question with respectto genocide and concluded that genocidewas generally accepted as violating thelaws of nations regardless of whether doneby a State or by a private actor. Kadic,70 F.3d at 241–42. Nothing in the Tel–Oren or Kadic opinions suggests in anyway that the law of nations might distin-guish between conduct of a natural personand of a corporation. They distinguishonly between private and State action.The Sosa footnote refers to the concern ofTel–Oren and Kadic—that some forms ofnoxious conduct are violations of the law ofnations when done by or on behalf of aState, but not when done by a privateactor independently of a State, while othernoxious conduct violates the law of nationsregardless of whether done by a State or aprivate actor. Expressly referring tothese discussions in Tel–Oren and Kadic,Sosa’s footnote 20 notes the pertinence ofthe consideration ‘‘whether international

law extends the scope of liability for aviolation of a given norm for the perpetra-tor being sued, if the defendant is a pri-vate actor such as a corporation or anindividual ’’ (emphasis added). See alsoSosa, 542 U.S. at 760, 124 S.Ct. 2739(Breyer, J. concurring) (‘‘The norm mustextend liability to the type of perpetrator(e.g., a private actor) the plaintiff seeks tosue.’’).

Far from implying that natural personsand corporations are treated differentlyfor purposes of civil liability under ATS,the intended inference of the footnote isthat they are treated identically. If theviolated norm is one that international lawapplies only against States, then ‘‘a privateactor, such as a corporation or an individ-ual,’’ who acts independently of a State,can have no liability for violation of the lawof nations because there has been no viola-tion of the law of nations. On the otherhand, if the conduct is of the type classi-fied as a violation of the norms of interna-tional law regardless of whether done by aState or a private actor, then ‘‘a privateactor, such as a corporation or an individ-ual,’’ has violated the law of nations and issubject to liability in a suit under the ATS.The majority’s partial quotation out of con-text, interpreting the Supreme Court asdistinguishing between individuals and cor-porations, misunderstands the meaning ofthe passage.

III. The deficiencies of the majority’sreasoning

In view of the complete absence of prec-edential support for their rule, the majori-ty’s position rests solely on arguments.

542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d718 (2004) (‘‘[O]nly a subset of norms recog-nized as customary international law appliesto non-state actors, such as corporations, andhence only that subset may form the basis ofliability against such actors. For example,non-state actors may be liable for genocide,

war crimes, and piracy, while torture, sum-mary execution, and prolonged arbitrary de-tention do not violate the law of nations un-less they are committed by state officials orunder color of law.’’ (citing, inter alia, Tel–Oren or Kadic)), available at 2004 WL177036.


These arguments rest on illogical proposi-tions and misunderstandings of law andprecedent.

A. The refusal to empower interna-tional criminal tribunals to impose crim-inal punishment on corporations (forreasons which depend solely on the suita-bility of criminal punishment to corpora-tions) in no way implies that interna-tional law exempts corporations from itsrules. The only fact of international lawto which the majority can point as evi-dence of its view that international lawdoes not apply to juridical persons is thefact that international criminal tribunalshave not exercised authority to imposecriminal punishments on them. Accord-ing to the majority, it follows inescapablythat juridical entities are not subject tointernational law. The argument is sim-ply a non sequitur.18

The majority are absolutely correct thatinternational criminal tribunals have con-sistently been established without jurisdic-tion to impose criminal punishments oncorporations. At the start of modern pros-ecution by international tribunals for viola-tions of the law of nations, the militarytribunals at Nuremberg, established underthe London Charter and Control CouncilLaw No. 10 to punish those responsible for

the Nazi atrocities, found that the Farbencorporation violated the standards of thelaw of nations and therefore imposed pun-ishment on the responsible Farben person-nel, but did not prosecute the corporation.The subsequent international criminal tri-bunals have also been established with ju-risdiction over only natural persons. Inthe recent establishment of the Interna-tional Criminal Court (ICC) under theRome Statute, July 17, 1998, 37 I.L.M. 999,2187 U.N.T.S. 90, a proposal advanced byFrance to extend the court’s jurisdiction toinclude the prosecution of corporations andother juridical persons was defeated. Onthis basis the majority declare it ‘‘abun-dantly clear,’’ Maj. Op. 137 (although fur-nishing no explanation for this abundantclarity), that the prohibitions of interna-tional law do not apply to corporations.

The reasons why the jurisdiction of in-ternational criminal tribunals has been lim-ited to the prosecution of natural persons,as opposed to juridical entities, relate tothe nature and purposes of criminal pun-ishment, and have no application to thevery different nature and purposes of civilcompensatory liability. According toviews widely shared in the world, an indis-pensable element to the justification ofcriminal punishment is criminal intent.19

18. The majority opinion argues at one pointthat ‘‘customary international law does notdevelop through ‘logical’ expansion of exist-ing norms,’’ and that its rules cannot be ex-tended by ‘‘parity of reasoning.’’ Maj. Op.140 & n. 37. In spite of this assertion, themajority opinion seeks by ‘‘parity of reason-ing’’ to extend international law’s refusal toexercise criminal jurisdiction over corpora-tions into a principle of refusal to allow impo-sition of civil liability on corporations. Theproblem with the exercise is not only themajority’s inconsistency on the inappropriate-ness of logical extension by parity of reason-ing, but more importantly that its assertedextension is based on neither logic nor parityof reasoning. Parity of reasoning undertakesto apply the same rule to logically indistin-

guishable cases. The majority seek by illogi-cal argument to extend a rule justified solelyby one set of circumstances into other situa-tions that lack the justifying circumstances.Legal scholarship often extols the virtue ofdeciding like cases in like fashion. The ma-jority here undertake to decide unlike cases inlike fashion.

19. See, e.g., 2 Int’l Commission of Jurists,Corporate Complicity & Legal Accountability57–58 (2008) (‘‘National criminal laws weredeveloped many centuries ago, and they arebuilt and framed upon the notion of the indi-vidual human being as a conscious being ex-ercising freedom of choice, thought and ac-tion. Businesses as legal entities have beenviewed as fictitious beings, with no physical


Many courts and writers have taken theposition that, because criminal intent can-not exist in an artificial entity that existssolely as a juridical construct and can formno intent of any kind, it is an anomaly toview a corporation as criminal.20 In addi-tion, criminal punishment does notachieve its principal objectives when it isimposed on an abstract entity that existsonly as a legal construct. Criminal pun-ishment seeks to impose meaningful pun-ishment—in other words, to inflict, for sa-lutary effect, a measure of suffering onpersons who have violated society’s rules.1 Charles E. Torcia, Wharton’s CriminalLaw § 1, at 2 (15th ed. 1993) (‘‘The ‘crimi-nal’ law attempts to force obedience—or todiscourage disobedience—by punishing of-fenders.’’). The infliction of punitive suffer-

ing has several objectives. One is to givesociety the satisfaction of retribution—ofseeing that one who has broken its rulesand has caused suffering is required inturn to endure suffering. Another is todisable the offender from further criminalconduct during imprisonment. A third isthe hope that the infliction of punitive suf-fering will change the criminal’s conduct,bringing about either his repentance or, atleast, his realization that further criminalconduct is likely to result in still moresevere punishment. Yet another objectiveis to dissuade others similarly situatedfrom criminal conduct through the implicitwarning that, if they yield to the tempta-tions of illegal conduct, suffering may beinflicted on them.21

presence and no individual consciousness.’’);L.H. Leigh, The Criminal Liability of Corpora-tions and Other Groups: A Comparative View,80 Mich. L.Rev. 1508, 1509 (1982) (‘‘Thesearguments [against corporate criminal liabili-ty] may be summarized quickly: a corpora-tion has no mind of its own and thereforecannot entertain guilt; it has not body andtherefore cannot act in propia persona; TTTT’’).

20. See, e.g., 2 Int’l Commission of Jurists,supra note 19, at 58 (‘‘[M]any perceive it to beimpossible to prove that a business entity hadcriminal intent, or knowledge.’’); V.S. Khan-na, Corporate Criminal Liability: What Pur-pose Does It Serve?, 109 Harv. L.Rev. 1477,1490 (1996) (‘‘Many European jurisdictionsinitially refused to recognize corporate crimi-nal liability because the notion that a juristicfiction such as a corporation could possessguilt in the sense necessary for the applica-tion of the criminal law seemed far-fetched.’’); Guy Stessens, Corporate CriminalLiability: A Comparative Perspective, 43 Int’l& Comp. L.Q. 493, 496 (1994) (describingdecisions of the Queen’s Bench that ‘‘man-aged to surmount the so-called ‘mes rea hur-dle’ ’’); Gerhard O.W. Mueller, Mens Rea andthe Corporation, 19 U. Pitt. L.Rev. 21, 29(1957) (discussing mid-century French viewthat ‘‘corporate criminal liability is irreconcil-able with the guilt principle’’); Robert Philli-more, Commentaries upon International Law50 (1854) (‘‘Criminal law is concerned with anatural person; a being of thought, feeling,

and will. A legal person is not, strictly speak-ing, a being of these attributes, though,through the medium of representation and ofgovernment, the will of certain individuals isconsidered the will of the corporation; butonly for certain purposes.’’).

21. See, e.g., Prosecutor v. Kayishema & Ruz-indana, Case No. ICTR–95–1–T, Sentence, ¶ 2(June 1, 2001) (‘‘This Chamber must imposesentences on convicted persons for retribu-tion, deterrence, rehabilitation, and to protectsociety. As to deterrence, this Chamber seeksto dissuade for good those who will be tempt-ed in the future to perpetrate such atrocitiesby showing them that the international com-munity is no longer willing to tolerate seriousviolations of international humanitarian lawand human rights.’’); Prosecutor v. Nahima-na, Case No. ICTR–99–52–T, Judgement andSentence, ¶ 1095 (Dec. 3, 2003) (‘‘The Cham-ber considers that sentencing serves the goalsof retribution, deterrence, rehabilitation, andprotection of society.’’); Prosecutor v. Muse-ma, Case No. ICTR–96–13, Judgment andSentence, ¶ 986 (Jan. 27, 2000) (‘‘The penal-ties imposed by this Tribunal must be directedat retribution, so that the convicted perpetra-tors see their crimes punished, and, over andabove that, at deterrence, to dissuade for everothers who may be tempted to commit atroci-ties by showing them that the internationalcommunity does not tolerate serious viola-tions of international humanitarian law and


When criminal punishment is inflictedon an abstract entity that exists only as alegal construct, none of these objectives isaccomplished. A corporation, having nobody, no soul, and no conscience, is incapa-ble of suffering, of remorse, or of pragmat-ic reassessment of its future behavior.Nor can it be incapacitated by imprison-ment. The only form of punishment readi-ly imposed on a corporation is a fine, andthis form of punishment, because its bur-den falls on the corporation’s owners orcreditors (or even possibly its customers ifit can succeed in passing on its costs inincreased prices), may well fail to hurt thepersons who were responsible for the cor-poration’s misdeeds. Furthermore, whenthe time comes to impose punishment forpast misdeeds, the corporation’s owners,directors, and employees may be complete-ly different persons from those who heldthe positions at the time of the misconduct.What is more, criminal prosecution of thecorporation can undermine the objectivesof criminal law by misdirecting prosecutionaway from those deserving of punishment.Because the imposition of criminal punish-ment on corporations and other juridicalentities fails to fulfill the objectives ofcriminal punishment, the InternationalMilitary Tribunal at Nuremberg declared,‘‘[O]nly by punishing individuals who com-mit such crimes [and not by punishingabstract entities] can the provisions of in-ternational law be enforced.’’ The Nurn-berg Trial, 6 F.R.D. 69, 110 (1946); seeMaj. Op. 118 – 20. For these reasons,criminal prosecution of corporations is un-known in many nations of the world and isnot practiced in international criminal tri-bunals. See supra notes 19–20.

The very sources the majority cite makeclear that the reason for withholding crimi-

nal jurisdiction over corporations from in-ternational tribunals relates to a perceivedinappropriateness of imposing criminalpunishments on corporations. M. CherifBassiouni’s report on the drafting of theRome Statute notes the ‘‘deep divergenceof views as to the advisability of includingcriminal responsibility of legal [i.e., juridi-cal] persons’’ in the Rome Statute. Maj.Op. 137 (quoting Draft Report of the Inter-sessional Meeting from 19 to 30 January1998 [Held] in Zuthphen, The Nether-lands, in The Statute of the InternationalCriminal Court: A Documentary History221, 245 n. 79 (M. Cherif Bassiouni ed.,1998)). Andrew Clapham’s report notes‘‘the whole notion of corporate criminalresponsibility [is] simply ‘alien’ ’’ to manylegal systems. Maj. Op. 137 (quoting An-drew Clapham, The Question of Jurisdic-tion Under International Criminal LawOver Legal Persons: Lessons from theRome Conference on an InternationalCriminal Court, in Liability of Multina-tional Corporations Under InternationalLaw 139, 157 (Menno T. Kamminga &Saman Zia–Zarifi eds., 2000)).

The refusal of international organiza-tions to impose criminal liability of corpo-rations—for reasons having to do solelywith a corporation’s perceived inability toact with a criminal intent and the ineffica-cy of criminal punishment to achieve itsgoals when applied to a corporation—in noway implies that international law deemscorporations exempt from internationallaw. As the Chairman of the Rome Stat-ute’s Drafting Committee has explained,despite the diversity of views concerningcorporate criminal liability, ‘‘all positionsnow accept in some form or another theprinciple that a legal entity, private or

human rights.’’); Prosecutor v. Kupreskic,Case No. IT–95–16–T, Judgment, ¶ 848 (Jan.14, 2000) (‘‘[I]n general, retribution and de-terrence are the main purposes to be consid-

ered when imposing sentences in cases beforethe International Tribunal.’’); Prosecutor v.Naletilic, Case No. IT–98–34–T, Judgement,¶ 739 (Mar. 31, 2003) (same).


public, can, through its policies or actions,transgress a norm for which the law,whether national or international, pro-vides, at the very least damages.’’ M.Cherif Bassiouni, Crimes Against Human-ity in International Criminal Law 379 (2drev. ed. 1999); see also 3 Int’l Commissionof Jurists, Corporate Complicity & LegalAccountability: Civil Remedies 5 (2006)(‘‘[W]hen the legal accountability of a com-pany entity is sought, the law of civil reme-dies may often provide victims with theironly legal avenue to remedy. This is be-cause the law of civil remedies will alwayshave the ability to deal with the conduct ofcompanies, individuals and state authori-ties.’’ (emphasis added and footnotes omit-ted)).

The purposes of civil tort liability arevery different from the purposes of crimi-nal punishment. A principal objective ofcivil tort liability is to compensate victimsof illegal conduct for the harms inflicted onthem and to restore to them what is right-fully theirs.22 If a corporation harms vic-

tims by conduct that violates the law ofnations, imposition of civil liability on thecorporation perfectly serves the objectivesof civil liability. It compensates the vic-tims for the harms wrongly inflicted onthem and restores to them what is right-fully theirs. What is more, in all likeli-hood, the objectives of civil tort liabilitycannot be achieved unless liability is im-posed on the corporation. Because thecorporation, and not its personnel, earnedthe principal profit from the violation ofthe rights of others, the goal of compensa-tion of the victims likely cannot beachieved if they have remedies onlyagainst the persons who acted on the cor-poration’s behalf—even in the unlikelyevent that the victims could sue those per-sons in a court which grants civil remediesfor violations of international law. Fur-thermore, unlike the case with corporatecriminal liability, which does not exist inmany nations of the world, it is the world-wide practice to impose civil liability oncorporations.23

22. Andre Tunc, Introduction, in 11 Interna-tional Encyclopedia of Comparative Law¶ 167, at 96 (Andre Tunc ed., 1983) (‘‘[T]helaw of tort should serve the fulfillment ofjustice, at least if a compensatory justice, nota punishing one, is contemplated.’’); DougCassel, Corporate Aiding and Abetting of Hu-man Rights Violations: Confusion in theCourts, 6 Nw. J. Int’l Human Rights 304, 322–23 (2008) (‘‘[C]ustomary international law haslong held that injuries caused by violations ofinternational norms require reparation, in-cluding monetary compensation when fullrestitution is not possible.’’); see also infranote 24 (quoting decisions of the Internation-al Court of Justice and Permanent Court ofInternational Justice to the same effect).

23. Several international conventions explicit-ly recognize the diversity in nations’ domesticlaws regarding the imposition of criminalsanctions on legal or juridical persons. Theseconventions require State parties to imposecriminal sanctions on legal persons, or wherethat is not possible under the individual na-tion’s domestic law, non-criminal sanctions.

See Optional Protocol to the Convention onthe Rights of the Child on the Sale of Chil-dren, Child Prostitution and Child Pornogra-phy, May 25, 2000, G.A. Res. 54/263, AnnexII, 54 U.N. GAOR Supp. (No. 49) at 6, U.N.Doc. A/54/49, Vol. III (2000), entered intoforce Jan. 18, 2002 (‘‘Subject to the provisionsof its national law, each State Party shall takemeasures TTT to establish the liability of legalpersons. Subject to the legal principles of theState Party, such liability of legal persons maybe criminal, civil or administrative.’’); Organ-ization for Economic Cooperation and Devel-opment, Convention on Combating Bribery ofForeign Public Officials in International Busi-ness transactions, art. 3, Nov. 21, 1997,DAFFE/IME/BR(97)20, entered into force Feb.15, 1999 (‘‘The bribery of a foreign publicofficial shall be punishable by effective, pro-portionate and dissuasive criminal penal-tiesTTTT In the event that under the legalsystem of a Party, criminal responsibility isnot applicable to legal persons, that Partyshall ensure that legal persons shall be subjectto effective, proportional and dissuasive non-criminal sanctions.’’).


Thus, the reasons that explain the re-fusal to endow international criminal tri-bunals with jurisdiction to impose criminalpunishments on corporations suggest ifanything the opposite as to civil tort lia-bility. Whereas criminal liability of cor-porations is unknown in much of theworld, civil liability of corporations is en-forced throughout the world. Whereasthe imposition of criminal punishment oncorporations fails to achieve the objectiveof criminal punishment, the compensatorypurposes of civil liability are perfectlyserved when it is imposed on corpora-tions. Whereas criminal prosecution of acorporation could misdirect prosecutorialattention away from the responsible per-sons who deserve punishment, impositionof civil compensatory liability on corpora-tions makes possible the achievement ofthe goal of civil law to compensate victimsfor the abuses they have suffered. Thereis simply no logic to the majority’s as-sumption that the withholding from inter-national criminal tribunals of jurisdictionto impose criminal punishments on corpo-rations (for reasons relating solely to aperception that corporations cannot com-mit crimes) means that international law’sprohibitions of inhumane conduct do notapply to corporations.

B. The majority incorrectly assert thatinternational law does not distinguish be-tween criminal and civil liability; in fact,international law does distinguish be-tween the two, and leaves issues of privatecivil liability to individual States. In aneffort to defend their illogical leap fromthe fact that international tribunals havenot exercised criminal jurisdiction over ju-ridical persons to the conclusion that jurid-ical entities cannot violate internationallaw and thus cannot be sued under theATS, the majority posit that there is nodistinction in international law betweencivil and criminal liability. Maj. Op. 146.The majority cite neither scholarly discus-sion nor any source document of interna-tional law in support of this assertion. Infact, scholarly writings and source docu-ments of international law contradict theirassertion. These sources distinguish inmany important respects between criminaland civil liability, and demonstrate thatimposition of civil liability for violations ofinternational law falls within the generaldiscretion that individual States possess tomeet their international obligations.

In every instance of the establishment ofan international tribunal with jurisdictionover private actors, the tribunal has beengiven exclusively criminal jurisdiction.24

24. One international tribunal, the closestthing to a tribunal vested with civil jurisdic-tion—the International Court of Justice (ICJ),which resolves matters referred to it by treatyor agreement of State parties—does awardcivil reparations against States, which are ju-ridical entities. Statute of the InternationalCourt of Justice, art. 36(1), June 26, 1945, 59Stat. 1055, 33 U.N.T.S. 993. While that courtdoes not exercise jurisdiction over private ac-tors, id. art. 34(1), its precedents involvingawards of reparations paid by one State toanother demonstrate that an award of dam-ages against a juridical entity is familiarground in international law. In a line ofdecisions dating to the 1920s, the ICJ and itspredecessor court, the Permanent Court ofInternational Justice, have recognized as ‘‘a

principle of international law that the breachof an international engagement [a duty im-posed by international law] involves an obli-gation to make reparation in an adequateform.’’ Factory at Chorzow (Jurisdiction)(Germany v. Poland), 1927 P.C.I.J. (ser.A) No.9, at 3, 21 (July 26); see also United StatesDiplomatic and Consular Staff in Tehran(Judgment) (United States of America v. Iran),1980 I.C.J. 3, 41–42 (May 24) (‘‘Iran, by com-mitting successive and continuing breaches of[treaty obligations] and the applicable rules ofgeneral international law, has incurred re-sponsibility towards the United States. [I]tclearly entails an obligation on the part of theIranian State to make reparation for the inju-ry thereby caused to the United States.’’ (em-phasis added)); Corfu Channel Case (Merits),


For instance, the London Charter estab-lished the International Military Tribunalat Nuremberg ‘‘for the just and prompttrial and punishment of the major warcriminals of the European Axis.’’ Agree-ment for the Prosecution and Punishmentof the Major War Criminals of the Europe-an Axis (the ‘‘London Charter’’), § I, art.1, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S.279. Control Council Law No. 10 estab-lished the U.S. Military Tribunal for the‘‘prosecution’’ and ‘‘punishment’’ of ‘‘warcriminals and other similar offenders.’’Control Council Law 10, preamble, re-printed in I Trials of War Criminals Be-fore the Nuernberg Military Tribunalsunder Control Council Law No. 10, at xvi(1950). The International Criminal Tribu-nal for the Former Yugoslavia and theInternational Criminal Tribunal for Rwan-

da were established to prosecute and pun-ish war criminals.25 The parties to theRome Statute of the International Crimi-nal Court ‘‘[a]ffirm that the most seriouscrimes of concern to the international com-munity as a whole must not go unpun-ished.’’ Rome Statute, preamble, ¶ 4.

Consistent with their constituting char-ters, international criminal tribunals haveexercised only criminal jurisdiction to pun-ish offenders. None has ever exercised apower to make compensatory civil awardsto victims.26 These tribunals have on occa-sion made clear that the criminal violationsthey found may give rise to a claim forcivil compensatory liability, and at times,have explicitly said that conduct whichdoes not justify criminal punishment maynonetheless support a claim for compensa-tory damages.27

1949 I.C.J. 4, 23 (April 9) (‘‘The Court there-fore reaches the conclusion that Albania isresponsible under international law for theexplosions which occurred on October 22nd,1946, in Albanian waters, and for the damageand loss of human life which resulted fromthem, and that there is a duty upon Albania topay compensation to the United Kingdom.’’);1 Oppenheim’s International Law ¶ 155, at528 n. 3 (Sir Robert Jennings & Sir ArthurWatts eds., 9th ed. 1996) (noting an ‘‘ ‘inter-national engagement’ includes any duty underinternational law’’).

25. See Prosecutor v. Kayishema & Ruzindana,Case No. ICTR–95–1–T, Sentence, ¶ 1 (May21, 1999) (stating that the International Crim-inal Tribunal for Rwanda was established ‘‘toensure the effective redress of violations ofinternational humanitarian law in Rwanda in1994. The objective was to prosecute andpunish the perpetrators of the atrocities inRwanda in such a way as to put an end toimpunity and promote national reconciliationand the restoration of peace.’’ (emphasis add-ed)); Prosecutor v. Blagojevic & Jokic, CaseNo. IT–02–60–T, Judgement, ¶ 814 (Jan. 17,2005) (stating that the International Tribunalfor the Former Yugoslavia seeks to imposepunishment that ‘‘reflect[s] both the calls forjustice from the persons who have—directlyor indirectly—been victims of the crimes, aswell as respond to the call from the interna-

tional community as a whole to end impunityfor massive human rights violations andcrimes committed during armed conflicts’’).

26. The distinction between criminal and civilenforcement of international law is also rec-ognized in many multilateral agreements.Most prominently, the Torture Convention re-quires each State party to criminally prose-cute acts of torture or to extradite the allegedtorturers to other States for prosecution.Then, on the subject of compensatory civilliability, it obligates each State party to ‘‘en-sure in its legal system that the victim of anact of torture TTT has an enforceable right tofair and adequate compensation including themeans for as full rehabilitation as possible.’’Convention Against Torture and Other Cruel,Inhuman or Degrading Treatment or Punish-ment, art. 14, Dec. 10, 1984, S. Treaty Doc.No. 100–20, 1465 U.N.T.S. 85.

27. See, e.g., Prosecutor v. Furundzija, Case No.IT–95–17/1, Trial Chamber Judgment, ¶ 155(Dec. 10, 1998) (explaining that victims ofofficially sanctioned torture ‘‘could bring acivil suit for damage in a foreign court’’); VITrials of War Criminals Before the NuernbergMilitary Tribunals 1207–08 (1952) (‘‘[T]heremay be both civil and criminal liability grow-ing out of the same transaction. In this caseFlick’s acts and conduct contributed to a vio-


International law not only recognizesdifferences between criminal and civil lia-bility, but treats them differently. Whileinternational institutions have occasionallybeen established to impose criminal pun-ishments for egregious violations of inter-national law, and treaties often impose onnations the obligation to punish criminalviolations,28 the basic position of interna-tional law with respect to civil liability isthat States may impose civil compensatoryliability on offenders, or not, as they see

fit. As Professor Oscar Schachter ex-plains,29 international law does not ordi-narily speak to ‘‘the opportunities for pri-vate persons to seek redress in domesticcourts for breaches of international law byStates. There is no general requirementin international law that States providesuch remedies. By and large, internation-al law leaves it to them to meet theirobligations in such ways as the State de-termines.’’ 30 Oscar Schachter, Interna-

lation of Hague Regulation 46[,] that is, thatprivate property must be respectedTTTT Buthis acts were not within his knowledge in-tended to contribute to a program of ‘system-atic plunder’ [and therefore cannot be pun-ished criminally].’’).

28. See, e.g., Rome Statute, art. 5 (vesting ICCwith jurisdiction over the crime of genocide,crimes against humanity, war crimes, and thecrime of aggression); Convention on the Pre-vention and Punishment of the Crime of Ge-nocide, art. V, Dec. 9, 1948, S. Exec. Doc. O,81–1 (1949), 78 U.N.T.S. 277 (obligating stateparties ‘‘to enact, in accordance with theirrespective Constitutions, the necessary legisla-tion to give effect to the provisions of thepresent Convention, and, in particular, to pro-vide effective penalties for persons guilty ofgenocide’’).

29. Upon his death in 2003, former SecretaryGeneral Kofi Annan described ProfessorSchachter as the ‘‘architect of the legal frame-work which has guided United Nations peace-keeping for more than 50 years.’’ WolfgangSaxon, Oscar Schachter, 88, Law Professorand U.N. Aide, N.Y. Times, Dec. 17, 2003, atC15.

30. See, e.g., Banco Nacional de Cuba v. Sabba-tino, 376 U.S. 398, 422–23, 84 S.Ct. 923, 11L.Ed.2d 804 (1964) (‘‘The traditional view ofinternational law is that it establishes substan-tive principles for determining whether onecountry has wronged another. Because of itspeculiar nation-to-nation character the usualmethod for an individual to seek relief is toexhaust local remedies and then repair to theexecutive authorities of his own state to per-suade them to champion his claim in diplo-macy or before an international tribunal. Al-

though it is, of course, true that United Statescourts apply international law as a part of ourown in appropriate circumstances, the publiclaw of nations can hardly dictate to a countrywhich is in theory wronged how to treat thatwrong within its domestic borders.’’ (citationsomitted)); Restatement (Third) of the ForeignRelations Law of the United States § 111,cmt. h (1987) (‘‘In the absence of specialagreement, it is ordinarily for the UnitedStates to decide how it will carry out itsinternational obligations.’’); Eileen Denza,The Relationship Between International Lawand National Law, in International Law, 423,423 (Malcolm Evans ed., 2d ed. 2006) (‘‘[Thelaw of nations] permeates and radically con-ditions national legal orders, its rules are ap-plied and enforced by national authorities,and national courts are often asked to resolveits most fundamental uncertainties. Yet inter-national law does not itself prescribe how itshould be applied or enforced at the nationallevel. It asserts its own primacy over nationallaws, but without invalidating those laws orintruding into national legal systems. Nation-al constitutions are therefore free to choosehow they give effect to treaties and to custom-ary international law. Their choice of meth-ods is extremely varied.’’ (emphases added));Louis Henkin, Richard Crawford Pugh, OscarSchachter & Hans Smit, International Law:Cases and Materials 153 (3d ed. 1993) (‘‘Sincea state’s responsibility to give effect to inter-national obligations does not fall upon anyparticular institution of its government, inter-national law does not require that domesticcourts apply and give effect to internationalobligations TTTT States differ as to whetherinternational law is incorporated into domes-tic law and forms a part of the ‘law of theland,’ and whether the executive or the courtswill give effect to norms of international law


tional Law in Theory and Practice 240(1991).

This feature of international law islargely explained by the diversity of legalsystems throughout the world. Becausethe legal systems of the world differ sodrastically from one another, any attemptto dictate the manner in which States im-plement the obligation to protect humanrights would be impractical. ‘‘[G]iven theexisting array of legal systems within theworld, a consensus would be virtually im-possible to reach—particularly on the tech-nical accouterments to an action—and it ishard even to imagine that harmony everwould characterize this issue.’’ Tel–Oren,726 F.2d at 778 (Edwards, J., concurring).

The ceding to States of the fashioning ofappropriate remedies to enforce the normsof the law of nations is readily apparent inthe source documents. Characteristically,multilateral treaties protecting humanrights include few details. They generallydefine the rights and duties in question,and direct contracting States to protectsuch rights under their local laws by ap-propriate means, sometimes, as notedabove, commanding criminal punishment,but rarely dictating any aspects of civilliability. For example, in the GenocideConvention, the ‘‘crime of genocide’’ is de-

fined as a number of ‘‘acts ’’ committedwith ‘‘intent to destroy, in whole or in part,a national, ethnical, racial or religiousgroup.’’ Convention on the Preventionand Punishment of the Crime of Genocide,arts. I, II, Dec. 9, 1948, S. Exec. Doc. O,81–1 (1949), 78 U.N.T.S. 277. The Con-vention then provides in Article V that theState parties ‘‘undertake to enact, in accor-dance with their respective Constitutions,the necessary legislation to give effect tothe provisions of the present Convention,and, in particular, to provide effective pen-alties for persons guilty of genocide.’’ TheConvention leaves the details for realizingits objectives to each nation. It says noth-ing about the nature or form of ‘‘effectivepenalties’’ to be imposed. It says nothingabout civil and administrative remedies.In short, the Convention defines the illegalact of genocide, obligates State parties toenforce its prohibition, and leaves it toeach State to devise its own system forgiving effect to the Convention’s norms.

In this respect, the Convention is typi-cal. The major instruments that codifythe humanitarian law of nations defineforms of conduct that are illegal underinternational law, and obligate States totake appropriate steps to prevent the con-

or to treaty provisions in the absence of theirimplementation by domestic legislation.’’ (em-phasis added)); Louis Henkin, InternationalLaw: Politics, Values and Functions 88 (1990)(‘‘The international system requires that aState meet its international obligations, butordinarily the law has not required that a Statemeet those obligations in a particular way orthrough particular institutions or laws.’’ (em-phasis added)); id. at 251 (‘‘Compliance withinternational law as to civil and politicalrights TTT takes place within a State anddepends on its legal system, on its courts andother official bodies.’’); Louis Henkin, For-eign Affairs and the Constitution 224 (1972)(‘‘International law itself, finally, does not re-quire any particular reaction to violations oflawTTTT’’); Michael Koebele, Corporate Re-

sponsibility under the Alien Tort Statute: En-forcement of International Law Through U.S.Torts Law 208 (2009) (‘‘[I]nternational lawleaves individual liability TTT, be it of a natu-ral or legal person, largely to domestic law.’’);Eric Mongelard, Corporate Civil Liability forViolations of International HumanitarianLaw, 88 Int’l Rev. Red Cross 665, 671 (2006)(‘‘Legal persons can TTT have obligations un-der international law, or at least there is astrong tendency to that effect. However, vir-tually none of the above [human rights] in-struments provides for a mechanism for theenforcement of any liability that may arise orlays down any obligation for non-state entitiesto make reparation; they leave it to the statesparty to the treaties to choose how to applythe rules.’’).


duct.31 They do not instruct on whether,how, or under what circumstances a Statemay impose civil compensatory liability.They leave those questions to be resolvedby each individual nation.

C. The majority’s next argument—that the absence of widespread agreementamong the nations of the world to imposecivil liability on corporations means thatthey can have no liability under interna-tional law—misunderstands internationallaw and is furthermore inconsistent withthe rulings of the Supreme Court and ofthis circuit. For their next argument, themajority construct the following syllogism.1) To determine whether a corporation canbe held civilly liable for violation of inter-national law, the place to look is to interna-tional law. 2) Principles of local law, eventhose accepted throughout the world, arenot rules of international law, unless theyare generally accepted throughout the civi-lized world as obligatory rules of interna-tional law. 3) There is no general accep-tance in the world of a rule of internationallaw imposing civil liability on corporatedefendants for violations of internationallaw. Ergo, international law does not al-low for imposition of civil liability on corpo-rations.

I have no quarrel with any of the threepremises. If properly understood and ap-plied, each is correct. The problem lies inhow they are used in the majority opinionand, in particular, the spurious leap fromthese propositions to the majority’s conclu-sion. Despite the surface plausibility ofthe majority’s argument as it is stated,when one scratches below the surface, themajority’s argument is illogical, internallyinconsistent, contrary to international law,and incompatible with rulings of both theSupreme Court and this circuit.

I have no disagreement with the firstproposition, that the place to look for an-swers whether any set of facts constitutesa violation of international law is to inter-national law. As improbable as it mayseem that international law would give afree pass to corporations to abuse funda-mental human rights, one cannot assumethe answers to questions of internationallaw without first exploring its provisions.And if we found that international law infact exempts corporations from liability forviolating its norms, we would be forced toaccept that answer whether it seemed rea-sonable to us or not.

31. See, e.g., International Covenant on Civiland Political Rights, art. 2(3), Dec. 16, 1966,S. Exec. Doc. E, 95–2 (1978), 999 U.N.T.S.171 (‘‘Each State Party to the present Cove-nant undertakes TTT To ensure that any per-son whose rights or freedoms as herein rec-ognized are violated shall have an effectiveremedyTTTT’’); Convention Against Tortureand Other Cruel, Inhuman or DegradingTreatment or Punishment, art. 2(1), Dec. 10,1984, S. Treaty Doc. No. 100–20, 1465U.N.T.S. 85 (‘‘Each State Party shall takeeffective legislative, administrative, judicial orother measures to prevent acts of torture inany territory under its jurisdiction.’’ (empha-sis added)); International Convention to Sup-press the Slave Trade and Slavery, art. 6,Sept. 25, 1926, 46 Stat. 2183, 60 L.N.T.S. 253(providing that the State parties undertake‘‘to adopt the necessary measures in order

that severe penalties may be imposed in re-spect of such infractions’’); United NationsConvention on the Law of the Sea, art. 105,opened for signature Dec. 10, 1982, 21 I.L.M.1261 (providing that upon seizure of vessel orpersons engaged in piracy, ‘‘[t]he courts of theState which carried out the seizure may decideupon the penalties to be imposed, and mayalso determine the action to be taken withregard to the ships, aircraft or property, subjectto the rights of third parties acting in goodfaith’’ (emphasis added)); International Con-vention on the Suppression and Punishmentof the Crime of Apartheid, opened for signa-ture Nov. 30, 1973, art. IV(b), 1015 U.N.T.S.243 (obligating State parties ‘‘to adopt legisla-tive, judicial and administrative measures toprosecute, bring to trial and punish in accor-dance with their jurisdiction persons responsi-ble for’’ that offense (emphasis added)).


However, when one looks to internation-al law to learn whether it imposes civilcompensatory liability on those who violateits norms and whether it distinguishes be-tween natural and juridical persons, theanswer international law furnishes is thatit takes no position on the question. Whatinternational law does is it prescribesnorms of conduct. It identifies acts (geno-cide, slavery, war crimes, piracy, etc.) thatit prohibits. At times, it calls for theimposition of criminal liability for violationof the law, whether by vesting a tribunalsuch as the ICC with jurisdiction to prose-cute such crimes or by imposing on Statesa duty to make the crimes punishable un-der national law. The majority’s proposi-tion that one looks to the law of nations todetermine whether there is civil liabilityfor violation of its norms thus proves farless than the majority opinion claims.Yes—the question whether acts of anytype violate the law of nations and giverise to civil damages is referable to the lawof nations. And if the law of nations spokeon the question, providing that acts ofcorporations are not covered by the law ofnations, I would agree that such a limita-tion would preclude suits under the ATS toimpose liability on corporations.

But international law does not providethat juridical entities are exempt. And asfor civil liability of both natural and juridi-cal persons, the answer given by the law ofnations (as discussed above) is that eachState is free to decide that question foritself. While most nations of the worldhave not empowered their courts to imposecivil liability for violations of the law of

nations,32 the United States, by enactingthe ATS, has authorized civil suits for vio-lation of the law of nations.33

In short, the majority’s contention thatthere can be no civil remedy for a violationof the law of nations unless that particularform of civil remedy has been adoptedthroughout the world misunderstands howthe law of nations functions. Civil liabilityunder the ATS for violation of the law ofnations is not awarded because of a per-ception that international law commandscivil liability throughout the world. It isawarded in U.S. courts because the law ofnations has outlawed certain conduct, leav-ing it to each State to resolve questions ofcivil liability, and the United States haschosen through the ATS to impose civilliability. The majority’s ruling defeats theobjective of international law to allow eachnation to formulate its own approach tothe enforcement of international law.

I turn to the majority’s second and thirdpropositions in support of its syllogism—that principles of local law, even if accept-ed throughout the world, are not rules ofinternational law unless they are generallyaccepted throughout the civilized world asobligatory rules of international law andthat there is no widespread practice in theworld of imposing civil liability for violationof the rules of international law. Thesepropositions are also true, but they areirrelevant to this controversy. If a dam-age award under the ATS were premisedon the theory that international law com-mands that violators of its norms be liable

32. Beth Stephens, Translating Filartiga: AComparative and International Law Analysisof Domestic Remedies for International Hu-man Rights Violations, 27 Yale J. Int’l L. 1,17–34 (2002) (reviewing reasons foreigncountries have not exercised universal tortjurisdiction over human rights violations).

33. The majority mischaracterize my positionwhen they attribute to me the view that cor-

porate liability is ‘‘merely a question of reme-dy.’’ Maj. Op. 147; see also Maj. Op. 121–22,145–46. As explained throughout this opin-ion, international law outlaws certain formsof abhorrent conduct and in general leaves toindividual nations how to enforce the pro-scription.


for compensatory damages, then we wouldneed to determine whether there is gener-al agreement among the nations of theworld to such a rule of international law.But the award of damages under the ATSis not based on a belief that internationallaw commands civil liability. The claimthat a tort has been committed is premisedon a violation of the law of nations. Thisfollows from a determination that an actorhas done what international law prohibits.But international law leaves the manner ofremedy to the independent determinationof each State. See supra notes 29–30 andaccompanying text; cf. Sosa, 542 U.S. at730, 124 S.Ct. 2739 (‘‘The First Congress,which reflected the understanding of theframing generation and included some ofthe Framers, assumed that federal courtscould properly identify some internationalnorms as enforceable in the exercise of§ 1350 jurisdiction.’’ (emphasis added)).The fact that other nations have not cho-sen to exercise the discretion left to themby international law in favor of civil liabili-ty does not change the fact that interna-tional law has left the choice as to civilliability with each individual nation.

A further flaw in the majority’s reason-ing is its identification of corporate civilliability as the principle that has failed toachieve universal approval as a part of thelaw of nations. The majority’s thesis isthat when a corporation commits a viola-tion of the law of nations, the victims maysue the natural persons who acted for thecorporation, but may not sue the corpora-tion. In the majority’s view, that is be-cause there is no widespread acceptance inthe world of corporate civil liability as arule of international law. See Maj. Op.120–21 (‘‘[T]here would need to be not onlya few, but so many sources of international

law calling for corporate liability that thenorm could be regarded as ‘universal.’ ’’).

But this is a mistaken description ofinternational law. While it is true thatthere is no rule of international law mak-ing corporations civilly liable, that is mere-ly the inevitable consequence of the factthat there is no rule of international lawmaking any private person civilly liable—regardless of whether the person is natu-ral or juridical—and that international tri-bunals, which have been established tocriminally prosecute violations of interna-tional law, have never been vested withauthority to impose civil, compensatory lia-bility. If the absence of widespread agree-ment in the world as to civil liability barsimposing liability on corporations, it barsimposing liability on natural persons aswell.

The majority’s argument thus conflictswith the authority of this court and theSupreme Court. The point of the ATS isto provide a civil remedy to victims of tortscommitted in violation of the law of na-tions. In spite of the clear absence of arule of international law providing for civilliability, we have repeatedly imposed civilliability under the ATS, and the SupremeCourt expressly stated in Sosa, rejectingthe views of the Court minority, that civiltort liability does lie under the ATS. Theabsence of a wide consensus imposing civilliability has never been construed as bar-ring civil liability. The majority’s argu-ment that such absence of wide consensusbars imposition of liability on a corporationplaces the majority in irreconcilable con-flict with the holdings of this court and theteachings of the Supreme Court.

D. Taking out of context Sosa’s refer-ence to a ‘‘norm,’’ which must commandvirtually universal acceptance as a rule ofinternational law to qualify as a rule ofinternational law, the majority opinionattributes to that concept a meaning theSupreme Court could not possibly haveintended. The majority claim to find sup-


port for their argument in a passage of theSupreme Court’s Sosa opinion. The Courtcautioned in Sosa that, in order to qualifyas a rule of international law, a ‘‘norm’’must command virtually universal accep-tance among the civilized nations as a ruleof international law. 542 U.S. at 732, 124S.Ct. 2739. The majority opinion, disre-garding the context of the Court’s discus-sion, construes the ‘‘norm’’ under discus-sion as a convention concerning the type ofviolator of international law upon whomcivil tort liability may be imposed. It pos-tulates that, where a corporation has com-mitted a tort prescribed by the law ofnations, liability may not be imposed on itunless there is a ‘‘norm’’ generally accept-ed throughout the world for the impositionof tort liability on such a corporate violatorof the law of nations, as opposed to thenatural person tortfeasors who acted onthe corporations’ behalf.

This is not what the Supreme Courtmeant. What the Court was addressing inits reference to ‘‘norms’’ was standards ofconduct. Some norms (or standards)—those prescribing the most egregious anduniversally condemned forms of conduct,including genocide, war crimes, and slav-ery—express rules of the law of nations.Other norms of conduct, even though wide-ly accepted and enforced in the world asrules of local law, are not rules of the lawof nations and are therefore not obligatoryon States. What was required was thatthe particular standard of conduct violatedby the defendant be generally accepted asa mandatory rule of international law.

A reading of Sosa, and of the cases itdescribes in this discussion as ‘‘generallyconsistent’’ with its view, makes clear thatall of them are discussing the distinctionsbetween conduct that does, and conductthat does not, violate the law of nations.Reinforcing this limitation, the Sosa opin-ion quoted with approval this court’s refer-

ence in Filartiga to conduct that rendersone ‘‘hostis humani generis, an enemy ofall mankind,’’ 630 F.2d at 890, Judge Ed-wards’ formulation—‘‘a handful of heinousactions—each of which violates definable,universal, obligatory norms,’’ Tel–Oren,726 F.2d at 781 (Edwards, J., concurring),and the Ninth Circuit’s similar observationthat ‘‘[a]ctionable violations of internation-al law must be of a norm that is specific,universal, and obligatory,’’ In re Estate ofMarcos Human Rights Litig., 25 F.3d1467, 1475 (9th Cir.1994). The discussionin Sosa used the word ‘‘norms’’ to refer tostandards of conduct.

To be sure, the distinction between con-duct that does and conduct that does notviolate the law of nations can turn onwhether the conduct is done by or onbehalf of a State or by a private actorindependently of a State. Sosa and Tel–Oren both spoke of forms of conduct—arbitrary detention and torture—thatmight violate the law of nations only ifdone by or on behalf of a State and not ifdone by a private actor acting indepen-dently of the State. But that is a complete-ly different issue from the majority’s prop-osition. The majority are not speaking ofconduct which, because done by an actor ofspecified character, does not violate thelaw of nations. By definition, when con-duct does not violate the law of nations, itcannot be the basis of tort liability underthe ATS for violation of the law of nations.The majority’s rule encompasses conductthat indisputably does violate the law ofnations, including for example slavery, ge-nocide, piracy, and official torture (doneunder color of State law)—conduct forwhich the natural person tortfeasors willbe held liable under ATS, but for which,the majority insist, a corporation thatcaused the conduct to be done and thatprofited from it, cannot be held liable.Nothing in Sosa inferentially supports oreven discusses this question.


The Supreme Court, furthermore, couldnot have meant what the majority opinionattributes to it. The disagreement in Sosathat divided the Court was on the questionwhether the ATS in any circumstanceauthorizes an award of compensatory tortdamages. The minority of the Court ar-gued vigorously that no such damagescould be awarded without further authoriz-ing legislation by the Congress. Sosa, 542U.S. at 746–47, 124 S.Ct. 2739 (Scalia, J.,concurring in the judgment). The majori-ty of the Supreme Court disagreed andfound that the ATS authorized awards oftort damages for violations of the norms ofthe law of nations without need for anyfurther legislation. Id. at 730, 124 S.Ct.2739 (Maj. op.). Had the Supreme Courtmeant what my colleagues assume it did inthis passage, it could not have maintainedits disagreement with the minority. Therewas no wide adherence among the nationsof the world to a rule of civil liability forviolation of the law of nations. Had theSupreme Court meant, as my colleagues

attribute to it, that no damages may beawarded under ATS absent a universallyshared view among the civilized nationsthat international law provides such a rem-edy, the Supreme Court would have beenforced to conclude, in agreement with theminority, that the Filartiga line of cases,which awarded damages, was wrongly de-cided and that there could be no awards ofdamages under ATS. The majority of theCourt, however, spoke with approval ofFilartiga and the subsequent cases whichhad awarded damages and unmistakablyconcluded that damages were awardableunder the ATS upon a showing of violationof the norms of conduct constituting partof the law of nations.

The majority’s claim to find support fortheir position in the Supreme Court’s ref-erence to the need for a norm to enjoyuniversal acceptance to qualify as a rule ofinternational law is simply a misunder-standing of the Supreme Court’s discus-sion.34

34. The majority’s position is also inconsistentwith our court’s understanding in prior casesof the norms dictated by international law.In prior opinions, we have looked to interna-tional law to determine whether the defen-dant’s conduct violated norms of conduct uni-versally accepted by the nations of the worldas rules of international law. Three of ouropinions contain extensive discussion ofwhether particular forms of conduct contra-vene customary international law. In Floresv. Southern Peru Copper Corp., 414 F.3d 233(2d Cir.2003), a civil suit brought under theATS against a corporate defendant, we sur-veyed the sources on international law andconcluded that acts of intranational pollutiondid not violate any norm of international lawcapable of supporting liability under the ATS.In reaching this conclusion, our opinionspeaks repeatedly of the ‘‘offenses’’ or ‘‘con-duct’’ the corporation allegedly engaged in,and whether such acts violate customary in-ternational law. See, e.g., id. at 247 (‘‘Thedetermination of what offenses violate cus-tomary international law TTT is no simpletask.’’ (emphasis added)); id. at 249 (‘‘[O]f-fenses that may be purely intra-national in

their execution, such as official torture, extra-judicial killings, and genocide, do violate cus-tomary international law because the ‘nationsof the world’ have demonstrated that suchwrongs are of ‘mutual TTT concern,’ and capa-ble of impairing international peace and secu-rity.’’ (citations omitted and emphasis add-ed)); id. at 255 (‘‘The precept that ‘[h]umanbeings are TTT entitled to a healthy and pro-ductive life in harmony with nature,’ TTT ut-terly fails to specify what conduct would fallwithin or outside of the law.’’ (emphasis add-ed)); id. at 266 (‘‘Because plaintiffs havefailed to submit evidence sufficient to estab-lish that intranational pollution violates cus-tomary international law, the District Courtproperly granted defendant’s motion to dis-miss.’’ (emphasis added)). Nothing in theopinion even discussed whether the defendantmight be exempt from liability because of itscorporate character or whether liability wasforeclosed because of the absence of a widelyaccepted convention among nations forawarding civil damages.

Again in United States v. Yousef, 327 F.3d56 (2d Cir.2003), we concluded that the act of


IV. The majority’s mistaken claim thatcorporations are not ‘‘subjects’’ ofinternational law

The majority attempt to bolster theirargument by employing the arcane termi-nology of international law. They assertthat a corporation is not a ‘‘subject’’ ofinternational law. Maj. Op. 125–26. Themajority explain the significance of thisterm to be that only subjects of interna-tional law have ‘‘rights, duties, and liabili-ties’’ under international law. Maj. Op.118. Because, according to the majority, acorporation is not a subject of the law ofnations, it may neither bring suit for viola-tions of the law of nations nor be sued foroffenses under the law of nations.

The majority, however, cite no authorityin support of their assertion that a corpo-ration is not a subject of international lawand is therefore incapable of being a plain-tiff or a defendant in an action based on aviolation of the law of nations. And thereis strong authority to the contrary.

The idea that an entity was or was not a‘‘subject’’ of international had greatestprominence when the rules of internationallaw focused on the sovereign interests ofStates in their relations with one another.To the extent that a particular rule ofinternational law pertains only to the rela-tionship among States, it can be correct tosay that only States are subjects. Howev-er, as the law of nations evolved to recog-nize that ‘‘individuals and private juridicalentities can have any status, capacity,rights, or duties given them by interna-tional law or agreement,’’ Restatement(Third) of the Foreign Relations Law ofthe United States, pt. II, introductorynote,35 that terminology has come to meannothing more than asking whether the par-ticular norm applies to the type of individ-ual or entity charged with violating it, assome norms apply only to States and oth-ers apply to private non-state actors.

As early as the Nuremberg trials, whichrepresented the dawn of the modern en-forcement of the humanitarian component

placing a bomb on an airplane operated by aforeign carrier did not support the exercise ofuniversal criminal jurisdiction, because thenations of the world disagree over whichforms of conduct constitute ‘‘terrorism.’’Again, our opinion contains an extensive dis-cussion of the forms of conduct that are pro-scribed by international law. See, e.g., id. at104 (‘‘In modern times, the class of crimesover which States can exercise universal ju-risdiction has been extended to include warcrimes and acts identified after the SecondWorld War as ‘crimes against humanity.’ ’’(emphasis added)); id. at 106 (‘‘Unlike thoseoffenses supporting universal jurisdiction un-der customary international law—that is, pi-racy, war crimes, and crimes against humani-ty—that now have fairly precise definitionsand that have achieved universal condemna-tion, ‘terrorism’ is a term as loosely deployedas it is powerfully charged.’’ (emphasis add-ed)); id. at 107 (‘‘[T]here continues to bestrenuous disagreement among States aboutwhat actions do or do not constitute terrorismTTTT’’ (emphasis added)).

And in Abdullahi v. Pfizer, Inc., 562 F.3d163, 183–84 (2d Cir.2009), cert. denied, –––U.S. ––––, 130 S.Ct. 3541, ––– L.Ed.2d ––––,we wrote, ‘‘[T]he norm prohibiting noncon-sensual medical experimentation on humansubjects has become firmly embedded and hassecured universal acceptance in the commu-nity of nations.’’

35. See, e.g., Kadic v. Karadzic, 70 F.3d 232,242 (2d Cir.1995) (‘‘[F]rom its incorporationinto international law, the proscription ofgenocide has applied equally to state andnon-state actors.’’); Basic Principles andGuidelines on the Right to a Remedy andReparation for Victims of Gross Violationsof International Human Rights Law andSerious Violations of International Humani-tarian Law, art. 15, G.A. Res. 60/147, U.N.Doc. A/RES/60/147 (Dec. 16, 2005) (‘‘Incases where a person, a legal person, or otherentity is found liable for reparation to a vic-tim, such party should provide reparation tothe victim or compensate the State if theState has already provided reparation to thevictim’’ (emphasis added)).


of the law of nations, courts recognizedthat corporations had obligations under in-ternational law (and were therefore sub-jects of international law). In at least threeof those trials, tribunals found that corpo-rations violated the law of nations andimposed judgment on individual criminaldefendants based on their complicity in thecorporations’ violations.36

For example, in the Farben case, theFarben personnel were charged in fivecounts with wide-ranging violations of in-ternational law, including plunder of occu-pied properties. VIII Farben Trial, at1129. Nine defendants were found guiltyon this count. The tribunal’s judgmentmakes clear that the Farben company it-self committed violations of internationallaw. Describing the applicable law, thetribunal stated:

Where private individuals, includingjuristic persons, proceed to exploit themilitary occupancy by acquiring privateproperty against the will and consent ofthe former owner, such action, not beingexpressly justified TTT, is in violation ofinternational lawTTTT Similarly where aprivate individual or a juristic personbecomes a party to unlawful confiscationof public or private property by planningand executing a well-defined design toacquire such property permanently, ac-quisition under such circumstances sub-sequent to the confiscation constitutesconduct in violation of [internationallaw].

Id. at 1132–33 (emphasis added). Describ-ing Farben’s activities, the tribunal wrote:

[W]e find that the proof establishes be-yond a reasonable doubt that offensesagainst property as defined in ControlCouncil Law No. 10 were committed by

Farben, and that these offenses wereconnected with, and an inextricable partof the German policy for occupied coun-tries as above describedTTTT The actionof Farben and its representatives, underthese circumstances, cannot be differen-tiated from acts of plunder or pillagecommitted by officers, soldiers, or publicofficials of the German Reich.

Id. at 1140. Then—after concluding thatFarben violated international law—the tri-bunal imposed criminal liability on Far-ben’s employees because of their complici-ty in violations committed by Farben.

As discussed above in Part II.A, twoopinions of the Attorney General of theUnited States further refute the majority’sview that corporations have neither rightsnor obligations under international law.In 1907, the Attorney General rendered anopinion that an American corporationcould be held liable under the ATS toMexican nationals if the defendant’s ‘‘di-version of the water [of the Rio Grande]was an injury to substantial rights of citi-zens of Mexico under the principles ofinternational 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 Britishcorporation could pursue a civil action un-der the ATS for injury caused to it inviolation of international law by Americancitizens who, in concert with a Frenchfleet, had attacked a settlement managedby the corporation in Sierra Leone in vio-lation of international law. See 1 Op. Att’yGen. 57 (1795).

This court similarly recognized claims onbehalf of juridical entities (a corporation, atrust, and a partnership) against Cuba,

36. See VI Trials of War Criminals Before theNuernberg Military Tribunals (1952) (the‘‘Flick Trial’’); VII, VIII Trials of War Crimi-nals Before the Nuernberg Military Tribunals

(1952) (the ‘‘Farben Trial’’); IX Trials of WarCriminals Before the Nuernberg Military Tribu-nals (1950) (the ‘‘Krupp Trial’’).


premised on Cuba’s expropriation of theirproperty in violation of international law.37

These decisions cannot be reconciled withthe majority’s contention that corporationsare not subjects of under international law.

V. The absence of scholarly supportfor the majority’s rule

The majority contend that the ‘‘teach-ings of the most highly qualified publicistsof the various nations’’ support theirstrange view of international law. Maj.Op. 133 n. 36. The opinion seems to sug-gest that all those works of scholarshipthat discuss the actual state of the law, asopposed to those which advocate for thescholars’ aspirational preferences, agreewith the majority’s view. I have discover-ed no published work of scholarship thatsupports the majority’s rule. While theycite eminent works of scholarship for manyother propositions that I do not dispute,none of those works supports, or evenaddresses, the majority’s claim that corpo-rations are exempted by international lawfrom the obligation to comply with itsrules.

The majority open their discussion byquoting the Supreme Court’s well knownobservation in The Paquete Habana, 175U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320(1900), that ‘‘the works of jurists and com-mentators who by years of labor, re-search, and experience have made them-selves peculiarly well acquainted with thesubjects of which they treat’’ can furnishvaluable ‘‘evidence’’ of customary interna-tional law. Id. at 700, 20 S.Ct. 290 (em-phasis added). The Supreme Court reliedon the leading treatises in the field, suchas Wharton’s Digest of the InternationalLaw of the United States and Wheaton’streatise on international law, as well as on‘‘leading French treatises on internationallaw,’’ such as De Cussy’s Phases et CausesCelebres du Droit Maritime des Nations,Ortolan’s Regles Internationales et Diplo-matie de la Mer, and De Boeck’s de laPropriete Privee Ennemie sous PavillonEnnemi.

The majority opinion, in contrast, doesnot cite a single published work of scholar-ship—no treatise on the law of nations, nopublished book on the subject, and no arti-cle in a scholarly journal—in support of itsposition.38 If the prescriptions of interna-

37. See, e.g., Banco Nacional de Cuba v. Chem.Bank N.Y. Trust Co., 822 F.2d 230, 236–37 (2dCir.1987); Banco Nacional de Cuba v. ChaseManhattan Bank, 658 F.2d 875, 894 (2d Cir.1981); Banco Nacional de Cuba v. First Nat’lCity Bank of N.Y., 478 F.2d 191, 193 (2dCir.1973); Banco Nacional de Cuba v. Farr,383 F.2d 166, 170, 185 (2d Cir.1967); BancoNacional de Cuba v. Sabbatino, 307 F.2d 845,864 (2d Cir.1962), rev’d on other grounds, 376U.S. 398, 84 S.Ct. 923, 11 L.Ed.2d 804(1964), superseded by statute, 22 U.S.C.§ 2370(e)(2).

38. The majority do cite one published book,Michael Koebele, Corporate Responsibility Un-der the Alien Tort Statute: Enforcement ofInternational Law Through U.S. Torts Law(Nijhoff 2009), in a manner suggesting that itsupports the majority’s analysis, but onceagain the quotation is out of context. Themajority quote this work to the effect that it

remains the ‘‘prevailing view’’ among schol-ars that international law ‘‘primarily regu-lates States and in limited instances such asinternational criminal law, individuals, butnot [transnational corporations].’’ Maj. Op.143. This quotation appears to support themajority’s position, but when one places it incontext, the appearance of support disap-pears. Koebele’s book later explains that‘‘the ATS, although incorporating internation-al law, is still governed by and forms part oftorts law which applies equally to natural andlegal persons unless the text of a statute pro-vides otherwise,’’ and that international lawdoes not prevent a State ‘‘from raising itsstandards by holding [transnational corpora-tions] which are involved [in] or contribute toviolations of international law liable as longas the cause of international law is servedbecause international law leaves individualliability (as opposed to State liability), be it ofa natural or a legal person, largely to domes-


tional law against inhumane acts do notapply to corporations, which are thereforefree to disregard them without liability,one would think this would be sufficientlyinteresting to warrant comment, or at leastacknowledgment, in some published workof scholarship. The majority cite none.No reference to this strange view is foundfor example in Oppenheim’s InternationalLaw, Brierley’s The Law of Nations or theAmerican Law Institute’s Restatements ofthe Foreign Relations Law of the UnitedStates, or in any of the numerous learnedworks the majority cite.

The majority opinion claims that its viewis supported in two unpublished docu-ments—affidavits by law professors sub-mitted in another litigation by corporatedefendants in an effort to get the caseagainst them dismissed.39 (The majorityopinion ignores opposing affidavits filed inthe same litigation.) My colleagues assertthat those affidavits by two renowned pro-fessors of international law, ProfessorsJames Crawford and Christopher Green-wood, ‘‘have forcefully declared TTT thatcustomary international law does not rec-ognize liability for corporations that violateits norms.’’ Maj. Op. 143. This character-ization is not strictly speaking false butany implication that the professors’ affida-

vits support the majority’s view—that cor-porate violations of international law cangive rise to civil liability of the naturalpersons who acted for the corporation butnot of the corporation itself—is completelyunwarranted.

Professor Crawford’s affidavit, whichwas filed by the corporate defendant inPresbyterian Church of the Sudan v. Tal-isman Energy, Inc., Dkt. No. 07–0016,does not discuss, much less espouse, themajority’s theory. Its subject matter isvery limited. The affidavit was preparedin response to a question put to the liti-gants during argument of the appeal byJudge Cabranes. Judge Cabranes re-quested further briefing on the question:

What country or international judicialtribunal has recognized corporate liabili-ty, as opposed to individual liability, in acivil or criminal context on the basis of aviolation of the law of nations or custom-ary international law?

Professor Crawford makes clear in his affi-davit that he limits himself to answeringthat question—whether any internationalor foreign judicial decision has imposedliability on a corporation ‘‘under interna-tional law as such.’’ Crawford Decl. ¶ 5.The Professor answers that he knows ofno such decision.40

tic law.’’ Koebele, supra, at 208. Koebelethus recognizes that the imposition of tortliability on a corporation under the ATS isentirely consistent with international law.

39. It is not self-evident that unpublished ex-pert affidavits submitted in a different litiga-tion are what the Supreme Court had in mindin Paquete Habana when it approved consul-tation of ‘‘the works of jurists and commenta-tors’’ and, under that rubric, cited leadingworks of published scholarship.

40. Professor Crawford’s affidavit does nottake the position that there is any obstacle toa national court holding a corporation civillyliable—only that no such decision has yet has

been rendered. The affidavit notes that astudy by the International Commission of Ju-rists on corporate complicity in human rightsviolations states that corporations are in a‘‘zone of legal risk,’’ Crawford Decl. ¶ 7, butcites no examples of decisions actually hold-ing them liable. In speaking of the experi-ence of the United Kingdom, Professor Craw-ford characterizes the question of corporateliability as ‘‘largely untested.’’ Id. ¶ 8. And asfar as international tribunals are concerned,the Professor explains that the reason for theabsence of judgments against corporations isthat the international tribunals do not havejurisdiction to award such judgments. ‘‘Nonehave jurisdiction over corporations as respon-dents.’’ Id. ¶ 9.


I have no quarrel with Professor Craw-ford’s statement that no national court out-side the United States or international ju-dicial tribunal has as yet imposed civilliability on a corporation on the basis of aviolation of the law of nations. It addsnothing to our debate. To begin with, hisobservation is particularly without signifi-cance as justification of the majority’s dis-tinction between liability of natural per-sons and liability of corporations becauseProfessor Crawford does not state thatany nation outside the United Statesawards civil damages against any categoryof defendant for violations of the law ofnations. If there are no civil judgmentsoutside the United States against naturalpersons, the fact that there are no civiljudgments against corporations either inno way supports the distinction the majori-ty are making.

Professor Crawford’s affidavit further-more does not address the rule the majori-ty attribute to international law. Interna-tional tribunals do not have jurisdiction toimpose civil liability on private actors, andthe fact that other nations’ courts have notawarded civil damages against corpora-tions does not support the majority’s theo-ry that the absence of judgments imposingcivil liability somehow bars a nationalcourt, such as a U.S. court acting underthe ATS, from imposing civil liability on acorporation for its violation of internationallaw.

I do not contend that the law of nationsimposes civil damages, either on corpora-tions or on natural persons. Quite to thecontrary, the law of nations does not takea position on civil liability of either naturalpersons or corporations. It leaves thequestion of civil liability to each nation toresolve for itself. By passing the ATS,Congress resolved that question for theUnited States, unlike the great majority ofnations, in favor of civil liability. Nothing

in Professor Crawford’s affidavit is to thecontrary.

In fact, Professor Crawford’s affidavitseems rather to express oblique supportfor my view. In noting that no nationaltribunal outside the United States has im-posed civil liability on a corporation on thebasis of a violation of the law of nations,the Professor notes the need for a ‘‘clarifi-cation.’’ He then explains,

When the terms of an international trea-ty become part of the law of a givenstate—whether (as in most common lawjurisdictions) by being enacted by parlia-ment or (as in many civil law jurisdic-tions) by virtue of constitutional approv-al and promulgation which give a self-executing treaty the force of law—corpo-rations may be civilly liable for wrong-ful conduct contrary to the enactedterms of the treaty just as they may beliable for any other conduct recognizedas unlawful by that legal system.

Id. ¶ 4 (emphasis added). That is more orless the circumstance when a plaintiff suesin U.S. courts under the ATS to imposecivil compensatory liability for a violationinternational law. The ATS provides ju-risdiction over ‘‘a tort only, committed inviolation of the law of nations or a treatyof the United States.’’ 28 U.S.C. § 1350.Norms of international law, such as theoutlawing of genocide by the GenocideConvention, have the force of law in theUnited States and may be the subject of asuit under the ATS. Because the law ofnations leaves each nation free to deter-mine for itself whether to impose civilliability for such violations of the norms ofthe law of nations, and because the UnitedStates by enacting the ATS has opted forcivil tort liability, U.S. courts, as a matterof U.S. law, entertain suits for compensa-tory damages under the ATS for violationsof the law of nations. The ATS confersjurisdiction by virtue of the defendant’s


violation of the law of nations. Damagesare properly awarded under the ATS notbecause any rule of international law im-poses damages, but because the UnitedStates has exercised the option left to it byinternational law to allow civil suits.Nothing in international law bars such anaward, and nothing in Professor Craw-ford’s affidavit suggests the contrary.41

The majority also quote from an affida-vit of Professor Christopher Greenwood,filed in the district court in the Talismancase. The majority’s quotation from theGreenwood affidavit contributes nothing tothis dispute. According to the majority,the Professor’s affidavit states, ‘‘[T]here is

not, and never has been, any assertion ofthe criminal liability of corporations in in-ternational law.’’ Maj. Op. 143. As I haveexplained above, I have no quarrel withthat assertion, but it has no bearing onwhether corporations may be held civillyliable under ATS for violations of interna-tional law. The reasons international tri-bunals do not impose criminal liability oncorporations have to do only with the na-ture of criminal liability and a widespreadperception that criminal liability is nei-ther theoretically sound nor practically ef-ficacious when imposed on a juridical enti-ty. This says nothing about the impositionof compensatory civil liability.42

41. Another aspect of the majority’s citation ofProfessor Crawford’s declaration requiresclarification. The majority opinion quotes thedeclaration as saying, ‘‘[n]o national court[outside the United States] and no interna-tional judicial tribunal has so far recognizedcorporate liability, as opposed to individualliability, in a civil or criminal context on thebasis of a violation of the law of nations.’’Maj. Op. 143 (first emphasis added). Themanner of presenting the quotation couldlead the reader to understand that the Profes-sor, like the majority, is saying that when acorporation violates the law of nations, thatlaw recognizes civil liability of natural personswho acted for the corporation, but not of thecorporations. That is not what the Professorwas saying. When Professor Crawford re-sponded that no national court outside theUnited States or international judicial tribu-nal had imposed corporate liability, ‘‘as op-posed to individual liability,’’ he was merelyadhering to the precise question asked. Hewas not suggesting, as the majority opiniondoes, that civil liability of natural persons isjudged differently from civil liability of corpo-rations. His affidavit contains no discussionwhatsoever of whether any national court orinternational judicial tribunal has recognizedcivil liability of natural persons, and he makesno statement one way or the other on thequestion of such liability.

One of the main problems with the majori-ty’s theory is its incoherence resulting fromthe fact that it treats the absence of any inter-national law precedent for imposition of dam-ages on corporations as barring such an

award under the ATS, while acknowledgingthat damages are properly awarded againstnatural persons notwithstanding the verysame absence of international law precedentfor such awards. The quotation from Profes-sor Crawford’s affidavit in the majority opin-ion sounds as if the Professor is saying thatinternational law distinguishes between civilliability of natural persons, which it allows,and civil liability of corporations, which itdoes not allow. But the Professor was notsaying that. His affidavit does not discuss,much less support, the majority’s theory that,when a corporation violates the law of na-tions, civil liability under the ATS may beimposed on the natural persons who acted forthe corporation but not on the corporation.The ambiguity in Professor Crawford’s sen-tence does not indicate adoption of the major-ity’s incoherent and inconsistent proposition.

42. The majority contend that I criticize themfor citing affidavits. They assert that affida-vits, because they are made under penalty ofperjury, are as reliable a source as law reviewarticles ‘‘whose accuracy is confirmed only byefforts of the student staff of law journals.’’Maj. Op. 144 n. 47. I do not criticize themajority for citing the affidavits of learnedprofessors. I have only questioned whetherunpublished litigating affidavits are what theSupreme Court had in mind in Paquete Haba-na as the ‘‘teachings’’ of publicists. Regard-less, I have no criticism of the affidavits ofProfessors Crawford and Greenwood. Theproblem with the majority’s citation of thoseaffidavits is that the affidavits do not supportthe majority’s thesis.


The majority cite no work of scholar-ship that supports their position, and failto acknowledge scholarship that rejectstheir view. Professor Schachter and oth-er scholars assert that international lawleaves the question of civil liability to bedetermined by individual nations. See su-pra note 29 and accompanying text. Athree-volume report of the InternationalCommission of Jurists on the subject of‘‘Corporate Complicity and Legal Ac-countability’’ 43 distinguishes betweencriminal and civil liability and provides asto civil liability that ‘‘the law of civil reme-dies will always have the ability to dealwith the conduct of companies, individu-als and state authorities.’’ 3 Int’l Comm.of Jurists, Corporate Complicity & LegalAccountability 5 (2008). The reportmaintains that this is the case notwith-standing that ‘‘significant opposition to theimposition of criminal sanctions on com-panies as legal entities remains,’’ for ‘‘rea-sons [that] appear to be broadly conceptu-al, and at times political.’’ 44 2 Int’lComm. of Jurists, Corporate Complicity &Legal Accountability 57 (2008) (emphasisadded). Michael Koebele’s work assertsthat liability under the ATS ‘‘appliesequally to natural and legal persons’’ and

that international law does not bar Statesfrom imposing liability on a corporation,as international law leaves civil liability todomestic law. Michael Koebele, Corpo-rate Responsibility Under the Alien TortStatute: Enforcement of InternationalLaw Through U.S. Torts Law 208(2009).45 Two treatises on the ATS main-tain that a corporation may be held civillyliable for engaging in conduct that violatesthe law of nations. Beth Stephens et al.,International Human Rights Litigationin U.S. Courts 310 (2d ed. 2008) (‘‘Noth-ing in the Sosa decision demands more ofplaintiffs seeking to hold corporations ac-countable for human rights violations thanthe strict evidentiary requirements im-posed generallyTTTT’’); Peter Henner,Human Rights and the Alien Tort Stat-ute: Law, History, and Analysis 215(2009) (‘‘Alleged perpetrators of crimesunder international law that do not re-quire any showing of state action, includ-ing piracy, genocide, crimes against hu-manity, enslavement, and slave trading,can be sued under the ATS. Generally, theprospective private defendants can be in-dividuals, corporations, or other entities.’’(emphasis added)).46

43. Int’l Comm. of Jurists, Corporate Complici-ty & Legal Accountability (2008), available athttp://www.icj.org/default.asp?nodeID=350&langage=1&myPage=Publications.

44. See infra note 46.

45. While the majority dismiss Professor Ste-ven R. Ratner’s discussion as merely aspira-tional, they do not acknowledge his assertion,based on a report of the International Coun-cil on Human Rights, judgments of the Nu-remberg Tribunals, multilateral instrumentsimposing obligations on corporations, themultimillion dollar settlements agreed to byGerman companies alleged to have beencomplicit in the wartime human rights viola-tions of the Third Reich, and the practice ofthe European Union, that ‘‘international lawhas already effectively recognized duties ofcorporations.’’ Steven R. Ratner, Corpora-

tions and Human Rights: A Theory of LegalResponsibility, 111 Yale L.J. 443, 475 (2001)(emphasis added).

46. The majority criticize the report of theInternational Commission of Jurists and theStephens treatise as biased sources. Maj. Op.143–44 n. 47. They point out that certainauthors of the Stephens treatise serve ascounsel for the Plaintiffs in this case. That isindeed a reason to view the conclusions of thetreatise with skepticism. The majority’s con-demnation of the International Commissionof Jurists, on the ground that it ‘‘promot[es]the understanding and observance of the ruleof law and the legal protection of humanrights throughout the world,’’ is less convinc-ing. I do not understand why an organiza-tion’s commitment to upholding the law justi-fies the view that the organization is biased as


To be sure, the scholarship of interna-tional law includes statements of scholarsto the effect that international law imposesno liabilities on private juridical persons.This is entirely accurate, but it does notmean what the majority contend. It istrue that international law, of its ownforce, imposes no liabilities on corporationsor other private juridical entities.47 Inter-national criminal tribunals, for reasonsthat relate solely to the nature of criminalliability and punishment, do not exercisejurisdiction over corporations. And as forcivil liability of private persons, interna-tional law leaves individual nations free todecide whether to implement its norms ofconduct by providing civil compensatoryliability to victims. See supra notes 29–30and accompanying text. Accordingly, it isabsolutely correct that the rules of interna-tional law do not provide civil liabilityagainst any private actor and do not pro-vide for any form of liability of corpora-tions. In no way, however, does it followthat international law’s rules do not applyto corporations.

No work of scholarship cited in the ma-jority opinion supports the majority’s rule,and many works of scholarship assert thecontrary.

VI. Response to the majority’s criti-cism of my arguments

There is no inconsistency between mypresent position and my prior endorse-ment in Talisman of the reasoning setforth by Judge Katzmann in Khulumani.The majority assert that the position I now

take contradicts the position I took in Tal-isman when I approved the reasoningJudge Katzmann set forth in Khulumani.They say I now ‘‘ignore’’ the internationaltribunals whose rulings I and Judge Katz-mann previously found controlling, that Iignore ‘‘the second step’’ of Judge Katz-mann’s approach, and that I ‘‘look to inter-national tribunals only when they supply anorm with which [I agree].’’ Maj. Op.146 – 47. These criticisms misunderstandboth Judge Katzmann’s arguments andmine. There is no inconsistency betweenmy prior endorsement of the views JudgeKatzmann expressed in Khulumani andthose I express here. I do not ignore thejudgments of international tribunals. Imerely decline to draw illogical and unwar-ranted conclusions from them.

In Khulumani, one of the main issues indispute was whether civil liability for viola-tions of international law may be imposedon an actor who participated in the viola-tion of an international law norm as anaider and abetter. The district court haddismissed claims against alleged aidersand abetters on the ground that interna-tional law recognized no civil liability foraiding and abetting. See Ntsebeza v. Citi-group, Inc., 346 F.Supp.2d 538, 554(S.D.N.Y.2004). Although numerous judg-ments in criminal proceedings had imposedcriminal liability for aiding and abetting,the district court accorded them no signifi-cance, because they were criminal judg-ments which the district court believedwere inapplicable to civil liability. JudgeKatzmann found this reasoning erroneous

to the content of the law. But in any event,the views expressed in those scholarly worksare consistent with the views of scholars themajority have not questioned. In contrast, nowork of scholarship, whether interested ornot interested, has supported the majority’sview.

47. Because I agree that international lawdoes not of its own force impose liability on

corporations, the majority assert that ‘‘JudgeLeval does not disagree with Part II’’ of theiropinion. Maj. Op. 145. To the contrary,while certain facts mentioned there are en-tirely accurate, I disagree with numerous un-warranted inferences and conclusions the ma-jority draw from them.


and pointed out that we have ‘‘consistentlyrelied on criminal law norms in establish-ing the content of customary internationallaw for purposes of the AT[S].’’ Khuluma-ni, 504 F.3d at 270 n. 5. He concluded thatif international criminal tribunals hadruled that aiding and abetting a violationof the law of nations was itself a violationof the law of nations, this answered thequestion posed in a civil suit under theATS whether aiding and abetting violatedthe law of nations. He explained, ‘‘Once acourt determines that the defendants’ al-leged conduct falls within one of ‘the mod-est number of international law violationswith a potential for personal liability’ onthe defendant’s part TTT [t]he common lawTTT permits the ‘independent judicial rec-ognition of actionable internationalnorms.’ ’’ Id. at 269–70 (citations omitted).Judge Katzmann, in other words, looked atthe norms of conduct established by inter-national courts as violations of internation-al law and concluded that conduct whichconstitutes a criminal violation of interna-tional law also violates international lawfor purposes of civil liability under theATS.

I agree completely with Judge Katz-mann’s reasoning. It does not follow,however, that if international tribunalswithhold criminal liability from juridicalentities for reasons that have nothing todo with whether they violated the conductnorms of international law, but result onlyfrom a perceived inappropriateness of im-posing criminal judgments on artificial en-tities, there has been no violation of thenorms of international law. Nothing inJudge Katzmann’s opinion suggests thathe would adopt the majority’s position orthat he would disagree with mine.

As I have made clear, I do not opposelooking to the instruments of internationallaw to determine whether there has been aviolation of international law. That is ex-

actly where one should look. And if theyanswer the question, that answer is deter-minative. What I oppose is drawing illogi-cal and unwarranted inferences from thejudgments of international tribunals, espe-cially when those inferences are used tosupport rules that undermine the objec-tives of international law.

The majority likewise attribute to JudgeKatzmann the proposition that there is nodistinction in international law betweencriminal and civil liability. Maj. Op. 147.Once again quoting out of context, themajority misunderstand Judge Katzmann’sopinion. As noted above, the district courtin Khulumani had disregarded the opin-ions of international tribunals which foundviolations based on aiding and abetting onthe ground that those sources imposedcriminal, and not civil, responsibility.Judge Katzmann’s observation meantnothing more than that the district courtwas wrong to consider criminal judgmentsirrelevant to whether conduct constituted aviolation of international law for purposesof civil liability. Judge Katzmann did notendorse, or even comment on, the majori-ty’s new proposition that withholding ofcriminal liability for a reason having noth-ing to do with whether the conduct normsof international law have been violated re-quires the conclusion that there has beenno violation of international law. Nothingin Judge Katzmann’s opinion suggeststhat, in considering the norms that may beviolated by a private actor without Stateinvolvement, international law distin-guishes between the liability of natural andjuridical persons. Cf. Khulumani, 504F.3d at 282 (Katzmann, J., concurring)(‘‘We have repeatedly treated the issue ofwhether corporations may be held liableunder the AT[S] as indistinguishable fromthe question of whether private individualsmay be.’’).


To be sure, if international criminal tri-bunals followed a rule that the acts ofjuridical persons cannot violate interna-tional law because international law doesnot cover them, I, and presumably JudgeKatzmann as well, would regard such rul-ings as determinative for ATS purposes.But international tribunals have made nosuch rulings. There is no inconsistencybetween my earlier endorsement of JudgeKatzmann’s reasoning and the reasoning Ifollow here.

The majority’s other criticisms of myopinion merely restate their arguments. Ihave answered these above.

VII. The Complaint must be dismissedbecause its factual allegations failto plead a violation of the law ofnations.

Although I do not share my colleagues’understanding of international law, I am incomplete agreement that the claimsagainst Appellants must be dismissed.48

That is because the pertinent allegations ofthe Complaint fall short of mandatorystandards established by decisions of thiscourt and the Supreme Court. We recent-ly held in Presbyterian Church of Sudan v.Talisman Energy, Inc., 582 F.3d 244 (2dCir.2009), that liability under the ATS foraiding and abetting in a violation of inter-national human rights lies only where theaider and abettor acts with a purpose tobring about the abuse of human rights.Id. at 259. Furthermore, the SupremeCourt ruled in Ashcroft v. Iqbal, ––– U.S.––––, 129 S.Ct. 1937, 173 L.Ed.2d 868(2009), that a complaint is insufficient as amatter of law unless it pleads specific factsthat ‘‘allow[ ] the court to draw the reason-able inference that the defendant is liable

for the misconduct alleged.’’ Id. at 1949.When read together, Talisman and Iqbalestablish a requirement that, for a com-plaint to properly allege a defendant’scomplicity in human rights abuses perpe-trated by officials of a foreign government,it must plead specific facts supporting areasonable inference that the defendantacted with a purpose of bringing about theabuses. The allegations against Appel-lants in these appeals do not satisfy thisstandard. While the Complaint plausiblyalleges that Appellants knew of humanrights abuses committed by officials of thegovernment of Nigeria and took actionswhich contributed indirectly to the com-mission of those offenses, it does not con-tain allegations supporting a reasonableinference that Appellants acted with a pur-pose of bringing about the alleged abuses.

A. Factual and procedural background

Because the majority opinion focuses onthe legal issue of whether international lawallows a U.S. court to impose liability on acorporation, it is necessary to set out theallegations of the Complaint and the histo-ry of prior proceedings in detail.

1) Parties. As the majority note, Plain-tiffs are, or were, residents of the Ogoniregion of Nigeria. Plaintiffs allege thatthey (and others similarly situated whomthey undertake to represent as a class)were victims of human rights abuses com-mitted by the government of Nigeria,through its military and police forces, withthe aid of Shell. ‘‘Shell,’’ as the designa-tion is used in the Complaint and thisopinion, refers collectively to the RoyalDutch Petroleum Company and ShellTransport and Trading Company PLC.49

48. By ‘‘Complaint,’’ I refer to the amendedcomplaint filed in May 2004. See infra PartVII.A.3.

49. Because of changes in corporate form un-related to this lawsuit, Shell Petroleum N.V.and Shell Transport and Trading Company,Ltd. are the successors to the named defen-


According to the allegations of the Com-plaint, those two entities are holding com-panies organized respectively in the Neth-erlands and the United Kingdom. Theyconduct petroleum exploration and produc-tion operations in Nigeria through a Ni-gerian subsidiary named Shell PetroleumDevelopment Company of Nigeria, Ltd.(hereinafter ‘‘SPDC’’). SPDC was namedas a defendant, and is not a party to thisappeal. The district court dismissed thesuit against SPDC for lack of personaljurisdiction on June 21, 2010.

2) Allegations of the complaint. Plain-tiffs’ suit asserts the liability of Shell onthe ground that Shell aided and abettedNigerian government forces in the com-mission of various human rights abuses,directed against Plaintiffs. The Complaintalleges the following:

Since 1958, SPDC, has been engaged inoil exploration and production in Nigeria,conducting extensive operations in theOgoni region.50 Ogoni residents initiatedthe Movement for Survival of Ogoni Peo-ple (MOSOP) to protest environmentaldamage caused by SPDC’s operations.Beginning in 1993, the Nigerian militaryengaged in a campaign of violence againstMOSOP and the Ogoni, which was ‘‘insti-gated, planned, facilitated, conspired, andcooperated in’’ by Shell and SPDC.

In February 1993, following a demandby MOSOP for royalties for the Ogonipeople, Shell and SPDC officials met in theNetherlands and England in February1993 to ‘‘formulate a strategy to suppressMOSOP and to return to Ogoniland.’’ InApril 1993, SPDC called for assistancefrom government troops. The Nigerian

government troops fired on Ogoni resi-dents protesting a new pipeline, killingeleven. Later, SPDC’s divisional managerwrote to the Governor of Rivers State (inwhich Ogoni is located) and requested ‘‘theusual assistance’’ to protect the progress ofSPDC’s further work on the pipeline. InAugust through October 1993, the Niger-ian military attacked Ogoni villages, killinglarge numbers of civilians. SPDC provid-ed a helicopter and boats for reconnais-sance, provided transportation to the Ni-gerian forces involved, provided SPDCproperty as a staging area for the attacks,and provided food and compensation to thesoldiers involved in the attacks. In anoperation in October 1993, SPDC employ-ees accompanied Nigerian military person-nel in an SPDC charter bus to a villagewhere the military personnel fired on un-armed villagers.

In December 1993, SPDC’s managingdirector, with the approval of Shell, askedthe Nigerian Police Inspector General toincrease security in exchange for providingNigerian forces with salary, housing,equipment, and vehicles. Shortly thereaf-ter, the Nigerian government created theRivers State Internal Security Task Force(ISTF). Shell and SPDC provided finan-cial support for the ISTF’s operations, aswell as transportation, food, and ammuni-tion for its personnel. In April 1994, theRivers State Military Administrator or-dered the ISTF to ‘‘ ‘sanitize’ Ogoniland, inorder to ensure that those ‘carrying outventures TTT within Ogoniland are not mo-lested.’ ’’ The head of the ISTF respond-ed in May that ‘‘Shell operations still im-possible unless ruthless military operations

dants Royal Dutch Petroleum Company andShell Transport and Trading Company PLC,respectively.

50. The designation ‘‘Shell,’’ as noted above,represents holding companies in England andHolland, which wholly own The Shell Petro-

leum Company Ltd., a holding company,which in turn owns SPDC. SPDC is the soleoperator and 30% owner of a joint ventureengaged in oil exploration, refinement, andextraction in Nigeria.


are undertaken for smooth economic activ-ities to commence.’’

From May to August 1994, the ISTFengaged in numerous nighttime raids onOgoni towns and villages. During theseraids, the ISTF ‘‘broke into homes, shoot-ing or beating anyone in their path, includ-ing the elderly, women and children, rap-ing, forcing villagers to pay ‘settlementfees,’ bribes and ransoms to secure theirrelease, forcing villagers to flee and aban-don their homes, and burning, destroyingor looting property,’’ and killed at leastfifty Ogoni residents. Plaintiffs and otherswere arrested and detained without formalcharges and without access to a civiliancourt system, some for more than fourweeks. In the detention facility, Plaintiffsand others were beaten and were providedinadequate medical care, food, and sani-tary facilities. SPDC officials ‘‘frequentlyvisited the TTT detention facility’’ and ‘‘reg-ularly provided food and logistical supportfor the soldiers’’ who worked there.

In 1994, the Nigerian military created a‘‘Special Tribunal’’ to try leaders of MO-SOP, including Dr. Barinem Kiobel, a Riv-ers State politician who objected to thetactics of the ISTF and supported MO-SOP. Counsel to those brought before theSpecial Tribunal were ‘‘subjected to actualor threatened beatings or other physicalharm.’’ The Complaint alleges also that,with Shell’s complicity, witnesses werebribed to give false testimony before theSpecial Tribunal. In January 1995, theNigerian military violently put down a pro-test against Shell’s operations and the Spe-cial Tribunal, and the protesters who weredetained were subjected to ‘‘floggings,beatings and other torture[,] and moneywas extorted to obtain releases.’’ Dr. Kio-bel and others were condemned to death

by the Special Tribunal and executed inNovember 1995.

3) Prior proceedings. In September2002, Plaintiffs filed a putative class actionin the United States District Court for theSouthern District of New York allegingtorts in violation of the law of nations,pursuant to the ATS. The amended com-plaint filed in May 2004 (‘‘the Complaint’’)charged seven counts of violations of thelaw of nations against Shell and SPDC.With respect to each count, the Complaintalleged that Shell and SPDC ‘‘aided andabetted,’’ ‘‘facilitated,’’ ‘‘participated in,’’‘‘conspired with,’’ and/or ‘‘cooperated with’’the Nigerian military in its violations ofthe law of nations.

Shell moved to dismiss on severalgrounds, including that the Complaintfailed to state a violation of the law ofnations with the specificity required by theSupreme Court’s ruling in Sosa. Kiobel v.Royal Dutch Petroleum Co., 456F.Supp.2d 457, 459 (S.D.N.Y.2006).51 Thedistrict court granted the motion in partand denied it in part.

The court first determined that ‘‘where acause of action for violation of an interna-tional norm is viable under the ATS,claims for aiding and abetting that viola-tion are viable as well.’’ Id. at 463–64.Turning to the substantive counts, the dis-trict court dismissed the claims of aidingand abetting property destruction, forcedexile, extrajudicial killing, and violation ofthe rights to life, liberty, security, andassociation, on the ground that internation-al law did not define those violations, asalleged, with the particularity required bySosa. By contrast, the court denied themotion to dismiss the claims that Shellaided and abetted the Nigerian govern-

51. Shell also moved to dismiss on thegrounds that Plaintiffs’ claims are barred bythe act of state doctrine and by the doctrine of

international comity. All of these motionswere denied and were not appealed. Kiobel,456 F.Supp.2d at 459.


ment’s commission of torture, arbitrary ar-rest and detention, and crimes against hu-manity, concluding that such acts are clearviolations of the law of nations. Id. at 464–67.

The district court certified its order forinterlocutory appeal pursuant to 28 U.S.C.§ 1292(b). Id. at 468. On December 27,2006, we granted Plaintiffs’ petition andShell’s cross-petition to entertain the inter-locutory appeal. See Kiobel v. RoyalDutch Petroleum Co., Nos. 06–4800–cv,06–4876–cv (2d Cir. Dec. 27, 2006).

B. Adequacy of the pleadings againstShell

Shell contends the Complaint does notsufficiently plead facts that would render itliable for aiding and abetting Nigeria’s vio-lations of the law of nations.52 In my view,this argument is dispositive.

1) Standard of review. Whether a com-plaint asserts a claim upon which reliefmay be granted is a question of law. Thiscourt reviews a district court’s ruling on asuch a question de novo. See Chapman v.New York State Div. for Youth, 546 F.3d230, 235 (2d Cir.2008). ‘‘To survive a mo-tion to dismiss, a complaint must containsufficient factual matter, accepted as true,to ‘state a claim to relief that is plausibleon its face.’ ’’ Iqbal, 129 S.Ct. at 1949(emphasis added) (quoting Bell Atl. Corp.v. Twombly, 550 U.S. 544, 570, 127 S.Ct.1955, 167 L.Ed.2d 929 (2007)). ‘‘Facialplausibility’’ means that the plaintiff’s fac-tual pleadings ‘‘allow[ ] the court to draw

the reasonable inference that the defen-dant is liable for the misconduct alleged.’’Id. A complaint that pleads facts that are‘‘merely consistent with’’ a defendant’s lia-bility is not plausible. Id.

Conclusory allegations that the defen-dant violated the standards of law do notsatisfy the need for plausible factual alle-gations. Twombly, 550 U.S. at 555, 127S.Ct. 1955 (holding that ‘‘courts are notbound to accept as true a legal conclusioncouched as a factual allegation’’ (internalquotation marks omitted)); see also Kirchv. Liberty Media Corp., 449 F.3d 388, 398(2d Cir.2006) (‘‘[C]onclusory allegations orlegal conclusions masquerading as factualconclusions will not suffice to [defeat] amotion to dismiss.’’ (internal quotationmarks and citation omitted) (second altera-tion in original)). This requirement ap-plies to pleadings of intent as well as con-duct. See Iqbal, 129 S.Ct. at 1954.

2) Inadequacy of the pleadings. TheComplaint asserts three theories of Shell’sliability. First, it alleges that Shell itselfaided and abetted the government of Nige-ria in the government’s commission of vari-ous human rights violations against theOgoni. Alternatively, it asserts that Shellis liable on either of two theories for theactions of its subsidiary SPDC—either asSPDC’s alter ego, or as SPDC’s principalon an agency theory. I address each theo-ry in turn.

a) Shell’s direct involvement as aiderand abetter. The Complaint pleads in ageneral manner that Shell

52. Plaintiffs contend we should not considerthis question because the district court didnot consider it and Shell did not raise theissue in its petition for permission to appeal.On interlocutory appeal pursuant to§ 1292(b), however, ‘‘our Court ‘may addressany issue fairly included within the certifiedorder,’ as ‘it is the order that is appealable,and not the controlling question identified bythe district court.’ ’’ Cal. Pub. Employees’

Ret. Sys. v. WorldCom, Inc., 368 F.3d 86, 95(2d Cir.2004) (quoting Yamaha Motor Corp. v.Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619,133 L.Ed.2d 578 (1996)); see also Merican,Inc. v. Caterpillar Tractor Co., 713 F.2d 958,962 n. 7 (3d Cir.1983) (‘‘On a § 1292(b) ap-peal we consider all grounds which mightrequire a reversal of the order appealedfrom.’’). The issue has been fully briefed andI see no reason not to consider it.


willfully TTT aided and abetted SPDCand the Nigerian military regime in thejoint plan to carry out a deliberate cam-paign of terror and intimidation throughthe use of extrajudicial killings, torture,arbitrary arrest and detention, militaryassault against civilians, cruel, inhumanand degrading treatment, crimes againsthumanity, forced exile, restrictions onassembly and the confiscation and de-struction of private and communal prop-erty, all for the purpose of protectingShell property and enhancing SPDC’sability to explore for and extract oil fromareas where Plaintiffs and members ofthe Class resided.

It pleads also in conclusory form that theNigerian military’s campaign of violenceagainst the Ogoni was ‘‘instigated, planned,facilitated, conspired and cooperated in’’by Shell. Such pleadings are merely aconclusory accusation of violation of a legalstandard and do not withstand the test ofTwombly and Iqbal. They fail to ‘‘state aclaim upon which relief can be granted.’’Fed.R.Civ.P. 12(b)(6); see Twombly, 550U.S. at 555, 127 S.Ct. 1955; Kirch, 449F.3d at 398.

The Complaint goes on to assert (1) thatSPDC and Shell met in Europe in Febru-ary 1993 and ‘‘formulate[d] a strategy tosuppress MOSOP and to return to Ogoni-land,’’ (2) that ‘‘[b]ased on past behavior,Shell and SPDC knew that the means tobe used [by the Nigerian military] in thatendeavor would include military violenceagainst Ogoni civilians,’’ and (3) that ‘‘Shelland SPDC’’ provided direct, physical sup-port to the Nigerian military and policeoperations conducted against the Ogoni by,for example, providing transportation tothe Nigerian forces; utilizing Shell proper-

ty as a staging area for attacks; and pro-viding food, clothing, gear, and pay forsoldiers involved.

These allegations are legally insufficientto plead a valid claim of aiding and abet-ting because they do not support a reason-able inference that Shell provided substan-tial assistance to the Nigerian governmentwith a purpose to advance or facilitate theNigerian government’s violations of thehuman rights of the Ogoni people. Asoutlined in Judge Katzmann’s opinion inKhulumani, 504 F.3d 254, and adopted asthe grounds of our recent decision in Tal-isman, 582 F.3d 244, ‘‘a defendant may beheld liable under international law for aid-ing and abetting the violation of that lawby another [only if] the defendant (1) pro-vides practical assistance to the principalwhich has a substantial effect on theperpetration of the crime, and (2) does sowith the purpose of facilitating the com-mission of that crime.’’ Id. at 258 (empha-sis added) (quoting Khulumani, 504 F.3dat 277).

The allegation that representatives ofShell and its Nigerian subsidiary met inEurope ‘‘to formulate a strategy to sup-press MOSOP and to return to Ogoni-land’’ implies neither an intent to violatehuman rights nor the provision of sub-stantial assistance in human rights abuses.Neither of the alleged goals—to ‘‘suppressMOSOP’’ and ‘‘return to Ogoniland’’—im-plies that human rights abuses would beinvolved in carrying them out. The addi-tional allegation that Shell ‘‘knew’’ the Ni-gerian military would use ‘‘military vio-lence against Ogoni civilians’’ as part ofthe effort to suppress MOSOP also doesnot support an inference that Shell in-tended for such violence to occur.53 As

53. I note the allegation of the Complaint that‘‘SPDC Managing Director Philip B. Watts,with the approval of Shell, requested the Ni-gerian Police Inspector General to increase

SPDC’s security TTT to deter and quell com-munity disturbances.’’ Even assuming thisallegation suffices to allege action for whichShell would be responsible, a request for in-


Talisman made clear, proof that a privatedefendant knew of the local government’sintent to violate the law of nations is notsufficient to support aider and abetter lia-bility. Talisman, 582 F.3d at 259.

The further allegations of providingphysical support to the operations of theNigerian military and police, includingtransportation, use of SPDC property forstaying, food, clothing, gear, and pay forsoldiers fail for the same reasons as thosewhich compelled the award of judgment tothe defendant in Talisman. In Talisman,the evidence showed that Talisman Ener-gy, an oil developer with operations inSudan, had improved roads and air stripsused by the Sudanese military to stageattacks on civilians, paid royalties to theSudanese government, and provided fuelfor military aircraft that participated inbombing missions. Talisman, 582 F.3d at261–62. We ruled that the suit could notbe maintained because the evidence failedto show a purpose of facilitating the Suda-nese government’s human rights abuses.The plaintiffs’ evidence showed that theoil company provided assistance to the Su-danese government in order to receive se-curity required for the defendant’s oil ex-ploration, and was sufficient to show theassistance was provided with knowledgethat the Sudanese government would usethe defendant’s assistance in the inflictionof human rights abuses. The evidence,however, was insufficient to support theinference of a purpose on the defendant’spart to facilitate human rights abuses.Id.

Similarly, in this case, Shell is alleged tohave provided financial support and otherassistance to the Nigerian forces withknowledge that they would engage in hu-man rights abuses. But the Complaint

fails to allege facts (at least sufficiently tosatisfy the Iqbal standard) showing a pur-pose to advance or facilitate human rightsabuses. The provision of assistance to theNigerian military with knowledge that theNigerian military would engage in humanrights abuses does not support an infer-ence of a purpose on Shell’s part to ad-vance or facilitate human rights abuses.An enterprise engaged in finance may wellprovide financing to a government, in or-der to earn profits derived from interestpayments, with the knowledge that thegovernment’s operations involve inflictionof human rights abuses. Possession ofsuch knowledge would not support the in-ference that the financier acted with apurpose to advance the human rights abus-es. Likewise, an entity engaged in petro-leum exploration and extraction may wellprovide financing and assistance to thelocal government in order to obtain protec-tion needed for the petroleum operationswith knowledge that the government actsabusively in providing the protection.Knowledge of the government’s repeatedpattern of abuses and expectation thatthey will be repeated, however, is not thesame as a purpose to advance or facilitatesuch abuses, and the difference is signifi-cant for this inquiry.

In sum, the pleadings do not assertfacts which support a plausible assertionthat Shell rendered assistance to the Ni-gerian military and police for the purposeof facilitating human rights abuses, as op-posed to rendering such assistance for thepurpose of obtaining protection for its pe-troleum operations with awareness thatNigerian forces would act abusively. Incircumstances where an enterprise re-quires protection in order to be able tocarry out its operations, its provision of

creased security and a quelling of distur-bances is not a request for human rightsviolations, such as torture, arbitrary arrest,

crimes against humanity, or extrajudicial kill-ing.


assistance to the local government in or-der to obtain the protection, even withknowledge that the local government willgo beyond provision of legitimate protec-tion and will act abusively, does not with-out more support the inference of a pur-pose to advance or facilitate the humanrights abuses and therefore does not justi-fy the imposition of liability for aiding andabetting those abuses.54

b) Vicarious liability of shell for theacts of SPDC.55 In addition to assertingShell’s liability for its own acts of aidingand abetting in human rights violations,the Complaint asserts that Shell is liablefor the acts of its subsidiary SPDC, eitheras an alter ego or as a principal for theacts of its agent because Shell ‘‘dominatedand controlled SPDC.’’ ‘‘It is a generalprinciple of corporate law deeply ingrainedin our economic and legal systems that aparent corporation TTT is not liable for theacts of its subsidiaries.’’ United States v.

Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876,141 L.Ed.2d 43 (1998). However, thisprinciple of corporate separateness may bedisregarded when a subsidiary acts as anagent of its parent. See Kingston DryDock 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 rela-tionship which results from the manifesta-tion of consent by one person to anotherthat the other shall act on his behalf andsubject to his control, and consent by theother so to act.’’ A principal is liable forthe acts of an agent acting within thescope of the agency. See Meyer v. Holley,537 U.S. 280, 285, 123 S.Ct. 824, 154L.Ed.2d 753 (2003); Karibian v. ColumbiaUniversity, 14 F.3d 773, 780 (2d Cir.1994);Restatement (Second) of Agency § 219. Aprincipal may also be liable for the unau-thorized acts of its agent if, for example,the agent’s conduct is aided by the exis-tence of the agency relationship, Restate-

54. There is an additional reason why theComplaint fails to state a claim on whichrelief against Shell may be granted: thepleadings do not support a plausible inferencethat Shell, the parent holding companies,themselves rendered assistance to the Niger-ian government. To the contrary, the Com-plaint alleges that the Shell entities are hold-ing companies based in England and theNetherlands, and that they operate in Nigeriaonly ‘‘through’’ subsidiaries, specificallySPDC. In light of these concrete allegationsregarding corporate form, the conclusory alle-gations that Shell was complicit in its subsid-iary SPDC’s rendition of aid to the Nigeriangovernment does not meet the plausibilitythreshold of Iqbal. On the assumption thatthe Complaint adequately pleads actions ofSPDC sufficient to constitute actionable aid-ing and abetting of Nigeria’s human rightsabuses, the mere addition of the name of aEuropean holding company to the allegationdoes not plausibly plead the holding compa-ny’s involvement.

55. Because we are dealing with the Englishand Dutch parents of a Nigerian corporation,a full conflict of laws analysis may reveal thatcommon law vicarious liability standards are

not applicable. As both parties have arguedtheir positions on the basis of the commonlaw, however, I employ the blackletter com-mon law formulations described below forpurposes of determining whether Plaintiffshave adequately stated a claim with respect tovicarious liability. In any event, the Dutchlaw of veil piercing is similar to common lawalter ego doctrine, in that it requires a show-ing that the corporate form has been disre-garded or abused to avoid a legal obligation.See Nicola M.C.P. Jagers & Marie–Jose vander Heijden, Corporate Human Rights Viola-tions: The Feasibility of Civil Recourse in theNetherlands, 33 Brook. J. Int’l L. 833, 841–42& nn. 28, 30 (2008). Likewise, under Englishlaw (which is substantially similar to the lawof Nigeria), a court will hold a parent corpo-ration liable when the subsidiary is so totallyunder the control of the parent that it cannotbe said to be carrying on its own business orwhen the subsidiary is a mere sham or fa-cade. See Creasey v. Breachwood Motors, Ltd.,[1993] BCLC 480, [1992] BCC 638 (Q.B.);Jones v. Lipman, [1962] 1 W.L.R. 832, 835(Ch.) (Eng.).


ment (Second) of Agency § 216 cmt. a, orthe principal ratifies the agent’s acts, Phe-lan v. Local 305 of United Ass’n of Jour-neymen, 973 F.2d 1050, 1062 (2d Cir.1992).

A parent corporation may also be heldliable for the acts of its subsidiary whenthe subsidiary is merely an alter ego of theparent. Alter ego liability exists when aparent or owner uses the corporate form‘‘to achieve fraud, or when the corporationhas been so dominated by an individual oranother corporation (usually a parent cor-poration), and its separate identity so dis-regarded, that it primarily transacted thedominator’s business rather than its own.’’Gartner v. Snyder, 607 F.2d 582, 586 (2dCir.1979) (interpreting New York law). Indeciding whether to pierce the corporateveil, ‘‘courts look to a variety of factors,including the intermingling of corporateand [shareholder] funds, undercapitaliza-tion of the corporation, failure to observecorporate formalities such as the mainte-nance of separate books and records, fail-ure to pay dividends, insolvency at thetime of a transaction, siphoning off offunds by the dominant shareholder, andthe inactivity of other officers and di-rectors.’’ Bridgestone/Firestone, Inc. v.Recovery Credit Servs., Inc., 98 F.3d 13, 18(2d Cir.1996).

The Complaint alleges that, ‘‘[s]ince op-erations began in Nigeria in 1958, Shellhas dominated and controlled SPDC.’’ Thisconclusory allegation does not satisfy theIqbal requirement to plead facts that plau-sibly support an inference that would justi-

fy disregard of the corporate form or afinding of an agency relationship. Thefurther allegations described above—thatShell and SPDC representatives met inEurope after November 1992 to discussstrategies for suppressing MOSOP andthat SPDC did certain acts with the ap-proval of Shell—are likewise insufficient.

Ordinarily, subsidiary corporations arenot deemed to be the agents of their cor-porate parents. See Kingston Dry Dock,31 F.2d at 267 (‘‘Control through the own-ership of shares does not fuse the corpora-tions, even when the directors are commonto each.’’). The Complaint does not evenplead that Shell and SPDC had an agree-ment establishing an agency relationship.Cf. Cleveland v. Caplaw Enters., 448 F.3d518, 523 (2d Cir.2006) (finding a pleadingof corporate agency adequate where thecomplaint incorporated by reference anagency agreement). Nor does it pleadfacts showing that they conducted theiroperations in an agency relationship.56

The allegations that Shell approved certainconduct undertaken by SPDC does notshow an agency relationship.

Similarly, a claim sufficient to ‘‘overcomethe presumption of separateness affordedto related corporations,’’ De Jesus v.Sears, Roebuck & Co., Inc., 87 F.3d 65, 70(2d Cir.1996) (internal quotation marksomitted), is not established by the bareallegation that one corporation dominatedand controlled another. No facts allegedin the Complaint plausibly support the in-ference that SPDC was a mere instrument

56. Plaintiffs cite to an opinion of the UnitedStates District Court for the Northern Districtof Illinois for the principle that agency is aquestion that must survive a motion to dis-miss. See Cumis Ins. Soc., Inc. v. Peters, 983F.Supp. 787, 796 (N.D.Ill.1997). Plaintiffs’reliance on that case is misplaced. In Cumis,the district court noted that, ‘‘[w]hile the exis-tence and extent of the agency relationship isa question of fact, the plaintiff must sufficient-ly allege that an agency relationship existed in

order for his complaint to survive a Rule12(b)(6) motion to dismiss.’’ Id. There, thecourt found that the existence of an agencyrelationship between the plaintiff and the de-fendant was sufficiently pleaded where thecomplaint alleged that the plaintiff had madean agreement with the defendant, a collectionagency, that the defendant would pursueclaims on the plaintiff’s behalf. Id. No com-parable agreement is alleged in this case.


of its corporate parents. There is no alle-gation that SPDC was undercapitalized,failed to maintain corporate formalities, orthat its officers ceded control to Shell,from which we might infer domination.See Bridgestone/Firestone, 98 F.3d at 18.The mere allegation that ‘‘Shell andSPDC’’ engaged in certain conduct doesnot plausibly plead specific facts whichwould justify treating SPDC as the alterego of Shell.

Accordingly, on the facts alleged, theComplaint fails to plead a basis for a claimof agency or alter ego liability.

CONCLUSION

For the foregoing reasons, I agree withthe majority that all of the claims pleadedagainst the Appellants must be dismissed.I cannot, however, join the majority’s cre-ation of an unprecedented concept of inter-national law that exempts juridical personsfrom compliance with its rules. The ma-jority’s rule conflicts with two centuries offederal precedent on the ATS, and deals ablow to the efforts of international law toprotect human rights.

,

Jermaine RICHARDSON,Petitioner–Appellee,

v.

SUPERINTENDENT OF MID–ORANGE CORRECTIONAL FACILI-TY, Respondent–Appellant.

Docket No. 09–3655–pr.

United States Court of Appeals,Second Circuit.

Argued: March 11, 2010.

Decided: Sept. 20, 2010.

Background: Following affirmance of hisstate convictions for second-degree mur-

der, second-degree attempted murder,first-degree robbery, second-degree crimi-nal possession of a weapon and first-de-gree reckless endangerment, 212 A.D.2d743, 622 N.Y.S.2d 966, state prisoner peti-tioned for federal habeas relief. The Unit-ed States District Court for the EasternDistrict of New York, Sterling Johnson,Jr., Senior District Judge, 639 F.Supp.2d266, granted petition, and superintendentof state correctional facility appealed.

Holdings: The Court of Appeals, Restani,J., held that:

(1) whether second identification obtainedat police show-up was unreliable, asproduct of allegedly suggestive natureof that show-up, was claim not fairlypresented to state courts, such thatstate prisoner was barred, on exhaus-tion grounds, from raising the alleged-ly suggestive nature of show-up as ba-sis for federal habeas relief, and

(2) determination by state courts that vic-tim’s initial identification of defendantas one of the shooters was not productof unnecessarily suggestive pretrialidentification procedure was neither‘‘contrary to’’ clearly established feder-al law nor an ‘‘unreasonable applicationof’’ that law.

Reversed.

1. Habeas Corpus O842, 846

Court of Appeals reviews de novo dis-trict court’s grant of writ of habeas corpusand reviews district court’s factual findingsfor clear error.

2. Habeas Corpus O380.1

To have exhausted his state law reme-dies, a necessary prerequisite to obtainingfederal habeas relief, petitioner must have

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