Closing the Governance Gap
Chapter 4: The ‘law of nations’ as a cause of action in the US
In this chapter we shall examine how the US federal courts have determined the cause of action that arises under the ATS. Although Kiobel has foreclosed future ‘foreign cubed’ suits being brought under the ATS, save as regards piracy, the position is still uncertain as regards ‘foreign squared’ suits against US defendants. Much depends on how one interprets Chief Justice Roberts’ reference to suits that ‘touch and concern’ the US, and decisions post-Kiobel are divided as to this. The US analysis of civil liability for violations of customary international law is also of continuing interest for claimants who wish to bring actions on this basis in the courts of other jurisdictions, such as the UK. The US jurisprudence on this new form of civil liability will be approached in seven steps. First, what constitutes the law of nations? Second, how are non-State actors held liable for violations of the law of nations? Third, what is the actus reus for criminal liability of non-State actors under international law? Fourth, what is the mens rea for criminal liability of non-State actors under international law? Fifth, is the claimant required to exhaust domestic remedies before bringing a claim in a foreign court? Sixth, can a corporation incur civil liability in respect of violations of the law of nations? Seventh, how are issues of vicarious liability and veil piercing dealt with in suits based on a violation of the law of nations?
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