Determining which human rights claims "touch and concern" the United States: Justice Kennedy's Filartiga.

AuthorSteinhardt, Ralph G.

INTRODUCTION

If statutes were zombies, the Alien Tort Statute of 1789 (1) (ATS) would lead the undead who walk among us. By one conventional narrative, the statute arose from the misty eighteenth-century murk, then lay moribund for nearly two centuries until 1980, when the Second Circuit breathed a strange new life into it with Filartiga v. Pena-Irala. (2) That decision then remained a "monstrous" curiosity (3)--generating more academic conferences than cases and more awards of tenure than damages--until 1984, when the Court of Appeals for the District of Columbia Circuit decided Tel-Oren v. Libyan Arab Republic. (4) The three-way split among the panel in Tel-Oren suggested that there was no consensus that Filartiga had been rightly decided, and the death watch began in earnest, even as the years passed and jurisdiction was sustained in numerous cases that fit the Filartiga model. This issue of the Notre Dame Law Review, in assessing the impact of Kiobel v. Royal Dutch Petroleum, (5) marks the thirtieth anniversary of the statute's first premature obituary.

Like the proverbial reports of Mark Twain's demise, it is easy to exaggerate the death of alien tort litigation in the aftermath of Kiobel. After all, the Supreme Court there decided--unanimously for the second time in nine years (6)--that the ATS does not provide jurisdiction in a high-profile case, deploying a rhetoric of caution in the interpretation of this ancient statute. Equally significant, the majority in Kiobel expanded the existing presumption against the extraterritorial application of U.S. law, (7) applying it for the first time to a purely jurisdictional statute instead of substantive statutes like the securities laws, (8) antidiscrimination laws, (9) and labor laws. (10) The essential problem with this approach is not that courts, litigators, and scholars failed to anticipate the issue. (11) To the contrary, over the decades since Filartiga, extraterritoriality and the related choice of law issues have frequently been front and center at the pre-trial stages of ATS litigation. (12) The problem with the majority's approach in Kiobel is instead that it contradicts the Supreme Court's own precedents and leaves the lower courts with precious little guidance in determining the circumstances under which the presumption against extraterritoriality might be overcome in future ATS cases. In this Article, I show that what guidance there is in Kiobel emerges not from the majority opinion but from the concurrences, especially the cryptic single paragraph from Justice Anthony Kennedy.

  1. SOSA, THE PRESERVATION OF FILARTIGA, AND REVISIONISM 2.0

    In Sosa, the Supreme Court determined conclusively that the ATS was purely jurisdictional, (13) an issue on which the lower courts had been divided ever since Judge Bork's separate opinion in Tel-Oren. (14) It also ruled that the statute had effect from the moment of its enactment. (15) That was a critical analytical move, because it meant that the ATS did not lie dormant until such time as Congress might see fit to define and implement the norms that would fall within the subject matter jurisdiction of the federal courts. To the contrary, even without that congressional action, the statute "enabled federal courts to hear claims in a very limited category defined by the law of nations and recognized at common law." (16) In short, the Sosa Court established that the ATS does not create a cause of action, but that it does recognize a cause of action, derived from the common law, for certain violations of international law: "The jurisdictional grant is best read as having been enacted on the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time." (17) Sosa thus requires that the tort be "committed" in violation of international law, not that international law itself recognize a right to sue in domestic courts and not that Congress adopt implementing legislation defining the wrong.

    That the cause of action could be defined by the common law and not by the law of nations is entirely consistent with the hornbook principle that international law does not specify the means of its domestic enforcement. The law of nations can define the underlying conduct as wrongful and establish the obligation to assure conformity without specifying a statute of limitations, the requirements of standing, or the precise contours of direct and secondary liability. International law "never has been perceived to create or define the civil actions to be made available by each member of the community of nations; by consensus, the states leave that determination to their respective municipal laws." (18) "In consequence, to require international accord on a right to sue, when in fact the law of nations relegates decisions on such questions to the states themselves, would be to effectively nullify the 'law of nations' portion of section 1350." (19)

    In order to determine which international norms fall within the common law authority of the federal courts, the Sosa Court considered the state of the common law in 1789, when the ATS was adopted, and identified three paradigmatic torts that would have been actionable under the ATS without further action by Congress or by the community of sovereign states: the violation of safe conducts, infringing the rights of ambassadors, and piracy. (20) Explicitly rejecting Sosa's argument that the actionable norms under the ATS were frozen as of 1789, the Court ruled that the recognition of a claim under the "present-day law of nations" as an element of common law would extend to "norm[s] of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized." (21) What the actionable norms across the centuries have in common is a "specific, universal, and obligatory" (22) character, combined with the potential for personal liability; indeed, the essence of Sosa is that the ATS authorizes federal courts to develop common law rules of liability where the underlying abuse violates such a norm. This is precisely what the lower courts had done, Sosa noted with approval, (23) in Filartiga, (24) Kadic, (25) and In re Estate of Marcos. (26) In fact, the Sosa Court did not question a single case in which this demanding and traditional standard had been satisfied, other than the arbitrary arrest claim advanced by Alvarez-Machain himself.

    The Sosa Court thus recognized that the lower courts had sustained jurisdiction under the ATS only for certain egregious violations of international human rights law. (27) The Court urged caution in the judicial task of identifying actionable norms of international law, referring for example to the enforceability of "only a very limited set of claims," (28) and "the modest number of international law violations with a potential for personal liability." (29) Relatedly, it identified a number of case-by-case considerations that would limit the adaptation of the law of nations to private rights of action.

    Even as it acknowledged a cause of action for certain international law violations, the Court in Sosa stated that "there are good reasons for a restrained conception of the discretion a federal court should exercise in considering a new cause of action of this kind." (30) These considerations include: (i) a transformation in the prevailing conception of the common law since 1789, from "a transcendental body of law outside of any particular State but obligatory within it unless ... changed by statute" into a body of norms more made (or created) than found (or discovered); (31) (ii) case-based limitations on federal common law-making, especially the Erie Doctrine; (32) (iii) the institutional preference for allowing Congress to create private rights of action; (33) (iv) the possibility of collateral consequences, especially the risk of adverse foreign policy consequences; and (v) the Court's lack of "congressional mandate to seek out and define new and debatable violations of the law of nations, and modern indications of congressional understanding of the judicial role in the field [that] have not affirmatively encouraged greater judicial creativity." (34)

    This rhetoric of caution in Sosa was a dramatic new restriction on ATS litigation only according to those litigants and scholars who had systematically exaggerated the reach of the ATS in the first place. After all, the federal courts have routinely dismissed ATS claims that did not clear the high and traditional evidentiary hurdle that a norm must be "specific, universal, and obligatory." (35) In Flores v. Southern Peru Copper Corp., (36) for example, the Second Circuit affirmed that ATS claimants were required to allege a violation of specific, universal, and obligatory norms. (37) Without calling into question its analysis in Filartiga or Kadic, the Flores court concluded that environmental torts were not currently in violation of international law. (38) From Filartiga onward, plaintiffs have tended to lose in cases where their lawyers were overly creative in asserting that a particular norm had achieved the status of customary international law but not in cases where the tort at the heart of the case was committed abroad. (39) On the other hand, the great bulk of human rights claims that were justiciable pre-Sosa remain justiciable post-Sava: torture, genocide, extrajudicial killing, disappearances, arbitrary detention, crimes against humanity, war crimes, and slavery, inter alia. In Roe I v. Bridgestone Corp., (40) the court ruled that allegations of child labor met the Sosa standard, concluding that " [i] t would not require great judicial creativity' to find that even paid labor of very young children in these heavy and hazardous jobs would violate international norms." (41)

    In the aftermath of Sosa...

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