In Kiobel v. Royal Dutch Petroleum Co., the Court considered the extraterritorial reach of the tort action for violations of customary international law. (1) Kiobel was a "foreign-cubed" case in which a foreign plaintiff sued a foreign defendant for damages arising from conduct in a foreign country. (2) The Justices wrote four different opinions, but they were unanimous in refusing to create a federal common law tort remedy in a foreign-cubed case. (3) At least they were unanimous in holding that a remedy is not available in a case like Kiobel. (4) Some, including the present author, are disappointed in the Court's decision. But in an important sense, the decision was by definition correct. When nine Justices of different political and philosophical persuasions reach a unanimous decision, it is foolhardy, or at least quixotic, to argue that the Court erred. As Justice Robert H. Jackson once quipped: "We are not final because we are infallible, but we are infallible only because we are final." (5) After Kiobel, the federal courts will have to decide whether any significant (6) aspect of the common law tort for violations of international law should survive the Court's unanimous decision.
In considering whether the Alien Tort Statute (ATS) (7) action survives Kiobel, the courts should pay careful attention to the action's sui generis nature. We all learned in law school that a cause of action consists of a norm or rule of conduct that establishes the illegality of particular conduct and a remedy for the violation of the norm. We seldom, however, need to pay careful analytical attention to the differences between the norm and the remedy. With the exception of ATS claims, every cause of action under American law involves a norm and a remedy legislated by the same sovereign. In international torts, however, the norm and the remedy do not come from the same sovereign. The norm comes from international law, and the remedy is legislated by federal courts.
Because ATS actions are sui generis, there is a very real potential for courts to resort to forms of analysis that make sense in the usual context of tort litigation and arbitrarily apply these established forms to international torts. The presumption against extraterritoriality is an example of a general tort concept that does not adapt well to ATS claims. (8) Rather than using labels to decide these cases, the courts should adopt a functional analysis keyed to the international tort's unique nature. The ultimate result will be the same in some cases but may be different in others.
The ATS is a subject matter jurisdiction statute and does not create a statutory cause of action. In Sosa v. Alvarez-Machain, the Court explained that the ATS "'clearly does not create a statutory cause of action,' and ... the contrary suggestion is 'simply frivolous.'" (9) Nevertheless there is a relationship between the ATS and the substantive cause of action. The Sosa Court held that the ATS should be read as an implicit congressional authorization or approval of tort remedies to be fashioned by the federal courts as federal common law. (10) This notion of common law stemming from a grant of jurisdiction is not new. The federal common law of admiralty (11) and of collective bargaining agreements (12) usually are traced to grants of jurisdiction. (13) But a congressional authorization to create federal common law is significantly different from a legislative cause of action. In the latter situation, Congress has legislated a remedy and a norm or rule of conduct, and determining the substantive scope of the cause of action is almost entirely a matter of statutory interpretation. In the former, the statute is silent on the substantive issue of who should win or lose on the merits. The grant of jurisdiction simply tells the courts the general subject matter that the common law action should address. The actual substantive contours of the cause of action that dictate who should win or lose are left to the courts' sound discretion. (14) For example, the ATS says nothing about a possible defense of official immunity or how clearly a norm of international law must be established in order to support a remedy. The courts have assumed these and other tasks. (15)
While the ATS provides few significant insights into the substantive scope of the international tort action, clear congressional guidance lies hidden in plain sight. In 1992, Congress expressly endorsed the modern concept of an international tort action by enacting the Torture Victim Protection Act (TVPA). (16) In doing so, the Congress consciously codified Filartiga v. Pena-Irala, (17) which was a foreign-cubed case. The TVPA cannot be read as anything other than a conscious determination that even in a foreign-cubed case, U.S. law should provide a tort remedy for violations of the international law against torture and extrajudicial killings.
If Congress has overtly considered and enacted a statutory rule of decision for the international torts of torture and extrajudicial killing, the courts should treat the statutory rule as something akin to persuasive precedent in ATS actions. Thus in the TVPA, Congress explicitly addressed the extent to which the availability of a remedy under another country's laws should preclude a TVPA remedy, and the same issue may arise in an ATS action. Although the TVPA on its face does not apply to an ATS claim involving the slave trade or aiding and abetting torture, the courts should nevertheless defer to Congress's expressed political wisdom regarding the availability of a remedy under a foreign nation's law. (18)
The present Article occasionally invokes the political wisdom or judgment found in the TVPA. In fashioning common law rules, judges are not bound by the TVPA, but judges should give serious consideration to the Act's statutory precedent. If a court chooses to ignore the clear implications of an analogous TVPA rule, the court, as a practical matter, may be substituting its political judgment for Congress's judgment. To repeat, however, the idea of deference to a formally enacted congressional judgment should apply only if the relevant TVPA rule stemmed from conscious congressional decisionmaking.
In some cases, an issue may arise under the TVPA that Congress has not consciously considered. In these cases, courts construing the TVPA itself must grapple with the Act's particular words and give the TVPA a reasonable judicial construction. In this situation, the judicial construction is not based upon Congress's conscious political judgment. When a rule of decision under the TVPA is not based upon Congress's considered political judgment, there is no basis for deferring to the TVPA rule in an ATS case.
This Article begins by recalling the distinctions among the entirely different concepts of subject matter jurisdiction, the norms giving rise to a tort action, and the remedy. (19) Then the Article turns to the Justices' opinions in Kiobel with special attention paid to the Chief Justice's use of the presumption against extraterritoriality. (20) Finally, the Article considers situations in which the United States has a distinct interest that easily justifies an extraterritorial remedy. (21)
ANATOMY OF AN INTERNATIONAL TORT ACTION
All complaints in federal court are divided into three parts. (22) Because our national courts are courts of limited jurisdiction, the first paragraph of every federal complaint must allege the court's subject matter jurisdiction. The rest of the complaint presents the plaintiff's substantive claim. The second part of the complaint, which takes up the most space, describes particular conduct by the defendant that violates some legal norm or rule of conduct. The third and final part, which frequently is a single sentence, prays for a judicial remedy. Each of these three parts implicates legal rules that are quite different from the other two. At least that is the theory.
Subject Matter Jurisdiction
In Sosa v. Alvarez-Machain, the Court held that the ATS is only a subject matter jurisdiction statute and does not create a cause of action. (23) The statute merely provides that a federal court may adjudicate an international tort action and is therefore silent on the tort action's substantive contours. (24) Moreover, there is evidence that sophisticated members of the first federal Congress understood this distinction between substance and jurisdiction and viewed the Judiciary Act's jurisdictional provisions in this light. (25)
The Sosa Court also addressed the substantive scope of the international tort action and held that the legal norm or rule of conduct comes from international law, but that the remedy is provided by domestic federal common law. (26) The ironic result is that Sosa turned the ATS into a redundant anachronism. Most people believe that customary international law is a peculiar type of federal common law. (27) Moreover, the remedy clearly is controlled by traditional federal common law. Therefore the well-pleaded complaint in an international tort action is replete with federal questions. The plaintiff may not prevail without first alleging a violation of international law, which is technically classified as federal law, and then establishing that federal law provides a remedy. There is no state law or foreign domestic law anywhere in the complaint. As a result, the courts' general federal question jurisdiction embraces international tort actions, and the ATS is an anachronistic redundancy insofar as jurisdiction is concerned. (28)
Legal Norm or Rule of Conduct
In international tort actions, the legal norm or rule of conduct comes from international law--not the domestic law of the United States or of any other country. We classify customary international law as federal common law, but this particular type of common law is unlike any other. (29) Like the tort action, it is sui generis. In our modern legal culture, the phrase...