Online Kiobel symposium: A response to Colangelo, Feder, and Ramsey

The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Ingrid Wuerth, Professor of Law and Director of International Legal Studies at Vanderbilt University Law School.  She has written widely on U.S. foreign relations law and international law in domestic courts, and is not involved in the Kiobel litigation.  From July 14 -21 she will be peak bagging in the Colorado Rockies without access to the internet.  [Lyle published an introduction to the issues in Kiobel last week.]

Meir Feder and Mike Ramsey both argue that the Alien Tort Statute was designed to remedy violations of international law for which the United States could be held responsible under international law.    This interpretation is consistent with broader historical themes from the 1780s and 90s:  compliance with international law and steering a course of neutrality among other warring nations were understood as essential to the success of a weak nation whose immediate future lay in trade and commerce, not military engagement.  As a general historical account, this narrative is in many respects convincing.

But it is not reflected in the text of the Alien Tort Statute, which is not limited to torts that might put the United States itself in violation of international law, a serious difficulty that Ramsey acknowledges in his post.  Nor is it reflected in any legislative history, and it is not even reflected in the widely cited Bradford opinion from 1794.  Bradford does note the availability of a federal forum for ATS suits against the alleged U.S. perpetrators, but goes on to say in the very next paragraph that the Neutrality Proclamation alone satisfied U.S. obligations under international law – the ATS was thus not necessary to keep the U.S. from being held responsible.

There is another fundamental problem with linking this broad historical account to the specific text of the ATS:  the account is incomplete.  The U.S. did want to avoid international responsibility and violations of international law, but it also benefitted from a strong overall system of international law.  For example, the international law of neutrality prevented the U.S. from assisting belligerents, but it also allowed neutral nations like the U.S. to trade with belligerents.   As a weak nation, the United States stood to benefit from strong rules of international law, and the U.S. sought to strengthen free trade rights of neutral countries under international law through its foreign policy.  Thus, the ATS might be seen as a vehicle for redressing violations of international law and strengthening the system generally, not just when the U.S. was potentially responsible.   Text, lack of drafting history, and paucity of contemporary cases and commentary make it difficult to link conclusively either historical narrative to the ATS.

Meir attempts to avoid these problems by arguing that the Sosa decision itself interpreted the ATS as limited to conduct for which the United States might be held responsible.  This is incorrect.  The Sosa opinion focuses on whether the statute itself creates a cause of action and the fact that the historical violations for which the ATS provided redress created individual liability.  It also emphasized limitations based on the specificity and universality of the international norms, the relevance of Erie, and other reasons that the Court should be cautious about creating ATS causes of action.   Despite its focus on limitations, the opinion simply does not, anywhere, even consider a limitation on ATS suits based on the possible international responsibility of the United States.

Justice Souter does raise separation of powers and foreign policy concerns, noting that they could be especially acute where an ATS suit might “claim a limit on the power of foreign governments over their own citizens.”   Of course, such suits cannot go forward directly against foreign states because of the limitations imposed by the Foreign Sovereign Immunities Act.  If this sentence is read as foreclosing entirely suits with some indirect effect on a foreign state’s relationship with its own citizens, then it would prevent a case like Filartiga from going forward, which is inconsistent with other language in Sosa.   Instead, as the paragraph itself says, this observation provides an additional reason for the high substantive bar to creating an ATS cause of action.  Concerns about potential friction with other countries also means that courts should be especially careful to avoid violations of international law.  Indeed, this is why prescriptive jurisdiction poses particular problems for ATS litigation.

The Kiobel briefing and the contributions to this symposium argue that a) the ATS is not an exercise of prescriptive jurisdiction; and b) even if it is, jurisdiction to prescribe is permissible under international law in many ATS cases as a form of universal jurisdiction.   The second point, which involves applying universal criminal jurisdiction to civil cases, is a defensible (if controversial) position from the perspective of international law, at least when coupled with an exhaustion requirement of some kind.    This general argument has been developed in more detail in a 2006 article by Donald Francis Donovan and Anthea Roberts.

The first point is often defended with the observation (made by Anthony Colangelo in this symposium) that the ATS applies norms derived from international law and that international law arguably requires remedies for human rights violations.  But neither observation makes the ATS any less an application of U.S. law.  Indeed, these points misunderstand universal jurisdiction itself:  universal jurisdiction is a form of prescriptive jurisdiction that allows a state to criminalize certain conduct as a matter of its domestic law and apply that law where no other basis for prescriptive jurisdiction exists.  All of the law applied in ATS cases, as in other domestic universal jurisdiction cases, is fundamentally domestic law, but this point is especially clear with respect to the civil cause of action – which is what actually imposes liability and thus cannot be characterized as merely adjudicatory – because international law simply does not create a civil cause of action or impose civil liability.

The ATS is an extremely unusual statute, largely exceptional to the U.S.   Because it provides civil redress for violations of international law, decisions interpreting the ATS are part of the development and formation of customary international law that will apply to many actors and in many contexts around the world.  As U.S. scholars who seek to advance and promote international law as a robust whole – just like eighteenth-century Americans with interests in strengthening the law beyond just avoiding state responsibility – we should pay very close attention to its content, structure, and the limitations it may impose, even (and especially) when they conflict with the outcomes we prefer.