Kiobel Roundtable: The Devil in the Details

[Beth Stephens is Professor of Law at Rutgers, the State University of New Jersey-Camden.]

Monday’s oral argument in Kiobel v. Royal Dutch Petroleum, Inc. focused on the search for a coherent limit to the reach of the Alien Tort Statute. The need for some limit is uncontroversial: even the most ardent advocates of human rights accountability agree that not all cases involving human rights violations, no matter how egregious, belong in U.S. courts.

The devil, as always, is in the details.

Would a holding that the ATS does not apply to claims arising in foreign countries constitute a coherent limit? The questions at the first Kiobel argument in February and the order for reargument issued the following week suggested that a majority of the Court was considering such a holding. At Monday’s reargument, however, this time with the benefit of full briefing on that issue, the questions indicated that the Justices had recognized that this apparently simple solution would pose its own problems, and that other doctrines might respond to some or all of their concerns.

A categorical bar on ATS claims arising in the territory of foreign states would require rejecting thirty years of ATS litigation, including the holding of Filártiga v. Peña-Irala. As Justice Kagan explained, it would also require abandoning the reasoning of the Court’s 2004 decision in Sosa v. Alvarez-Machain. Justice Scalia pointed out that applying the presumption against extraterritoriality would bar claims arising on the high seas as well as those arising in the territory of a foreign state, despite Sosa’s indication that the ATS was intended to apply to piracy, an international crime that occurs at sea. Sosa also relied on a 1794 opinion by U.S. Attorney General William Bradford, which stated that the statute applied to international law violations committed in foreign countries. The questions and comments at Monday’s argument suggest that the limit proposed in the order for reargument is neither coherent nor supported by statutory text, history, or precedent.

A categorical bar would be flawed for another fundamental reason: it would be an over-inclusive response to concerns about interference in the affairs of foreign states. International human rights norms both prohibit certain violent conduct and require that states punish those who violate the norms. When the state where the abuses occurred is able and willing to fulfill its obligation to hold perpetrators accountable, there is no need for a foreign forum. As noted at the argument, however, that state is often unable or unwilling to provide a forum. And, even when those courts are ready and able, the home state may not have jurisdiction over the person responsible. The claims against Ferdinand Marcos, for example, were filed when he was living in the United States; the government of the Philippines supported the U.S. human rights litigation by waiving any immunity claimed by Marcos. Similar waivers have been filed in cases arising in Haiti and Bolivia, also involving defendants living in this country. Thus, it is inaccurate to assume that U.S. human rights litigation necessarily creates foreign policy friction. Barring all claims arising in foreign states would eliminate litigation that has the support of both the U.S. and foreign governments.

We all know that oral arguments are notoriously unreliable indicators of results. But Monday’s argument raised the possibility that the end of the ATS may not be imminent after all. Instead, the Court may reaffirm and possibly strengthen doctrines that have long been applied to deal with the problems raised by extraterritorial litigation: personal jurisdiction, forum non conveniens, political question, comity, act of state, and perhaps exhaustion of domestic remedies. The application of these doctrines to this case would have to be determined on remand, with a full record. Although such a ruling might cause a change in tone, it would not represent a dramatic transformation of the ATS landscape: the lower courts have been applying these doctrines for decades, when raised by defendants or by the U.S. or foreign governments. But this better calibrated result would be a win for the human rights policies of the U.S. government; for foreign governments who seek accountability for violations committed on their soil by defendants who are outside the reach of their courts; and for the victims of human rights abuses who have no alternative means by which to obtain redress.