Author Archive for
William S. Dodge

Guest Post: Is the Alien Tort Statute Headed Back to the Supreme Court?

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Kiobel v. Royal Dutch Petroleum Co., the U.S. Supreme Court held that the cause of action for human rights suits under the Alien Tort Statute (ATS) did not reach claims against a foreign corporation if all the relevant conduct occurred abroad. Lower courts have struggled with how to apply Kiobel to cases involving American corporations and conduct in the United States. On Friday, the second anniversary of the Kiobel decision, the Justices are scheduled to discuss the petition for review in Cardona v. Chiquita Brands International, Inc., a case that would allow them to provide further guidance in such cases.

Kiobel was something of an outlier—a class action against a foreign parent corporation (Royal Dutch Shell) based entirely on its foreign subsidiary’s activities in a foreign country (Nigeria), in which the foreign parent’s home countries (the Netherlands and the United Kingdom) objected that their own courts were more appropriate forums for the plaintiffs’ claims. The Supreme Court held that the principles underlying the presumption against extraterritoriality limit the causes of action that may be brought under the ATS, but it did not close the door to corporate suits entirely. In a cryptic final paragraph, Chief Justice Roberts wrote:

On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

But what if some of the relevant conduct took place inside the United States? The Court majority plainly did not adopt the position of Justice Alito’s concurring opinion that the international law violation itself must occur in the United States. And what if the corporate defendant were not just “present” in the United States (as foreign corporations are considered to be for jurisdictional purposes) but actually had U.S. nationality?

Justice Breyer (whose concurring opinion was joined by Justices Ginsburg, Sotomayor, and Kagan) thought the ATS cause of action should cover claims against U.S. nationals and claims based on conduct in the United States. Justice Kennedy, who provided the crucial fifth vote for the majority opinion, did not tip his hand, but he emphasized in his own concurring opinion that the decision “leave[s] open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”

Lower courts are divided over how to answer these questions. The Second Circuit has been the most restrictive. It has held that the U.S. nationality of the defendant is simply irrelevant and that the alleged conduct in the United States must itself constitute a violation of the law of nations (although significantly the Second Circuit recognizes that the law of nations violation in the United States could consist of aiding and abetting a human right violation abroad). See Mastafa v. Chevron Corp., 770 F.3d 170, 187-89 (2d Cir. 2014). The Second Circuit also continues to hold that suits against corporations cannot be brought under the ATS at all because the law of nations does not recognize corporate liability. See Chowdury v. World Bangladesh Holding Ltd, 746 F.3d 42, 49 n.6 (2d Cir. 2013).

Other circuits have concluded that the U.S. nationality of a corporation is relevant in recognizing a cause of action under the ATS but not sufficient by itself. See Doe v. Drummond Co., 2015 WL 1323122, at *14 (11th Cir. Mar. 25, 2015); Mujica v. Airscan Inc., 771 F.3d 580, 594 (9th Cir. 2014); Al-Shimari v. CACI Premier Technology, Inc., 758 F.3d 516, 527 (4th Cir. 2014). None have held, like the Second Circuit, that the international law violation itself must occur in the United States. And one has expressly reaffirmed its prior holding—again, contrary to the Second Circuit—that corporations may be sued under the ATS. See Doe v. Nestle USA, Inc., 766 F.3d 1013, 1022 (9th Cir. 2014); see also Doe v. Exxon Mobil Corp., 654 F.3d 11, 40-57 (D.C. Cir. 2011) (recognizing corporate liability); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013, 1017-21 (7th Cir. 2011) (same).

The petition the Justices are planning to discuss on Friday has facts at the other end of the spectrum from Kiobel. The defendant corporations are both U.S. companies. They allegedly approved payments from their offices in the United States to the terrorist organization Autodefensas Unidas de Colombia (AUC) and facilitated shipments of weapons and ammunition with the purpose of aiding and abetting extrajudicial killings to suppress labor activism and local competition. Although the case is before the Supreme Court on a motion to dismiss, there is no dispute that the alleged payments occurred. In a criminal prosecution brought by the United States, Chiquita pleaded guilty to making illegal payments to the AUC. A divided panel of the Eleventh Circuit concluded in Cardona that all the relevant conduct occurred abroad, but without bothering to explain why the conduct alleged to have occurred in the United States was not relevant.

The facts alleged in Cardona certainly seem sufficient to recognize a cause of action under the criteria set forth in Justice Breyer’s concurring opinion. Four Justices joined that opinion, and it takes only four votes to grant cert. If those Justices think the facts in Cardona are sufficiently egregious to persuade Justice Kennedy that an ATS cause of action against U.S. corporations should exist in at least some circumstances, they could well vote to hear the case.

Guest Post: Samantar and the Perils of Executive Discretion

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On Monday, the Solicitor General responded to the Supreme Court’s call for his views in Samantar v. Yousuf, a case raising questions of foreign official immunity. After significant diplomatic efforts to determine the official position of the Somali Government (see below), the State Department decided to stand by its prior determination that Samantar was not immune from the jurisdiction of U.S. courts in a case that found him liable for torture and extrajudicial killing. Although the Solicitor General disagrees with the reasoning of the decision below, the State Department’s decision not to alter its immunity determination clearly makes the case uncertworthy. “[B]ecause the court of appeals’ judgment . . . is consistent with the Executive Branch’s determination that petitioner is not immune,” the U.S. brief notes, “this Court should not grant review simply to correct the erroneous reasoning in the Fourth Circuit’s opinion” (p. 23).

Still, according to the Solicitor General, the Fourth Circuit erred in two respects. First, it gave the State Department’s determination of conduct-based immunity only “substantial weight” rather than treating that determination as binding on the court. Second, it announced “a new categorical judicial exception to conduct-based immunity for cases involving alleged violations of jus cogens norms” (p. 12). With respect to the second point, I have previously explained that the Fourth Circuit did not create an “exception” to an existing immunity but rather, quite properly, addressed the question whether torture and extrajudicial killing can be “official acts” to which conduct-based immunity attaches in the first place. Nor is the Fourth Circuit’s position “new,” having been the consistent position of U.S. courts of appeals in human rights cases for at least twenty years. See, e.g., Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (discussing prior cases and noting that “officials receive no immunity for acts that violate international jus cogens human rights norms (which by definition are not legally authorized acts)”).

But what of the Solicitor General’s first argument that State Department determinations with respect to foreign official immunity are binding on the courts? Ingrid Wuerth has argued persuasively that the executive branch lacks independent constitutional authority to make rules of foreign official immunity. As Chief Justice Roberts reiterated in Medellin v. Texas, “‘the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.’” 552 U.S. 491, 526-27 (2008) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952)). Whatever legal force of the State Department’s immunity determinations may have depends entirely on a federal common law rule created by the Supreme Court. Prior to 1938, federal courts did not defer to executive branch determinations of immunity. See, e.g., Berizzi Bros. Co. v. The Pesaro, 271 U.S. 562 (1926). In a series of cases beginning in 1938, the Supreme Court established a rule of federal common law delegating authority over immunity determinations to the State Department. See Compania Espanola de Navegacion Maritima, S.A. v. The Navemar, 303 U.S. 68 (1938); Ex Parte Peru, 318 U.S. 578 (1943); Republic of Mexico v. Hoffman, 324 U.S. 30 (1945). But the discretion the Supreme Court has given as a matter of federal common law, the Supreme Court may also take away. And as Wuerth and Harlan Cohen have pointed out, the current Supreme Court is not very deferential to the executive on questions of foreign affairs.

The U.S. brief notes that foreign official immunity, like foreign state immunity, rests on “considerations of comity” (p. 17). But as I explain in a draft paper, the notion that questions of comity must be left to the executive branch is a myth. Indeed, the State Department’s experience with determinations of foreign state immunity in the decades prior to passage of the 1976 Foreign Sovereign Immunities Act (FSIA) shows what harm executive discretion can do not only to the rule of law but also to U.S. foreign relations. When the State Department had the power to determine the immunity of foreign states from suit in U.S. courts, foreign states naturally lobbied the Department for immunity. Moreover, despite the State Department’s best efforts to apply the restrictive theory of foreign sovereign immunity faithfully, foreign governments tended to view the denial of immunity as a political rather than a legal decision. It was precisely to avoid this negative impact on U.S. foreign relations that the executive branch asked Congress to remove its authority by passing the FSIA. “The transfer of this function to the courts,” the Secretary of State and Attorney General explained in their letter of transmittal to Congress, would “free the Department from pressures by foreign states to suggest immunity and from any adverse consequences resulting from the unwillingness of the Department to suggest immunity.”

As John Bellinger predicted, the same dynamic is now playing itself out in the context of foreign official immunity. When the Samantar case first came before the Supreme Court in 2010, the U.S. amicus brief (pp. 24-26) identified a number of factors the State Department might consider in making an immunity determination. On remand, the State Department’s 2011 determination emphasized two of particular relevance to Samantar’s case: (1) the lack of a recognized government in Somalia; and (2) the fact that the defendant was a U.S. resident who “ordinarily should be subject to the jurisdiction of our courts, particularly when sued by U.S. residents.” In January 2013, the United States recognized the Government of Somalia. As recounted in the U.S. brief filed Monday (pp. 7-8), there followed a confusing series of letters from different members of the Somali Government alternately purporting to assert and to waive Samantar’s immunity. In January 2014, the Solicitor General told the Supreme Court that “further diplomatic discussions” were needed “to clarify the position of the Government of Somalia on the immunity issue.” By April, the State Department had still not been able to have the necessary discussions because of the security situation in Somalia. In July, the Department was finally able to meet with the proper Somali official, who indicated that Somalia would not seek immunity for Samantar, but the Department received no diplomatic correspondence to confirm this position. So on December 23, 2014, the State Department sent Somalia a formal communication, relating its understanding that Somalia did not wish to seek immunity for Samantar and asking Somalia to respond by January 23, 2015 if that understanding were in error. Having received no response from Somalia, the State Department reaffirmed its determination that Samantar was not immune in a letter to the Solicitor General dated January 28, 2015. See U.S. brief (pp. 10-11).

Ironically, the State Department invested all this diplomatic energy with respect to a factor that is not even dispositive in its analysis. Although a foreign government may waive the immunity of its current or former officials, the United States does not treat a foreign government’s assertion of immunity as binding. See, e.g., Statement of Interest and Suggestion of Immunity at 9, Rosenberg v. Lashkar-e-Taiba (“Notwithstanding such a request, however, the Department of State could determine that a foreign official is not entitled to immunity.”). As I suggested in an earlier post, I find it hard to believe that the State Department would have changed its immunity determination with respect to Samantar, who has admitted liability for torture and extrajudicial killing, even if Somalia had sought immunity on his behalf. The State Department should be commended for its diligent efforts to clarify Somalia’s position in this case. But those efforts are likely to have two unintended and harmful effects: (1) to raise the profile of the case in U.S.-Somali relations; and (2) to suggest to Somalia and other governments that they can influence State Department’s determinations in future cases. As was true with foreign state immunity four decades ago, executive discretion over foreign official immunity is proving to be a poisoned chalice.

The better course is the one taken by the Fourth Circuit—to allow federal courts to decide the immunity of foreign officials under federal common law, including the established rule that jus cogens violations are not “official acts” for purposes of conduct-based immunity. Foreign governments might not like the results in every case, but they would not be able to blame the executive branch for the outcomes. Of course, conclusory allegations of a jus cogens violations would not be enough to allow a suit against a foreign official to go forward. Under Ashcroft v. Iqbal, 556 U.S. 662 (2009), the plaintiff must plead facts sufficient to make a facially plausible claim that the defendant is liable, which in the case of a foreign official may include that defendant’s lack of immunity from suit. If the relevant facts are in dispute, the trial court may allow jurisdictional discovery limited to the question of immunity, as courts currently do with questions of state immunity under the FSIA. See, e.g., Arriba Ltd. v. Petroleos Mexicanos, 962 F.2d 528, 534 (5th Cir. 1992) (noting that jurisdictional discovery “should be ordered circumspectly and only to verify allegations of specific facts crucial to an immunity determination.”). At present, the State Department plays this screening role in cases against foreign officials, suggesting immunity if the complaint does not allege facts establishing a lack of immunity with sufficient specificity. But surely courts are better equipped for the task.

I expect the Supreme Court to deny cert in Samantar. But the uncomfortable position of the State Department in these cases—and the corresponding harm to U.S. foreign relations—will continue until Congress or the courts make clear that the executive branch does not have the final word on determinations of foreign official immunity.

Guest Post: A CISG Question

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law at the University of California, Hastings College of the Law.]

The U.N. Convention on Contracts for the International Sale of Goods (CISG) sets forth substantive rules of contract law to govern contracts for the sale of goods between parties who have their places of business in different CISG countries. See Art. 1. The United States is one of 83 countries that have joined the CISG. According to figures from the Census Bureau, U.S. trade in goods with CISG countries exceeded $2.4 trillion in 2013, which means a lot of contracts to which the CISG potentially applies. (I have written about the need for American contracts students to have some exposure to the CISG here.) It is possible for contractual parties to exclude application of the CISG (see Art. 6), but they must do so expressly. A choice of law clause stating that the contract is governed by “the laws of California,” for example, would not be sufficient. See, e.g., Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, 1149-50 (N.D. Cal. 2001).

The CISG entered into force with respect to Brazil on April 1, 2014. But treaties do not become effective as domestic law in Brazil until approved by executive decree, which did not happen until October 16, 2014. See Decree No. 8.327. Trade in goods between the United States and Brazil averages $6 billion a month, so a lot of contracts for the sale of goods between Brazilian companies and U.S. companies were presumably entered between April 1 and October 16.

What law governs those contracts (or more precisely, those that did not effectively exclude application of the CISG)? It may well depend on the forum in which suit is brought. My guess is that a Brazilian court would not apply the CISG to these contracts because it was not effective as a matter of Brazilian law. But I expect that a U.S. court would apply the CISG to these contracts because the treaty was in force between Brazil and the United States as a matter of international law and binding on U.S. courts under the Supremacy Clause of the U.S. Constitution. If the parties have chosen arbitration, the answer should turn on the parties’ (presumed) intent, but that may be hard to fathom in a case like this. In any event, this situation presents a good example of the need for countries to make sure that treaties to which they are bound internationally are properly implemented in their domestic laws.

Guest Post: Dodge–The Presumption Against Extraterritoriality Does Not Apply to Jurisdictional Statutes

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs of the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Supreme Court held in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013), that the presumption against extraterritoriality applies to suits brought under the Alien Tort Statute (ATS). In a recent post, Roger Alford asks whether a federal court sitting in diversity or a state court of general jurisdiction may still hear the federal common law claims for torts in violation of the law of nations that the Court recognized in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). The answer depends on whether Kiobel applied the presumption against extraterritoriality to the ATS itself or to Sosa’s federal common law cause of action.

As a general matter, the presumption against extraterritoriality does not apply to jurisdictional statutes. Putting Kiobel to one side for the moment, I know of only two cases in which the Supreme Court has used the presumption to interpret statutes that might be characterized as jurisdictional. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440-41 (1989), the Court applied the presumption to the Foreign Sovereign Immunities Act, and in Smith v. United States, 507 U.S. 197, 203-04 (1993), it applied the presumption to the Federal Tort Claims Act. But both the FSIA and the FTCA codify rules of immunity, which the Court has characterized as substantive, and so neither statute is purely jurisdictional. No one suggests that the presumption against extraterritoriality limits 28 U.S.C. § 1331 (the federal question statute), or 28 U.S.C. § 1332 (the diversity and alienage jurisdiction statute), or 18 U.S.C. § 3231 (the subject matter jurisdiction statute for federal criminal offenses). Yet none of these jurisdictional provisions contain the clear indication of extraterritoriality that would be necessary to rebut the presumption. To take one example, if the presumption against extraterritoriality were applied to 18 U.S.C. § 3231, a federal court would have to dismiss for lack of subject matter jurisdiction a federal prosecution for bombing U.S. government facilities abroad despite the fact that the substantive criminal statute (18 U.S.C. § 2332f) expressly applies when “the offense takes place outside the United States.” That makes no sense, and is not a result that any sensible court would reach.

The Supreme Court’s decision in Morrison v. National Australia Bank, 130 S. Ct. 2869 (2010), confirms the distinction between substantive statutes to which the presumption against extraterritoriality applies and jurisdictional statutes to which it does not. In Morrison, the Court used the presumption to limit a substantive provision of the Securities Exchange Act, finding “no affirmative indication in the Exchange Act that § 10(b) applies extraterritorially.” Id. at 2883. But notably, the Court did not apply the presumption against extraterritoriality to the Exchange Act’s jurisdictional provision. To the contrary, the Court specifically held in Part II of its opinion that “[t]he District Court here had jurisdiction under 15 U.S.C. § 78aa to adjudicate the question whether § 10(b) applies to National’s conduct,” id. at 2877, despite the fact that § 78aa contains no clear indication of extraterritoriality, which would be needed to rebut the presumption if it applied.

Kiobel is consistent with the distinction that courts applying the presumption against extraterritoriality have long drawn between jurisdictional and substantive statutes. “We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad,” the Court noted. 133 S. Ct. at 1664 (emphasis added). The ATS was not such a statute; the Sosa Court had held that it was “strictly jurisdictional.” But Sosa also held that the ATS authorized courts to recognize federal common law causes of action for torts in violation of the law of nations, and it was to those causes of action that the Supreme Court applied the presumption in Kiobel. “[W]e think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” Id. (emphasis added). Thus, after reviewing the text and history of the ATS, the Court concluded “that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption.” Id. at 1669 (emphasis added).

To be clear, (more…)

Guest Post: Dodge–Is Torture an “Official Act”? Reflections on Jones v. United Kingdom

by William S. Dodge

[William S. Dodge is The Honorable Roger J. Traynor Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on a variety of immunities matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Jones v. United Kingdom, a chamber of the European Court of Human Rights (ECtHR) held that the United Kingdom did not violate Article 6 of the European Convention on Human Rights, which guarantees a right of access to court, by dismissing civil suits alleging torture on grounds of immunity. Jones and others sued the Kingdom of Saudi Arabia and some of its officials in UK courts alleging torture in violation of international law. In 2006, the House of Lords held that both Saudi Arabia and its officials were immune from suit under the UK’s State Immunity Act.

The ECtHR’s decision with respect to Saudi Arabia is not remarkable. In Al-Adsani v. United Kingdom, the Grand Chamber of the ECtHR held by a closely divided vote that international law did not recognize an exception to state immunity from claims of torture. Since Al-Adsani, the International Court of Justice has confirmed in Jurisdictional Immunities of the State (Germany v. Italy), that there is no exception to state immunity for human rights violations. What is remarkable is the decision in Jones to extend that immunity to foreign officials. In so doing, the ECtHR has effectively concluded that torture is an “official act” entitled to immunity from civil suit in the courts of other countries. That conclusion not only runs against current trends (as Philippa Webb has noted), it is also mistaken as a matter of existing customary international law.

Under customary international law, foreign official immunity takes various forms. Heads of state, heads of government, and foreign ministers (the so-called “troika”) enjoy status-based immunity (immunity ratione personae), which extends to all acts but lasts only during their time in office. Other officials—and all former officials—enjoy conduct-based immunity (immunity ratione materiae), which lasts forever but applies only to acts taken in an official capacity. (The immunities of diplomatic and consular personnel are governed by treaties: to oversimplify, diplomats have status-based immunity and consular officials have conduct-based immunity.) The foreign officials sued in Jones were not part of the troika, which means they were entitled to immunity under customary international law only if the conduct alleged was an “official act.”

It is important to bear in mind that customary international law permits States to grant foreign officials immunity from the jurisdiction of their courts that is greater than the immunity required by customary international law. In Jones v. United Kingdom, the UK House of Lords interpreted the State Immunity Act to extend the immunity of the State itself to foreign officials for any act attributable to the State. The question technically before the ECtHR was not whether customary international law required the UK to grant such immunity, but rather whether Article 6 of the European Convention on Human Rights prohibited it from doing so. It would have been possible for the ECtHR to conclude that the UK was within its rights to extend immunity to foreign officials alleged to have committed torture, even though such immunity is not required under customary international law. Instead, the court undertook to “examine whether there was a general rule under public international law requiring the domestic courts to uphold Saudi Arabia’s claim of State immunity in respect of the State officials” (¶ 201). In doing so, it got the analysis badly wrong. (more…)

Guest Post: Self-Executing Treaties, Criminal Law, and Bond v. United States

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He and Professor Sarah H. Cleveland filed an amicus brief in Bond v. United States arguing that the Offenses Clause provides an additional basis for upholding the constitutionality of the Chemical Weapons Convention Implementation Act.]

The difference between signature and ratification was not the only point of misunderstanding about treaties at the oral argument in Bond v. United States. Both counsel for the petitioner Paul Clement and some of the Justices also seemed confused about self-executing and non-self-executing treaties. Under U.S. law, the Chemical Weapons Convention (CWC) is a non-self-executing treaty. Article VII(1) provides that “[e]ach State Party shall, in accordance with its constitutional processes, adopt the necessary measures to implement its obligations under this Convention” and, in particular, shall “prohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity.” Justice Kagan asked if the treaty could have been self-executing, a possibility Mr. Clement seemed willing to entertain (transcript p. 7). Justice Scalia seemed to think that self-executing treaty would be better because it would require implementation by the states of the United States (transcript p. 33), though he was mistaken because a self-executing treaty binds the judges of every state under the Constitution’s Supremacy Clause. Justice Breyer seemed to think that a self-executing treaty would be worse because it would cut out the House of Representatives (transcript p. 48). And Solicitor General Verrilli made the point that if “a self-executing treaty that requires the President to negotiate and two-thirds of the Senate to ratify it, can impose an obligation of that kind, then it has to be the case that a non-self-executing treaty . . . that has . . . the additional structural protection of the passage of legislation by the Senate and the House and being signed into law by the President, can do what the self-executing treaty can do” (transcript pp. 32-33). Verrilli’s point echoes one that has been made by Rick Pildes, among others, in response to Nick Rosencranz’s reading of the Treaty Power.

The problem with all of this is that it makes little sense in the context of a criminal case like Bond. (more…)

Guest Post: Official Act Immunity-Keeping the Questions Straight

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

In Yousuf v. Samantar, the U.S. Court of Appeals for the Fourth Circuit held that a former Somali official was not entitled to official act immunity for alleged violations of jus cogens norms. In a recent post, Professor Ingrid Wuerth takes issue with that conclusion, arguing that state practice and ICJ jurisprudence establish that allegations of jus cogens violations “do not generally deprive conduct of its ‘official’ nature for immunity purposes.”

As I have previously explained, all immunity doctrines involve three basic questions: (1) who is covered, (2) what is covered, and (3) whether there is an exception. For example, head of state immunity (a status-based immunity) generally applies only to sitting heads of state, heads of government and foreign ministers, covers all acts (even purely private ones), and is not subject to a jus cogens exception. See Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3 (Feb. 14). On the other hand, official act immunity (a conduct-based immunity) applies to lower level officials and to former officials, covers only acts taken in an official capacity, and may or may not be subject to a jus cogens exception.

In a recent article, Pinochet’s Legacy Reassessed, 106 Am. J. Int’l L. 731 (2012), Ingrid looks exhaustively at the third question in the context of official act immunity, concluding that state practice does not support a jus cogens exception to such immunity. That conclusion may or may not be correct—recent state practice including Samantar and the decision of the Swiss Federal Criminal Court in Nezzar may cast some doubt—but I will assume for present purposes that it is correct. Ingrid’s AJIL article did not, however, focus the same attention on the question of what constitutes an official act to which immunity attaches in the first place. Instead, she simply assumed that the second and third questions were the same. See id. at 732 n.9. In her recent post and in an interesting article on the Nezzar case, Ingrid answers the “what acts” question by adopting what one might call the “atributability theory” of official act immunity—that any act attributable to the state for purposes of state responsibility must be deemed an “official act” for purposes of conduct-based immunity. The problem is that there is no general and consistent practice of states supporting that position.

That is not to say that there is no authority at all in support of the attributability theory. The former rapporteur of the ILC’s project on the immunity of state officials from foreign jurisdiction adopted this theory in paragraph 24 of his Second Report. But his assertion has proved very controversial at the ILC and is flatly contradicted by another final ILC report, the 2001 Draft Articles on State Responsibility, article 58 of which expressly states that…

Kiobel Insta-Symposium:The Pyrrhic Victory of the Bush Administration Position in Kiobel

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus briefs filed by the United States in Kiobel v. Royal Dutch Petroleum Co. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

My friend John Bellinger over at Lawfare can rightly claim credit for keeping the extraterritoriality issue before the Supreme Court in Kiobel. Indeed, the Supreme Court’s conclusion that “principles underlying” the presumption against extraterritoriality apply to claims under the Alien Tort Statute (ATS) represents a victory for the Bush Administration’s legal position in ATS cases, an administration John served with distinction.

That Bush Administration legal position, however, marked a sharp break with past positions of the United States Government regarding extraterritorial application of the ATS. In 1980, the Carter Administration argued in Filartiga v. Pena-Irala that the ATS reaches claims by one alien against another alien for torture committed abroad. Indeed, the United States said that “a refusal to recognize a private cause of action in these circumstances might seriously damage the credibility of our nation’s commitment to the protection of human rights.” In 1995, the Clinton Administration successfully supported application of the ATS to foreign non-state actors for human rights violations abroad in Kadic v. Karadzic, a decision that opened the door to the wave of corporate cases that shortly followed. Even the intervening Reagan Administration did not take the position that the ATS did not apply to conduct abroad.

It was not until 2004 that the United States argued for the first time, in Sosa v. Alvarez-Machain, that the ATS did not apply extraterritorially. The extraterritorial nature of claim in Sosa could hardly have escaped the notice of the Court, since the parallel Federal Tort Claims Act suit against the United States was dismissed under the FTCA’s foreign country exception. Yet not a single Justice in Sosa adopted the Bush Administration’s extraterritoriality position, and there are many parts of the Sosa opinion that only make sense on the assumption that the ATS applies to conduct abroad. Undaunted, the Bush Administration continued to press the extraterritoriality argument in nine nearly identical briefs filed between 2004 and 2008. Not a single appellate court adopted the argument—and many expressly rejected it. Not a single appellate court, that is, until the Supreme Court in Kiobel.

But upon reflection, there is also less to the victory of the Bush Administration’s position in Kiobel than meets the eye. Part IV of the Court’s opinion, coupled with Justice Kennedy’s observation that the opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute” and Justice Alito’s complaint that Kiobel “leaves much unanswered,” is a recipe for continued litigation. The Court’s observation that “it would reach too far to say that mere corporate presence suffices” should send chills down the spines of corporations domiciled in the United States (and their general counsels). Nor is the Court’s grant of certiorari in DaimlerChrysler AG v. Bauman likely to bring greater clarity. Although that case arose in the context of an ATS suit, the only issue on appeal concerns personal jurisdiction over a foreign company—an important issue to be sure, but one largely unrelated to the ATS and of little help to U.S. companies.

Chief Justice Roberts’s opinion in Kiobel invites Congress to clarify its intent with “a statute more specific than the ATS.” Congress did something similar in 1992 when it passed the Torture Victim Protection Act, authorizing civil claims for torture and extrajudicial killing abroad, while incorporating substantive definitions and procedural safeguards. The human rights and business communities would be well advised to seek common ground on a reasonable statute. The alternative would seem to be decades more litigation to answer the questions that Kiobel leaves open.

Bradley Book Symposium: Customary International Law in the U.S. Legal System and the Perils of an All-or-Nothing Approach

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. He is the co-editor (with David L. Sloss and Michael D. Ramsey) of International Law in the U.S. Supreme Court: Continuity and Change (2011).]

One of the many virtues of Professor Curtis Bradley’s new book International Law in the U.S. Legal System is that it presents both sides of the arguments. That is certainly true of the chapters addressing customary international law. For example, Curt and I have differed in the past over whether customary international law is part of the “Laws of the United States” under Article III of the Constitution, so that Congress may, if it wishes, grant the federal courts subject matter jurisdiction over suits arising under customary international law. But he points readers to my argument that customary international law does fall within Article III, while of course giving his own view that it does not (pp. 141-42, 199-200).

Sometimes, however, a subtle slant can sneak into the way an issue is framed. In Chapter 5, Curt tells the by now familiar story that customary international law was understood at the framing to be part of general common law (pp. 142-46), that the Supreme Court’s 1938 decision in Erie Railroad v. Tompkins destabilized the situation by ending the general common law regime (pp. 146-47), and that Sabbatino, Filartiga, and the Restatement (Third) of Foreign Relations Law supported the possibility of customary international law as federal common law (pp. 147-52), before laying out his challenges to “the federal common law claim” (p. 155). He points out that if customary international law were federal common law for Article III purposes (as Filartiga held), then it might also preempt inconsistent state law under the Supremacy Clause of Article VI and bind the President under the Take Care Clause in Article II (pp. 152-54). “It is not clear,” he writes, “what federal law source exists for the wholesale incorporation of CIL into federal common law” (p. 156).

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Samantar Asks for Supreme Court Review Again

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On Monday, Mohamed Ali Samantar filed a cert petition asking the Supreme Court to review the Fourth Circuit’s decision that he is not entitled to conduct-based immunity in a suit brought under the Alien Tort Statute and Torture Victim Protection Act alleging torture, arbitrary detention, and extrajudicial killing. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, the District Court followed the State Department’s determination, and the Court of Appeals affirmed. The Fourth Circuit held: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. I have previously explained why I believe that decision to be fundamentally correct.

Samantar’s cert petition argues that the Fourth Circuit’s decision conflicts with the decisions of the Second Circuit in Matar v. Dichter, the D.C. Circuit in Belhas v. Ya’alon, and the Seventh Circuit in Ye v. Zemin, each of which refused to recognize a jus cogens exception to the immunity at issue. In Matar, the Second Circuit deferred to the State Department’s determination that the defendant was entitled to conduct-based immunity and refused to override that determination by finding a jus cogens exception. But in Samantar, the State Department has determined that the defendant is not entitled to conduct-based immunity, so the question whether to recognize a jus cogens exception was never presented. Belhas was decided on the assumption—now corrected by the Supreme Court’s 2010 Samantar decision—that the Foreign Sovereign Immunities Act (FSIA) governed the immunity of foreign officials and held that there is no jus cogens exception to the FSIA, a conclusion that prior decisions had reached in suits against states. Ye held that there was no jus cogens exception to head-of-state immunity, an immunity that attaches because of an official’s status as a sitting head of state. In each of these cases, the question was whether to recognize an exception to an immunity that had—for one reason or another—already attached.

The question in Samantar, by contrast, is not whether to recognize a jus cogens exception to an immunity that has already attached, but the antecedent question whether jus cogens violations can be taken in an official capacity so that conduct-based immunity attaches in the first place. As Judge Stephen Williams noted in his concurring opinion in Belhas, the question whether an immunity attaches is “quite distinct” from the question whether to recognize exceptions to an existing immunity. The Fourth Circuit’s decision in Samantar is the first Court of Appeals decision to say whether jus cogens violations can constitute official acts for purposes of conduct-based immunity.

My friend Curt Bradley has suggested that distinguishing these two questions is just semantics. To see why it is not, it may be useful to step back and consider how immunity generally works. All immunity questions proceed in three basic steps: (1) who is covered, (2) what is covered, and (3) is there an exception. I will use state immunity, status-based immunity, and conduct-based immunity as illustrations, but one could ask the same questions with respect to diplomatic and consular immunities. (more…)

Recent Developments in Official Act Immunity

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on immunity matters. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

The Fourth Circuit’s November 2, 2012 decision in Yousuf v. Samantar has generated discussion by Professor Curtis Bradley, former State Department Legal Adviser John Bellinger, and myself. There, the Court of Appeals held that State Department determinations of conduct-based immunity are entitled to substantial weight, but not absolute deference, and that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms. But to understand the current state of so-called “official act” immunity in the United States, it is also worth looking at the U.S. Government’s recent filings.

To avoid confusion, it is important to keep the categories of immunity straight. The immunity of foreign officials in U.S. courts is distinct from the immunity of foreign states. Since 1976, foreign state immunity has been governed by the Foreign Sovereign Immunities Act (FSIA), but in 2010 the Supreme Court held in Samantar v. Yousuf that the FSIA does not apply to foreign officials. The immunities of foreign officials fall into two basic categories: (1) Status-based immunities attach to the current holders of certain offices, like heads of state. They extend to all acts (even to ones that are purely private) but apply only during the time the official is in office. (2) Conduct-based immunity, on the other hand, attaches only to acts taken in an “official capacity,” but applies even after an official leaves office. The immunities of diplomatic and consular personnel are covered by treaties, but otherwise the status- and conduct-based immunities of foreign officials in U.S. courts are governed by federal common law.

Since the Supreme Court’s decision in Samantar, determinations of status-based immunities have proved relatively straightforward. The U.S. Government has filed determinations of immunity in a number of cases involving sitting heads of state, and U.S. courts have deferred to those determinations. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). But the U.S. Government has also recently made several filings in cases involving conduct-based immunity.

The most recent came on December 17 in the…

Making Sense of the Fourth Circuit’s Decision in Samantar

by William S. Dodge

[William S. Dodge is Professor of Law and Associate Dean for Research at the University of California, Hastings College of the Law. From August 2011 to July 2012, he served as Counselor on International Law to the Legal Adviser at the U.S. Department of State, where he worked on the amicus brief of the United States to the Fourth Circuit in Yousuf v. Samantar. The views expressed here are his own and do not necessarily reflect the views of the State Department or of the United States.]

On November 2, the U.S. Court of Appeals for the Fourth Circuit issued its opinion on remand in Yousuf v. Samantar. The opinion contains two key holdings: (1) that while State Department determinations of status-based immunity (e.g. head-of-state immunity) are entitled to absolute deference, State Department determinations of conduct-based immunity for official acts are entitled only to substantial weight; and (2) that foreign officials are not entitled to conduct-based immunity for violations of jus cogens norms.

Samantar served as Defense Minister and then as Prime Minister of Somalia before fleeing that country in 1991 and coming to the United States in 1997. Plaintiffs brought suit under the Alien Tort Statute (ATS) and Torture Victim Protection Act (TVPA) alleging that they and members of their families had been subjected to torture, arbitrary detention, and extrajudicial killing by government agents under Samantar’s command. In 2010, the Supreme Court held in Samantar v. Yousuf that the Foreign Sovereign Immunities Act (FSIA) did not apply to the immunities of foreign officials, which continue to be governed by federal common law. On remand, the State Department determined that Samantar did not enjoy immunity, emphasizing the lack of a current recognized government in Somalia that could assert or waive Samantar’s immunity and the fact that Samantar is a resident of the United States. The district court followed the State Department’s determination, and Samantar appealed to the Fourth Circuit.

The United States filed an amicus brief in the Fourth Circuit arguing that the State Department’s determination with respect to Samantar’s immunity was binding on the courts, but the Court of Appeals held that this depended on the kind of immunity determined. Broadly speaking, there are two sorts of foreign official immunities. Status-based immunities—like head-of-state immunity—depend on an official’s status as the current holder of an office and extend to all of his actions, whenever performed. Such immunities last only as long as the official continues in office. Conduct-based immunity, on the other hand, extends only to acts taken in an official capacity, but such immunity continues after the official leaves office. Current officials who do not qualify for status-based immunities, as well as all former officials, are entitled only to conduct-based immunity for their official acts.

Citing the President’s constitutional authority to “receive Ambassadors and other public Ministers,” the Fourth Circuit concluded “that the State Department’s pronouncement as to head-of-state immunity is entitled to absolute deference.” Slip Op. 14. This conclusion is consistent with other recent decisions in head-of-state cases treating the State Department’s determinations as conclusive. See, e.g., Habyarimana v. Kagame (10th Cir. Oct. 10, 2012). The State Department had never recognized Samantar as Somalia’s head of state (although even if it had, his status-based immunity would have ended when he left office). But the Fourth Circuit is the first court of appeals to consider the degree of deference owed to determinations of conduct-based immunity following the Supreme Court’s decision in Samantar. The Fourth Circuit found “no equivalent constitutional basis” for the State Department’s determination of official-act immunity, which “is not controlling, but . . . carries substantial weight.” Slip Op. 14, 15.

Turning to the substance of conduct-based immunity, the Court of Appeals held that “officials from other countries are not entitled to foreign official immunity for jus cogens violations.” Slip Op. 22. As the court noted, this is consistent with a long line of pre-Samantar cases, which applied the FSIA to foreign officials but concluded that gross human rights violations were not official acts entitled to immunity. Slip Op. 17-18. See, e.g., Hilao v. Estate of Marcos, 25 F.3d 1467, 1472 (9th Cir. 1994) (concluding that “Marcos’ acts of torture, execution, and disappearance were clearly acts outside of his authority as President”). The Supreme Court in Samantar referred to the same line of cases and observed that the distinction between official acts and those beyond the scope of authority “may be correct as a matter of common-law principles.” 130 S. Ct. 2278, 2291 n.17 (2010). Thus, the Fourth Circuit was certainly right to conclude that the pre-Samantar cases discussing official capacity in the context of the FSIA “are instructive for post-Samantar questions of common law immunity.” Slip. Op. 17.

Unfortunately, this section of the Fourth Circuit’s opinion contains two analytical errors. While these errors offset each other, allowing the court to reach the correct conclusion, they weaken the opinion’s persuasive force. The Court of Appeals first erred by assuming that whether acts are official turns on whether those acts are attributable to the State. Slip Op. 17. As Article 58 of the ILC Draft Articles on State Responsibility makes clear, the attributability of an act to the State for purposes of state responsibility is “without prejudice to any question of the individual responsibility of any person acting on behalf of a State.” Indeed, both the U.S. government and the Supreme Court in Samantar expressly rejected the syllogism “that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state.” 130 S. Ct. at 2290. See also Brief of the United States as Amicus Curiae, Samantar v. Yousuf, at 12 (noting that while “the acts of the official representatives of the state are those of the state itself, when exercised within the scope of their delegated powers,” it is “incorrect to extrapolate from that principle the conclusion that a suit against a foreign official is invariably equivalent to a suit against the foreign state itself”) (internal quotation marks and citations omitted).

The Court of Appeals’ second error was to confuse the question whether jus cogens violations can be considered to have been taken in an official capacity at all, so that conduct-based immunity attaches in the first place, with the question whether there is a jus cogens exception to immunity. Slip Op. at 19-22. There is a long line of authority holding that once immunity has been established, no exception for jus cogens violations exists. See, e.g.,Jurisdictional Immunities of the State (Germ. v. Italy), 2012 I.C.J. __, ¶ 97 (Feb. 3); Case Concerning the Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), 2002 I.C.J. 3, ¶ 58 (Feb. 14). But none of these cases addresses the threshold question for conduct-based immunity of whether an act was taken in an official capacity in the first instance, for unlike other immunities, conduct-based immunity attaches only to official acts. As Judge Williams noted in Belhas v. Ya’alon, the threshold question whether a defendant “acted in his official capacity” so that immunity attaches in the first place is “quite distinct” from the existence of a jus cogens exception. 515 F.3d 1279, 1292 (D.C. Cir. 2008) (Williams, J., concurring). On this threshold question of official capacity there is an equally long line of authority—much of it cited by the Fourth Circuit—that jus cogens violations cannot be considered official acts for the purposes of conduct-based immunity. See, e.g., Regina v. Bartle ex parte Pinochet, 38 I.L.M. 581, 594 (H.L. 1999) (Lord Browne-Wilkinson) (“How can it be for international law purposes an official function to do something which international law itself prohibits and criminalizes?”). Congress took the same view in enacting the TVPA, finding that “because no state officially condones torture or extrajudicial killings, few such acts, if any, would fall under the rubric of ‘official actions’ taken in the course of an official’s duties.” S. Rep. No. 102-249, at 8 (1991). Thus, the Court of Appeals was right to conclude that, “as a matter of international and domestic law, jus cogens violations are, by definition, acts that are not officially authorized by the Sovereign.” Slip Op. 19.

One suspects that the Fourth Circuit’s first error of viewing official capacity as turning on attributability to the State forced it into its second error of viewing jus cogens through the lens of an exception. The unfortunate results are apparent in passages such as this: “under international and domestic law, officials from other countries are not entitled to foreign official immunity for jus cogens violations, even if the acts were performed in the defendant’s official capacity.” Slip Op. 21-22. The better view—and the one consistent with both international law and U.S. practice—is that jus cogens violations are not performed in the defendant’s official capacity and are therefore not entitled to conduct-based immunity, even if the acts are attributable to the State for purposes of state responsibility.

In any event, as I have said, the court’s two analytical errors offset each other, and the court reached the correct conclusion. The Fourth Circuit’s holding that jus cogens violations are not official acts entitled to conduct-based immunity is consistent with existing U.S. case law, with Congress’s understanding in enacting the TVPA, and with customary international law. As more conduct-based immunity cases come before the courts, the Fourth Circuit’s decision in Samantar should be remembered not for its technical errors but for its important holding.