Posted by Eric Posner:
Harold Koh, the Alien Tort Statute, and Decent Respect to the Opinions of
Mankind: A Puzzle
http://volokh.com/archives/archive_2009_04_19-2009_04_25.shtml#1240194282
So, to my mind at least, the whole theory that that there is such a
thing as tort responsibility of individuals or non-state actors in
international law is completely unsupported. If I commit a crime
against humanity and incur individual criminal responsibility at
the international level, that does not mean that I have
simultaneously incurred civil or tort responsibility at the
international level towards the victims of my crimes.
The quotation does not come from a right-wing Koh-critic, but a
respected non-American international lawyer, Marko Milanovic, who
[1]says (scroll down to the comments section) that he believes that
his position reflects (non-American) international legal thinking in
general. So do I. His comment was a response to a [2]post by Ken
Anderson at Opinio Juris who made just this point. Like Anderson, I
have repeatedly heard similar statements from non-American
international lawyers and wondered why they have never published their
views. Milanovic answers this query (which was posed by Anderson) in
this way:
As for your question why non-US scholars are not actively engaged
in debunking (what we see) as an improper interpretation of
international law in US courts and the mainstream US legal
academia, perhaps a part of that answer is the one that you
suggest, namely that we don�t want to interfere with some sort of
�socialization� of the US with international law.
However, I think that on the whole the more weighty reason for not
engaging with this issue is that most non-US scholars think that,
well, this wouldn�t be worth the effort. Legal scholarship is by
definition an exercise in persuasion, and I doubt that the
generally favorably disposed (liberal majority of the) US legal
academia towards the whole ATS stuff would be persuaded to the
contrary by external scholarship any more than it is by its
conservative counterparts��. Thus, the general attitude is live and
let live - if international law is what US scholars think that they
are doing with this whole ATS stuff, then so be it.
Harold Koh has been a champion of the modern (post-1979) use of the
ATS to impose tort liability on international lawbreakers. He has long
grounded his theory of transnational legal process�in which ATS
litigation plays a central role�in the importance of giving a �decent
respect to the opinions of mankind.� Yet foreigners do not approve of
ATS litigation. Foreign countries do not have their own ATS-style
litigation and indeed shudder at American tort litigation of any type.
Many (most? all?) foreign international lawyers believe that ATS
litigation violates international law. They believe that the American
tort system is a lunatic asylum in which international law undergoes
electroshock therapy and emerges with its shell intact but otherwise
unrecognizable--wild-eyed, harboring delusions of grandeur, and
babbling a pidgin that incorporates strange American legalisms and
pieties. Foreign governments believe that ATS litigation infringes on
their sovereignty and complain that it punishes multinational
corporations for doing business with them. Both groups believe ATS
litigation reflects the typically American blend of naiveté,
arrogance, and power that ends up tying foreigners to the rack of
American ideals. When Americans tire of using tanks to inflict their
ideology on foreigners, they use lawyers. On the foreigners� view, if
international criminals are to be punished, they should face criminal,
not tort, liability meted out by an international court (ideally) or,
in some cases, a domestic criminal court that has a proper basis of
jurisdiction in international law. International law, grounded as it
is in the consent of states, supports no other outcome.
Koh has long supported a type of litigation that probably breaches
international law and in any event universally offends foreign
opinion. In what sense does this stance show decent respect to the
opinions of mankind?
References
1.
http://opiniojuris.org/2009/04/19/bleg-what-do-non-us-legal-scholars-think-about-ats-doctrines/#comments
2.
http://opiniojuris.org/2009/04/19/bleg-what-do-non-us-legal-scholars-think-about-ats-doctrines/#comments
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