Brief of International Law Scholars as Amici Curiae in Support of Petitioners, Jesner v. Arab Bank, PLC

Abstract

This amicus brief was filed with the U.S. Supreme Court on behalf of international law scholars in Jesner v. Arab Bank, PLC. Relying on its earlier decision in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit held that claims under the Alien Tort Statute could never be brought against corporations. The amicus brief argues that the Second Circuit’s decision in Kiobel fundamentally misunderstood how international law works. Customary international law establishes human rights norms that prohibit certain conduct. Some of these norms apply to all actors, and some apply only to certain actors. Customary international law, however, does not provide the means of enforcing those norms. The enforcement of human rights norms is instead left to states, which may act collectively through treaties or separately by providing for liability under their domestic laws. The Second Circuit’s misunderstanding of international law led it to make two significant errors. First, the Second Circuit framed the question as whether there is a general “norm of corporate liability under customary international law.” That question makes no sense, because customary international law leaves the question whether to impose liability to the decision of states. The proper question under customary international law is instead the one the Supreme Court framed in Sosa: “whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued.” Second, the Second Circuit confused limits on particular mechanisms for enforcing customary international law norms with limits on the substantive applicability of the norms themselves. International criminal tribunals generally have been given jurisdiction only over natural persons because many nations have concerns about imposing criminal liability on corporations. In concluding suppression conventions, like the Genocide Convention and the Torture Convention, nations have similarly limited their obligations to prosecute or extradite to natural persons. But these limitations on particular enforcement mechanisms are not limitations on the underlying norms themselves. This is confirmed by the widespread practice of states providing both criminal and civil liability for human rights violations, including corporate violations, in their domestic laws.