(First, big welcome to the newest Conspirator, Will Baude!)
A few months ago, in April, the Supreme Court handed down its decision in Kiobel v. Royal Dutch Petroleum Corp., giving guidance on the Alien Tort Statute. In this rather lengthy post, I’m going to explore some ideas I’m using in an essay on Kiobel for the Cato Supreme Court Law Review’s upcoming issue; I’m still exploring my readings of the case and have not fully settled on them, and I also want to draw in a new upcoming case, Bauman v. DaimlerChrysler, discussed toward the end of the post. Kiobel has occasioned much discussion in lawyer circles since it was handed down; Opinio Juris had a fine online symposium on it (see the related posts links at end of this linked post), and SCOTUSblog has a great roundup of the relevant documents and commentary.
So, starting with some background for readers unacquainted with the topic. The ATS is a provision that dates back to the first Judiciary Act of 1789, and reads in its entirety:
“The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
It made a couple of brief, unheralded appearances in the late 18th century and was all but forgotten until it was resurrected as a vehicle for human rights lawsuits in US courts in the 1980s, starting with the famous case of Filartiga v. Pena (2nd Circuit 1980), which allowed a suit to go forward under the ATS by a Paraguayan couple for the torture and disappearance of their son in Paraguay, against a former senior police official in Paraguay. Historical evidence about the purpose of the statute or its legislative history is sparse and, as the Filartiga case notably showed, at face value the ATS allows a great deal to an alien plaintiff suing in tort. Notably, it refers to “any” civil action, and refers to violation of the “law of nations,” and it confers jurisdiction for such on the Federal courts. This opened the way to a sort of quasi-universal jurisdiction over violations of international law, without regard for the traditional bases for a national court to assert jurisdiction – a connection to territory, nationality, etc.
During what we might loosely call the first era of the ATS, the Filartiga era, ATS suits largely served the symbolic purpose of going after former officials of abusive regimes – they were often not present or were judgment proof, as a matter of damages. Over time, however, lawsuits were directed against corporate defendants – a second era of ATS lawsuits – not for directly committing abuses, but on the grounds that they had aided and abetted, in some fashion, abuses by a government. If the first era of ATS litigation was characterized by judgments against individuals, either not defended (or only “lightly defended,” so to speak), the second era of ATS litigation, the corporate defendant era, was characterized by suits directed against defendants with deep pockets and important reputational concerns.
The Supreme Court sought to offer restraining guidance to the district courts – which were gradually expanding the list of violations of the law of nations, to encompass the many, many things that some expert in international law was willing to opine constituted customary international law. It did so in its 2004 decision, Sosa v. Alvarez-Machain; it said, first, that the ATS was essentially a jurisdictional statute, meaning that it conferred jurisdiction but did not create substantive causes of action over which that jurisdiction could be exercised – but then added that was not intended by the First Congress to be “stillborn,” and that it did authorize a limited number of causes of action against private parties. Sosa said that the causes of action would be those that would constitute violations of the law of nations as understood at that time, and specifically mentioned those identified by Blackstone – violations of safe-conducts, violations against ambassadors, and piracy.
Since it would be inconceivable, however, that certain norms of the law of nations that arose later than Blackstone and 1789 would not be equally violations of the law of nations – for example, slavery, or genocide, or crimes against humanity – Sosa offered a formulation intended to allow these while excluding a more expansive list. That formulation was that any additional norm had to have content as specific and widely accepted as a norm of civilized nations as those accepted in 1789.
An impeccable formulation in the abstract; of little practical value, however, because it did nothing to constrain the discretion of the lower courts or provide predictability. Moreover, even by the time of Sosa, the ATS was being directed ever more against corporate defendants on aiding and abetting claims, and (understandably, given that the facts of Sosa involved individuals) it did not answer corporate aiding and abetting liability. As a consequence, the Court returned to the ATS following a sweeping 2010 Second Circuit opinion (and equally sweeping dissent) in Kiobel. It initially framed the question for review as corporate liability – i.e., are corporations properly defendants under the ATS, or are they excluded on the grounds that they aren’t subjects of international law and so cannot engage in a violation of the law of nations?
In the (first round of) oral argument, several of the Justices focused on a question not briefed by the parties, though by raised by several of the amicus briefs – viz., what was this case doing in a US court at all, given that it involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on the territory of a foreign sovereign? This arose in the context of new historical studies suggesting that the ATS was properly understood in its historical context as confined to allowing a suit by an alien for a violation of the law of nations – such as an assault on an ambassador by some private individual – taking place in the United States. After the argument, the Court announced that it was setting additional argument, which took place the following term – not on the question of corporate liability, but instead on this logically prior question of whether such a case should even be covered by the ATS. Since this threatened to pull the rug out from under an even wider range of ATS cases than the threat to holding corporations as defendants, Kiobel attracted a great deal of attention in international law circles.
The Court’s decision in Kiobel, released in April, was noteworthy for a 9-0 agreement on result in favor of the defendant, Shell Oil – but a split of 5-4 on the reasoning, with Chief Justice Roberts writing for the majority and Justice Breyer for the minority. The two opinions take sharply different paths to holding for Shell. The Roberts opinion rests on the presumption of extraterritoriality – a canon of judicial interpretation in which a statute is presumed not to have extraterritorial application unless Congress makes that intention clear. Partly as a consideration of the text, but also quite clearly responding to historical arguments about what the ATS would have sought to address in the early Republic raised initially by amicus briefs from John Bellinger, Jack Goldsmith, and others, the majority opinion found that the statute was unlikely to have been addressed to conduct taking place in the territory of other foreign sovereigns. It was, rather, concerned with the ways in which aliens present in the United States might suffer at the hands of state courts indifferent to such status as ambassadorships; hence the limitation of plaintiffs to aliens only.
The Roberts opinion was careful to frame this as a presumption that might be overcome in a suitable case; it was also careful to address the thorny problem of what territory might mean in the case of complex, far-flung multinational corporations with greater or lesser contacts in one locale or another. It said, in that regard, that although in the Kiobel case, all the relevant conduct took place outside the United States, even when the claims “touch and concern the territory of the United States,” they would have to do so with “sufficient force to displace the presumption against territorial application.” It would “reach too far to say that mere corporate presence suffices” for a US court to find jurisdiction.
The Roberts opinion thus focuses on territoriality and extraterritoriality as the basis for saying that the ATS does not have purchase in Kiobel. This means that the opinion never has to get as far as whether corporations can be sued under the ATS – the “who” of jurisdiction – or even the substantive claims – the “what” – that Sosa unsuccessfully sought to regulate. This leaves a substantial problem, in that this way of addressing things leaves an imbalance between potential US and foreign corporate defendants; the foreign defendants in a foreign-cubed case (foreign parties, foreign territory) might escape jurisdiction anywhere (will China be taking up such cases for its corporations soon?), whereas the US ones can be sued in district court. In principle, everyone ought to respond somewhere; in practice, this favors non-US corporations as a vehicle for economic activity because they will be more lightly regulated. Presumably, this question will be raised as some US corporate defendant in an ATS suit continues seeks dismissal on exactly the grounds of Kiobel in the first round of oral argument.
The Breyer opinion also found that this foreign-cubed case had insufficient contacts with the US to yield jurisdiction under the ATS, but it declined to use a narrowly territorial approach. Justice Breyer had some fun with the Roberts’ opinion and its attempt to distinguish piracy on the high seas – recognized by Blackstone and yet not on US territory – from activities on foreign sovereign soil. Piracy, he noted, takes place on the high seas, but more particularly it takes place on a ship – and the ship is the territory of the flag state. It is foreign territory. More importantly, the Breyer opinion offered a three-alternative test for finding when a defendant could be sued under the ATS – drawing on different bits of the traditional bases of jurisdiction in foreign relations law: (i) Acts on US soil; (ii) Acts by a US national; or (iii) Acts running to a strong interest of the United States, where that is specifically held to include an interest in not serving as a “safe harbor” (in either civil or criminal law) for torturers or others who are the “common enemies of mankind.”
It is the last of these three that provides difficulties. Though rooted, loosely, in one of the traditional jurisdictional bases, it arguably simply repeats the problem of Sosa. It rests on determining in what specific cases such an interest exists; the term safe harbor, in this case, is obfuscatory, because it suggests some territorial presence (or property interest, banks accounts, etc.) and the idea that the US should not preclude the possibility of suit against someone alien torturer who has some managed to get to the US or holds assets in the US. It’s far more than that; it doesn’t mean a territorial link at all. And while the idea of not providing safe harbor to common enemies of mankind is admirable, the determination of these what actual facts fit the extravagant legal claims that, on account of Sosa’s requirements, have to made against a corporation in some far off place in the world. The experience of Sosa in the lower courts has already shown that it doesn’t work, and in any case, allows plaintiffs to play the costs of discovery and standards of pleading in summary judgment to their advantage. Does anyone think this formulation would stop the Ninth Circuit from doing what it would otherwise do?
Put another way, something genuinely has to be done about labor and factory safety standards in the international manufacturing supply chain. But that will have to be worked out in some fashion at a very detailed, regulatory level – creating chains of inspection and review, clear rules that can be enforced even in very poor, desperate, corrupt societies. It will require difficult tradeoffs between the benefits of economic development, in places like Bangladesh, and risks that would not be acceptable in a wealthier society. None of this can be accomplished through the ATS, on the basis of judges making determinations that these labor, health and safety violations, or environmental harms constituted the kinds of violations that Sosa requires – slavery, the slave trade, forced labor, genocide, crimes against humanity. And where these kinds of pleadings are routinely used – and accepted – in order to get at otherwise quite ordinary violations that, indeed, need to be addressed in the international supply chain, the effect will be to make it harder to have them taken seriously when it comes to going after actual “common enemies of humanity.”
So I don’t think the Breyer opinion does anything more than repeat the problem of Sosa in different language. Still, the most interesting feature of these two opinions, taken together, is that they might well initiate a third era in ATS litigation – one in which the bloom is definitively off the rose of a gradually expanding notion of universal human rights jurisdiction in national courts, and particularly one that confers jurisdiction in civil cases. For all the differences, in other words, between the Roberts and Breyer approaches, they are each grounded explicitly in the traditional bases of jurisdiction – territoriality, personality, contacts with the forum, even vital interests (though this stretches the most as Breyer frames it). The attempt here is to find limiting principles.
This push for limiting principles extends beyond ATS cases narrowly. In April, when Kiobel was handed down, the Court also took review of a 9th Circuit case, Bauman v. DaimlerChrysler. As John Bellinger explains in a lucid post at Lawfare, a Ninth Circuit panel held in 2011 that
Daimler AG, a German parent company with no operations or employees in the United States, could be sued under the Alien Tort Statute and the Torture Victim Protection Act (as well as common law and state law) by a group of Argentine nationals for human rights abuses allegedly committed by an Argentine subsidiary in collaborating with the Argentine government during the “Dirty War” in the 1970s, solely on the basis that a different U.S. subsidiary now distributes Mercedes Benz vehicles in the United States. Applying an agency theory, the panel concluded that Daimler AG had sufficient contacts with the state of California by virtue of the actions of its subsidiary Mercedes Benz USA to give California personal jurisdiction over the German parent , even though Mercedes Benz USA had no involvement with the alleged facts in Argentina.
As he notes, many (including me) believe that the Court would not have taken it unless it intended to reverse. Fom the point of view of what I suggested above is a third era of ATS jurisprudence grounded in a return to traditional bases of jurisdiction, it creates an interesting confluence given that, as Belllinger says,
conservative justices are loathe to miss an opportunity to try to curb the Ninth Circuit’s consistent efforts to be a world court, and the more liberal justices may have wanted to demonstrate (as Justice Breyer argued in his concurrence in Kiobel) that the extraterritorial reach of the Alien Tort Statute can be limited by other jurisdictional restrictions.
Still more interesting, the Obama administration has quietly filed a remarkably strong brief in favor of DaimlerChrysler. The brief, Bellinger says, “faults the Ninth Circuit for trying to hold a foreign corporation with few contacts to California to ‘answer in that State for any claim against it, arising anytime, anywhere in the world’.” It seems to me that this new era in ATS and related kinds of jurisdictional problems, one characterized by attempts to frame limiting principles and greater restraint grounded in the traditional bases of jurisdiction, reflects a larger political conclusion. It is also a world in which the existence of such forums as the International Criminal Court is seen by many as the future of universal jurisdiction for the worst international crimes; the reasons for reaching to second-best ‘universal jurisdiction through national courts’ are much less than they were, especially when they involve carrying extraterritorially US concepts such as corporate liability and indeed civil litigation that are not part of international law as it exists today.
In any case, the state of discussion at, for example, the United Nations tends to suggest that such expansive extraterritorial national jurisdiction is disfavored, in favor of two different trends – one, the reach of genuinely international tribunals for the worst criminal mass atrocity crimes. And, second, a more granular, institutionally-based approach to the regulation of the cross border corporate supply chain in matters of health, safety, labor, and environmental concerns, starting with such things as non-binding codes of conduct, and a slow process of consolidation – not any particular country’s tort law carried abroad, particularly one that requires that these kinds of serious, but part of an industrial system, problems be framed as though they were things like genocide. I have many problems with how each of these marches forward, but the separation of these two categories of concern seems to me quite right in principle; mingling them damages each in their legitimate concerns.
The expansive wave of ATS and related jurisdiction offered (insisted on, in some cases) the US civil litigation system, reaching out extraterritorially as the international civil litigation for certain kinds of causes of action that could be loosely categorized as the concerns of progressive human rights. In a world in which the US was the clear and undisputed hegemon, in a security and economic sense, the US could do that to a considerable extent. It could treat what I’ve sometimes called the “law of the hegemon” as largely identical with “international law.” Things are different today; US hegemony is both challenged by rising new economic and security powers, while at the same time the Obama administration has sought to embrace a retreat on these issues.
This results in a certain common cause with judicial conservatives, doubtful that the US should be offering, or insisting upon, its courts as courts for the world, particularly in service to an expansionist progressive human rights agenda. Hence the resurgence of traditional bases of jurisdiction as the touchstone for the ATS and similar kinds of extraterritorial exercises; and likewise the search for limiting principles. The problem is that both liberals and conservatives want limiting principles that are at once hard limits – these cases in and these out – but discretionary. It is not clear that circle can be squared.