28 Sep Kiobel and the Resurgence of the Traditional Bases of Jurisdiction in the Alien Tort Statute
Reading Roger’s post last week about how lower courts are interpreting the Supreme Court’s ATS ruling in Kiobel made me recall that I’ve fallen down in posting papers to SSRN – including a new one in the Cato Supreme Court Review 2012-2013, “The Alien Tort Statute’s Jurisidictional Universalism in Retreat.” The article (chatty and speculative, be warned, an essay aimed at a broader audience than ATS specialists or international law scholars) tries to set Kiobel and, for that matter, the ATS itself, in a wider frame of what jurisdiction is supposed to mean beyond its technicalities. It contrasts the sweeping universalist language of 1980s-era ATS suits, and the belief of people like Judge Irving Kaufman (who wrote the celebrated Filartiga opinion) that they were pronouncing on “international law ” through the exercise of universal jurisdiction, even though it happened to be in a US district court and applying distinctly US concepts through and through, with Kiobel’s return to traditional jurisdictional categories.
Whether the Chief Justice’s application of the presumption against extraterritoriality or Justice Breyer’s more capacious, yet still traditionally grounded, tests for jurisdiction, Kiobel signaled that the traditional grounds found, for example, in the Restatement of Foreign Relations are the ones that matter. One could say, of course, that this has been true for a while. After all, arguing that the ATS might require some conduct by someone that constitutes a violation of the law of nations, but doesn’t take into account whether the law of nations recognizes that someone as having the legal capacity to violate the law of nations, and so merely a domestic statute providing a domestic civil remedy for something that need not be international law as such, but merely conduct that would, if done by some actor with legal capacity, violate international law – well, that isn’t making any sweeping assertions about being international law or universal jurisdiction for the application of international law. It’s just a peculiar American statute that gate-keeps liability with a weirdly counterfactual reference to international law as it might be.
International law in the subjunctive mood, maybe we could say. But in that case, treating the statute as merely a domestic one with a weirdly constructed trigger, invoking a “law of nations” that we don’t mean the way other people mean it, argues strongly for a traditional approach to jurisdiction – it’s not universal jurisdiction anymore, because we’re not pretending that our reference point is actually universal, but instead merely a claim of extraterritoriality. So it doesn’t seem quite so strange that the Chief Justice would invoke the presumption against extraterritoriality, because the thing, the statute, that plaintiffs propose to apply extraterritorially isn’t truly a claim of universality, either.
Nor does it seem strange that Justice Breyer would say, jurisdiction can be had on broader grounds than territoriality, but it’s not universal, it’s based on a traditional contacts analysis, including territory, nationality, and, okay, some notion of the US invoking jurisdiction on the basis of its national interest – where that national interest includes its values. Yet even there, Justice Breyer emphasizes that the value has to have some traditional jurisdictional link – the interest lies in the US not wanting to serve as the safe haven for the torturer, the common enemy of mankind, or the torturer’s assets in a civil suit. It’s not a universal jurisdiction claim at all; the United States won’t be your haven or your assets’ safe, meaning that they have some kind of connection to the US beyond simply the fact that you did very bad things.
The essay puts this in a broader international political and economic context, however. As ATS suits came increasingly to be filed against corporations in global commerce and the global supply chain, the alleged conduct (if one cuts through the Sosa-required framing language of genocide, crimes against humanity, slavery, forced labor, etc.) looks less like ‘hostis humani generis’ and a lot more like an attempt to take serious, and yet by comparison to genocide, “ordinary” issues of environmental, labor, public health, etc., harms and curb them through an otherwise nonexistent (in international law today) regime of international civil tort liability resident in US courts. Curbing such harms is a good goal – we do need a lot more regulation of the conditions of the global supply chain – but it’s not going to come about by trying to leverage the ATS into an improvised regime of international civil tort liability through US courts.
In that regard, the use of Morrison v. National Australia Bank Ltd (2010) – whether the Chief Justice got it wrong or right – seemed appropriate. Morrison is a commercial case, an extraterritorial securities law case, and Roberts’ use of it to backstop an otherwise almost existentially different matter of fundamental human rights – very serious international crimes, after all, were the allegations proved true – might be might be seen as incongruous at best, perhaps even grotesque. But if your view is that actually these are allegations of serious, but by comparison to genocide, ordinary harms that might and very possibly ought to result in civil liability, in someone’s court, occurring in contemporary global commerce – but no more than that – then looking to to a purely commercial and securities law case and its extraterritorial application as precedent makes a lot more sense.
The lower court cases Roger points to, now applying Kiobel, do seem to be trending toward applying it strictly (i.e., booting out cases). I don’t know if I think that will continue in the lower courts, however. In the splendid Insta-Symposium here at OJ on Kiobel, commentators raised various ways, several of them ingenious, in which a district court judge could march ahead with ATS suits. Whether Roberts or Breyer’s approach to the question of jurisdiction, in other words, each still suffers from Sosa’s “Delphic oracle” problem: a judge wanting to find grounds to kick out the case could do so, and likewise the other way around. This essay isn’t so much about making predictions as looking to see Kiobel in the context of US courts finding their way in a less hegemonic, more internationally contested, world.
“It’s not a universal jurisdiction claim at all; the United States won’t be your haven or your assets’ safe, meaning that they have some kind of connection to the US beyond simply the fact that you did very bad things.”
That is precisely a universal jurisdiction claim. The entire point of conditional universal jurisdiction — universal jurisdiction predicated on the perpetrator being present on a state’s territory — is to deny the perpetrators of international crimes safe havens. The perpetrator’s presence on the state’s territory is what provides the requisite connection. (Which is what distinguishes conditional from absolute universal jurisdiction.)
These continuing defenses by the proponents of the true law of the hegemon – meaning freedom to encourage awful things abroad by nonstate actors in concert with foreign governments on their people (ain’t it grand – all those companies helping in Egypt are comforted) and no chance of civil or criminal liability in the US. Bandying the word “traditional” to try to sound reassuring and misconstruing universality and grounds for concurrent jurisdiction are clever but more of the charade. It is not enough to decry awful things and then applaud an effort to encourage impunity for those perpetrators. You have to sleep with the dogs with which you lie, fleas, ticks and all.
Just to be conceptually clear about this, the presence of a defendant at some later point in U.S. territory establishes personal jurisdiction, a form of adjudicative jurisdiction. Universal jurisdiction to prescribe and apply laws outlawing serious violations of international law already existed and applied to the defendant when and where he/she/it acted—even absent a U.S. connection. It can’t be that the subsequent presence of a defendant in U.S. territory springs to life U.S. jurisdiction to regulate the (past) conduct in question. Such an exercise of prescriptive jurisdiction would be plainly ex post facto. It creates what I’ve called a “spatial legality” problem (as opposed to the more usual temporal legality problem).
Each of the opinions in Kiobel is so wrong and so dangerous (thanks Ben) in so many ways — see the Notes and Questions re: Kiobel posted in a response to the last post on Kiobel (which will appear in our new Human Rights Module (3 ed. 2013, Carolina Academic Press). In any event, Ken, your claims seem strange, given the unavoidable fact that “traditional” customary international law regarding prescriptive jurisdiction included(es) universal jurisdiction. See, e.g., Talbot v. Janson (US 1795) (“all … trespasses committed against the general law of nations, are enquirable, and may be proceeded against, in any nation”), United States v. Furlong (US 1820) (piracy “is against all, and punished by all,… within this universal jurisdiction”); Paust, International Law as Law of the United States 420-23 (2 ed. 2003) and cases cited, Rest. sec. 404, etc. And, Ken, Breyer’s obviation of the extraterritorial reach of the ATS (which he admits) under a self-appointed, anti-democratic, violation of the separation of powers, foreign policy scheme is shockingly ahistorical, anti-“traditional,” and dangerous.He would allow unelected judges to obviate the extraterritorial reach, potentially, of any federal legislation approved by Congress and the President because of his speculative identifiaction of supposed foreign… Read more »
Thanks for these responses … re Kevin’s point about conditional universal jurisdiction: I probably shouldn’t have said “at all,” as I accept Kevin’s point, but my informal, overall point is that Justice Breyer’s opinion seems clearly intended to increase the conditions for the exercise of jurisdiction. Re “traditional,” again, speaking informally; while of course universal jurisdiction is a part of jurisdiction (e.g., the Restatement), I was simply looking for a short hand term for distinguishing between it and the rest of them. One comment I forgot to stick either in the post or in the paper comes from a side conversation with someone who does a lot of ATS plaintiff work – remarked to me a while back that perhaps a reason why the Court is wiling to pull back is a perception, correct or not, that the emergence of international criminal law and tribunals essentially takes over for national court systems in a way considered more objective, impartial, and neutral; this of course was not the case at the time of Filartiga in the 1980s. I’m not sure quite what I think of this, and am not sure it is true of what members of the Court… Read more »