Author Archive for
Chimene Keitner

Guest Post: Keitner–Jones v. United Kingdom and the Individual Responsibility of State Officials

by Chimene Keitner

[Chimène Keitner is Harry & Lillian Hastings Research Chair and Professor of Law at the University of California Hastings College of the Law, and an Adviser on Sovereign Immunity for the American Law Institute’s Fourth Restatement of the Foreign Relations Law of the United States.]

The judgment issued by the Fourth Section of the European Court of Human Rights represents the latest installment in an ongoing conversation about the immunity ratione materiae of individuals accused of abusing their authority to commit serious violations of international law. As Philippa Webb has noted over at EJIL Talk!, the Chamber found the U.K. House of Lords’s analysis of the relationship between State immunity and foreign official immunity sufficiently persuasive to conclude that, despite patchy precedents and evolving trends, “[t]he findings of the House of Lords [in Jones v. Saudi Arabia] were neither manifestly erroneous nor arbitrary” (para. 214). My colleague William Dodge has blogged here about flaws in the Chamber’s reading of national case law, which repeats errors made by the House of Lords that I have discussed here and here. These critiques amplify those enumerated by Judge Kalaydjieva in her dissenting opinion.

Although Philippa’s point about the Chamber’s “re-integration” of State and official immunity certainly holds true in the context of civil proceedings (based on the Chamber’s acceptance of the argument that any civil suit against an individual for acts committed with state authority indirectly—and impermissibly—“implead” the State), the Chamber seems to have accepted Lord Bingham’s assertion (cited in Jones para. 32) that because “[a] State is not criminally responsible in international or English law, [it] therefore cannot be directly impleaded in criminal proceedings.” This excessively formalistic (and in some legal systems untenable) distinction led the Chamber to accept the proposition that, absent civil immunity for foreign officials, “State immunity could always be circumvented by suing named officials” (para. 202). Yet domestic legal systems have long found ways of dealing with this problem, for example by identifying whether the relief would run against the individual personally or against the state as the “real party in interest” (as the U.S. Supreme Court noted in Samantar).

As Lord Phillips of Worth Matravers, who participated in the House of Lords’s decision in Pinochet (No. 3) and in the Court of Appeal’s decision in Jones v. Saudi Arabia, wrote in his concurrence in the Court of Appeal (at para. 128): “the argument [that the state is indirectly impleaded by criminal proceedings, which was rejected in Pinochet] does not run in relation to civil proceedings either. If civil proceedings are brought against individuals for acts of torture in circumstances where the state is immune from suit ratione personae, there can be no suggestion that the state is vicariously liable. (more…)

Kiobel Insta-Symposium: The ATS After Kiobel: Less Bark but More Bite?

by Chimene Keitner

[Chimène Keitner is Professor of Law, University of California Hastings College of the Law.]

The Kiobel majority concludes that the plaintiffs in that case impermissibly sought to extend a U.S. cause of action to foreign conduct by foreign companies against foreign victims (even though the victims subsequently became lawful U.S. residents). It dismisses the historical practice of allowing suits for transitory torts (which I have explored in more detail here) by reasoning that the cause of action in ATS cases comes from U.S. law, not foreign or international law (the latter of which does not provide “causes of action” as such). As the first part of the majority’s opinion acknowledges, the presumption against extraterritoriality cannot apply in a literal fashion to the ATS, because the statute is “strictly jurisdictional.” The majority opinion deals with the hybrid quality of ATS claims (which translate certain clearly defined international norms into federal common law causes of action) by treating ATS claims like any other claim brought under a federal statute. This departs from the majority’s approach in Sosa, which took the more nuanced position that federal courts do not “lose all capacity to recognize enforceable international norms simply because the common law might lose some metaphysical cachet on the road to modern realism.” Under Kiobel, federal courts have not lost “all” such capacity, but they appear to have lost much of it, contrary to what the Sosa majority believed was the intention of the First Congress, and contrary to the (in my view) more conceptually defensible approach in Justice Breyer’s concurrence, which has also been endorsed by Anthony Colangelo and John Knox in this OJ symposium.

The majority’s “narrow approach” leaves a number of specific questions open, but it also resolves a few broader issues that are likely to arise in future cases. Under the majority’s reasoning, there should be no Article III problem with remaining ATS suits, because the ATS applies (and thus “arises under”) federal law. It follows that U.S. law will govern various aspects of the claim, including the standard for accomplice liability (i.e., knowledge), and the availability of corporate liability and punitive damages. In that sense, the Kiobel decision has left us with a geographically truncated, but perhaps substantively more robust, ATS. ATS claims (including those against foreign defendants that, in Justice Kennedy’s words, are “covered neither by the TVPA nor by the reasoning and holding of today’s case”) may be brought against individuals and against corporations, where there is a greater connection to the forum than the defendant’s “mere corporate presence” in the United States. Several such claims are currently making their way through the appellate courts.

Kiobel Roundtable: Who’s Afraid of Transitory Torts? Thoughts on Kiobel II

by Chimene Keitner

[Chimène I. Keitner, is a Visiting Professor of Law at the USC Gould School of Law and Professor of Law, University of California Hastings College of the Law.]

Personal jurisdiction ain’t what it used to be. As Justice Ginsburg noted (Tr. at 54), in the age of Goodyear Tire, multinational corporations can’t necessarily be sued everywhere for everything. But Shell’s message at oral argument on Monday was clear: we don’t want to rely on Goodyear Tire or on any other rule that gives a U.S. judge discretion over whether or not an ATS case goes forward. We want a categorical prohibition, period.

It’s fascinating listening to judges worry about the consequences of letting judges make decisions. Some of them seem downright determined to ensure their own irrelevance. They say: listen to Congress.

In this case, Congress spoke. It didn’t say very much. But Congress said that cases brought by aliens for international law violations should be brought in federal court, not state court. Shell wants to send them back to state court (Tr. at 32).

In Ackerson v. Erie R. Co., 31 N.J.L. 309, 310-11 (1865), the New Jersey Supreme Court stated that “[i]t is, in the international code, the well established doctrine, that every nation may rightfully exercise jurisdiction over all persons within its domains, with regard to matters purely personal,” and that transitory actions “are universally founded on the supposed violation of rights, which, in contemplation of law, have no locality.” This case didn’t come up in oral argument, but the language nicely captures the idea…

Parsing the Oral Arguments in Kiobel and Mohamad

by Chimene Keitner

[Chimène Keitner is an Associate Professor of Law at the University of California, Hastings College of the Law.]

The oral arguments in Kiobel and Mohamed will doubtless generate a new round of commentary on these cases. A “quick response” panel is planned for Thursday, followed by a Georgetown Law symposium on March 27 and an ASIL annual meeting panel on March 31.

Since I have written on the choice of law question under the ATS, I predictably agree with Kathleen Sullivan’s statement that “The crucial question that is at the threshold is which law determines whether corporations are liable.” (Tr. at 32.) However, I disagree with her argument that “corporate liability” is a “substantive norm,” and that the question of whether a natural person’s conduct can be attributed to a corporation for the purpose of imposing civil liability is necessarily governed by the same source of law as the standard for aiding and abetting, or the state action requirement addressed in footnote 20 of the Sosa opinion. Sullivan argued that all three of these questions (corporate liability, aiding and abetting, and state action) are “substantive questions answered by international law.” (Tr. at 37.) Elsewhere in the argument, she suggested that the proper source of law for theories of attribution, at least in a common law action, would be “the place of misconduct or the place where the corporation is headquartered.” (Tr. at 39.) Punitive damages, by contrast, she would categorize as a remedial matter properly governed by U.S. domestic law. (Tr. at 39.) Paul Hoffman argued on behalf of Petitioners that domestic law applies to the corporate liability question because “international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law” (Tr. at 6), and that in any event the substantive international legal norms at issue in this case do apply to corporations, as argued more fully by Opinio Juris contributor Oona Hathaway in an amicus brief.

In general, the Justices appeared to endorse a dichotomy between “substantive” rules and rules relating to “enforcement”—a dichotomy advocated by Ed Kneedler in his argument on behalf of the U.S. Government. Justice Kagan articulated this as the dichotomy between the law governing “who has an obligation” vs. “who can be sued.” (Tr. at 37-38.) As I suggested in my 2008 article, following Bill Casto, and in a shorter 2011 symposium piece,  it seems to me that the most coherent approach to the choice of law question distinguishes between “conduct-regulating” and “non-conduct-regulating” rules. Under the ATS, conduct-regulating norms are supplied by international law. Since entities inevitably act through natural persons, these norms govern the conduct of natural persons, but that does not mean that other organizations or entities cannot also bear the legal consequences of natural persons’ conduct in a variety of circumstances. (The reverse is also true—for example, foreign officials generally do not bear the legal consequences of commercial transactions that they enter into on behalf of the foreign state.) Paul Hoffman indicated some sympathy for this view in his final response to Justice Scalia’s question about what source of law he would apply to the standard for aiding and abetting liability (an issue not presented for review in this case), when he responded that “I think that—that aiding and abetting could be viewed as a conduct regulating norm, that it actually applies to the things that can be done to violate the norm. And therefore, international law would apply to that.” (Tr. at 56.) However, the same answer does not necessarily hold true for the corporate liability question presented in Kiobel, because rules of attribution are not conduct-regulating.

As a general matter, I abstain from making predictions in cases. However, in a slight break from my own tradition, I will hazard a guess that there will be at least one opinion supporting corporate liability (on the principle that corporations are routinely held liable for the torts of their agents), one opinion opposing corporate liability and also challenging the ATS’s grant of jurisdiction over extraterritorial conduct and over suits between aliens, and one opinion (perhaps a concurrence) opining on how ATS suits fit (or not) into the evolving global landscape of domestic adjudication of international law violations (whether these are denominated violations of international law, common law, or domestic statutes that codify international law norms).

Medellin’s Mischief, or Does International Law Stop at the Land’s Edge?

by Chimene Keitner

Hathaway, McElroy, and Solow offer an overview of attempts to enforce treaties directly in U.S. courts, as well as a typology of underappreciated modes of treaty enforcement, which they label indirect, defensive, and interpretive. In so doing, they enable us to better appreciate the ways in which courts engage with treaties, while at the same time reminding us that “the problem of international law enforcement is not simply one for the courts to solve” (106). They are to be commended for a piece that will help make the conversation about treaty enforcement better informed when it looks to the past, and more focused on concrete proposals when it looks to the future.

The article is in part motivated by the authors’ observation that courts have become less receptive to attempts by individuals to enforce treaties through private rights of action in the wake of Medellin (71). Although the authors believe that this reticence is based on a misreading of dicta from the Medellin decision (id.), they do not focus their energy on correcting this misinterpretation. Rather, they suggest possible alternative perspectives through which to view treaty enforcement by U.S. courts, and possible alternative mechanisms to bind the political branches to comply with international legal commitments.

Three observations might illuminate directions for future research. First, it is true that Sosa v. Alvarez-Machain focused on the law of nations prong of the Alien Tort Statute rather than its treaty prong, and so perhaps falls outside the scope of this particular analysis (77). It is also true that debates about the use of foreign and international sources in U.S constitutional interpretation do not involve treaty enforcement per se (90). However, to the extent the authors seek to explore “when international law can be used in U.S. courts and when it cannot” (52), a broader lens might reveal other interesting dynamics at work, such as those examined in David Sloss, Michael Ramsey, and William Dodge’s edited volume on International Law in the U.S. Supreme Court. If by “international law” the authors really do mean just treaties, it would be interesting to know whether this focus simply flows from the subject-matter of Medellin, or whether there is a deeper reason (other than, quite understandably, space constraints) for a focus on treaties to the exclusion of customary international law.

Sarei v. Rio Tinto: The Ninth Circuit Tackles the Alien Tort Statute (Again)

by Chimene Keitner

In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation. No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least one issue that the parties did not raise, reads like a virtual catalog of contested questions surrounding the interpretation and application of this 1789 provision from the First Judiciary Act. All this in the context of a lawsuit originally filed in the year 2000 against the Rio Tinto mining company for its alleged role in genocide, war crimes, crimes against humanity, and racial discrimination against residents of the island of Bougainville in Papua New Guinea.

I previously blogged on IntLawGrrls about an “emerging circuit split” in corporate ATS cases. This split is now manifest, which no doubt accounts at least in part for the Supreme Court’s decision to tackle the threshold question of corporate liability under the ATS in Kiobel (and the distinct question of whether liability under the Torture Victim Protection Act is limited to natural persons, presented by Mohamad v. Rajoub). The Ninth Circuit’s opinion is much more wide-ranging. On the question of whether corporations can ever be held liable under the ATS, seven out of eleven judges sided with Judge Leval’s concurrence in Kiobel, which answered this question in the affirmative (slip op. at 19339-41). The Ninth Circuit therefore joins the D.C. Circuit in Doe v. ExxonMobil, the Seventh Circuit in Flomo v. Firestone, and the Eleventh Circuit in Romero v. Drummond, in holding that corporations may be found liable under the ATS in appropriate circumstances. Although these circuit courts have reached the same result through different reasoning, I have argued here and more recently here that “the attribution of individual conduct to a corporate entity for the purpose of ascribing legal liability” under the ATS is properly governed by domestic law, meaning that it is somewhat beside the point in this context to ask whether “corporations” as such can or cannot violate international law.

As Trey Childress has indicated, the same Ninth Circuit majority also held in Sarei that the adjudication of transitory torts under the Alien Tort Statute does not violate a statutory presumption against extraterritoriality (slip op. at 19334-39) (or, I might add, international law constraints on the extraterritorial application of U.S. law, since the conduct-regulating norms being applied under the ATS come from international law). In addition, in response to an argument raised by the dissent, the majority found that claims relating to violations of international norms that meet the test of universal acceptance set forth in Sosa v. Alvarez-Machain “arise under” federal law for Article III purposes (slip op. at 19342-51). Finally, although the majority left open the question of whether knowingly as opposed to purposefully aiding and abetting an international law violation would give rise to liability under the ATS (slip op. at 19373), it held that at least purposeful aiding and abetting is actionable; Judges Pregerson and Rawlinson wrote separately in support of a knowledge standard (slip op. at 19384-89) and are (in my view) correct in pointing out that, even if one adopts the Rome Statute for the International Criminal Court as a guide to aiding and abetting liability under international law (which is questionable), the Rome Statute does not support a higher purpose standard in the context of aiding and abetting crimes committed by groups.

All in all, it promises to be an eventful Supreme Court term for those interested in international law in U.S. courts. In the meantime, upcoming events touching on these issues include a panel on emerging issues in ATS litigation at the ASIL mid-year meeting at UCLA on November 4; a discussion of transnational tort liability for multinational corporations in which Julian Ku and I will comment on a paper by Al Sykes at the Georgetown Law Journal’s Centennial Symposium on November 17; and the ASIL International Law in Domestic Courts Annual Interest Group Meeting at BYU Law School on December 16 (details to be posted online soon).

(Cross-posted at IntlawGrrls)

Why Has DSK Not Yet Asserted Immunity? Because He Can’t.

by Chimene Keitner

Many thanks to Duncan for his great post on Dominique Strauss-Kahn’s (DSK) potential immunity, and for inviting me to follow up. My short answer: status-based immunity (often referred to as “diplomatic immunity”) is not available. Conduct-based immunity (also called “official acts” or “functional” immunity) is not available either. Here’s why.

The only type of immunity that would benefit DSK would be status-based immunity; that is, immunity based on his position as executive head of the IMF. The BBC has quoted Jovan Kurbalija, the director of DiploFoundation, as saying that DSK might enjoy absolute immunity by virtue of his status as the executive head of an international organization under the 1947 Convention on the Privileges and Immunities of the Specialized Agencies. However, the United States is not a party to that treaty. This means that the IMF cannot invoke article 6(21) of that treaty, which provides that “the executive head of each specialized agency … shall be accorded in respect of himself, his spouse and minor children, the privileges and immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with international law.” In any event, as others have indicated, the IMF would not likely assert such immunity, particularly since article 6(22) of the same treaty provides that “[e]ach specialized agency shall have the right and duty to waive the immunity of any official in any case where, in its opinion, the immunity would impede the course of justice and can be waived without prejudice to the interests of the specialized agency.”

As Duncan points out, the governing statutory provision in the United States, 22 USC § 288d(b), does not provide for executive head immunity, and instead entitles international organizations to claim immunity for their officers and employees only for “acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees.” Because the United States is not party to the 1947 treaty, the only way the IMF could attempt to invoke status-based immunity would be by arguing that article 6(21) of the treaty represents customary international law, and that the omission of this provision in 22 USC § 288d(b) does not indicate a congressional intent to depart from that custom.

There is no doubt that subjecting DSK to prosecution will interfere with his ability to conduct business on behalf of the IMF, although an acting managing director stepped in upon news of his arrest. If the IMF were entitled to assert status-based immunity on DSK’s behalf, the IMF would have to weigh the impact on its own operations, among other factors, in deciding whether to assert or waive it. However, there does not appear to be any status-based immunity for the IMF to either assert or waive. In this sense, media headlines confirming that DSK does not have “diplomatic immunity” are unremarkable; the issue is whether or not the IMF could claim functional immunity on DSK’s behalf.

In order to claim functional immunity, the IMF would have to argue that alleged the attack fell within DSK’s functions as head of the IMF. Even if the IMF were paying for DSK’s $3,000 per night hotel room while he visited his daughter in NYC (or whatever he was doing there), it is difficult to see how DSK’s alleged conduct could benefit from any type of conduct-based immunity, which is modeled on consular immunity and requires a close nexus with the official’s job duties or at least the exercise of apparent (even if not actual) authority. Whether or not DSK was “in transit” to an IMF meeting, or even in New York on official IMF business, is irrelevant in this context. Interacting with a maid in a hotel room is not an official function, even if you are on a business trip. (I say “interacting with” rather than “attacking” because certain unlawful acts might still fall within the scope of conduct-based immunity, depending on the circumstances.) The absence of functional immunity was confirmed by IMF spokesman William Murray, who has indicated that DSK’s immunities “are limited and are not applicable to this case.”

The difference between the scope of status-based immunity and conduct-based immunity is significant. Status-based immunity is limited to a very narrow category of individuals, including sitting heads of state and diplomats, to preserve their ability to engage in international relations on behalf of the states they represent. The scope of conduct-based immunity is more limited, and thus more often contested. Last year, the Second Circuit held in Brzak v. United Nations, 597 F.3d 107 (2d Cir. 2010), cert denied 131 S. Ct. 151 (Oct. 4, 2010), that three former U.N. officials enjoyed functional immunity as a matter of treaty and statute for alleged sex discrimination in working conditions and workplace retaliation against the plaintiffs for pursuing a complaint. This holding was grounded in the observation that the suit was based on the defendants’ alleged “abuse of authority in the workplace” (as characterized by the district court) and “personnel management decisions falling within the ambit of the defendants’ professional responsibilities” (as characterized by the Second Circuit). Because there was no federal subject-matter jurisdiction over these claims, the Second Circuit did not reach the question of whether the plaintiff’s state tort law claim for battery (relating to an alleged improper touching during a 2003 meeting in Geneva) would fall within the scope of a former official’s functional immunity.

Under the current state of the law, it does not appear that the IMF has any grounds to assert immunity for DSK, even if it were inclined to do so (which it clearly is not). Moreover, thanks to Roman Polanski, DSK will have to spend at least some time at Riker’s Island. Is it possible that the whole affair is a set-up by DSK’s political opponents in France? Unless we see a plea deal, a New York jury will decide.

A Response to Milanovic and Verdier on Rights Beyond Borders

by Chimene Keitner

First and most importantly, my sincere thanks to Marko Milanovic and Pierre-Hugues Verdier for taking the time to offer such careful and insightful reactions to my work. I’m extremely fortunate to have them as “virtual” colleagues, and I appreciate the efforts of the YJIL editors and folks at Opinio Juris in creating a forum for this online exchange.

As Marko and Pierre-Hugues note, I focus on the interpretation and application of constitutional and quasi-constitutional rights — what I call “domestic rights regimes” — by domestic courts. This is both because the domestic rights story had not yet been told in comparative perspective, and because there are qualitative differences in how judges reason about domestic, as opposed to international, rights.

As Marko rightly notes, and as I discuss in the article (pp. 96-98), the case of the United Kingdom is peculiar insofar as the U.K. Human Rights Act is intended to give effect to protections under the European Convention on Human Rights. In some sense, then, rights under the HRA are hybrid, rather than purely domestic. Marko expresses the view that “citizenship shouldn’t have any relevance whatsoever for the extraterritorial application of human rights, whether before a British court or in Strasbourg.” To the extent that one views a constitution or domestic rights regime as protecting certain fundamental human rights, I would certainly agree. However, as Marko points out, I take the view that there are certain differences between constitutional rights and human rights, grounded in the idea of a constitution as a “compact.” I would take a more expansive view of the beneficiaries of that compact in many cases, and I would also increase the ability of domestic courts to enforce a clearly defined set of fundamental human rights, based on international instruments (p. 112). But I do stop short of advocating what I call a “conscience” approach to constitutional rights, even though this has generated pushback from some of my colleagues who find the conscience model more appealing.

Marko also rightly points out that “It’s one thing to identify what judges say they do, another to identify why they’re actually doing it.” This is a concern that I lived with for much of this project, which consists largely of the exegesis of case law. That said, I don’t believe (and I don’t take Marko as suggesting) that judicial opinions are purely epiphenomenal. Particularly in common-law systems such as those examined in the article, patterns of judicial reasoning foster path-dependence by shaping which arguments will be recognized as legitimate and persuasive. It is these patterns that I characterize under the rubrics of country, compact, and conscience. At the same time, I concede that extrajudicial factors will often influence outcomes, and I agree with Marko that judges are to a large extent engaged in a balancing act between judicial intervention and restraint (e.g., pp. 110-111).

Pierre-Hugues appropriately points out that recent case law involving the extraterritorial application of domestic rights has often involved an overlay of the potential applicability of the laws of war, as well as international human rights obligations. He notes that the human rights exception in Canadian jurisprudence (under which the Canadian Charter applies extraterritorially if Canadian agents violate an individual’s fundamental human rights) must stem from an assumption that “states cannot effectively ensure respect for their human rights obligations abroad unless constitutional rights also extend extraterritorially.” He questions this assumption, and suggests that some extraterritorial regulation of state agent conduct could be done for example by statute, rather than through constitutional means. This raises important and interesting questions of institutional competence and, as Pierre-Hugues indicates, “self-compliance” by states (which I consider briefly, e.g., p. 111).

To a large extent, delineating the extraterritorial reach of domestic rights also defines the role of domestic courts in enforcing those rights against the political branches. Talking about the reach of rights thus naturally leads to conversations about the role of judges. As I suggest in the article, declining to extend rights extraterritorially in the cases I discuss often seems to have more to do with deference to the domestic political branches than it does with deference to foreign sovereigns. Theorizing extraterritoriality in this context thus has more in common with other forms of constitutional theorizing than is sometimes acknowledged. As I suggested on a “Hot Topics” panel discussing “The Cutting Edge of Extraterritoriality” at the AALS Annual Meeting in January, cases involving the extraterritorial application of the U.S. Constitution in fact constitute at least three types of internal boundaries:

(1) the boundary between executive and judicial roles;
(2) the boundary between law and policy; and
(3) the boundary between legislative and judicial remedies.

In some ways, then, the “borders” in the title of my YJIL article are primarily, but not exclusively, territorial. I hope that my analysis will encourage others to continue exploring and interrogating how these borders are constructed, and with what implications – both for individuals affected by extraterritorial state action, and for states grappling with difficult policy choices and demands from competing constituencies.

Rights Beyond Borders

by Chimene Keitner

[Chimène I. Keitner, Associate Professor of Law, University of California, Hastings College of the Law; Co-Chair, American Society of International Law Annual Meeting]

United States courts are not alone in confronting the question of whether certain domestic rights extend beyond the country’s territorial borders. Yet, the field of comparative constitutional law has largely ignored the question of extraterritoriality. My Article, Rights Beyond Borders, addresses that gap by examining recent case law from the United States, Canada, and the United Kingdom—three common law countries whose courts have grappled with claims by individuals seeking legal redress for harm that occurred beyond national borders, based on domestic rights guarantees.

The Article begins by identifying three basic ways of thinking about rights beyond borders, which I call country, compact, and conscience. Country-based reasoning takes a strictly territorial approach to regulating the government’s actions outside the national territory, even vis-à-vis citizens. Compact-based reasoning focuses on the entitlement of a given individual to assert rights against the government based on his or her status as one of the governed, regardless of territorial location. Conscience-based reasoning holds that a government should act the same way beyond its borders as it does within them. At the micro level, emphasizing one of these approaches over another can determine whether or not a given individual can successfully invoke domestic rights provisions as a basis for seeking relief from a domestic court. At the macro level, emphasizing one approach over another can both signal and reinforce a particular conception of political ordering based on territory (country), membership (compact), or a set of fundamental values (conscience).

This tripartite framework provides a vocabulary for identifying and describing certain patterns of reasoning in judicial decisions. The jurisprudence canvassed in detail in this Article (which I will not replicate here) includes U.S. cases culminating in Boumediene v. Bush and Al-Maqaleh v. Gates; Canadian cases including R. v. Hape and R. v. Khadr, as well as cases relating to extradition to face the death penalty; and U.K. cases including Al-Skeini v. Secretary of State for Defence, Al-Saadoon v. Secretary of State for Defence, and Smith v. Secretary of State for Defence. The analysis reveals several trends, notably:

(1) the persistence of country-based reasoning in all three jurisdictions;

(2) the presence of compact-based reasoning in U.S. jurisprudence, but its relative absence from Canadian and U.K. decisions; and

(3) the lack of judicial adoption of conscience-based reasoning, except as a backstop to perceived violations of the political branches of domestic separation of powers principles and certain fundamental human rights.

On a descriptive level, domestic courts have generally been more circumspect about curbing the activities of the political branches when they act abroad than at home. Whether or not one thinks such circumspection is problematic depends on one’s degree of confidence in the political branches to conform their own activities to applicable legal standards.

As a prescriptive matter, I suggest that U.S. Supreme Court should give greater weight to the exclusive control of U.S. authorities over U.S. military bases, even within foreign territory, when it considers the extraterritorial application of certain constitutional constraints to the activities of U.S. agents. I suggest that the Canadian Supreme Court should revisit Hape (which adopted a country approach, with an exception based on international human rights) in light of its extradition jurisprudence, and thus anchor judicially enforceable constraints on the activities of Canadian agents more firmly in the Canadian Charter of Rights and Freedoms, especially when those agents act vis-à-vis Canadian citizens. Finally, I suggest that the U.K. Supreme Court should incorporate elements of compact-based reasoning into its analysis of jurisdiction under the U.K. Human Rights Act, especially where the claimants are U.K. citizens. That said, I would stop short of endorsing a conscience approach that is not sensitive to the exigencies of conducting extraterritorial law enforcement or military operations, or that subjects the political branches to excessive legal uncertainty. In an ideal world, rather than using international rights violations as a trigger for the application of domestic law (as Canada currently does), I would strengthen the ability of domestic courts to enforce a limited set of clearly defined fundamental human rights guarantees, even when the political branches act beyond national borders.

In contrast to domestic rights, which remain tethered to ideas of territoriality (country) and membership (compact), international human rights seem particularly well suited to a conscience approach, and thus to extraterritorial application. This is because they are based explicitly on the intrinsic dignity and worth of individual human beings regardless of geographic location or national membership. As a predictive matter, however, it seems likely that many of the practical considerations that drive restrictive interpretations of domestic rights would also tend to limit the interpretation and application of international rights by domestic courts, notwithstanding the relatively broader interpretations adopted by international bodies. Unless and until international bodies face the same political and institutional constraints as domestic courts, we might expect their (generally unenforceable) interpretations to remain relatively more expansive, and the (generally enforceable) pronouncements of domestic courts to remain relatively more narrow. That said, if domestic courts focus excessively on the constraining role of territorial borders, this could have the paradoxical effect of fostering increased reliance on international, rather than domestic, rights in legal and political discourse and, eventually, in legal and political institutions.

Samantar Insta-Symposium: Recognizing Personal Responsibility

by Chimene Keitner

[In our continuing discussion of Samantar, we are very pleased to share the thoughts of Professor Chimene Keitner, of U.C. Hastings College of Law.  More comments to come soon.]

As counsel for Professors of Public International Law and Comparative Law as amici curiae in support of Respondents, I obviously agree with the Court’s disposition. As Opinio Juris readers know courtesy of Julian, I recently published a brief essay in YJIL Online that argues against reading the FSIA to encompass individuals as a matter of logic, policy, and international law. In my view, it is entirely appropriate that the Court read the FSIA as it was written, and left it to the district court to address Samantar’s claim of common law immunity in the first instance.

In arguing for immunity, Samantar seemed to take for granted that, if the FSIA applied to individuals, he would enjoy immunity for torture and extrajudicial killing. He argued that, both under the common law and the FSIA, “individual immunity … was coextensive with the law of state immunity and always immunized a foreign official for acts taken on behalf of the foreign state” (slip op. at 14). As a historical matter, this is demonstrably false. The Court correctly observed that “the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests” (slip op. at 15).

I do not think it is a fair criticism of the Court’s decision to say that it will invite further litigation because, even if the FSIA applied to individuals, one would still have to decide when to treat an individual as the foreign state. The only decision that would have precluded further litigation would have been one that ignored the long-standing principle that individuals can be personally responsible, both civilly and criminally, for certain conduct that is also attributable to the state.

I agree that Samantar will not open the floodgates to unrestricted ATS and TVPA cases against current and former officials. Status-based immunities shield many current officials from suit in U.S. court. Suits will be dismissed if the state is an indispensable party under Republic of Philippines v. Pimentel, 553 U.S. 851 (2008), or if the state is the real party in interest under the line of cases I discuss in the amicus brief (Section II.B). It is not contrary to a textual analysis of the FSIA to acknowledge that certain cases nominally brought against individuals will be dismissed on common law immunity grounds, such as those involving claims for breach of contract or entitlement to state funds.

What struck me most as I was doing research for the amicus brief, and that has led me to continue researching historical practice in this area, is the relative lack of scholarly or judicial attention to the contours of conduct-based immunity, as opposed to status-based immunity (or “position-based individual immunities,” slip op. at 13 n.12). I see it as a strength, rather than a weakness, that the Court abstains from pronouncing prematurely on this question. For example, my research indicates that the Solicitor General overstates the case for absolute executive deference to determinations of conduct-based (as opposed to status-based) immunity in its amicus brief by neglecting U.S. practice before the 1940s. I also take issue with characterizations of early U.S. practice and customary international law that suggest immunity is required for all conduct that involves state action, regardless of the nature of that conduct, as discussed in the amicus brief.

Kentucky v. Graham, 473 U.S. 159 (1985), does not suggest otherwise. The quoted language refers to a suit brought against an official in his or her official capacity, which by definition imposes direct financial liability on the state itself. It is well established in U.S. law that individual officials may be sued in their personal capacity for certain conduct performed under color of law. As the Supreme Court emphasized in Hafer v. Melo, which followed Kentucky v. Graham, “[p]ersonal-capacity suits, on the other hand, seek to impose individual liability upon a government officer for actions taken under color of state law.” 502 U.S. 21, 25 (1991). The Court futher observed: “The requirement of action under color of state law means that Hafer may be liable for  discharging respondents precisely because of her authority as auditor general. We cannot accept the novel proposition that this same official authority insulates Hafer from suit.” Id. at 27-28. The Court’s citation to Kentucky v. Graham in Samantar suggests that it finds this domestic law reasoning relevant to determining when a foreign state is the real party in interest. Moreover, as I discuss in the amicus brief and the YJIL Online essay, other courts have also focused on the nature of the relief requested to differentiate between personal capacity and official capacity suits.

This does not mean that, as soon as an official leaves office, he or she will face the prospect of a trial in U.S. court for any controversial decision taken on behalf of the state. Multiple filters, including status-based immunities, the requirement of personal jurisdiction, the act of state doctrine, the political question doctrine, the exhaustion requirement in the Torture Victim Protection Act, the limited class of actionable violations under the Alien Tort Statute as interpreted by Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and others limit the number of cases that will actually go forward. To the extent that some continue to object to the use of U.S. courts to impose personal responsibility on individuals who commit serious international law violations, any filters that allow even a few cases to proceed will inevitably seem insufficient. However, re-inventing the law of immunity to create a categorical barrier to such cases is not warranted. In addition to misreading prior case law, categorical immunity would undermine Congress’s provision of civil remedies (e.g., in the Torture Victim Protection Act) and criminal penalties (e.g., in the Torture Convention Implementation Act and the Genocide Accountability Act) against individuals who are responsible for certain core violations. Individuals may be entitled to claim immunity in certain circumstances, but such claims must go beyond simply asserting that they acted on behalf of the state.

Square Pegs and Round Holes: Individuals and the FSIA

by Chimene Keitner

As Opinio Juris readers know, the U.S. Supreme Court heard arguments on Wednesday in the case of Samantar v. Yousuf (briefs and transcript available here), which asks the Court to interpret the 1976 Foreign Sovereign Immunities Act. Commentators, including OJ’s own Julian Ku, have reported that the Justices seemed “unconvinced by all sides” (Julian’s words) and that none of the lawyers “seemed to make a convincing case” (according to Lyle Denniston over at ScotusBlog). The Justices did not seem unconvinced about what the FSIA actually says. But they seemed to wish that it provided more guidance on a subject about which it is silent, namely, the various immunities that may be available to former foreign officials such as Samantar. The question now is whether they will interpret the FSIA as it is (leaving the question of individual immunities to be worked out by the lower courts in the first instance), or whether they will instead interpret the statute as they would like it to be.

When Congress passed the FSIA in 1976, it had a particular problem in front of it: the diplomatic pressures that were being brought to bear on the Executive Branch by foreign states who wanted the U.S. State Department to conclude that a given action was based upon a commercial activity, and that the foreign state or state entity was therefore immune from suit under the terms of the 1952 Tate Letter. But this suit for torture and extrajudicial killing was brought against Samantar, a former Somali official who now lives in Virginia, not against Somalia itself. As Justice Kennedy interjected after Samantar’s lawyer Shay Dvoretzky had barely introduced himself, “I’m having difficulty seeing how the issues as presented in the brief really resolve very much.” That is because, with respect to suits against individuals, the FSIA doesn’t resolve very much.

Does that mean that plaintiffs can simply circumvent state immunity by naming individuals as defendants? No. In certain cases, suits against individuals may well be the functional equivalent of suits against the state, in which case, as Justice Ginsburg emphasized, “[w]hether it’s injunctive relief or money relief, if the relief is against the state, obviously, you can’t dodge it by naming the officer.” But (again in Justice Ginsburg’s words) “this is a case seeking money out of the pocket of Samantar and no money from the treasury of Somalia.” Even though states necessarily act through individuals, individuals can be held accountable for their acts without violating the immunity of states for those same acts. (If a concern arises that adjudicating a particular claim would require invalidating the act of a foreign sovereign taken within its own territory, that can be resolved under the Act of State doctrine, as Justice Ginsburg and Justice Breyer emphasized at oral argument.) It would be bizarre to suggest that a U.S. court couldn’t impose consequences on an individual such as Charles “Chuckie” Taylor Jr. by sentencing him to prison for torture committed in Liberia just because Liberia itself would enjoy immunity for torture under the FSIA. The same is true of consequences in the form of civil remedies….

More on Eisenstrager

by Chimene Keitner

After posting my initial comments, I remained troubled by Julian’s criticism of the majority’s treatment of Johnson v. Eisenstrager. I’d like to offer a few more reflections on that decision here.

The Eisenstrager opinion was certainly based largely on territoriality and citizenship, as Julian points out. However, practical considerations were not irrelevant to the Eisenstrager majority’s decision, or else the majority would not have mentioned them. Although Justice Scalia characterizes the practical considerations raised in Eisenstrager as support for the majority’s holding, rather than part of the holding itself, this seems a difficult distinction to draw with confidence in reading an opinion that was clearly animated by many concerns.

The Boumediene majority explicitly indicates that its functional reading of Eisenstrager is designed to reconcile Eisenstrager with the approach of the Insular Cases and with Reid v. Covert (an explanation that Justice Scalia rejects). So, although Julian is correct that Eisenstrager certainly does not tell us to look only at function, the Boumediene majority is equally correct that Eisenstrager does not tell us to look only at form.

Even to the extent that Eisenstrager does look at “form” (citizenship status plus absence of de jure sovereignty), it is not on all fours with Boumediene because, as the majority points out, the Boumediene petitioners “are foreign nationals, but none is a citizen of a nation now at war with the United States.” The Eisenstrager majority’s opinion is inscribed in, and inseparable from, the traditional statist paradigm in which an individual’s legal standing is determined with reference to his or her country of citizenship, a fortiori in times of war. For example:

- “our law does not abolish inherent distinctions recognized throughout the civilized world between … aliens of friendly and of enemy allegiance”

- “The security and protection enjoyed while the nation of [the alien's] allegiance remains in amity with the United States are greatly impaired when his nation takes up arms against us.”

- “The alien enemy is bound by an allegiance which commits him to lose no opportunity to forward the cause of our enemy; hence the United States, assuming him to be faithful to his allegiance, regards him as part of the enemy resources. It therefore takes measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.”

- “The essential pattern for seasonable Executive constraint of enemy aliens [has been laid down] not on the basis of individual prepossessions for their native land but on the basis of political and legal relations to the enemy government…”

The above quotations make clear the importance of the Eisenstrager petitioners’ enemy alien status to the majority’s decision-with an emphasis on enemy, not just alien. The Eisenstrager majority accepts the assumption that a given individual is “faithful to his allegiance,” and that it is therefore appropriate to take “measures to disable him from commission of hostile acts imputed as his intention because they are a duty to his sovereign.” Based on this assumption, and buttressed by the U.S. military tribunal’s conviction of the petitioners for providing intelligence to the Japanese forces in China, the majority (in an early articulation of the concept of lawfare) refuses to place “the litigation weapon in unrestrained enemy hands.”

Justice Scalia’s dissent in Boumediene adopts a monolithic notion of “the enemy” that might be appropriate, if not descriptively accurate, in the context of a war between states. It is neither appropriate nor accurate here. Fighting “the enemy, in Afghanistan and Iraq,” which is how Justice Scalia characterizes the United States’s current military engagement, is not the same thing as being at war with Afghanistan and Iraq. According to lists compiled by the Washington Post, citizens of almost 50 countries have been detained at Guantanamo. Certainly, the Eisenstrager majority would have balked at the notion that the United States could “impute” the “commission of hostile acts” as the intention of each of these individuals “because they are a duty to his sovereign.” Precisely because that is not what the United States is doing here, the Eisenstrager rationale cannot be imported wholesale to resolve the Boumediene dilemma.

Whatever the merits or failings of the ascriptive allegiance approach in Eisenstrager, it does not transform the Guantanamo detainees into enemy aliens. And, even if it remains binding precedent, it does not dictate that alien detainees can never seek review of their extraterritorial detention in federal court.