The long awaited decision of the U.S. Supreme Court in Nestlé v. Doe (No. 19–416. Argued December 1, 2020—Decided June 17, 2021); slip opinion HERE) has already produced a number of initial comments that tend to reflect the political principles that each seeks to advance. The ATS project has long been seen as a sort of Holy Grail for a segment of the international vanguard who saw in it the merging of two significantly important (and at least theoretically worthy) projects. The first was to develop the global project of the legalization of of human rights within an important domestic legal order. The second was to find in the judicial architecture of a powerful state a means for judicial oversight of this newly legalized sphere of conduct. The judicialization and internationalization of human rights within a domestic legal framework was seen as a gateway to the construction of a system of international judicial oversight that would eventually globalize this now hardening international legalization.
The trick, of course, was not to domesticate international law, but rather to internationalize domestic law. The ATS, overseen by the U.S. (mostly federal) courts was viewed as a natural doorway to the advancement of this project. There were other doorways as well. The Dutch and U.K. courts, fr example, have been at the forefront of the internationalization of a law of human rights torts which in the process is transforming principles of corporate personality, agency and responsibility along global production chains. Other states, now notably including France and Germany, sought to legalize the societal pillar of the UN Guiding Principles for Business and Human Rights' human rights due diligence responsibilities through statutes that project national authority in the service of international law (hardened domestically) and applied globally along the territories of production.
Now, in its own quirky way, the Nestlé decision has put the United States back in the game, though not exactly in the way that adherents of judicial instrumental ism in the service of a more coherent internationalized legalization project might have wanted. Nevertheless, at least for advancing the normative order at the heart of the interests of the United States and its post global imperium, this is a positive development. It is quirky in at least two respects. The first is the sensitivity to judicial extensions of the projection of national judicial authority beyond the limits of the national territory (however that might be conceived from era to era). In that respect internationalization of the domestic--as least with respect to the expansion of judicial authority--continues to be circumscribed and with a great fidelity to ancient notions of the constitution of a state within a community of states. At the same time, the judiciary declared its willingness to get out of the way (constitutionally speaking) for the imposition of legal responsibility to bodies corporate (enterprises of course but potentially also states operating in or through the economic sphere). More importantly, it suggested that legal internationalization of domestic legal orders, that is of the domestication of international law or the internationalization of domestic law may indeed be undertaken by Congress and the President within the scope of their constitutional authority--and with it the extension of the judicial authority that is necessary for its application. And that is also to be applauded--if only because it brings politics back to the great issues of judicialization and internationalization of law, and with it a return to a greater fidelity to the human rights (civil and political) inherent in liberal democratic political orders in which there is still a (small) space for popular participation beyond the rituals of voting for elected officials.
All of this requires much deeper consideration. To that end that my colleague and friend Joel Slawotsky has kindly produced a marvelously insightful preliminary analysis of Nestlé, which is entitled "The Continuing Odyssey of Corporate Liability in Alien Tort Statute Litigation. Joel Slawotsky, of the Radzyner School of Law,
Interdisciplinary Center, Herzliya, Israel, and the Law and Business
Schools of the College of Management, Rishon LeZion, Israel, is a former law clerk to the Hon. Charles H. Tenney, (U.S.D.J.,
S.D.N.Y.) and AV peer-review rated attorney at Sonnenschein (now
Dentons). He has produced excellent essays and thought pieces for "Law at the End of the Day" on issues relating to
globalization, international law and relations, and corporate liability
under international law. He has served as Guest Editor of the Sovereign Wealth Fund special issue of Qatar University International Review of Law (IRL) (2015). He has studied the issues around ATS for a number of years (among these, see, e.g., "Corporate Liability for Violating International Law under The Alien Tort Statute: The Corporation through the Lens of Globalization and Privatization," International Review of Law 6: 23 (2013);
ATS Liability for Rogue Banking in a Post-Kiobel World, Hastings Int'l & Comp. L. Rev. 37:121 (2014)).
His essay follows below. He correctly focuses on the great fissure points of the decision--the debate about the extent of causes of action that may be extracted from ATS, and the standards for judicial engagement in extraterritorial claims. The discussion of the emerging sensibilities about extraterritoriality must be taken seriously for their political ramifications. The emerging three camps respecting the possibility of judicially extracting causes of action for the text of ATS provides a clear window on emerging ideologies of the judicial function and their place within the constellation of divided power that constitutes the general government of the United States under its constitutive text.
