Kiobel Roundtable: Protecting National Interests or Universal Ones?

by Meir Feder

[Meir Feder heads up the appeals and issues practice at the New York office of Jones Day.]

For anyone looking to yesterday’s oral argument to predict how the Court will resolve Kiobel—a dubious exercise in any event, as last Term’s health care case should remind us— yesterday’s argument was a mess. The Justices seemed skeptical of the positions of both parties (and, for that matter, equally skeptical of the Solicitor General’s middle ground), but no obvious alternative approach distinguished itself, either.

Much of the confusion doubtless stems from the unusual nature of the problem. It is difficult, perhaps impossible, to draw definitive answers about modern human rights litigation from the ATS itself or from the specific intentions of its enacters, given the fundamental changes—in the nature and scope of international law, and in prevalent understandings of the nature of the common law and the limited common law powers of federal courts—in the two-plus centuries since the ATS was enacted. And the Court’s one opinion on the ATS, Sosa v. Alvarez-Machain, is opaque on many of the key questions—announcing that any cause of action attendant to the ATS is a discretionary creation of federal common law, but (other than ruling out claims based on norms that lack definite content or widespread acceptance) providing little direction as to what factors should guide that discretion. As a result, it is not even clear how a Justice should go about answering the question in Kiobel, which makes the apparent lack of consensus at argument (and the difficulty in drawing conclusions from the questioning) unsurprising.

Nonetheless, there are at least two aspects of the oral argument that I think are worth highlighting. One is the prominent role played for several Justices by the assumption that piracy was intended to be within the scope of the ATS. Justice Breyer, for example, posited (at p. 26) that an analogy to piracy supports extending a cause of action to overseas human rights violations, observing that “the question to me is who are today’s pirates? And if Hitler isn’t a pirate, who is?” And Justices Scalia (p. 24-25), Chief Justice Roberts (p. 25), Justice Sotomayor (p. 33), and Justice Kagan (p. 40), all appeared to start from the premise that piracy was an intended subject of the ATS.

What is odd about this is how little historical basis there is for this assumption. Sosa explained the ATS as aimed at a different type of international law violation: violations (like the well-known Marbois incident) for which the United States would be held responsible, which if not “adequately redressed” could give rise to “serious consequences in international affairs.” Sosa goes on to express uncertainty about whether piracy was an intended subject of the ATS, noting that piracy was a “paradigm” 18th Century international law violation but saying, as to its inclusion within the ATS, only that it “may well have also been contemplated” by the drafters of the ATS. And, subsequent to Sosa, scholars like Thomas Lee of Fordham have persuasively demonstrated that piracy, which fell within the maritime jurisdiction conferred in the same 1789 legislation that included the ATS, likely was not intended also to be included within the ATS. It is therefore troubling to see multiple Justices apparently reasoning from the assumption that the ATS was intended to provide a cause of action against pirates.

It is also potentially quite important, because what hangs in the balance is (at least arguably) the fundamental purpose of the ATS—i.e., whether the ATS is understood as (a) a statute narrowly aimed, as explained in Sosa, at protecting U.S. foreign affairs interests, or (b) a universal cause of action applicable to international law violations. That is, if, as Sosa explains (and history confirms) the ATS had the specific, practical goal of preventing conflict with foreign sovereigns by remedying international law violations that were affronts to those sovereigns, it would be a significant leap to extend an ATS cause of action to claims like those in Kiobel—claims based on alleged violations by foreign sovereigns, which will often promote rather than prevent international conflict. (This argument is made in greater detail in an amicus brief I co-authored on behalf of a group of law professors. ) On the other hand, if the ATS had the broader and more altruistic purpose of providing a cause of action to all victims of pirates—even absent any connection to the United States—lawsuits based on the actions of foreign human rights violators (“today’s pirates”) may seem like somewhat less of a leap. And, indeed, Justice Breyer suggested (at 26) that his assumption about the ATS including piracy was important to his understanding of “the purpose and an objective of the statute.”

One other aspect of the argument worth some attention is Justice Ginsburg’s questions (at 3-4, 54) about personal jurisdiction and the significance of her 2011 opinion for the Court in Goodyear. I believe Justice Ginsburg was suggesting (and suggesting correctly) that Goodyear is likely to largely eliminate so-called “foreign-cubed” ATS cases on personal jurisdiction grounds, leaving only cases against U.S. corporations and individuals found in the United States. The basis for personal jurisdiction in ATS cases against non-U.S. corporations has typically been general jurisdiction, on the theory that the defendant is in some fashion “doing business” in the relevant U.S. jurisdiction. Goodyear, however, limited general jurisdiction to circumstances where the defendant is “at home” in the forum. I have argued elsewhere that the new “at home” requirement effectively eliminates “doing business” jurisdiction, and in any event (as I think Justice Ginsburg was suggesting) the exercise of general jurisdiction over a non-U.S. corporation seems like a particular stretch under Goodyear. As a result, the decision in Kiobel may end up having much greater significance for U.S.-based defendants than it will for foreign entities like Shell.

2 Responses

  1. Couldn’t the two rationales be merged into a unified position?  If the purpose of the statute was to ultimately protect our then-infant nation by allowing aliens to have remedies for causes of action that might otherwise give rise to a cause of war if they were left without a remedy (ala Marbois), then it seems to me that the core of that purpose is a respect for the Westphalian system of sovereignty.
    According to Prof. Kontorovich’s scholarship, the purpose for which piracy gave rise to a universal cause of action was precisely because pirates, by definition, rejected the system of sovereignty and could thus be prosecuted wherever they were found.  That is the point of hostis humani generis–not the misunderstanding perpetuated by Justice Breyer at oral argument yesterday.  It was and is a term of art based largely on how pirates were categorically outside of international law.  It is confusing to me why the add-on for piracy should matter in the slightest once it is admitted that piracy as a fundamental universal jurisdictional crime/tort, is sui generis. See S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10, at 70 (Sept. 7) (Moore, J., dissenting) (“Piracy by law of nations, in its jurisdictional aspects, is sui generis. Though statutes may provide for its punishment, it is an offence against the law of nations; and as the scene of the pirate’s operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry . . . .”).

  2. I agree with Meir that piracy is a “red herring”  and am writing to elaborate on his thoughtful remarks.  The thing that troubles me most about how the Court is thinking about this case is that it continues to accept the Sosa statement that the ATS is 2/3 about piracy and ambassadorial infringements, but not thinking at all about the 1/3 nebulous “safe conduct” violation which I have argued was the real purpose of the ATS.  106 Columbia Law Rev. 830 (2006).  Other scholars have agreed in the past that the ATS was likely not about ambassadorial infringements or piracy (e.g., Anne-Marie Slaughter in 1989 re ambassadorial infringements; Curt Bradley re piracy in 2002). 

    This conclusion becomes crystal clear when the Judiciary Act’s jurisdictional provisions are read as a unit.  Regardless whether holistic reading makes sense for the Constitution or other statutes, it surely makes sense for the First Judiciary Act, which was largely the work of Oliver Ellsworth and enacted by the first session of the First Congress to set up the federal courts for the first time.  Ambassadors can sue in the Supreme Court, with concurrent jurisdiction in state court under section 13 of the Judiciary Act (pages 851-64 of my article explain why), and piracy falls within the admiralty and maritime jurisdiction of the district courts under clause 2 of section 9 of the Judiciary Act, two clauses before the ATS which is the fourth clause in section 9.  People often seem to forget that the ATS is not a free-standing statute but just a clause in a section of a much bigger, iconic enactment.

      The admiralty and maritime grant in clause 2 was exclusive with the exception of the saving to suitors clause to state courts; the ATS grant in clause 4 is concurrent with state and the federal circuits.  The admiralty jurisdiction would have been territorially limited because most actions (called “libels”) were in rem, but if a pirate ship were brought to a US port, it could be condemned and its captain and crew tried for piracy.  This is all explained in pages 866-71 of my article, and the tension with Bradford’s construction of the ATS in 1795 is explained at pages 889 to 895.

    In my view, all of this is explicit from a careful reading of the Judiciary  Act.  It then raises the question of what exactly the ATS us about, and the safe-conduct is all that is left.  My article was an attempt to understand what exactly the late eighteenth century safe conduct was at international law, how it was understood by the First Congress, and what it means today.  My conclusion for what it means today was that the ATS was enacted “to redress common law torts brought by friendly or neutral aliens [thus, the tort was in violation of the law of nations or a treaty of the Uited States” promising safety] commited by private actors — including aliens– with a United States sovereign nexus, not for international law violations committed by anyone anywhere.”

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