When the Second Circuit decided in Filartiga v. Pena-Irala (1) that the Alien Tort Statute (ATS) provided a federal forum for international human rights claims, no one would have predicted that thirty-three years later in Kiobel v. Royal Dutch Petroleum Co. (2) the Supreme Court would use the presumption against extraterritoriality to limit those claims. (3) This Essay recounts some of the doctrinal developments in alien tort litigation during the intervening thirty-three years. (4)
After Filartiga, courts faced a choice whether to apply international law as the rule of decision or the law of the place where the tort occurred. Courts chose the international law road, with U.S. law providing the cause of action and the rules for damages. The Supreme Court ratified this choice in
Sosa v. Alvarez-Machain, (5) clarifying that the cause of action came not from the ATS itself but from federal common law. In the battles over aiding and abetting liability that followed, plaintiffs argued that federal common law should govern just about every issue of ATS litigation except the initial violation of international law, while defendants and the Bush Administration argued that the presumption against extraterritoriality should apply to the federal common law cause of action, the position the Supreme Court accepted in Kiobel. It appears in hindsight that the early decisions to apply international law rather than the lex loci delicti as the rule of decision in alien tort litigation ultimately provided the doctrinal hook for the Supreme Court to restrict alien tort suits with the presumption against extraterritoriality.
Certainly there were reasons to choose international law over foreign domestic law at the time. (6) Once alien tort litigation had started down the international law road, there were paths that might have skirted the extraterritoriality question more easily. (7) And it is possible that the Roberts Court would have found another doctrine to restrict alien tort suits had different choices been made. (8) Choices are inevitable in litigation as in life. The purpose of this Essay is to explore the doctrinal consequences of the choices that were made and to glance briefly down the road not taken.
FILARTIGA AND THE CHOICE OF LAW
Two roads diverged in a yellow wood, And sorry I could not travel both And be one traveler, long I stood And looked down one as far as I could To where it bent in the undergrowth; (9) The era of human rights litigation in U.S. courts began in 1980 with the Second Circuit's decision in Filartiga. (10) Joel and Dolly Filartiga, the father and sister of Joelito Filartiga, brought suit in U.S. district court against Americo Pena-Irala, a Paraguayan police inspector who overstayed his visa in the United States. (11) They alleged that Pena-Irala had tortured Joelito to death in retaliation for his father Joel's political activities. (12) On appeal, the Second Circuit held that the district court had subject matter jurisdiction under the Alien Tort Statute, which provides original jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." (13) Clearly, the Filartigas were aliens and torture is a tort. Supported by a memorandum filed by the U.S. government, (14) the Second Circuit also held that official torture was a violation of customary international law. (15) While this holding was sufficient to satisfy the statute, subject matter jurisdiction for federal courts also requires a basis in Article III of the Constitution, which the Second Circuit found in Article III's grant of jurisdiction over cases "arising under ... the Laws of the United States." (16) "The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law." (17)
The Filartiga court emphasized that it was only deciding the question of subject matter jurisdiction and not "the issue of the choice of law to be applied, which will be addressed at a later stage in the proceedings." (18) In arguing for dismissal on grounds of forum non conveniens, the defendant Pena-Irala claimed that Paraguayan law provided a civil remedy for the wrong alleged. (19) The court of appeals also discussed at some length the doctrine of transitory tort, (20) a doctrine under which a tortfeasor could be sued wherever he was found, but generally under the lex loci delicti--the law of the place where the tort occurred. (21) Indeed, the court even suggested that "the district court may well decide that fairness requires it to apply Paraguayan law to the instant case." (22) But ultimately, the court of appeals left it to the district court to decide whether to apply the law of Paraguay or international law as the rule of decision. (23)
The law applicable in ATS cases was widely acknowledged to be an open question after Filartiga. (24) We can get a sense of what the two doctrinal roads looked like at that time from two early and influential law review articles. (25) In a piece published the year after Filartiga, Jeffrey Blum and Ralph Steinhardt described the choice of law question this way:
Once jurisdiction is sustained, the question emerges of how to conceptualize the cause of action: do plaintiffs sue for torture under the law of nations as incorporated into United States common law, or is the cause of action wrongful death under the law of the situs, with international law having relevance only for clearing the jurisdictional hurdle? (26) Blum and Steinhardt looked first at the traditional option of applying the lex loci delicti in transitory tort cases. Determining the content of foreign tort law was no obstacle, for this is something federal courts do routinely in choice of law cases. (27) But two other problems gave them pause. The first had to do with immunities. If a federal court were to apply the lex loci delicti, they reasoned, it would have to apply that law "in its entirety," which meant that " [a] foreign state could thus shield its officials who violated core human rights by enacting very broad immunities for government officials." (28) The second problem had to do with Article III jurisdiction. "[I]t might be argued that, if the substantive law of the situs defines the cause of action, federal courts cannot constitutionally hear the case under article III, since it does not 'arise under' the Constitution or the laws or treaties of the United States." (29) The less travelled road was "to apply international law as it has been incorporated into the federal common law." (30) This, Blum and Steinhardt suggested, would solve the Article III problem (31) and "negate  the ability of foreign governments to immunize their officers who violate human rights norms." (32)
Writing in 1986, which was still early but after the district court's decision on remand in Filartiga and the D.C. Circuit's split decision in Tel-Oren, (33) William Casto saw the two roads somewhat differently. He divided the possibility of applying international law as federal common law into two options--applying international law directly or fashioning federal common law remedies for violations of international law--but found neither attractive. (34) "Most of the current litigation arises out of incidents between aliens in foreign countries, and doubt exists whether United States domestic law can or should be used to regulate these incidents. Likewise it is questionable whether private tort remedies are available under international law." (35) This left "foreign domestic law." (36) While Casto agreed with Blum and Steinhardt that foreign law might include limitations on recovery, including doctrines of immunity, (37) he was less troubled by the constitutional question. "Constitutional authority for a grant of jurisdiction to try aliens' claims created by foreign law is justifiable under a theory of protective jurisdiction." (38) If Congress had the constitutional authority to pass legislation for human rights cases that affect the United States' foreign relations, it might take the lesser step of committing these cases to the federal courts and providing that they be governed by foreign law. (39)
With the benefit of hindsight, it is possible to evaluate some of these initial worries. The concern that choosing foreign law might obligate a U.S. court to apply foreign immunity doctrines appears to have been unfounded. In the 1940s, the Supreme Court had adopted a policy of deferring to the executive branch on questions of state immunity, (40) a position of deference that some lower courts extended to questions of foreign official immunity. (41) In 1976, Congress codified the rules with respect to foreign states in the Foreign Sovereign Immunities Act (FSIA). (42) Although a number of lower courts applied the FSIA to alien tort suits against foreign officials, (43) the Supreme Court made clear in Samantar v. Yousuf (44) that the immunity of foreign officials "is properly governed by the common law." (45) At the time Filartiga was decided, the Restatement (Second) of Foreign Relations Law summarized the common law as providing official immunity for heads of state, heads of government, foreign ministers, and "any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state." (46) For present purposes, the key point is that none of these authorities provided that the immunity of a foreign official from suit in U.S. court would be determined by foreign law. (47)
The concern about Article III jurisdiction was more serious. Because Article III's grant of alienage jurisdiction does not reach cases where both parties are aliens, (48) the only possible basis for Article III jurisdiction in a case like Filartiga would be the "arising under" grant. The Second Circuit had found "arising...