The following contribution to our symposium on Kiobel v. Royal Dutch Petroleum comes from Beth Stephens, Professor of Law, Rutgers-Camden School of Law. As a Cooperating Attorney with the Center for Constitutional Rights and a member of the Board of Directors of the Center for Justice and Accountability, Professor Stephens has worked on the plaintiffs’ side of Kiobel and related cases. [Lyle published an introduction to the issues in the case last week.]
The Supreme Court’s order requesting supplemental briefing in Kiobel v. Royal Dutch Petroleum posed two intertwined questions. The Court asked first “whether” the Alien Tort Statute (“ATS”) “allows courts to recognize a cause of action” for international law violations occurring within the territory of a foreign sovereign. The answer to that question is clearly “yes.” All of the standard measures of statutory interpretation support extraterritorial application of the ATS. The Court also asked “under what circumstances” the ATS “allows courts to recognize a cause of action” for extraterritorial violations. The answer to this second question will inevitably be complicated by importing a myriad of irrelevant “circumstances” – personal jurisdiction, foreign affairs, separation of powers, accessory liability, venue – into what is also a straightforward question. In Sosa v. Alvarez-Machain, the Court explained the circumstances in which the ATS allows courts to recognize a cause of action for violations of the law of nations: when a plaintiff makes plausible allegations of tortious conduct that violates a clearly defined, widely accepted norm of international law.
Extraterritorial application of the ATS – the first question posed by the Court – is supported by text and contemporaneous history; judicial precedent; congressional action and inaction; and the views of the Executive Branch. Most important, the text of the statute imposes no limit on the location of the violations that would trigger federal court jurisdiction, although other provisions in the First Judiciary Act did include territorial limitations. Use of the word “tort” indicates incorporation of the common law understanding of transitory torts, which were actionable in U.S. courts no matter where the injuries occurred. And a nearly contemporaneous 1795 opinion of Attorney General William Bradford states that the statute would apply to a claim arising in the territory of Sierra Leone, a sovereign state. In addition, the Supreme Court has addressed the ATS numerous times in cases involving extraterritorial acts – in Banco Nacional de Cuba v.Sabbatino, Argentine Republic v.Amerada Hess Shipping Corp., Sosa v. Alvarez-Mac-hain, and Samantar v. Yousuf – without once suggesting that the location of the acts might restrict the scope of the statute. Similarly, hundreds of lower court decisions have applied the statute to extraterritorial acts. Significantly, the Executive Branch in this case has concluded that the statute applies to some extraterritorial acts, stating explicitly that the Court “should not articulate a categorical rule foreclosing any [extraterritorial] application of the ATS.”
Finally, Congress has, for over thirty-two years, taken no action to restrict the judicial interpretation of the ATS as applying to acts occurring within the territory of foreign states. To the contrary, Congress has addressed related concerns three times, in the Torture Victim Protection Act, the Anti-Terrorism Act, and the “sponsors of terrorism” exception to the Foreign Sovereign Immunities Act, each time expanding the scope of civil claims for human rights violations. Eight years ago, at oral argument in Sosa, the Justices asked whether Congress had considered legislation to repeal or revise the ATS in response to the 1980 decision of the Second Circuit in Filártiga v. Peña-Irala and the dozens of cases that followed. The answer was “no” in 2004, and remains “no” today. As the Court observed in Sosa, “Congress . . . has not only expressed no disagreement with our view of the proper exercise of the judicial power, but has responded . . . by enacting legislation supplementing the judicial determination in some detail.”
The broad text of the statute; the Bradford opinion; the long line of cases applying the statute to transnational claims, including Sosa; Congress’s failure to act to “correct” that judicial interpretation and expansion of related civil remedies; and the views of the Executive Branch all support a clear answer to the Court’s first question: the ATS applies to claims arising in the territory of foreign states.
The second question embedded in the Court’s order asks “under what circumstances” the ATS “allows courts to recognize a cause of action” for extraterritorial violations of the law of nations. This remarkably vague phrase will inevitably lead respondents and their amici to speculate about any and all of the myriad “circumstances” in which a cause of action for extraterritorial claims might be dismissed. But the question addresses circumstances relevant to the recognition of a cause of action – that is, a right to sue for conduct that violates a substantive norm. Challenges based on personal jurisdiction, venue, direct or secondary liability, separation of powers, and foreign affairs are not part of the decision as to whether a plaintiff has stated a claim for relief.
The answer to the narrow question asked by the Court flows directly from statutory text and precedent. The text of the ATS requires only that the acts alleged constitute a tort in violation of the law of nations. Sosa explained that federal courts should use their common law power to recognize causes of action only for clearly defined, widely accepted international norms, those “accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms” recognized at the time the ATS was enacted. For example, a court should recognize a cause of action for genocide because the prohibition of genocide is clearly defined and widely accepted and is thus comparable to the norms familiar to the Congress that enacted the ATS. Courts should be cautious in recognizing such claims because modern human rights norms apply to conduct by foreign governments within their territory and directed at their citizens. But if a claim meets Sosa’s stringent standard, as the prohibition of genocide does, judicial recognition of a private cause of action will not trigger the multiple concerns listed in Sosa.
Objections from a foreign government or the Executive Branch may well determine the course of ATS litigation, but they are not relevant to the decision to recognize a cause of action. Nothing in the text of the statute or the Sosa decision suggests that the courts should not recognize a cause of action for genocide in a particular case because a foreign government, a defendant, or even the U.S. government objects to litigation of the claim. Importing foreign affairs, separation of powers, or convenience into the decision to recognize a cause of action mixes apples and oranges. Those latter issues are properly addressed through doctrines such as comity, act of state, the political question doctrine, and forum non conveniens. They are not part of the cause of action.
In its supplemental brief in Kiobel, the Department of Justice (“DOJ”) falls into the trap of trying to shoehorn all the “circumstances” that might accompany controversial ATS claims into recognition of a cause of action. The brief proposes that district courts consider a host of complicated prudential concerns and decide case by case whether Congress intended a cause of action under the exact set of facts in that case. But courts recognize a cause of action for genocide as defined by international law, not for genocide-committed-by-an-individual-with-no-political-clout-in-the-territory-of-a-state-where-the-government-doesn’t-object-or-the-U.S.-government-doesn’t-care-if-it-does-object. These multiple “circumstances” surrounding a claim are not part of the cause of action analysis.
Respondents emphasize that some ATS cases have triggered protests from foreign governments or have forced defendants to litigate in a forum in which they have limited (albeit constitutionally sufficient) contacts. This is undeniably true. But foreign governments have also supported many cases, either explicitly or by declining to intervene. And not all protests are well-founded or justify dismissal of complaints. Most important, the federal judicial system has ample doctrines designed to address litigation that interferes with foreign policy, trespasses on the sovereign rights of foreign states, or should be litigated in another forum. Questions about the “circumstances” in which ATS litigation is appropriate are properly answered by application of the existing filters that address these problems when they arise – as they frequently do – in transnational litigation.
Case-by-case determination of when to recognize a cause of action would vest an extraordinary level of discretion in the Executive Branch. The Executive Branch should play a role in cases touching upon foreign relations, of course, but should do so through judicially established standards such as the political question and act of state doctrines, not by deciding in individual cases how the courts should exercise their common law power to implement a statute enacted by Congress.
The DOJ compounds its effort to wrest control of ATS claims from Congress and the courts by proposing that the courts categorically refuse to recognize a cause of action that “challenges the actions of a foreign sovereign in its own territory, where the defendant is a foreign corporation of a third country that allegedly aided and abetted the foreign sovereign’s conduct.” This overbroad rule would sweep in cases where a foreign sovereign welcomes the role of U.S. courts in enabling its citizens to obtain redress from foreign corporations who would otherwise escape accountability.
The DOJ also suggests that doctrines such as exhaustion of domestic remedies or forum non conveniens should apply “with special force” in ATS cases. But ATS cases are hardly unique in triggering complaints from foreign governments. Foreign governments express anger in antitrust and other economic cases, for example, far more often than in ATS cases. The Executive Branch has failed to explain why human rights cases, cases in which victims of gross abuse, often living in the United States, seek a modicum of redress from private parties, should be subject to more stringent restrictions than the many controversial transnational economic disputes that are routinely litigated in U.S. courts.