Kedar S. Bhatia, Reconsidering the Purely Jurisdictional View of the Alien Tort Statute

• Publication year: 2010

RECONSIDERING THE PURELY JURISDICTIONAL VIEW OF THE ALIEN TORT STATUTE

This old but little used section is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act . . . no one seems to

know whence it came.1

ABSTRACT

The Alien Tort Statute was enacted by the United States Congress in 1789 and laid dormant for nearly two centuries. After being reanimated in 1980, the statute now allows United States federal courts to hear claims for violations of the law of nations stemming from a wide array of behavior. Such an extraordinary interpretation was far from inevitable, however, and remains on unsteady footing. This Comment argues that the statute should be regarded as purely jurisdictional, rather than as a hybrid provision both granting jurisdiction and authorizing a cause of action. The hybrid model requires judges to balance the specificity and clarity of international law against the practical consequences of recognizing a new cause of action, while the jurisdictional view tasks Congress with making those difficult, complex, and weighty policy decisions. A strictly jurisdictional view of the Alien Tort Statute not only provides a manageable framework for expanding the scope of the statute, but also adheres more closely to well-established views of federal common law. Recent litigation in the Supreme Court and in lower federal courts confirms the need for a new reading of this far-reaching statute.

1. IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.) (citation omitted).

   INTRODUCTION 449

   1. HISTORY OF THE ALIEN TORT STATUTE AND THE PURELY JURISDICTIONAL VIEW 451

      1. Enactment and Original Intent 452

      2. Early Use 455

      3. Abrupt Reanimation in the Twentieth Century 456

      4. A Major Paradigm Shift: Filartiga v. Pena-Irala 461

      5. Filartiga’s Progeny: Tel-Oren v. Libyan Arab Republic 465

      6. Eventual Crystallization: Sosa v. Alvarez-Machain 469

      7. Limiting Extraterritoriality: Kiobel v. Royal Dutch Petroleum

         Co. 474

   2. ASSESSING THE HYBRID MODEL 477

      1. Assumptions of the Sosa Framework 479

      2. Theoretical Flaws in the Hybrid Model 482

         1. Sosa’s Disregard for Erie Principles 482

            1. The Erie Framework 483

            2. Sosa’s Marginalization of Erie 485

         2. Rejection of the Presumption Against Implied Private Causes of Action 487

            1. The Supreme Court’s Narrowing Stance 487

            2. The Flaws in Recognizing Implied Causes of Action Under the Alien Tort Statute 491

         3. An Atheoretical Framework 495

            1. The Debate over “Theory” 495

            2. The Sosa Framework as an Example of Atheoretical Decision-making 498

      3. Practical Flaws in the Sosa Framework 499

         1. Difficulty Operating within the Sosa Framework 499

         2. General Difficulty with International Law 501

   3. THE PURELY JURISDICTIONAL VIEW TAKES ON CONTEMPORARY PROBLEMS 504

   CONCLUSION 506

   INTRODUCTION

   
   

   The Alien Tort Statute2 is a remarkable provision. This thirty-three word statute, lost for nearly two centuries in the Judiciary Act of 17893 and then in Title 28 of the U.S. Code,4 now allows United States federal courts to hear claims stemming from a range of torture,5 corporate malfeasance,6 and human rights abuses7 anywhere in the world.8 Modern interpretation of the statute

   gives it an expansive reach; the statute opens domestic courts to plaintiffs alleging violation of a potentially unlimited number of customs that comprise the law of nations.9 Due to its breadth, the statute has been touted as a powerful tool for advancing human rights interests around the world.10 The statute has also been set on autopilot, meaning it will incorporate new human rights abuses as they become part of the law of nations.11 The law of nations has been notoriously difficult to define, however, leaving courts to lean on a wide range

   
   

2. 28 U.S.C. § 1350 (2012) (“The district courts shall have original jurisdiction of 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.”). This Comment uses the term “Alien Tort Statute” rather than “Alien Tort Claims Act” to maintain consistency with Supreme Court usage, see, for example, Samantar v. Yousuf, 130 S. Ct. 2278, 2282 (2010); Rasul v. Bush, 542

U.S. 446, 472 (2004), and because the phrase plainly refers to a portion of the United States Code rather than an act of Congress entitled “Alien Tort Claims Act.”

3 Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 73, 77 (1789) (codified as amended at 28 U.S.C. § 1350).

4 28 U.S.C. § 1350.

5 E.g., Kadic v. Karadzi , 70 F.3d 232, 236–37 (2d Cir. 1995).

oc

1. E.g., Sinaltrainal v. C c a-Cola Co., 578 F.3d 1252, 1263 (11th Cir. 2009).

2. E.g., Abebe-Jira v. Negewo, 72 F.3d 844, 846, 848 (11th Cir. 1996) (affirming a finding of liability for “torture and cruel, inhuman, and degrading treatment” under 28 U.S.C. § 1350).

3. E.g., Sinaltrainal, 578 F.3d at 1266; Abebe-Jira, 72 F.3d at 845–46; Kadic, 70 F.3d at 36–37, 242; see also Anthony J. Colangelo, A Unified Approach to Extraterritoriality, 97 VA. L. REV. 1019, 1026 (2011) (“[T]he relevant context is that the statute authorizes application not of uniquely national law but of

   international law, which applies everywhere and authorizes extraterritorial jurisdiction.”). Following the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Apr. 17, 2013), where the Court applied the principle of extraterritoriality, significant questions remain about the international scope of the Alien Tort Statute. See infra Part I.G.

4. Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004) (“[C]ourts should require any claim based on the

   present-day law of nations to rest on a norm of international character accepted by the civilized world . . . .”).

5. See Richard L. Herz, The Liberalizing Effects of Tort: How Corporate Complicity Liability Under the Alien Tort Statute Advances Constructive Engagement, 21 HARV. HUM. RTS. J. 207, 225 (2008) (“[W]here the political branches have made the broad determination that constructive engagement is the most effective policy for encouraging democratic reform and respect for human rights in a particular nation, [Alien Tort Statute] complicity liability serves a vital role; it ensures that individual corporations are held accountable on a case- by-case basis if they subvert that policy by aiding and abetting rights abuses.”); see also

   Jordan J. Paust, Litigating Human Rights: A Commentary on the Comments, 4 HOUS. J. INT’L L. 81, 83 (1981).

6. Sosa, 542 U.S. at 714, 732–33. But see infra text accompanying notes 218–227 (noting that the Alien Tort Statute provides a cause of action for only a subset of the full “law of nations” used in most contexts).

   of definitions when resolving what behavior falls within the contours of the statute.12

   
   

   But such an extraordinary interpretation was far from inevitable13 and remains on unsteady footing.14 On its face, the statute merely provides federal courts with “original jurisdiction . . . for a tort . . . committed in violation of the law of nations or a treaty of the United States.”15 Recent litigation in the Supreme Court of the United States has reinforced the need to retool this internally inconsistent and ultimately unsatisfying framework.16 In Kiobel v. Royal Dutch Petroleum Co., a case recently decided by the Supreme Court, briefing by the parties and amici made it more clear than ever that there is crippling confusion over both the theoretical foundation of the statute and its practical application. The parties in Kiobel struggled not only with

   maneuvering within the existing framework for litigating Alien Tort Statute claims, but also with much of the ground-level analysis of customary international law that courts must routinely perform.17

   
   

7. The Supreme Court has defined the law of nations as “norm[s] of international character accepted by the civilized world . . . .” Sosa, 542 U.S. at 725. That Court and others have reached back to a seminal case in international law, The Paquete Habana, 175 U.S. 677 (1900), for guidance. E.g., Sosa, 542 U.S. at 734; Tel- Oren v. Libyan Arab Republic, 726 F.2d 774, 789 (D.C. Cir. 1984) (Edwards, J., concurring); Filartiga v. Pena-Irala, 630 F.2d 876, 880–81 (2d Cir. 1980). Other courts, however, have used either a subset of the sources suggested by The Paquete Habana or have branched off into entirely different sources. See Howard S. Schrader, Note, Custom and General Principles as Sources of International Law in American Federal Courts, 82 COLUM. L. REV. 751, 763–65 (1982) (noting that courts in the United States are increasing their reliance on nonbinding treaties and resolutions to define customary international law).

8. A symposium on the role of international law in federal courts held by the Virginia Journal of

   International Law in 2001 serves as a tremendous source of information on the Alien Tort Statute, and the symposium is especially useful because the views expressed therein were unencumbered by the Supreme Court’s views on the matter that would come later in Sosa. See Symposium, Foreign Courts and Foreign Affairs, 42 VA. J. INT’L L. 365 (2002).

9. A symposium held by this Journal in 2004 provided a series of invaluable first-impressions of Sosa.

See Symposium, Alien Tort Claims After Sosa v. Alvarez-Machain, 19 EMORY INT’L L. REV. 69 (2005).

15 28 U.S.C. § 1350 (2012) (emphasis added).

1. See Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S. Apr. 17, 2013).

2. See Brief for Petitioners at 43–47, Kiobel, No. 10-1491 (U.S. Dec. 14, 2011); Brief for Respondent at 27–43, Kiobel, No. 10-1491 (U.S. Jan. 27, 2012). The terms “customary international law” and “law of

   nations” are not interchangeable. See Harold J. Berman, The Alien Tort Claims Act and the Law of Nations, 19 EMORY INT’L L. REV. 69, 70–71 (2005) (discussing the many differences between the law of nations and customary international law); Joseph Sorrentino, Recent Decision, Flores v. Southern Peru Copper Corp., 343 F.3d. 140 (2d Cir. 2003), N.Y. INT’L L. REV., Winter 2004, at 133, 133 n.8 (citing Michael J. Glennon, Can the President Do No Wrong?, 80 AM. J. INT’L L. 923, 924–25 (1986); Michael T. Morely, Note, The Law of Nations and the Offenses...