Kiobel Roundtable: Getting Exhaustion Right

by Doug Cassel

[Doug Cassel is Professor of Law at Notre Dame Law School]

If Alien Tort Statute suits to redress human rights violations committed abroad are upheld in Kiobel, the Supreme Court is likely to require that plaintiffs first exhaust their foreign and international remedies (or show good cause for not doing so).  If so, it is important that the Supreme Court get right the contours of the exhaustion doctrine under international law.  The Court should require exhaustion only in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies.  Even in purely universal jurisdiction cases, the Court should respect exceptions to exhaustion recognized by international law.

An exhaustion requirement seems likely.  In the Kiobel oral argument on the extraterritorial reach of the ATS, three Justices likely to support extraterritorial reach — Ginsburg, Kagan and Sotomayor — asked questions sympathetic to an exhaustion requirement (Tss. at 8, 13-15).  In response, Paul Hoffman, plaintiffs’ counsel, appeared open to an exhaustion requirement (Tss. at 13-14).  No Justice or counsel spoke against an exhaustion requirement; even two Justices generally hostile to the plaintiffs – Alito and Scalia – seemed friendly to an exhaustion requirement (in the event extraterritorial ATS suits are allowed) (Tss. at 15, 31).

The most substantial brief on the exhaustion issue, favorably cited by Justice Sotomayor (Tss. at 12-13), is the amicus brief of the European Commission on behalf of the European Union.  The EU brief is generally excellent.  It correctly limits an exhaustion requirement to ATS cases whose exclusive jurisdictional basis under international law is universal jurisdiction (part A below).

However, its articulation of the exceptions to exhaustion in universal jurisdiction cases is imprecise (Part B below).  There is a resulting risk that the Court may saddle plaintiffs with a vague and overbroad exhaustion requirement.  This would undermine the very purpose of universal civil jurisdiction – to ensure that grave international crimes do not go unredressed.

A.     Exhaustion Only in Exclusively Universal Jurisdiction Cases

The EU brief rightly argues that under the Charming Betsy doctrine (Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64 (1804)), the ATS should be construed in harmony with international law.  The EU also rightly argues that international law generally permits states to exercise prescriptive jurisdiction in five situations.  Two of those jurisdictional bases are not applicable in Kiobel.  The most common basis — territorial jurisdiction — is by definition not at issue in extraterritorial tort cases.  Another basis — passive personality (where the victim is a citizen of the prescribing State) — can never be the basis of an ATS suit, which by statutory definition can be brought only by aliens.

The remaining three international law bases of jurisdiction, as correctly noted by the EU brief, are (1) personality jurisdiction (where the tortfeasor is a US citizen or company), (2) effects jurisdiction (where the tort threatens US national security or government functions), and (3) universal jurisdiction (where the tort amounts to an international crime so heinous — e.g., genocide, torture, crimes against humanity — that  international law permits all States to exercise jurisdiction, even if they have no territorial, citizenship or other link to the crime).

The EU brief correctly suggests an exhaustion rule only in the third category – ATS cases brought exclusively under universal jurisdiction.  Exhaustion of foreign remedies is not only a rule for access to international courts, but is required by some national courts prior to their exercise of universal jurisdiction.  (See, for example, Article 23.4 of Spain’s Ley Orgánica del Poder Judicial, as amended in 2009).  The EU does not propose that exhaustion of foreign and international remedies be required in ATS suits against US companies.

The EU distinction makes eminent sense.  In extraterritorial tort cases where US jurisdiction is based solely on universal jurisdiction, the US has only the same jurisdictional basis as every other State to remedy the human rights violation.  By comparison, the foreign State where the violation occurred (the territorial State), and the home State of a foreign corporate tortfeasor (exercising personality-based jurisdiction), have not only the same interests as the US in redressing heinous violations, but additional jurisdictional bases.  In purely universal jurisdiction ATS cases, then, the territorial and home States have stronger jurisdictional claims than does the US.  It therefore makes sense to require plaintiffs to exhaust remedies in those States (if any, and subject to the exceptions set forth below), before the aliens may sue in the US.

In contrast, where the ATS suit is brought against a US company, the comparative jurisdictional claims are different.  The US has not only a universal jurisdiction interest in repressing heinous violations committed abroad; it also has the right to exercise personality jurisdiction over the US company.  The US need not defer to the territorial or any other State.  In ATS cases against US companies, then, exhaustion of foreign remedies should not be required.

The EU follows the same policy.  When European companies are sued for human rights violations committed abroad, both the Brussels I Regulation and the 2007 Lugano Convention privilege jurisdiction in their home countries, not the territorial State.  There is no EU requirement to exhaust foreign remedies.

The Supreme Court should thus require exhaustion of foreign remedies only in cases whose jurisdictional basis under international law is exclusively universal jurisdiction.

B.     Exceptions to Exhaustion Even in Universal Jurisdiction Cases

The EU brief supports exceptions to exhaustion where foreign remedies are “futile” (p. 4) or “unavailable” (p. 30) or where the foreign forum is “unwilling or unable” to provide relief (p. 26).  While these formulations are correct, they should be more precise and comprehensive.

Five exceptions to exhaustion under generally recognized principles of international law were set forth by the Inter-American Court of Human Rights in its landmark 1988 Judgment in Velásquez-Rodríguez v. Honduras. (The first three are taken textually from the American Convention on Human Rights.)  The exceptions are as follows:

  • Due Process Violations: Where “the domestic legislation of the state concerned does not afford due process of law for the protection of the right … allegedly … violated.”
  • Inaccessibility: Where “the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them.”
  • Delay: Where “there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.”
  • Inadequacy:  The foreign remedy must be suited to the purpose – in the case of ATS suits, moral vindication and monetary reparation for human rights violations.  For example, a foreign remedy that allows for a presumptive declaration of death, and hence rights of inheritance for family members, is not an adequate remedy in lieu of a tort suit under the ATS.
  • Ineffectiveness:  The foreign remedy must be “capable of producing the result for which it was designed.  Procedural requirements can make the remedy … ineffective:  [or] if it is powerless to compel the authorities; [or] if it presents a danger to those who invoke it; or if it is not impartially applied.”

Citing the Rome Statute of the International Criminal Court, adopted a decade after the Velásquez ruling, the EU brief proposes a further exception: where the foreign jurisdiction is “unwilling or unable” to provide relief.  Since this exception may in some cases be broader than the Velásquez exceptions, it should be recognized as well.

At least two further points should also be addressed.

First, as Paul Hoffman rightly contended in the oral argument (Tss. 52-53), where an alien plaintiff has been driven into exile by human rights violations committed in a foreign State, it may be procedurally or practically difficult for the plaintiff to sue in that State (and inequitable to insist that he do so).  In such cases US courts should deem the foreign forum practically inaccessible or ineffective for such a plaintiff, so that the foreign remedies need not be exhausted.

Second, where (as in many States) civil relief is made contingent on a criminal conviction of the alleged tortfeasor, the foreign civil remedy may be deemed inadequate or ineffective.  For example, some foreign jurisdictions do not permit criminal prosecutions of corporations.  In such countries, where the civil remedy is contingent on the criminal case, the inability to convict the corporation abroad should not bar alien plaintiffs from filing an ATS suit against it in US courts.

Similarly, ATS suits should be allowed where the proof, while sufficient to meet a US tort standard of preponderance of the evidence, falls short of the criminal standard of proof beyond a reasonable doubt.  Civil suits under the ATS should not then be barred by the evidentiary failure of a criminal prosecution in the foreign forum.

If the Court in Kiobel imposes an exhaustion rule, both its scope and its exceptions should be made consistent with international law.  The Court can thereby minimize subsequent confusion and needless litigation in the lower courts and – most important – help to ensure that victims of heinous human rights violations are not left without effective remedies.

11 Responses

  1. I’m curious, where is there an exhaustion requirement in either the history or text of the statute?  I agree that this would be a sensible middle ground, but the statute is from 1789; it would be difficult to say that a statute from that period of time “actually” was meant to say that modern-day exhaustion principles should be applied in cases where universal jurisdiction is necessary.
    Don’t get me wrong.  I agree with everything you’ve written from a policy standpoint.  It’s very sensible and would show that our courts make something of an effort to respect other countries’ sovereignty.  Nevertheless, it is blatantly asking the Court to legislate from the bench, is it not?

  2. If we are to place the ATS in its original historical context, it would be exceedingly difficult to conclude that it had any extraterritorial application to acts by foreign nationals. 

  3. Response…
    John: not so — some early cases involved conduct abroad between foreign nationals — not merely the breach of neutrality by U.S. nationals on the west coast of Africa addressed in the 1795 Op. Att’y Gen. (which, by the way, used the same Presidential Proclamation that was addressed by Chief Justice Jay in Henfield’s Case in 1793 and which Jay recognized was perfectly consistent with the law of nations re: direct perpetrator responsibility and aiding and abetting liability — there re: the international crime of breach of neutrality by U.S. national abroad)
    for some early cases, extraterritoriality, etc.
    Joshua: you are correct.  Perhaps today such an inquiry would be part of judicially-created forum non conveniens inquiry however — but, then, your point is apt that judges should not attempt to rewrite legislation that Congress has chosen not to rewrite for a very long time as well as when the TVPA was enacted.

  4. Response…
    p.s.  clearly the ATCA or ATS was not created merely to address the international crime of piracy!

  5. I agree with Mr. Cassel’s analysis on this particular issue, I just feel it’s a moot point as I think the three justices who inquired regarding exhaustion will end up writing the dissent in this case.

    There’s so many reasons to rule for the Shell in this case, I don’t think they even need reach the issue of exhaustion. 

  6. So far as I know, Joshua is correct that neither the text nor the history of the ATS call for exhaustion.  Even so, I would not necessarily view an exhaustion requirement — within appropriate limits, as set forth in my blog — as judicial legislation.    Requiring exhaustion (within those limits) can arguably be justified under the Charmng Betsy doctrine as an effort to interpret the statute in accord with international law.  In addition, reasonable respect for international comity has long been treated as within the discretion of US courts, and appropriate exhaustion could also be seen as a matter of comity. 

  7. Doug: Charming Betsy can (and should) only be used to support extraterritoriality because, as you note, the ATS must be interpreted consistently with customary international law and it is customary international law that permits the U.S. to exercise universal jurisdiction over violations of customary international law.  International “comity” (as a former Chief Justice rightly recognized) is merely a matter of discretion or grace — which, by the way, should be chosen by Congress to limit jurisdiction that already exists under international law and not the courts, especially where Congress has not chosen to do so.  Congress has not chosen to limit the reach of the ATS with respect to violations of the customary law of nations and Congress actually revisited the ATCA or ATS when addressing the TVPA (and the Filartiga line of cases). If the U.S. should give up a jurisdictional competence that it has under international law, it should be up to the political branches to do so — and the President could attempt to gain some benefit when doing so by Executive Agreement or some other international agreement.

  8. Dear Jordan,

    I agree that the points you make could certainly justify not imposing an exhaustion requirement (even the limited one I set out).  However, if the Court is going to allow ATS suits for extaterritorial  torts, it appears to me that they are going to require exhaustion.  That horse, I believe, is already out of the barn.  The purpose of my blog is to discourage them from imposing an overbroad exhaustion requirement — doug

  9. Prof. Cassell,

    In response to a request by the U.S. Supreme Court, the Office of the Solicitor General in June 2011 filed an “invitation brief” with the Court in Kingdom of Spain v. Estate of Claude Cassirer (Docket 10-786), recommending denial of certiorari in that case (which involves a claim by Cassirer’s estate against the Kingdom of Spain and its instrumentality, the Thyssen-Bornemisza Collection Foundation, for recovery of a Pissaro painting confiscated by Nazi Germany and subsequently acquired by the Foundation). 

    The SG concluded in the invitation brief that exhaustion of local remedies (whether in Spain or in Germany) is not required under either the U.S. Foreign Sovereign Immunities Act (FSIA) or international law for an unlawful expropriation.  That conclusion is a quite interesting statement of the position of the United States about exhaustion of local remedies in expropriation cases.

    The SG’s conclusions were the same as the conclusions of the 9th Circuit Court of Appeals in the underlying appellate opinion (Cassirer v. Kingdom of Spain, 616 F.3d 1019 (9th Cir. 2010)) which petitioner Spain is seeking to have reviewed by the U.S. Supreme Court. 

    With respect to the requirements of the FSIA itself, the SG stated:

     “The court of appeals correctly held that Section 1605(a)(3) [the exhaustion exception to sovereign immunity] does not mandate that a plaintiff exhaust foreign remedies before bringing suit against a foreign state or instrumentality.  Section 1605(a)(3) itself says nothing about exhaustion.  That is in contrast to the former Section 1605(a)(7), which required that a plaintiff suing a foreign state for state-sponsored terrorism “afford[] the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration.” 28 U.S.C. 1605(a)(7)(B)(i) (2006).  Congress knows how to require plaintiffs to seek other remedies before bringing suit under Section 1605(a), and it has not done so in Section 1605(a)(3).”
    In addition to looking at the text of the FSIA, the SG specifically addressed the question of whether there is a requirement under international expropriation law for exhaustion of local remedies.  The SG concluded that, when the expropriation was unlawful, there was not such an exhaustion requirement.  The SG also noted the analogy to U.S. Takings law under the 5th Amendment in this regard, citing to the leading U.S. Supreme Court case on the issue (Williamson County) to distinguish exhaustion from ripeness.  The SG, like the underlying 9th Circuit Court of Appeals decision at issue, left for another day whether a prudential (i.e., not jurisdictional) court-ordered exhaustion of local remedies requirement might be appropriate under the FSIA in case-specific circumstances.

     “Petitioners invoke (Pet. 29-32) international law, but there is no requirement in international law that a plaintiff must exhaust local remedies for a viable expropriation claim to arise.  To be sure, if a taking of property by a foreign state is for a public purpose and is not discriminatory, then the taking violates international law only if it is not accompanied by prompt, adequate, and effective compensation.  2 Restatement § 712(1)(c) & cmt. c at 196, 198.  Accordingly, for those types of takings, a plaintiff may need to have pursued and been denied compensation in the foreign state for there to be a ripe taking claim at all.  Cf. Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 194-195 (1985).  But where, as here, the taking violated international law because it was not for a public purpose or was discriminatory, the taking claim does not depend upon a showing that the plaintiff has sought and been denied just compensation.  In any event, these considerations go to whether a taking in violation of international law has occurred, and here petitioners concede that such a taking occurred.  Accordingly, to the extent that these considerations bear at all on this case, they can be taken into account on remand in determining whether exhaustion should be required as a prudential matter.”

    The SG thus recommended denial of Spain’s petition for Supreme Court review of the underlying 9th Circuit Court of Appeals decision.  That underlying appellate decision had also held that exhaustion of local remedies is not mandated under the FSIA or international law in the circumstances of an unlawful expropriation.  In footnote 25 of its opinion, the 9th Circuit (like the SG invitation brief) drew a distinction for purposes of a mandatory exhaustion of local remedies rule between a failure to pay compensation for a taking and a taking that otherwise violates international law.  On that basis, the Court of Appeals distinguished two prior U.S. lower court holdings commenting on exhaustion, as well as a comment by Supreme Court Justice Breyer in his concurring opinion in Republic of Austria v. Altmann, 541 U.S. 677, 714 (2004).

     “25   As in Greenpeace and Millicom, this observation also has to do with a taking unaccompanied by just compensation.  Justice Breyer draws on substantive Fifth Amendment law as set out in City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 721 (1999), and Kirby Forest Industries, Inc. v. United States, 467 U.S. 1, 10 (1984), which requires exhaustion of postdeprivation remedies because there cannot be constitutional injury until a state fails to provide just compensation.  However, a taking may violate international law when it does not serve a public purpose or is discriminatory in nature — the kind of taking that Cassirer has pled for purposes of jurisdiction in this case — as well as when it is not accompanied by just compensation.”

    Finally, in footnote 26 the Court of Appeals also distinguished comment f to Section 713 of the Restatement of Foreign Relations Law (which says that a claim under international law will ordinarily be subject to exhaustion of domestic remedies).  The appellate court pointed out that the comment on its face applied only to State-State claims, “where interests of comity are most compelling,” and only to “ordinary” practice.

    “26   Spain and Justice Breyer additionally allude to comment f of § 713 of the Restatement (Third), which states that “[u]nder international law, ordinarily a state is not required to consider a claim by another state for an injury to its national until that person has exhausted domestic remedies, unless such remedies are clearly sham or inadequate, or their application is unreasonably prolonged.”  Restatement (Third) § 713 cmt. f.  On its face this section applies only to claims by one state against another where interests of comity are most compelling.  Section 1605(a)(3), by contrast, applies to claims by an individual against a foreign state of which he is not a citizen.  But even if applicable to claims other than those by one state against another, and even if imbedded in international law, this section merely reflects “ordinary” practice.  The FSIA does not incorporate it, and the legislative history doesn’t mention it.  In short, this source does not clearly indicate that Congress meant to require exhaustion even though it did not say so.”

    I hope this is interesting.


  10. Dear Prof. Kantor,

    Thanks for bringing this case to my attention.  It is consistent with the position in my blog that exhaustion should be required only in cases based exclusively on universal jurisdiction, where the jurisdictional claim of the US is not as strong as that of another state which has not only a universal jurisdiction interest, but also a territorial or personality basis for jurisdiction.  In the Cassirer case you cite, the claimant — Cassirer — was an American citizen (succeeded after he died by his estate).  Hence the US had a passive personality basis of jurisdiction.  Under my theory, then, no exhaustion would have been required (unless Congress required it, which in that case it evidently did not). 

    My blog here did not address a passive personality case, because the ATS allows suits only by aliens, not by US citizens, so that passive personality jurisdiction is never available under the ATS.  Nonetheless the line I draw — requiring exhaustion only in purely universal jurisdiction cases — would have ruled out a judicially imposed exhaustion requirement in the Cassirer case.

    Again, thanks for your informative post.  I will want to study the case (at which I have only glanced) and the SG’s position further — Doug 


  11. Response…
    passive personality theory (or victim theory) is a minority theory that is not based in general patterns of practice and general patterns of opinio juris (but has been consented to in some international criminal law treaties, which would only reach the parties thereto and their nationals and only with respect to crimes covred).
    In most cases, U.S. courts do not deny U.S. jurisdiction under the nationality, protective, or universal jurisdiction principles.
    Note that state-to-state claims at the international level or before international institutions are far different than claims in domestic U.S. courts.  Further, universal jurisdiction re: Rest. sec. 404 is expressly not inhibited by alleged or so-called comity factors set out in sec. 403 (and, again, the courts basically pay no attention to comity factors if there is nationality or protective jursdiction al la sec. 402, etc., and are not supposed to if there is universal jurisdiction).

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