Response: Plain text, stare decisis, and déjà vu all over again

The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from 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 the case at the start of the symposium.]

Remarkably little has been said about two issues that might seem central to this debate: the text of the ATS, and the Supreme Court’s actual analysis in Sosa.  Whatever happened to plain language analysis?  And whatever happened to stare decisis?  Sosa’s explication of the statute clearly contemplated application of the ATS to foreign acts on foreign soil.

The text of the ATS seems to be an embarrassment to those who would confine the statute geographically.  As Sosa observed, the original ATS provided that the federal courts would have jurisdiction “concurrent with the courts of the several States,” over “all causes” brought by “an alien” “for a tort only in violation of the law of nations.”  “All causes” has been modified over time (to “any civil action”), but the text remains capacious.  “Any” and “all” do not circumscribe the tort claims that may be brought, so long as they violate the law of nations. Nor do those words limit the appropriate defendants, or impose any geographic constraint.

This language is notably different from other statutes of the era, which did impose such limits.  In the same section of the 1789 Judiciary Act, Congress provided for jurisdiction over “all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, or upon the high seas.”  No such language appears in the ATS.  And contrary to some commentators, the 1790 criminal piracy statute at issue in United States v. Palmer had limiting language not found in the ATS.  In that case, Chief Justice Marshall expressed “no doubt” that Congress could enact laws punishing acts of piracy with no connection to the United States. The only question was whether Congress had done so.  In answering no, Chief Justice Marshall explicitly relied on “the words of the act,” particularly the title – “An act for the punishment of certain crimes against the United States” – and language elsewhere in the statute that could only be relevant to U.S. actors.  Congress immediately rejected this interpretation, however; it amended the statute the next year to apply to “any person or persons whatsoever [who] shall, on the high seas, commit the crime of piracy, as defined by the law of nations.” The following year, the Supreme Court changed its mind regarding the original 1790 Act, and concluded that even that language was not limited to U.S. ships and persons, but applied to acts of piracy “committed against all nations, including the United States, by persons who … are equally amenable to the laws of all nations.” This history confirms that piracy was very much on the minds of the early Congress, that Congress did not intend for U.S. jurisdiction over that law of nations violation to be limited to U.S. actors, and that if Congress wanted to impose such limitations, it knew how to do so.

What about the purposes of the ATS?  A number of commentators suggest that the Act’s purpose was limited to providing a forum for torts for which the United States could be held responsible, and they have sought to minimize other purposes, including redressing other core international law violations such as piracy.  But the statute does not say “torts in violation of the law of nations for which the United States is responsible,” nor is that what Sosa said.  Sosa did recite various historic incidents, including the Marbois affair, that have been understood as providing at least partial inspiration for the statute. But the Court concluded that “a consensus understanding of what Congress intended has proven elusive.”

For the meaning of the statute’s key reference to the “law of nations,” Sosa turned to the relevant commentators of the time, particularly to Blackstone’s discussion of the “three specific offenses against the law of nations addressed by the criminal law of England:  violation of safe conducts, infringement on the rights of ambassadors, and piracy.” The Court explained that “the common law appears to have understood only those three [Blackstone offenses] … as definite and actionable, or at any rate, to have assumed only a very limited set of claims.”  The Court found support for its reliance on the Blackstone trilogy in the fact that the First Congress also criminalized these three law of nations offenses.  From this history, the Court reasoned that Congress adopted the ATS with “the understanding that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability at the time.” This understanding was “confirm[ed]” by contemporaneous court decisions acknowledging the applicability of the ATS to privateering. Recognizing that international law evolves and that the statute was not temporally confined, the Court reached its canonical conclusion that “courts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” –  in short, offenses like Blackstone’s offenses, including piracy, where the defendant is, as Blackstone put it, hostis humani generis, an enemy of all mankind.

The view that Congress’s purpose was limited solely to redressing torts implicating U.S. responsibility does not accommodate these various historical strands that the Sosa Court identified.  But the statute can be explained by a somewhat broader purpose – that the young nation sought to demonstrate its commitment to international law by providing a reliable federal forum to enforce serious law of nations violations “with a potential for personal liability,” as Sosa put it.  This included a goal of avoiding international conflict.  But providing a forum for serious law of nations violations such as piracy was consistent with that goal, by affirming the United States’s appropriate membership among the international community of nations.

Sosa, by the way, also resolved the question of Article III jurisdiction that had been debated in academic circles before and that some now attempt to resurrect.  Sosa involved an alien-versus-alien claim under the ATS for violations arising in a foreign country.  There was jurisdiction, based not on diversity but on federal question jurisdiction, because Sosa made clear that a claim under the ATS must be understood to be a claim under federal common law.

Most significantly for present purposes, Sosa also explicitly grappled with the question of extraterritoriality that is now before the Kiobel Court. The United States devoted sections in both its opening and reply briefs in Sosa to the argument that “[n]o cause of action may be inferred from Section 1350 based on the alleged conduct of aliens in foreign countries.”  The government specifically objected to the lower courts’ construction of the statute as applying to “abuses against aliens by foreign actors in foreign lands.” Those briefs (and supporting amici) advanced many of the arguments that others are relitigating now.

Not a single member of the Court accepted this argument. Instead, the opinion repeatedly contemplates the application of the ATS to acts by foreign actors, including foreign governments, in foreign territory.  The Court understood that international law violations giving rise to “personal liability” include such claims, and much of the Court’s crafting of the parameters of the ATS cause of action was directed at precisely this application. The Court cited with approval Filartiga, Kadic, and Marcos, the three leading cases applying the statute to foreign conduct. It embraced the demanding “specific, universal, and obligatory” test explicitly to avoid conflicts when the statute was applied to “limit …. the power of foreign governments over their own citizens.”  (If the ATS applied only to claims against U.S. actors, the test would not need to be so restrictive.)  It proposed exhaustion of local remedies as a possible limitation – a requirement that is only relevant to claims arising abroad.  And its response to complaints by the U.S. and others regarding the South African apartheid cases – cases involving claims against foreign corporations for harms committed in a foreign country – was to suggest “case-specific deference” to the views of the executive in situations of extreme foreign relations concern. The Court did not suggest that ATS claims were limited to situations involving U.S. responsibility or any other geographic constraint.

This understanding was further elaborated by Justice Breyer, who devoted his concurrence to proposing an additional limitation on overseas claims: that the ATS should be limited to violations subject to universal jurisdiction. Justice Breyer explained that “adjudicat[ing] foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect.”

Small wonder then, that the current debate about ATS extraterritoriality feels like a question that has been asked and answered. At oral argument in Kiobel I, Justice Ginsburg expressed this frustration at her brethren’s questions about extraterritorial claims, saying “I thought that … Sosa accepted that Filartiga would be a viable action under the Tort Claims Act.”

If a “U.S. responsibility” theory were the primary animating purpose of the ATS, then it would seem that the paradigmatic ATS case would involve a claim by an alien against a U.S. official for acts of torture abroad.  But those are precisely the claims which the U.S. courts have declined to hear under the ATS.  On the other hand, if Filartiga can somehow now be recast as a case for which the U.S. could be held responsible – when that alien defendant was here nine months while overstaying a visitor’s visa, was in deportation proceedings when the case was filed, and was deported by the time the Second Circuit ruled – then it is hard to see how a claim against a foreign corporation that has the requisite business contacts here to establish general jurisdiction would not equally give rise to U.S. responsibility.

The composition of the Supreme Court has changed since Sosa, and one may wonder to what extent the new Justices will feel bound by the six-to-three opinion that the Court entered only eight years ago.  But even if the Court were somehow able to overlook Sosa’s clear embrace of extraterritorial application in crafting the ATS cause of action, it would be startling for the Court to reject – and for Justice Kennedy to abandon – the Court’s understanding of the statute’s scope and its modern application.  That scope included violations such as piracy – which Blackstone described as an “offense against the universal law of society,” so that “every community has a right … to inflict … punishment upon him.” That purpose suggests – as do Argentina and the European Union in Kiobel, and as did Congress in adopting the TVPA – that the ATS should remain available to redress the contemporary analogies to piracy – the small cluster of universal international law violations, such as genocide and torture, that every community today has an equal right to redress.

[Addendum:  Both Eugene Kontorovich,and Michael Ramsey have argued that Congress has been cautious in legislating universal jurisdiction by contending that the U.S. statute criminalizing genocide, 18 U.S.C. § 1091, is limited to acts on U.S. territory or involving U.S. actors. This is true of the War Crimes Act, but it is not true of the Genocide Act.  That statute’s jurisdictional provision, 18 U.S.C. § 1091(e)(2)(D), establishes jurisdiction “regardless of where the offense is committed,” so long as the alleged offender is later “Present in the United States.” It thus provides for jurisdiction over any act of genocide (or attempt, conspiracy, or incitement thereof), by any perpetrator, anywhere in the world, if the perpetrator later comes to the United States. Similar language requiring that the perpetrator merely be “present in,” “found in,” or in some cases “brought in” the United States, appears in the roughly twenty criminal statutes referenced in my first posting, including statutes relating to use of child soldiers and acts of terrorism.  (I reached out to Michael to raise this point about the Genocide Act, and he indicated that he agrees.)