Sosa's silence: Kiobel and the fallacy of the Supreme Court's limitation on alien tort liability.

• Author: Cash, Webster C. III

1. INTRODUCTION

   In Kiobel v. Royal Dutch Petroleum Co., (1) the United States Court of Appeals for the Second Circuit held that corporations could not be liable under the Alien Tort Statute ("ATS") for human fights abuses. (2) The decision has stunning implications for contemporary human fights litigation. (3) Indeed, in the short time since Kiobel was decided in September 2010, a large volume of scholarship has examined the case's potential to upset the delicate balance of international law. (4) Moreover, rare for any circuit court opinion, Kiobel is the subject of considerable mainstream media coverage: Whether lawyer or newsman, one fact remains clear: to many, Kiobel stands for the shallow proposition that corporate profits stemming from business-related human rights abuses may be shielded from victims through the simple act of incorporation. (6) Opponents also assert that absent Congressional action, Kiobel will undermine general principles of corporate accountability. (7) They argue that freedom from concern over multi-million dollar class action lawsuits will invite corporations to downgrade their efforts to prevent human rights abuses. (8) Though individual corporate perpetrators--such as Directors and CEOs--remain susceptible to civil damages under the ATS, the general reaction to Kiobel appears to be one of cynicism on account of the corporate protection it imparts.

   Others yet have focused less on the decision's press-worthy rule relating to corporate damages. Instead, they emphasize Kiobel's seemingly unremarkable holding: "[t]hat international law ... and not domestic law, governs the scope of liability for violations of customary international law under the ATS." (9) That is, despite virtual unanimity among civilized nations in recognizing tort actions against corporate entities, it is the law of nations ultimately controlling who is liable under the ATS. Though this legalese is somewhat unrevealing, the practical effect of the language will be "deeply relevant in other settings"--i.e., when the United States Supreme Court revisits the scope of the ATS. (10)

   Accordingly, this Article will discuss this perhaps more sedentary aspect of Kiobel--ostensibly, to uncover the court's reasoning and justification for this ruling. In reaching its position, this Article will show that the Second Circuit's interpretation of ATS liability was based partly on an improper reading of footnote twenty in the Supreme Court's seminal ATS case, Sosa v. Alvarez-Machain. (11) Importantly, this Article does not suggest that the Kiobel court was necessarily incorrect in its conclusion that customary international law precludes juridical entities from ATS liability. Instead, it argues simply that the Supreme Court was silent in Sosa regarding the scope of the ATS' reach. Because the high Court did not address this issue, it is of course problematic that the Second Circuit augmented its decision by claiming the Court had ruled squarely on the matter. Thus, this Article serves as a warning for future litigants to avoid Sosa, as well as portions of Kiobel, as the sole legal basis for asserting corporations are immune from liability under the ATS.

   Part II will analyze the relevant history of the ATS, as well as the two primary cases that set forth modern ATS jurisprudence--Filartiga v. Pena-Irala (12) and Sosa. Additionally, Part II will provide necessary background on the widespread pattern of corporate human rights abuses, such that the full magnitude of the Kiobel decision can be understood in context. Part III will provide a comprehensive summary of the Second Circuit's disposition of Kiobel. Specifically, a detailed analysis of the facts leading up to the plaintiffs' suit in federal court, the district court's holding, the majority opinion, and Judge Leval's stinging concurrence--a separate opinion endorsing the majority's final judgment, but strident enough in its terms to be classified as nothing other than a dissent. In Part IV, this Article will argue that a key ingredient of the Second Circuit's holding--its interpretation of footnote twenty from Justice Souter's landmark opinion in Sosa--was fundamentally incorrect and misapplied Supreme Court dicta. Primarily, this Article will show that the Second Circuit misconstrued Sosa's discussion regarding the contours of ATS liability with the separate consideration of whether international law requires that the State serve as the tortfeasor. This Article will conclude by stressing that litigants should not rely on Kiobel's interpretation of Sosa alone while not necessarily ignoring the possible crystallization of such a rule through other relevant sources of international law.

2. BACKGROUND

   The ATS was enacted by the first Congress as a provision contained in the Judiciary Act of 1789. (13) Despite its prevalence today, the ATS was seldom used after its passage in 1789. During the first 200 years of its existence, the statute was invoked in federal court only twice. (14) Though the ATS underwent a major resurgence in 1980 following Filartiga, it was this rather dormant existence that came to define the ATS. Judge Friendly, speaking to the ATS' mysterious origins, noted in his oft-cited remark that "[t]his 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." (15)

   As one scholar surmised, the ATS "is one of the most widely discussed provisions in modern international law." (16) Due to its relatively simple terms, it is surprising that the ATS has been the basis for both countless civil actions and vigorous legal debate. Nevertheless, the ATS serves as the primary tool for foreigners seeking redress concerning international harms. The elegant simplicity of the ATS--in its entirety--is comprised of nothing more than the following text: "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." (17) In other words, under the statute, an ATS plaintiff (1) must be an alien and not of U.S. citizenship, (2) the complaint must sound in tort, and (3) the underlying claim must violate the law of nations. (18) While the first two components seldom serve as a source of disagreement, the third prong--whether the law of nations was violated--is the genesis of endless controversy. (19)

   1. Filartiga v. Pena-Irala

      The true birth of modern ATS jurisprudence began in 1980, when the United States Court of Appeals for the Second Circuit issued its decision in Filartiga v. Pena-Irala. Filartiga involved a claim by Dr. Joel Filartiga and his daughter Dolly Filartiga--both of whom were of Paraguayan origin--against a third Paraguayan national for the alleged torture and death of a Filartiga family member. (20) Specifically, the Filartigas asserted that the defendant Pena-Irala, while holding the office of chief of police in Asuncion, Paraguay, kidnapped Dr. Filartiga's son and subsequently tortured him to death. (21) The complaint also alleged that Pena-Irala had brought a Filartiga family member to the home of Pena-Irala to show them the mutilated and tortured corpse. (22) The Filartigas maintained that the killing was in response to their family's known political dissidence against the Paraguayan government. (23) Other attempts by the Filartigas to hold Pena-Irala accountable for his actions resulted only in death threats, intimidation, and the disbarment of Dr. Filartiga's attomey. (24)

      By the late 1970s, Dolly Filartiga had immigrated to the United States. She learned that Pena-Irala was visiting New York. (25) She filed suit in federal court, invoking the ATS as her basis for jurisdiction, for alleged acts of torture in violation of the law of nations. (26) On appeal from a lower court's dismissal, the Second Circuit found that official state torture was a "clear and unambiguous" violation of customary international law. (27) The court held the ATS provided district courts with jurisdiction when "an alleged torturer is found and served with process by an alien within our borders." (28) Also significant was the Filartiga court's emphasis that the new body of international human rights--following the events at Nuremberg--was now included in the amorphous definition of the "law of nations." (29)

      Thus, Filartiga reinvigorated the dormant ATS into a jurisdictional avenue that opened the federal courts to aliens seeking damages for human rights violations constituting a breach of the law of nations. Though the Filartiga decision remains highly controversial--and was overruled in some aspects by the Supreme Court in Sosa--its basic holding served as the needed catalyst for alien plaintiffs to bring suit in federal courts for human rights violations. Indeed, as Professor Kontorovich has written,

      Filartiga transformed the statute into a tool for foreigners to seek redress in federal courts for a variety of abuses committed by governments around the world. While only a few courts of appeals adopted the Second Circuit's view of the statute, this was enough to allow a wide-ranging docket of ATS cases. (30) B. Sosa v. Alvarez-Machain

      Due to a flood of ATS litigation sparked by Filartiga, the various circuit courts interpreted the ATS in varying ways--leading to major disparities in the statute's application. (31) In Sosa v. Alvarez-Machain, the United States Supreme Court was given the opportunity to clarify some of the confusion among the lower courts and aid in the creation of a uniform approach to the ATS.

      In Sosa, Mexican national Humberto Alvarez-Machain filed a civil action against the United States Drug Enforcement Administration and several Mexican nationals under, inter alia, the ATS for damages resulting from his abduction and transfer to the United States for interrogation related to criminal activity. (32) Alvarez's primary ATS claim was that one of the...