[Doug Cassel is Professor of Law at Notre Dame Law School]
If Alien Tort Statute suits to redress human rights violations committed abroad are upheld in Kiobel
, the Supreme Court is likely to require that plaintiffs first exhaust their foreign and international remedies (or show good cause for not doing so). If so, it is important that the Supreme Court get right the contours of the exhaustion doctrine under international law. The Court should require exhaustion only
in ATS cases brought exclusively
under universal jurisdiction, and not
in ATS suits against US companies. Even in purely universal jurisdiction cases, the Court should respect exceptions to exhaustion recognized by international law.
An exhaustion requirement seems likely. In the Kiobel oral argument on the extraterritorial reach of the ATS
, three Justices likely to support extraterritorial reach -- Ginsburg, Kagan and Sotomayor -- asked questions sympathetic to an exhaustion requirement (Tss. at 8, 13-15). In response, Paul Hoffman, plaintiffs’ counsel, appeared open to an exhaustion requirement (Tss. at 13-14). No Justice or counsel spoke against an exhaustion requirement; even two Justices generally hostile to the plaintiffs – Alito and Scalia – seemed friendly to an exhaustion requirement (in the event extraterritorial ATS suits are allowed) (Tss. at 15, 31).
The most substantial brief on the exhaustion issue, favorably cited by Justice Sotomayor (Tss. at 12-13), is the amicus brief of the European Commission on behalf of the European Union
. The EU brief is generally excellent. It correctly limits an exhaustion requirement to ATS cases whose exclusive jurisdictional basis under international law is universal jurisdiction (part A below).
However, its articulation of the exceptions to exhaustion in universal jurisdiction cases is imprecise (Part B below). There is a resulting risk that the Court may saddle plaintiffs with a vague and overbroad exhaustion requirement. This would undermine the very purpose of universal civil jurisdiction – to ensure that grave international crimes do not go unredressed.