The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Meir Feder, a partner at Jones Day, where he heads the Issues and Appeals Practice in the firm’s New York office.  He has represented defendants in ATS litigation, and in Kiobel represents a group of professors of international law and federal jurisdiction as amici curiae. [Lyle published an introduction to the issues in the case at the start of the symposium.]

My initial contribution to this symposium emphasized the importance of Sosa’s holding that the ATS itself confers only jurisdiction, not a cause of action – and that any cause of action therefore will exist only to the extent created as an exercise of federal common law.  In short, a violation of international law, standing alone, will not translate into a federal cause of action in the absence of affirmative reasons for the courts to take the unusual step of creating one.  I further argued that in light of what Sosa identified as the original, parochial purposes of the ATS – aimed at avoiding friction or war with foreign governments – it is particularly hard to justify judicially creating a right of action extending to foreign conduct for which the U.S. itself has no responsibility.  While I am sympathetic to some of the arguments for Congress creating causes of action for such human rights claims, the judicial creation of such rights of action as federal common law cannot be justified.

The symposium contributions supporting broad ATS liability, while in many respects scholarly and well-argued, seem to me to repeat the error of the many courts that have failed to grapple with Sosa’s restriction of ATS causes of action to those that can be justified as creations of federal common law – and its admonition that such judicial creation “should be undertaken, if at all, with great caution” and limited to “narrow” circumstances.  Many of them proceed from the assumption – demonstrably incorrect under Sosa – that all international law violations (or all violations of well-established norms) are presumptively actionable under the ATS.

For example, Anthony Colangelo argues that the language of the ATS is broad enough to confer universal jurisdiction, and other commentators make similar arguments based on the statutory text.  These text-based arguments miss the point, because Sosa made clear that the ATS itself confers jurisdiction but not a cause of action; the creation of a cause of action must be separately justified as an exercise of federal common law, and the statutory language cannot resolve that issue.  The reliance of some commentators (and the Kiobel petitioners) on so-called transitory torts is similarly off-point.  A U.S. court entertaining a transitory tort claim is simply exercising jurisdiction over a claim arising elsewhere.  That does not speak to the question at issue here, which is whether the federal courts should create a federal common law cause of action for such cases.

Beth Stephens makes a related error in assuming that Sosa affirmatively recognized a cause of action for violations of “a clearly defined, widely accepted norm of international law” (i.e., any claim that satisfies the criterion that was fatal to the claim in Sosa).  In fact, Sosa did not recognize any modern international law principle as actionable, but instead merely declined to “close the door” to the future recognition of a yet-to-be identified “narrow class of international norms.”  And the Court expressly contemplated additional limits on recognition of a cause of action beyond those that were decisive in Sosa itself, saying, among other things, that “[t]his requirement of clear definition is not meant to be the only principle limiting the availability of relief in the federal courts for violations of customary international law, though it disposes of this action.”

Some of the other arguments advanced in the symposium also appear to rely, if somewhat more subtly, on the same mistaken notion that Sosa affirmatively (or presumptively) recognizes a broad cause of action, as they aim only to negate the case for exceptions to that (assumed) broad liability, and offer no positive justification for judicially creating a cause of action.  Sarah Cleveland, for example, argues that ATS claims can have either positive or negative foreign relations consequences, depending on the circumstances.  This might rebut an argument for a “foreign policy consequences” exception to an otherwise-existing cause of action, but it has the opposite effect when the question is whether to judicially recognize such a cause of action in the first place.  The multiple possible foreign affairs consequences make this precisely the type of situation – requiring the weighing of competing policy goals and calling for sensitive judgments about international affairs – in which it is least appropriate for the judicial branch to make the policy choice inherent in authorizing a private cause of action.

This seems to me even more plainly the case, moreover, when dealing with claims like those in Kiobel, which – in that they address the relationship between foreign governments and their own citizens – are fundamentally different from the parochial violations that Sosa identifies as the concern of the drafters of the ATS.  Whatever else one can say about the ATS, it is surely true that the Congress of 1789 (1) did not anticipate or weigh the consequences of such claims based on the internal conduct of foreign governments, and (2) would probably have viewed recognition of such claims as more likely to create foreign relations difficulties than to avert them.  In the modern era, moreover, even after international law began to recognize duties of governments to their own citizens, Congress has been reluctant to authorize claims based on alleged violations of those duties, and where it has done so – as in the TVPA – it has imposed significant limitations on the cause of action.  It would be odd for the courts to get out ahead of Congress in authorizing such a cause of action, and certainly inconsistent with modern understandings of the (very constrained) discretion of the federal courts in recognizing new rights of action.

Finally, I should say a word about Ingrid Wuerth’s contention that Sosa did not itself limit the ATS to conduct for which the United States might be held responsible, or even consider such a limitation.  I actually agree, and have never contended that Sosa imposed such a limitation.  Indeed, that issue could not have been presented in Sosa, which involved conduct for which the United States could easily have been deemed responsible.  My contention, rather, is that Sosa did address the purpose of the ATS, and (correctly) identified that purpose as focused on violations for which the U.S. would be held responsible – affronts to other nations which, if not “adequately redressed” by the U.S., could give rise to “serious consequences in international affairs,” or war.  In light of that parochial purpose, it seems obvious to me that the violations at issue in Kiobel and most modern ATS cases fall into a fundamentally different category, and raise significantly different considerations, from those contemplated by the Congress that passed the ATS.  That is not a circumstance in which the decision to create a private right of action can properly be made by the courts.

Posted in Featured, Kiobel Symposium

Recommended Citation: Meir Feder, Response to symposium contributions, SCOTUSblog (Jul. 20, 2012, 11:15 AM), http://www.scotusblog.com/2012/07/response-to-symposium-contributions/