[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 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…