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Online Kiobel symposium: The ATS is in good company

The following contribution to our symposium on Kiobel v. Royal Dutch Petroleum comes from Oona A. Hathaway, Gerard D. and Bernice Latrobe Smith Professor of International Law at Yale Law School. Oona is the director of the Center for Global Legal Challenges at Yale, which filed an amicus brief and a supplemental amicus brief in this case. Oona served as a law clerk for Justice Sandra Day O’Connor. [Lyle published an introduction to the issues in Kiobel last week.]

The Alien Tort Statute (“ATS”) has often been cast as an outlier, as an excuse for U.S. judges to interfere where their counterparts the world over would stay out.  In fact, the ATS is in good company.  Large numbers of countries provide for civil liability for human rights abuses committed outside their territory.

The issue is no small one.  One of the toughest moments for the petitioners in the first round of oral argument in Kiobel v. Royal Dutch Petroleum came when Justice Kennedy quoted the amicus brief for Chevron for the claim that “[n]o other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection,” and asked for the “best authority you have to refute that proposition.” Justice Alito pressed the point by asking whether “there’s any other country in the world where these plaintiffs could have brought these claims against the Respondents,” and Chief Justice Roberts followed suit, asking whether “allowing the suit itself contravenes international law.”

The ATS is, in fact, far from alone.  Many nations permit their courts to exercise civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no more connection than that required by the U.S. doctrine of personal jurisdiction. The supplemental amicus brief filed by the Yale Law School Center for Global Legal Challenges, which I direct, discusses the statutes and cases in detail.  (Our first brief addressed whether specific prohibitory norms of international law apply to corporations.)  In cooperation with the Yale Law School Library, we have posted all of the sources used in the supplemental brief online, as some are not readily available elsewhere.  What this long list of documents helps demonstrate is that the ATS is just one of many statutes in the world that provide for the extraterritorial enforcement of international law.

Many countries have statutes asserting extraterritorial criminal jurisdiction to enforce international law, and many of them allow victims to make civil claims for damages in conjunction with the criminal proceedings.  The French Code of Criminal Procedure, for example, provides that a “civil action may be exercised at the same time as the public prosecution and before the same court. It is admissible for any cause of damage, whether material, bodily or moral, which ensues from the actions prosecuted.”  Spain goes further: Any criminal complaint filed by a victim is also automatically a civil claim unless the claimant expressly renounces it. A claimant may also file a separate civil action after criminal responsibility has been proven.

Numerous other countries have both universal jurisdiction statutes and laws for appending civil claims to criminal prosecutions.  We cite twenty-one examples, including the Netherlands (home to Royal Dutch Shell), though there are likely many more.  Indeed, shortly after the U.S. Supreme Court ordered re-argument, a Dutch court awarded a Palestinian citizen civil damages against Libyan defendants for torture committed in Libya.

If the ATS is in violation of international law, many laws the world over are in violation as well.  In fact, nothing in international law prohibits the United States or any other country from exercising its inherent sovereign power to provide civil jurisdiction for its courts to redress violations of international law that occur in foreign countries.  States have broad authority to exercise extraterritorial jurisdiction over violations of international law, particularly over such well-established universal prohibitory norms, such as those involved in Kiobel.

It is important to remember that the ATS does not empower courts to project distinctive U.S. law abroad (for example, U.S. antitrust law).  It only allows them to adjudicate claims arising under specific, universal, and obligatory norms of international law, like genocide, crimes against humanity, torture, extrajudicial killing, war crimes, slavery, and piracy.

Consider, for example, the case of Filártiga v. Peña-Irala, which gave rise to modern ATS litigation.  In retaliation for the political activities of his father, seventeen-year-old Joelito Filártiga was kidnapped and tortured to death by Américo Norberto Peña-Irala, the Inspector General of Police in Asunción, Paraguay.  After trying unsuccessfully to win legal redress in the Paraguayan courts, the Filártiga family fled to the United States.  There they sued Peña, who was in the United States and therefore satisfied the minimum contacts requirements of personal jurisdiction doctrine, under the ATS.  The courts allowed the case – involving a matter that occurred between a foreign plaintiff and foreign defendant in a foreign forum – to proceed under the ATS.  In the absence of the ATS, there was virtually no chance that the family would obtain any redress for the horrors visited on their son in violation of a core norm of international law.  The members of the Filártiga family would have suffered from the law’s impotence, and the project of international law would have suffered along with them.

An ATS case is thus very different from a case that gives distinctive domestic law extraterritorial reach.  Rather than imposing U.S. law on the rest of the world, the U.S., through the ATS, is doing its part to make sure that widely agreed upon rules of international law are followed. Indeed, international law relies on domestic courts to do exactly what the ATS permits. International law needs domestic courts to enforce its widely accepted norms because it has few courts of its own.

Although international law does not limit the ATS, numerous existing domestic doctrines do. U.S. courts regularly apply the principles of personal jurisdiction, forum non conveniens, act of state doctrine, and political question doctrine to safeguard international comity and ensure basic fairness to defendants.  In other words, there are many existing domestic doctrines that ensure that no case that has insufficient connection to the United States or that raises significant political concerns can proceed in U.S. courts.  There is no need to invent new limits on the ATS.

The First Congress of the United States enacted the ATS to ensure that U.S. courts could enforce international law.  As the Yale Law School Global Legal Challenges supplemental amicus brief recounts, many countries have since followed the U.S. example by enacting statutes of their own providing for criminal and civil liability for international law violations.  The ATS is in good company.


Recommended Citation: Oona Hathaway, Online Kiobel symposium: The ATS is in good company, SCOTUSblog (Jul. 17, 2012, 11:37 AM),