Online Kiobel symposium: The Alien Tort Statute and the foreign relations fallacy

The following contribution to our Kiobel v. Royal Dutch Petroleum symposium is written by Sarah H. Cleveland, the Louis Henkin Professor of Human and Constitutional Rights, Columbia Law School and the former Counselor on International Law to the Legal Adviser, U.S. Department of State.  She has provided assistance to the State Department regarding ATS litigation.  The views expressed here are entirely personal and do not purport to represent the views of the U.S. government. [Lyle published an introduction to the issues in Kiobel last week.]

It is one thing for American courts to enforce constitutional limits on our own State and Federal Governments’ power, but quite another to consider suits under rules that would go so far as to claim a limit on the power of foreign governments over their own citizens, and to hold that a foreign government or its agent has transgressed those limits. . . .  Yet modern international law is very much concerned with just such questions, and apt to stimulate calls for vindicating private interests in §1350 cases.

— Sosa v. Alvarez-Machain (2004).

Both law and policy support the exercise of Alien Tort Statute (ATS) jurisdiction over serious international law violations occurring in another country, within appropriate and established bounds. Even if the domestic presumption against extraterritoriality could be considered to apply to a jurisdictional statute like the ATS, the text, purpose, and history of the statute indicate that it is not territorially limited, Among other reasons, piracy is one of the paradigmatic offenses actionable under the ATS, a clear indication of Congress’s purpose to reach beyond U.S. soil.  This is also how early interpreters like Attorney General Bradford understood it.

Nor does international law impose any categorical bar to adjudicating international law violations arising in another country.  The Westphalian idea that one state cannot meddle in the affairs of another has long since been eroded by international human rights and international criminal law, which have firmly established that egregious conduct within a state’s borders is not hermetically sealed from scrutiny.  Instead, as the Sosa Court recognized, “modern international law is very much concerned with just such questions.”

Indeed, modern international law authorizes, and in some cases requires, the United States and other nations to exercise jurisdiction over those who commit core international law violations abroad.  The United States has approximately twenty statutes on the books that establish criminal jurisdiction based on the perpetrator’s mere presence in the United States, with no other U.S. connection to the crime.  These include statutes addressing genocide, piracy, torture, slavery, peonage, forced labor, human trafficking, recruitment or use of child soldiers, aircraft hijacking, hostage taking, attacks on internationally protected persons, and various acts of terrorism.  Through the Torture Victim Protection Act (TVPA), Congress likewise provided for civil jurisdiction over acts of torture or extrajudicial killing committed under color of law of any “foreign nation.” Whatever the outer boundaries of such authority may be, international law clearly allows states to exercise jurisdiction over certain “universal” extraterritorial harms.  And it is these violations that have been redressed through the ATS.

As the Supreme Court recognized in Banco Nacional de Cuba v. Sabbatino, “the greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it.”  This was the view of the Carter Administration, which supported overseas ATS jurisdiction in Filartiga v. Peña-Irala on the ground that “official torture is both clearly defined and universally condemned.  Therefore, private enforcement is entirely appropriate.”  In Kadic v. Karadžić, the Clinton Administration confirmed that the ATS allows suits over foreign conduct where “the principle of international law” being enforced “command[s] ‘the general assent of civilized nations.’” Sosa thus explicitly limited ATS jurisdiction to universally accepted and specifically defined norms, precisely to avoid negative “implications for the foreign relations of the United States.”

Royal Dutch Petroleum and some commentators nevertheless contend that any application of the ATS to conduct occurring in the territory of a foreign sovereign risks serious adverse foreign policy consequences. But it is a fallacy to assume that the foreign relations consequences of ATS litigation are only adverse. As Congress acknowledged in adopting the TVPA, the United States has many foreign policy interests at stake in such litigation. Among others, ATS claims may advance U.S. interests in deterring and punishing the world’s worst crimes, denying safe haven, compensating victims, enunciating norms, bolstering emergent democracies, and encouraging credible local rule of law institutions.

ATS cases may involve gross human rights violations perpetrated in the territory of a state without any functioning government (such as Somalia), violations perpetrated by a rogue state or in a country that lacks effective rule of law institutions to prevent and punish the violations (such as Paraguay in Filartiga v. Peña-Irala), violations by a person who has been indicted by an international criminal tribunal but evaded apprehension (such as Karadžić), or violations by a prior regime when the successor government supports the litigation (such as Marcos and the Philippines). The United States has additional interests in redressing violations perpetrated abroad by U.S. nationals or when the perpetrator or victims reside here.  (The latter is the case in Kiobel, as it was in the Holocaust cases, which resulted in global settlements and the distribution of over $7.5 billion to more than 450,000 victims, many of them in America.)

Under any of these scenarios a U.S. forum could be fully consistent with U.S. international relations, either because no meaningful remedy was available elsewhere or because the United States had some other nexus to the harm. Filartiga is consistent with such an approach. Efforts at local justice in that case proved futile, and as Justice Kennedy observed at oral argument, “the only place they could sue was in the United States.”  If President Assad came to the U.S. after departing Syria, should we deny the only available forum to his victims because the violations occurred abroad?

Certainly, adjudication of some claims arising abroad can give rise to sharp foreign relations controversies. But within Sosa’s parameters for an actionable international law claim, other well-established doctrines – such as personal jurisdiction, immunity, Iqbal pleading requirements, forum non conveniens, exhaustion of local remedies, the political question and act of state doctrines and others – exist to ensure, as they do in transnational litigation generally, that claims are not adjudicated if the U.S. forum is inappropriate.  Operation of these principles is also consistent with the evolving international criminal law concept of complementarity, under which a foreign state may decline to exercise universal criminal jurisdiction if the state with primary jurisdiction is able and willing to prosecute.

Experience with ATS litigation has vindicated this view. Prior to the Court’s decision in Sosa, a number of concerns were raised regarding the potential overbreadth of ATS jurisdiction.  These concerns were fanned by the filing of the South African cases against over fifty multinational corporations for allegedly aiding and abetting crimes of the apartheid era.  These cases raised the specter that merely investing or doing business in a country that violated human rights could expose a corporation to liability under the ATS.  Foreign governments objected vociferously, as did the United States.  Sosa, however, had a disciplining effect. The district court later dismissed nearly all of the defendants, retaining claims against only a handful of companies that were alleged to have engaged in specific acts that directly contributed to apartheid violations.  South Africa then tempered its response to the litigation, as did the United States.

The contrasting foreign government response in this case is striking. Although Nigeria expressed concern about Kiobel a decade ago, apparently it has not objected since.  In other fora, the successor Nigerian government conceded that the prior regime participated in widespread human rights violations. Argentina submitted a powerful brief in support of the Kiobel plaintiffs, arguing that Filartiga and its progeny “were important sources of international assistance for victims during the darkest days of Argentina’s dictatorship and during its transition to democracy.”  It emphasizes that concerns regarding ATS litigation “are unfounded given the universal nature of the limited set of norms that Sosa protects and the fact that virtually all nations have legislated them domestically.”

In both Kiobel and Sosa, the European Commission submitted amicus briefs confirming that ATS jurisdiction over foreign violations is “likely to encounter relatively little resistance in the international community,” so long as it is exercised consistent with universal jurisdiction and domestic remedies are exhausted.    Its current brief on behalf of the European Union underscores that both national and international law increasingly provide for civil remedies for victims of universal crimes.

No objections to extraterritorial jurisdiction have been submitted in Kiobel by Australia, Canada, Germany, or Switzerland – all of which opposed specific ATS suits against their own corporations in the past.  Indeed, in Kiobel only the United Kingdom and the Netherlands – the defendant’s domiciliary states – argue broadly against foreign ATS jurisdiction. But neither state objected diplomatically to the case, and their brief would expressly preserve extraterritorial jurisdiction in situations like Filartiga, where local remedies were exhausted and the foreign perpetrator later comes to the United States.

Since the founding of the Republic, U.S. courts have adjudicated claims arising abroad under the transient tort doctrine if personal jurisdiction is established over the defendant.  And U.S. courts today may hear claims against foreign corporations for ordinary harms arising abroad if the requirements for general jurisdiction are met.  Sosa confirmed that the ATS is available to adjudicate only a handful of claims for the most egregious violations that may occur on foreign soil. When tempered by other established doctrines to determine if a foreign forum is more appropriate, such jurisdiction is fully consistent with U.S. foreign policy and with domestic and international law.