The future of human rights litigation after Kiobel.

• Author: Alford, Roger P.

Introduction

This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. (1) As others have argued in this issue, that premise may not be correct. (2) Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.

As outlined below, there are a surprising number of options available under federal, state, and foreign law. The most obvious alternatives are not necessarily the most effective. The Torture Victim Protection Act (TVPA), for example, will be of no value to plaintiffs pursuing claims against corporations or governments. (3) The Racketeer Influenced and Corrupt Organizations Act (RICO) regulates a vast array of unlawful conduct, but has its own territorial limits. (4) State statutes that regulate unfair business practices and consumer fraud are promising avenues to address secondary harms to domestic consumers and competitors, but offer no direct relief to human rights victims. (5)

The most important alternative avenue is tort law. (6) Indeed, one could say that the future of human rights litigation in the United States depends on refashioning human rights claims as state or foreign tort violations. Almost every international law violation is also an intentional tort. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. Rather than pursuing claims for wrongful conduct under the ATS, those same victims could plead violations of domestic or foreign tort laws. Courts seized with such claims should apply choice of law principles to assess the appropriate tort law to resolve the dispute. If the United States has a paramount interest in addressing the human rights violation, then that likely will result in the application of domestic tort law. Otherwise, traditional choice of law analysis applied in the international human rights context will often result in the application of foreign tort law.

Other avenues for relief remain untested. One of the most uncertain avenues is to plead violations of international law as part of foreign law. (7) If international law has been incorporated into the law of most countries around the world, it follows that a violation of international law will often also be a violation of foreign law. By employing choice of law principles to invoke foreign law, plaintiffs can pursue international law claims incorporated into foreign law. This is most obvious in monist states that directly apply international law into domestic law. But even dualist states implement international law either directly or indirectly. In Kiobel v. Royal Dutch Petroleum Co., (8) for example, the plaintiffs could have alleged human rights violations under Nigerian law because human rights treaties and customary international law form part of Nigerian law.

Another untested avenue for relief is to plead federal common law violations of the law of nations in state courts or federal courts exercising foreign diversity jurisdiction. (9) Assuming the statutory presumption against extraterritoriality limits the scope of the ATS and not the underlying federal common law claims, there is nothing to prevent plaintiffs from pursuing common law claims elsewhere. Nor is there anything that prevents state courts from recognizing international law violations as state common law claims. Such claims would not be subject to the statutory presumption against extraterritoriality, but would be subject to territorial limits imposed by constitutional and international law.

Finally, if international law forms part of domestic and foreign law, then applying the choice of law doctrine of false conflicts would permit courts to apply the international law that is incorporated into domestic law rather than the international law that forms part of foreign law. (10) In the absence of a conflict between the potentially applicable foreign law and domestic law, the forum is free to apply domestic law. In other words, it is quite plausible that a federal district court in Kiobel could have applied federal common law claims alleging violations of the law of nations--not because those common law claims governed the dispute--but because there was no conflict between that substantive international law embedded in the common law and the international law embedded in Nigerian law.

Part I briefly analyzes the Supreme Court's decision in Kiobel with particular attention to the consequences that that decision has for the demise of ATS litigation. Part II summarizes the limits of the TVPA and suggests that such claims will only be viable against foreign government officials with attachable assets located abroad. Part III outlines claims under civil RICO and discusses the divergent territorial limits that courts have imposed since the Supreme Court's decision in Morrison v. National Australia Bank Ltd. (11) Part IV discusses state unfair and deceptive acts and practices (UDAP) statutes regulating unfair business practices and consumer fraud. Those statutes routinely have been included in human rights litigation in the past, and will continue to be included following Kiobel. The presumption against extraterritoriality applies to those statutes, however, resulting in relief for domestic consumers and competitors, but not for foreign human rights victims. Part V discusses the most likely avenue for relief by pleading violations of state or foreign tort laws. Whether state or foreign law applies depends on choice of law principles. Because the center of gravity for human rights violations is foreign rather than domestic, foreign tort laws will apply to the typical human rights claims that were pursued under the ATS. Part VI follows the previous Part by suggesting that the invocation of foreign law might also include the invocation of international law. Choosing foreign law also means choosing international law that is incorporated into that law. Part VII suggests that the common law claims for international law violations recognized in Sosa v. Alvarez-Machain (12) are not subject to the presumption against extraterritoriality. If the statutory presumption only limits the ATS and not the underlying common law claims, then those claims may be pursued in state courts or in federal courts exercising foreign diversity jurisdiction. Finally, Part VIII concludes with an analysis of the "false conflict" doctrine as applied to international law claims. If the same international law forms part of domestic and foreign law, then the false conflict doctrine would permit domestic courts to use the international law that forms part of domestic law.

1. KIOBEL AND THE DEMISE OF THE ALIEN TORT STATUTE (13)

   The history of international human rights litigation under the ATS is well known. (14) Since Filartiga v. Pena-Irala, (15) such litigation has become some thing of a cottage industry, with over 150 cases filed alleging the commission of a tort in violation of the law of nations. (16) For over two decades, interpretation of the ATS developed without the benefit of Supreme Court review. (17) Finally in 2004, the U.S. Supreme Court in Sosa v. Alvarez-Machain limited the scope of the ATS, but left the door ajar for further litigation, "subject to vigilant doorkeeping." (18) The central holding of Sosa was that the ATS was a jurisdictional statute that nonetheless permitted common law causes of action for torts committed in violation of the "present-day law of nations," provided those claims rested on accepted international norms and were defined with sufficient specificity. (19)

   Since that time, lower courts struggled to answer the many questions Sosa left unresolved. (20) Among the open questions were whether claimants were required to exhaust local remedies, (21) whether alien claims against aliens were cognizable federal questions, (22) whether corporations were amenable to suit under international law, (23) whether corporations were liable for aiding and abetting government misconduct, (24) and whether the ATS applied extraterritorially. (25)

   Finally, last term the Supreme Court in Kiobel issued a landmark decision that signals the end of the Filartiga human rights revolution. It did so by embracing the presumption against extraterritoriality, a presumption designed to avoid "'unintended clashes between our laws and those of other nations which could result in international discord.'" (26) The Court concluded that nothing in the text, history, and purpose of the statute negated a presumption against extraterritoriality. (27) The text provides no evidence that Congress intended causes of action to have extraterritorial reach. (28) The history of the statute offers instances in which the statute is applied within the United States and on the high seas, but little to no support for its application on the territory of another sovereign. (29) As for the statute's purpose, the goal of the statute was not to transform the fledgling country into "the custos morum of the whole world," but rather to provide a means for "judicial relief to foreign officials injured in the United States." (30) Therefore, the Court held, the presumption against extraterritoriality applied to limit the reach of the ATS.

   As applied to the facts in Kiobel, given that all the relevant conduct occurred outside the United States, the Court held that the statute did not reach the plaintiffs' claims. As for other claims that "touch and concern the territory of the United States," the Court concluded that "they must do so with sufficient force to displace the presumption against extraterritorial application." (31)

   The Kiobel decision is complex and confusing, offering scant guidance as to how lower courts should proceed when claims touch and concern U.S. territory. However, unlike the other articles in the issue, the purpose of this Article is not to analyze Kiobel, but rather to consider the future of human rights litigation...