Online Kiobel symposium: International law and Alien Tort Statute litigation

The following contribution to our symposium on Kiobel v. Royal Dutch Petroleum is written by 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.]

The Kiobel case raises intertwined questions of statutory interpretation, federal common law, and international law.   The Alien Tort Statute (ATS) authorizes courts to create federal common law causes of action, but only for conduct that violates well-established contemporary norms of international law.  Moreover, some extraterritorial applications of the statute arguably violate international law.  The Court’s decision may also influence the ongoing development of the customary international law of both human rights and prescriptive jurisdiction, whether or not it discusses them explicitly, because the decision could count as “state practice” – one component of custom.   And the government has not made the Court’s task any easier; its supplemental brief says little about international law, and was not joined by the State Department.

This post explains the appropriate relationship between federal common law and international law in ATS cases, and analyzes corporate liability and the extraterritorial application of the statute.

Out with the “binary approach”

Some lower courts (including the Second Circuit in its Kiobel opinion) and many commentators have misread the Supreme Court’s decision in Sosa v. Alvarez-Machain as saying that federal common law creates the cause of action in ATS cases, but that international law directly controls some aspects of the litigation, including the substantive standard for liability.  This “binary approach” (as I have termed it in a Notre Dame Law Review symposium article) rests on an incorrect and unwise reading of Sosa. Under Sosa, the content of international law does inform and constrain the courts’ power to develop federal common law:  “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations” than the historical crimes of piracy, violations of safe conducts, and assaults on ambassadors.

But the Sosa opinion does not say that the substantive law applicable in ATS cases represents some pure form of international law entirely distinct from the federal common law cause of action.  Instead, it is best to view all of the law applicable pursuant to the ATS as federal common law, which avoids the unnecessary threshold question that has consumed both courts and commentators: which aspects of ATS litigation are governed by which source of law.

This approach has the benefit of making clear to foreign observers that U.S. courts are not purporting to apply international law directly in U.S. cases, instead they are doing so through the unique lens of the ATS.   Only U.S. courts must consider modern international law in the context of eighteenth-century international norms to determine if cases against alleged violators may go forward.  Acknowledging that this enterprise is fundamentally an exercise in U.S. law-making pursuant to a U.S. statute helps avoid the claim that U.S. courts misunderstand or poorly interpret international law.  It also clarifies some issues of prescriptive jurisdiction, discussed below.

Although many of the briefs filed in the Kiobel litigation take the “binary approach,” the briefs of the United States did not.  The supplemental brief explicitly states (at 2) that “a private right of action fashioned by a court exercising jurisdiction under the ATS constitutes application of the substantive and remedial law of the United States, under federal common law, to the conduct in question – albeit based on an alleged violation of an international law norm.”

The Court should follow suit: out with the needlessly complex and misleading “binary approach.”

Yes to corporate liability

It follows from the foregoing that the Second Circuit erred when it framed the issue of corporate liability in terms of whether federal common law or international law applies.  Instead, the question is whether the ATS is best understood to hold corporations liable for conduct that is actionable under the ATS when committed by other non-state actors.   That customary international law itself does not impose obligations directly and specifically upon corporations is a relevant consideration that cuts against ATS liability, at least in the sense that if international law did so, the case for corporate liability under the ATS would be straightforward.

But this is not dispositive:  after all, international law does not impose civil liability directly upon on individuals, but the ATS does.  Thus, the Second Circuit erred when it reasoned that under the ATS “who is liable for what” is left to “customary international law.”   Moreover, corporate liability is only possible when the underlying substantive violation meets Sosa’s high standard for universality and specificity, which will include only the most egregious violations of international law –  such as some of those alleged in Kiobel.

There is just not much reason to think that Congress intended to limit the scope of the ATS based on the corporate form of the defendant, at least based on the statute as interpreted by the Court in Sosa.   Neither international nor domestic law today (or in 1789) imposes any particular barriers to civil suits against corporations.   Were a corporation to engage in torture today, or piracy in 1789, the purposes of the statute would not be served by denying liability.

Holding that the ATS applies to corporations might be viewed as “state practice” tending to show that customary international law applies to corporations.  Rejecting the “binary approach” should limit the decision’s significance for customary international law, however, by making clear that the applicable law under the ATS is federal common law.  As well, both of the government’s briefs support corporate liability under the ATS, suggesting that any potentially negative implications from the perspective of U.S. foreign policy are outweighed by the benefits of holding corporations accountable.

The question of corporate liability itself is often discussed along with concerns about aiding and abetting liability and application of the statute to foreign corporations and events.  These are distinct legal issues, however, that should be not confused with the question of whether corporations are amenable to suit at all.

Limited universal civil jurisdiction

Extraterritoriality is more difficult.   There is no international norm that prohibits civil suits against corporations, but international law does limit the application of domestic law to events that take place in other countries.  In the context of ATS litigation there are three main issues:  the presumption against extraterritoriality, the substantive scope of the ATS, and international law.   The first two provide no reason to prohibit extraterritorial application of statute in toto, and are in any event inconsistent with the Court’s reasoning in Sosa.

My focus here is on the third, however.  The ATS should not be interpreted to violate international law.  It is, after all, designed to redress violations of international law.   The petitioners argue that the ATS is not an exercise of prescriptive jurisdiction because it directly applies international law.  This is incorrect for reasons described in the first section: the cause of action and substantive law applied are federal common law and thus an exercise of prescriptive jurisdiction.

Does international law prevent application of the ATS in cases like Kiobel where there is no traditional basis for prescriptive jurisdiction such as territory or nationality? The government’s briefing of this issue is, let’s say, unfortunate.   Footnote 3 of the supplemental brief shrugs off any concerns about international law with a quick citation to a different U.S. statute, as if that statute alone determines the content of customary international law.

The strongest argument for applying the ATS where no other basis for prescriptive jurisdiction exists was described by Justice Breyer in his opinion in Sosa.  Universal civil jurisdiction can be derived from universal criminal jurisdiction, which in many countries includes some form of civil redress as well.    This derivation is not entirely straightforward, but it does provide a reasonably strong justification for the extraterritorial application of the ATS to universal criminal jurisdiction offenses.

Even universal criminal jurisdiction cases and scholarship increasingly acknowledge, however, the desirability of prosecution based on nationality or territoriality. Indeed, there is little disagreement (at least at the level of general principles) that these constitute the first-best solutions even for gross violations of human rights law, and that universal jurisdiction should be available only when they fail.  Whether this principle, which some have termed subsidiarity, reflects a binding norm of customary international law is debatable, but it is clearly and increasingly reflected in the legislation and practice of many European countries, including Germany, France, and Spain.  In the context of ATS litigation, such concerns can be addressed by requiring some form of exhaustion of remedies in local courts.

Applying universal civil jurisdiction with an exhaustion limitation as part of federal common law informed by international law best effectuates the statute’s history and purposes as articulated in the Sosa decision while minimizing potential conflicts with the customary international law of prescriptive jurisdiction and the sovereign interests of other states.  It would limit application of the statute to universal jurisdiction offenses (when no other basis for prescriptive jurisdiction exists), and give home courts the priority in adjudicating conduct that took place on their territory or by their nationals.