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Online Kiobel symposium: Kiobel, “vigilant doorkeeping,” and the parochial purposes of the Alien Tort Statute

The following contribution to our Kiobel v. Royal Dutch Petroleum symposium 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 last week.]

The Supreme Court’s sole opinion to date interpreting the Alien Tort Statute, the 2004 decision in Sosa v. Alvarez-Machain, is not generally regarded as a model of specific guidance.  In many ways, it is a classic David Souter opinion, disposing of the case before the Court on a relatively narrow ground while deliberately avoiding any all-encompassing determination of the scope of permissible causes of action under the ATS.   The Court expressly declined to “close the door” to accepting a “narrow class of international norms” as actionable under the ATS, but – aside from holding that any such claims must, at a minimum, satisfy a requirement of “definite content and acceptance among civilized nations” – said little about what factors would determine which (if any) such claims might survive “vigilant doorkeeping” to claim membership in that “narrow class.”

Most notably, despite a few references to modern ATS cases like the Second Circuit’s Filartiga decision, the Court never directly addressed the legitimacy of the dominant type of modern ATS claim:  allegations (usually against a private party as an alleged aider and abettor) that a foreign government violated the rights of its own citizens or residents in its own territory.  In Kiobel, after initially granting cert. on the narrower question of corporate liability, the Court recognized the need to address  a more fundamental question left open by Sosa – whether, and to what extent, it should recognize a cause of action for international law violations committed in foreign countries.

What may surprise those who have followed the course of post-Sosa litigation is that, Sosa provides significantly more – and significantly more restrictive – guidance than the lower courts have generally recognized.  In particular, there are two under-appreciated aspects of Sosa– one doctrinal, the other historical – that I believe largely dictate the result in Kiobel and similar cases premised on a foreign state’s alleged mistreatment of its own citizens and residents.  First, Sosa makes clear that an ATS cause of action exists, if at all, only to the extent created by the courts as federal common law; violations of international law do not necessarily, or even presumptively, give rise to a cause of action.  Second, Sosa (correctly) recognizes the limited and deeply practical purpose of the ATS : to prevent adverse consequences from the narrow category of law of nations violations for which the United States would be held responsible by the sovereign of the injured alien.  Taken together, these principles make it very hard to justify a federal common law cause of action for wrongs against aliens by their own governments.

1.  The first, doctrinal point arises from Sosa’s  holding that the ATS itself confers only jurisdiction, not a cause of action.  An ATS cause of action, the Court held, must be provided by federal common law, and is subject to a heavy burden of justification analogous to the (very significant) constraints on creating implied rights of action or other new federal common law.   In other words, the apparently broad jurisdictional language of the ATS – which applies, without any express limitation, to alien claims for torts “in violation of the law of nations” – does not mean violations of the law of nations necessarily, or even presumptively, give rise to a substantive cause of action; to the contrary, the Court’s classification of such international law-based causes of action as akin to implied rights of action – which are not created without a strong affirmative reason for doing so, and rarely at that – means the presumption is to the contrary.

To be sure, this framework created by Sosa has been, as I noted above, under-appreciated – by which I mean more or less ignored.  Many lower courts have skipped right past asking whether there is a particular justification to create a federal common law right of action, and instead focused on the one specific substantive rule adopted by Sosa – the requirement of definite content and widespread acceptance by civilized nations – as if it were the only limitation on an otherwise general acceptance of all international law violations as stating a cause of action under the ATS.  What is particularly puzzling about this is that it is so obviously a misreading of Sosa:  Not only does Sosa require courts presented with ATS claims to address, as a matter of federal common law, whether to recognize a right of action, but it expressly contemplates additional limits on the recognition of such actions beyond the one that was dispositive in Sosa itself: “This 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.”

In short, Sosa, at a minimum, requires courts to address whether there are good reasons to recognize a federal common law cause of action for the particular type of international law violation at issue.  There is no baseline assumption that violations of international law automatically, or even presumptively, give rise to such a cause of action.

2.  That brings us to the second key aspect of Sosa, which is the Court’s identification of the purpose of the ATS.  The Court recognized (and history amply confirms) that the ATS had the narrow and intensely practical goal of providing redress for a particular sub-category of violations of the law of nations:  those violations of international law for which the United States would be held responsible.  In the late eighteenth century, tortious wrongs against aliens in U.S. territory were violations of the law of nations (and often of U.S. treaty obligations) and an affront to the alien’s sovereign for which the nation as a whole was responsible.  As the Sosa Court recognized, if not “adequately redressed” these affronts could give rise to “serious consequences in international affairs,” or even war.  Indeed, the threat to national interests raised by the national government’s inability to prevent and redress violations of the law of nations was one of the significant defects of the Articles of Confederation that led to the call for a stronger national government in the Constitution.  And the ATS was one of the principal means by which the first Congress acted, in 1789, to address that threat to national interests.

I should address one potential objection to this account of the ATS:  the assumption (shared by many, including Justices at the first Kiobel argument) that Sosa says the ATS was also intended to apply to piracy – offenses for which the United States would not necessarily have been responsible.  But this, too, misreads Sosa, which says only that piracy “may well have also been contemplated” by the drafters of the ATS. Scholars like Thomas Lee of Fordham have persuasively demonstrated that piracy (which was covered by the maritime jurisdiction conferred in the same 1789 legislation that included the ATS) likely was not intended to be within the ATS.

In other words, the ATS was not designed to express an altruistic commitment to worldwide justice for the victims of law of nations violations.  It was aimed at the narrow category of law of nations violations (and treaty violations) for which the United States would be held responsible, and had the hard-headed purpose of averting adverse consequences in the dealings of the United States with the offended sovereigns.

The incongruity of extending the cause of action under this statute to international law violations of the sort alleged in Kiobel and in most modern ATS litigation – conduct by a foreign state toward its own citizens or residents in its own territory – should be apparent.  Even where  such conduct violates human rights precepts of modern international law, it generally does not create an obligation for the United States to provide a remedy; nor would the failure to provide such a remedy be a diplomatic affront against another nation. To the contrary, there would often be more risk of adverse foreign-affairs consequences to the United States from its courts presuming to pass judgment on the foreign sovereign’s actions.  And in 1789 it would have been crystal-clear that the United States had no authority to interfere in this way in the internal affairs of other nations.

None of this is to slight the policy arguments in favor of providing a cause of action for the victims of overseas human rights violations, as the United States has done in the Torture Victim Protection Act.  Some of those arguments are quite powerful.  But they have little to do with the purposes of the ATS, and creating such a cause of action can hardly be justified as merely effectuating the intent of the Congress that passed the ATS.  Absent that, it is hard to see what basis there is for judicial recognition of a cause of action.  Moreover, all of the reasons there is a presumption against creating common law rights of action apply with full, or even enhanced, force here – weighing the international consequences of a human rights cause of action is the type of judgment that, for good reason, is typically left to the legislative and executive branches of government.

Recommended Citation: Meir Feder, Online Kiobel symposium: Kiobel, “vigilant doorkeeping,” and the parochial purposes of the Alien Tort Statute, SCOTUSblog (Jul. 11, 2012, 11:58 AM),