Author Archive for
William S. Dodge

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).

(more…)

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.

Kiobel Roundtable: The Supreme Court Gropes Toward a Sensible Solution

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 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.]

My thanks to Opinio Juris for inviting me to guest blog on the reargument in Kiobel v. Royal Dutch Petroleum Co., which I attended on Monday. As most readers likely know, the Supreme Court originally granted cert to decide whether corporations may be sued for human rights violations under the Alien Tort Statute (ATS) as natural persons may be. But after oral argument last February, the Court asked the parties to address the additional question of whether, and under what circumstances, the ATS applies to conduct in foreign countries. Because almost all claims brought under the ATS to date—including the Second Circuit’s seminal 1980 decision in Filartiga v.Pena-Irala and the Supreme Court’s 2004 decision in Sosa v. Alvarez-Machain—have involved alleged conduct abroad, the Court’s additional question raised the stakes for human rights litigation considerably.

Respondents and many of their amici urged the Court to apply the presumption against extraterritoriality to the ATS and limit causes of action exclusively to violations of international law in the United States. But that argument appeared to gain little traction with the Court on Monday. Chief Justice Roberts expressed skepticism when Respondents’ counsel Kathleen Sullivan argued that piracy on the high seas was not within the original scope of the ATS, while Justice Scalia (who wrote the Court’s most recent decision applying the presumption against extraterritoriality in Morrison v. National Australia Bank) said he did not know of any cases applying the presumption only to the territory of a foreign country and not to the high seas. Sullivan’s assertion that “[e]very single founding era precedent that stimulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters” was quickly rebutted by Justice Breyer, invoking Attorney General Bradford’s 1795 opinion that expressed “no doubt” that a civil suit could be brought under the ATS for violations of the law of nations in Sierra Leone.

Meanwhile, Justice Kagan offered a variation of the 1784 Marbois incident, hypothesizing that the French ambassador to Britain was attacked in London by an American citizen who sought refuge in the United States and suggesting that…

International Law in the U.S. Supreme Court: Professor Alford on Extraterritoriality

by William S. Dodge

The joy of this project was making the kind of discovery Roger Alford recounts in his post. Alford’s chapter on international law as interpretive tool from 1901 to 1945 discusses, among other things, the Supreme Court’s various approaches to the extraterritorial reach of statutes during that period. Among these approaches was the government purpose test of Unites States v. Bowman (1922).

It is interesting to compare Bowman to the Supreme Court’s 2010 decision in Morrison v. National Australia Bank. In Morrison, the Court applied the presumption against extraterritoriality to the antifraud provisions of the Securities Exchange Act. But the Court reoriented the presumption away from a mechanical determination of where the prohibited conduct occurred (Florida in this case), instructing lower courts to examine the “focus” of the statute. Morrison’s “focus” in some ways echoes Bowman’s “purpose.”

I have argued on this blog that the “focus” (or if you prefer, “purpose”) of congressional legislation is generally to prevent harms in the United States and that Morrison adopts an effects test, albeit a narrower one than the Second Circuit had applied in securities litigation. I won’t repeat those arguments, but for those who are interested there is more here and here.

To my mind, another interesting thing about Alford’s chapter is the way the presumption against extraterritoriality started to become detached from international law during his period. That process continued in Foley Bros. v. Filardo (1949), decided just after Alford’s period, in which the Court first articulated the modern justification for the presumption—“that Congress is primarily concerned with domestic conditions”—the justification the Court repeated in Morrison.