28 Jan Guest Post: Colangelo–Kiobel and Conflicts of Law
[Anthony Colangelo is Associate Professor of Law at SMU Dedman School of Law.]
As my comment to Roger’s initial post noted and my forthcoming piece in the Cornell Law Review explains, like Bill Dodge I view the presumption against extraterritoriality’s operation in Kiobel as going principally to the cause of action allowed by the ATS as opposed to the ATS proper. Though as Roger points out, the Supreme Court did find itself construing the ATS in order to discern whether the presumption applied to the cause of action, making an already messy area of law incoherent in light of the Court’s own most recent precedent, as I noted in an OJ Insta-Symposium contribution last spring.
What I’d like to explore now is another question raised by this terrific series of posts: the extent to which state law incorporating international law may authorize suits for causes of action arising abroad after Kiobel. This question is both especially urgent because it involves a potential alternative avenue for litigating human rights abuses abroad in U.S. courts, and especially vexing because it juxtaposes different doctrinal and jurisprudential conceptualizations of the ability of forum law to reach inside foreign territory. On the one hand, the question can be framed as whether forum law applies extraterritorially; on the other, it can be framed as a choice of law among multiple laws, of which forum law is one. These different ways of framing the question are not necessarily mutually exclusive, yet they can lead to radically different results. Namely, Supreme Court jurisprudence stringently applying a presumption against extraterritoriality to knock out claims with foreign elements stands in stark contrast to a flexible cadre of state choice-of-law methodologies that liberally apply state law whenever the forum has any interest in the dispute.
The result is a counterintuitive disparity: state law enjoys potentially greater extraterritorial reach than federal law. The disparity is counterintuitive because the federal government, not the states, is generally considered the primary actor in foreign affairs. Indeed, the presumption against extraterritoriality springs directly from foreign affairs concerns: its main purpose is to avoid unintended discord with other nations that might result from extraterritorial applications of U.S. law. If the federal government is the primary actor in foreign affairs, and if the presumption operates to limit the reach of federal law on a foreign affairs rationale, it follows that state law should have no more extraterritorial reach than federal law.
Yet at the same time there is a long and robust history stretching back to the founding of state law providing relief in suits with foreign elements through choice-of-law analysis. Hence, not only does the disparity between the reach of federal and state law bring into conflict federal versus state capacities to apply law abroad (or entertain suits arising abroad), it also brings into conflict the broader fields that delineate those respective capacities: foreign affairs and federal supremacy on the one hand, which argue in favor of narrowing the reach of state law to U.S. territory, and private international law and conflict of laws on the other hand, which argue in favor of allowing suits with foreign elements to proceed in state court under state law.
Against this backdrop, I want to make a few points. First, there is nothing wrong as a general matter with state law incorporating international law. Second, federal foreign affairs preemption is nonetheless in tension with the idea of state law having broader extraterritorial reach than federal law. And third, this tension basically disappears when the state law incorporating international law presents a “false conflict” of laws among the relevant jurisdictions’ laws. Here the fields of private international law and conflict of laws gain salience and supply a doctrinally and historically grounded mechanism for entertaining claims arising abroad in U.S. domestic courts. More concretely, if state law incorporating international law is fundamentally the same law as that operative in the foreign jurisdiction, there is no conflict of laws and the sole applicable law applies. I’ve made this argument in the broader context of universal jurisdiction, and in his forthcoming Notre Dame Law Review piece Roger elegantly articulates and applies false conflict reasoning to assess the ability of state law to provide relief for international law violations abroad like those at issue in Kiobel.
Taking into account the myriad conflict methodologies, we can posit a variety of false conflicts along these lines:
One type of false conflict might latch onto the international law character of the norm at issue, particularly if it is a jus cogens norm—say, the prohibition on torture—to argue that by force of international law that norm applies everywhere, and therefore necessarily presents a false conflict of laws. A weakness with this type of false conflict argument is that while jus cogens clearly contain prohibitions on certain violations of international law, they do not clearly contain private rights of action to enforce those norms via civil litigation. In other words, while jus cogens clearly prohibit torture, they don’t clearly say that anyone who has been tortured has a private right of action and is entitled to relief through civil litigation. In turn, there may not, in fact, be a false conflict of laws if the foreign law does not also provide a private right of action.
A second variety of false conflict might look to the result that application of foreign law would produce and conclude that if the defendant would also be liable under foreign law, there is no conflict with domestic law. This type of false conflict could open up the possibility that U.S. law incorporating international law wouldn’t need to match up exactly with foreign law; so long as some foreign law would impose liability, there is no real conflict of laws. For example, if foreign tort law would hold the defendant liable for, say, battery, a U.S. suit seeking liability for torture would not create a true conflict of laws since the result is the same: the defendant is liable. A self-evident weakness with this type of false conflict reasoning, of course, is that battery and torture are not the same, even though the laws against both would impose liability. While plaintiffs may wish to pursue claims for torture as opposed to battery for important symbolic reasons, defendants and foreign governments may resist such classifications for mirror-image reasons of stigma. In this connection, it’s worth mentioning that any weakness deriving from the different symbolic and stigma characteristics of serious international law violations vanishes where plaintiffs are content to classify their claims as garden-variety torts—again, let’s say battery—under a domestic law that matches up with foreign law. That would constitute a classic false conflict in the private international law sense, and there is no problem with a domestic law imposing liability for a tort where foreign law also would impose liability for that same tort.
A third variety of false conflict would be where domestic law and foreign law incorporate norms of international law. For example, suppose both domestic law and foreign law would hold the defendant liable for torture. This is the strongest false conflict scenario. To be sure, it is even stronger than the classic false conflict mentioned above where domestic law and foreign law are separate laws but match up. Here domestic law and foreign law are vehicles for application of fundamentally the same law—international law—as far as the conduct-regulating aspect of the rules go. If the involved jurisdictions also both provide a private right of action, we are back to the classic false conflict scenario for that aspect of the suit. And because procedures and remedies are generally deemed creatures of forum law, there would be little if any aspects of the suit left to generate a true conflict of laws among jurisdictions.
In sum, there is at least one surefire false conflict scenario that should enable foreign claims alleging international law violations to move forward under U.S. state law: state law and foreign law both incorporate international law prohibiting the conduct and afford private rights of action. Plaintiffs have other routes too, particularly if they are willing to abandon dressing their claims in international law garb and instead classify them as garden-variety torts. Torture may, for instance, become battery in order to obtain relief where state and foreign law both impose liability for that tort.
How do these false conflict variations interact with recent Supreme Court jurisprudence? Kiobel held that a presumption against extraterritoriality applies to claims authorized by the ATS and therefore claims arising in Nigeria were not actionable under the statute. In the process, the Court brushed aside with barely any analysis the longstanding and widely held transitory tort doctrine of conflict of laws, observing only that “Under the transitory torts doctrine, however, ‘the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place.’” This remarkably question-begging statement quotes Justice Holmes’ opinion in Cuba R. Co. v. Crosby. There the Court explained that when dealing with torts that “are likely to impose an obligation in all civilized countries . . . [U.S.] courts would assume a liability to exist if nothing to the contrary appeared.” If nothing else, one would think that universal international legal prohibitions on offenses like torture stand for the proposition that its commission “impose[s] an obligation in all civilized countries.”
But even if one is not willing to make the assumption Crosby seems to command, Kiobel has now squarely raised the issues it failed to address: Is there in fact a cause of action for torture, extrajudicial killing, and arbitrary arrest in the foreign jurisdiction? How about battery, wrongful death, and false imprisonment? If so, we have a false conflict of laws and a clear avenue for relief under either U.S. or foreign law in domestic courts.
One final point: If courts adopt a false conflict model on which state law incorporates international law or reflects the domestic law operative in the foreign jurisdiction, the Due Process test mentioned by Roger and Bill requiring “contacts or an aggregation of contacts” with the U.S. forum such that application of forum law is “neither arbitrary nor fundamentally unfair” is satisfied even in the absence of overt contacts with the forum. The reason is that the test is concerned fundamentally with fair notice from an individual rights perspective, contacts merely being a proxy for such notice. If no conflict of laws exists among the applicable laws in the first place, defendants cannot claim lack of fair notice of the law.