Conceptualizing Complicity in Alien Tort Cases

The Alien Tort Statute (ATS) indisputably brings international law into U.S. courts. The question is: how much international law? The United States Supreme Court was recently precluded from addressing this question in cases involving alleged corporate complicity in the crime of apartheid because four judges recused themselves, leaving the Court without a quorum. The answer to this question can determine the outcome of cases brought against corporations for their alleged complicity in international law violations perpetrated by foreign governments. It will also shape the extent to which U.S. courts in ATS cases continue to interpret and apply international law, thereby contributing to the development and enforcement of international law standards. This Article provides an analytic roadmap for courts confronting accomplice liability claims in ATS cases. Part I concludes that U.S. courts should look to international law on accomplice liability, rather than federal common law. Part II examines international law doctrine on accomplice liability, and concludes that the Second Circuit in the South African apartheid cases misstated the applicable standard, which prohibits knowingly providing assistance that has a substantial effect on the commission of the wrongful act. Part III considers the implications of this doctrinal analysis for broader concerns about the indeterminacy of international law and notions of international comity. By applying well-established international law to defendants\u27 conduct, U.S. courts can provide domestic remedies for international wrongs while avoiding criticisms of illegitimately applying U.S. substantive law outside U.S. territory

Free Association: The United States Experience

The ongoing reconfiguration of the international political system at the turn of the twenty-first century points to the need for a range of self-determination options for peoples around the globe. This article outlines the basic features of free association, one of the three options for a self-determining people under General Assembly Resolution 1541. An association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. International legal scholars and practitioners should not neglect the potential benefits of free association in designing legal and political relationships within and between states

Foreign Official Immunity After Samantar

In Samantar v. Yousuf, the U.S. Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSLA) does not govern the immunity of foreign officials from legal proceedings in U.S. courts. Part I of this symposium contribution seeks to put in sharper focus exactly what is, and what is not, in dispute following Samantar. Part II presents three challenges to common assumptions about conduct-based immunity, which I consider under the headings of personal responsibility, penalties, and presence. Under the heading of personal responsibility, I emphasize that state responsibility and individual responsibility are not mutually exclusive. Under penalties, I argue that civil immunity and criminal immunity are not fundamentally distinct. Under presence, I emphasize that a defendant who enters the forum state\u27s territory might justifiably have a weaker claim to conduct-based immunity than one who does not. Part III suggests some factors that should guide lower courts in determining an individual defendant\u27s entitlement to immunity going forward