What If Federal Courts Close Their Doors to Human Rights Litigation?

by Donald Childress

[Donald “Trey” Childress is Associate Professor of Law at Pepperdine Law School.]

Let me begin by thanking my dear friend Roger Alford for inviting me to post on Opinio Juris. As Roger noted here Chris Whytock, Mike Ramsey, and I co-hosted a symposium on Human Rights Litigation in State Courts and Under State Law at UC-Irvine last Friday, March 2. Chris, Mike, and I came up with the topic a year ago as part of a transnational litigation symposium that Pepperdine hosted.

The topic was based on conjecture: what if ATS cases are limited by federal courts? Along the lines of that conjecture, I recently published an article with the Georgetown Law Journal regarding the next wave of transnational human rights litigation in state and federal courts under state and foreign law. The upshot of that article was that if federal courts begin to close their doors as a matter of substantive and procedural federal law to ATS claims, then what will happen if those human rights cases seek out other law (state/foreign) and other courts (state/foreign)?

This idea was further developed by the UC-Irvine symposium, which looked at the following topics: (1) why plaintiffs have not traditionally but might in the future plead these cases under state and/or foreign law; (2) what the federalism implications are in pleading in this way; (3) what the choice of law implications are; and (4) what the future will look like for transnational human rights litigation. In short, the panelists concluded that state and foreign law may well be a fertile ground for study. However, some panelists explained that the preemptive force of federal law may complicate the pleading of such cases under state law. As to choice of law, the conflicts scholars observed that in most cases the law of the state of injury will be applied, which might lead to forum non conveniens dismissals. However, to the extent U.S. domiciliaries are involved, there is some likelihood that U.S. state law might be applicable, which raises issue of due process, extraterritoriality, and preemption. In short, there were lots of new and interesting observations with the conclusion that articles remain to be written in this area.

This may all sound a bit academic. But, it is not. The Supreme Court’s order yesterday setting Kiobel for reargument and requesting supplemental briefing on the question whether the ATS can be applied to torts committed in a foreign sovereign’s territory may presage a very limited role for the ATS for extraterritorial torts. If the Court finds that the ATS is limited to torts committed on the high seas, like piracy, and to torts committed in the United States, (and thus not to torts in a foreign sovereign’s territory) then ATS litigation as we know it against corporations for harms occurring in foreign countries will be stopped. Such litigation will also be impossible against individuals. As such, pleading state and foreign law may be plaintiffs’ only hope of a day in court. But, with pleading such law, issues of federalism are raised about the appropriate allocation of sovereign authority over tortious activity that touches on foreign affairs, implicating the federal government’s necessity to speak with “one voice.”

In light of all of this, the UC-Irvine conference may have been both timely and relevant for what the Court ends up deciding regarding the ATS.


8 Responses

  1. It would be delicious if supposedly archaic American federalism becomes the salvation of globalist litigation. It would be particularly rich if the state courts can enforce international human rights law and not federal immigration law.

    Some of the early commentators (St George Tucker, if I recall, etc) wondered whether the Offenses power was exclusive and preempted state law of nations offenses, but I never saw the basis for that being a possibility, and it did not become established.

  2. It was clear at the symposium that Trey’s article is agenda-setting not only for scholarly exploration of these issues but also for practitioners on the front lines of human rights litigation.
    From a choice-of-law perspective, it will be interesting to see how state courts react if these cases start to come up more. Some of the participants felt that there would be a strong inclination to apply foreign law (which may end up not affording much relief). I’m not so sure. The methodologies themselves are sufficiently flexible for courts to escape to forum law or find a forum interest where personal jurisdiction exits over the parties, even if the personal jurisdiction hook manifests after the foreign conduct. And the temptation may prove irresistible when we’re talking about the difficulties involved in the choice and application of Nigerian as opposed to, say, Nevadan, law. In my view, this does raise potential due process and extraterritoriality issues of fair notice and reasonable compliance with the law at the time of conduct, unless the state law effectively uses an international norm also operative in the foreign territory, in which case there’s a “false conflict” of laws and those problems go away, potentially altering the due process analysis for international choice of law in U.S. courts as opposed to interstate choice of law. Kudos to Trey, Chris Whytock and Mike Ramsey for their prescience.

  3. Response…
    First, piracy, by accepted S.Ct. and int’l law definition, is not committed “on” the high seas but on some vessel flying some falg and, therefore, under international law in the equivalent of the territory of the flag state.  Thus, piracy is committed in either U.S. or foreign territory depending on the flag.
    Second, the substantive law to be applied in “human rights” litigation would obvisouly be international law and customary international human rights law, which is universally applicable (e.g., under UN Charter, arts. 55(c) and 56), would be the standard in every country.  See also my Op Ed in Jurist.

  4. How would a state court even have jurisdiction over a foreign defendant and a foreign plaintiff?  Mr. Childress’s paper seems to imply domestic corporations could be sued in their state of incorporation, but these are probably not the proper plaintiffs, their foreign subsidiaries are (i.e. SPDC is in the Kiobel case, Royal Dutch Shell is not.)

  5. M. Gross, foreign corporations could still be subject to general jurisdiction in U.S. courts if they have substantial, continuous and systematic contacts with the forum (even after Goodyear). Also plaintiffs could try to use veil piercing or agency theories to connect U.S. corporations with foreign subsidiaries, or show that some of the conduct at issue was directed from the United States. Individual defendants could be subject to personal jurisdiction if they moved to the United States or are served process while in U.S. territory. These due process limits on personal jurisdiction only apply to protect defendants; the plaintiff of course would submit to the forum’s adjudicatory authority by filing suit there.

  6. Response…
    and M. Gross and Anthony: universal jurisd. does not require contacts of any sort.  Consider the fact that the State of Israel did not exist during the Holocaust and that the evil crimes committed did not occur in the territory that is Israel, but in Demjanjuk universal jurisdiciton was famously recognized for extradition to Israel and the Israeli S.Ct. also recognized that Israel had universal jurisd. in the Eichmann case.
    State courts had excercised some forms of universal jurisdiciton in the past.
    Also, state courts are bound by customary international law (see, e.g., 14 U.C. Davis J. Int’l L. & Pol’y 205, 245-51 (2008), available at http://ssrn.com/abstract=1485703 and it is recognized that because customary international law is supreme law of the U.S. and binding on the states that the states also have a competence to apply customary international law (and the customary international law regarding universal jurisdiciton over violations of customary international law).

  7. Hi Jordan, I believe M. Gross was asking about personal jurisdiction, which under Supreme Court precedent requires either substantial, continuous and systematic contacts with the forum or service on the party in the forum’s territory (general jurisdiction) or minimum contacts with the forum and that the suit arise out of those contacts (specific jurisdiction). Universal jurisdiction is about prescriptive jurisdiction, or the application of forum law. As to state choice of law, the Supreme Court has held that a state must have a significant contact or significant aggregation of contacts to a dispute for the state to apply its law. I agree with you that if the state applies international law to a universal jurisdiction offense that requirement ought not to apply. The reason is the Full Faith and Credit Clause concern in the interstate context is not applicable in the international context leaving only the Due Process concern of fair notice. And that is satisfied if the offense is subject to universal jurisdiction under international law and the state faithfully applies that law. But this argument is not a given, it would require rethinking the applicable due process test for international cases, which I’ve been arguing for since 2007 (and which some courts have done in light of those arguments).

  8. Additionally, if the SCOTUS holds in Kiobel that there is no CIL regarding aiding and abetting liability, aren’t all these cases dead in any US venue whatsoever?
    There’s so many possible outcomes we’re pretty much reading tea leaves at this point.

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