Kiobel Insta-Symposium: A More Positive Outlook for International Law

[Austen Parrish is the Interim Dean and a Professor of Law at Southwestern Law School in Los Angeles.]

With Kiobel, the general mood among those in the human rights community is pessimistic. Because it curtails use of the Alien Tort Statute, viewing the decision as a loss is tempting. From this perspective, Kiobel is another indication that the Court continues to reinvent itself with a particular brand of conservative activism, the U.S. remains hostile to international law and its institutions, and corporate interests have won out over the protection of individuals. For others, the Court’s finding that the Alien Tort Statute does not redress claims of human rights violations by foreigners against foreigners on foreign soil is scratched up as win on the side of those pushing for tort reform, for those who believe there is too much litigation in the United States, and for those who think courts, as un-elected institutions, need to be carefully watched and constrained in the area of foreign affairs.  While those of a more conservative orientation have celebrated the case as ending litigation “run amok,” the reaction among many concerned with protecting human rights has been to decry the result and paint the case as a setback.

But there’s a different way to describe the case than these two narratives: one that’s more positive for international law and its institutions.  Viewed through a different lens, Kiobel is a case about whether the United States should privilege unilateralism over multilateralism, and whether it prefers international over pluralistic approaches to global governance.  The case may signal a modest retreat from a failed strategy of aggressive American unilateralism (viewed by other countries as illegitimate and legal imperialism) that has taken root in a number of public and private law contexts. In this way, to the extent Kiobel helps to inter unilateral regulation of foreigners for conduct occurring abroad – not just in ATS cases, but also in a wide-range of other contexts –  the case is not a setback for international law or human rights, but rather a vindication of them.   To reach this conclusion, one must believe that international law should generally be advanced through multilateral consensus, rather than unilateral means.  Unilateral extraterritorial regulation of the foreign-cubed variety, where one state purports to dictate conduct in another state’s territory, is in tension with international norms and basic principles of democracy.  It’s also a perspective that believes human rights become universal not through some sort of predetermined inevitability, but only through careful building of alliances and legitimacy between different groups joined in purpose.  The concern therefore should not be that U.S. courts will become the world’s courts.  Rather it’s that any court, in any nation, can assert authority to right what it perceives to be the world’s wrongs.  If human rights involves contested ideals, it’s unclear that the human rights community should desire that sort of pluralistic experimentation.  While we may be comfortable with a U.S. court developing human rights norms, there’s a significant question whether other courts will develop human rights tendentiously or not, or whether those conceptions of human rights will be more illiberal and non-western, or at least different than ours.

Through this lens, Justice Breyer’s concurrence takes on greater meaning than Chief Justice Roberts’ opinion or even Justice Kennedy’s.  The Roberts opinion was hardly surprising.  It tracked what the Court had done in Morrison and how the Court’s more conservative justices had generally interpreted the presumption against extraterritoriality.  Commentators may disagree whether the use of the presumption was doctrinally correct, but the opinion was broadly consistent with how other jurisdictional statutes have previously been interpreted.  Rarely has the Court found that Congress intended to use all the power granted to it under international law or the U.S. Constitution (see, e.g., the interpretations of the statutory grants for diversity and federal question jurisdiction as more narrow than what is constitutionally permitted).  The Breyer concurrence, however, which looked to international jurisdictional norms to help determine the ATS’s scope is much more important for international law. In finding that the ATS would not apply to foreign-cubed cases, the Breyer concurrence reaffirmed that the broadest and most contentious forms of universal jurisdiction, when untethered to international agreement, are not permitted under international jurisdictional law.  That perspective implies much more faith in traditional conceptions of international law, and more skepticism over newer pluralistic theories of global governance.

Kiobel should not mark the end of human rights litigation.  There is little international law concern with holding U.S. citizens and corporations responsible for their human rights violations here or abroad (under nationality jurisdiction).  Commentators on this blog and elsewhere, however, have suggested that the next battleground for foreign-cubed cases should be in state courts and under state law.  While that may ultimately prove a true prediction, as a descriptive matter it would be an unfortunate step.  While individual litigants may have few choices, employing a state law strategy is unlikely to meaningfully advance human rights.  These cases face tremendous hurdles to success.  State courts will rightly be reluctant to adjudicate foreign claims for abuses occurring abroad to which the state has no interest. The same root concerns that motivated the Kiobel court to decide the way it did will cause state court judges to decline to hear these cases too.  Said differently, the problem to be solved is not a doctrinal one or how to overcome a presumption, but rather what the Breyer decision suggests: the idea that a court in any country has authority, absent international agreement, to define an international norm and apply it to regulate the foreign conduct of foreigners is antithetical to basic principles of international law.  The cost of lost time and energy to this kind of strategy could be significant.  Greater progress could be made if we refocused energies to press the United States, its citizens, and corporations to respect human rights and the rule of law, and to promote international agreements with other nations.  It’s time to rebuild the legitimacy of international law, and to reclaim international law and its institutions as the primary methods for global governance.  Unilateral domestic regulation, even when purporting to apply a “universal norm” undermines those efforts.

These ideas are explored in more detail in a piece written for the Maryland Journal of International Law for the University of Maryland Law School’s Annual International and Comparative Law Symposium.