Response: For ATS claims, universal jurisdiction isn’t the answer

The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Michael D. Ramsey, Professor of Law and Director of International and Comparative Law Programs at the University of San Diego Law School.  He is the author of The Constitution’s Text in Foreign Affairs (Harvard University Press 2007) and co-editor of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge University Press 2011).  Professor Ramsey has served as a consultant to defendants in past and pending ATS litigation. [Lyle published an introduction to the issues in Kiobel last week.]

Many of this symposium’s defenders of broad ATS liability (especially Professors Colangelo, Cleveland, and Wuerth) rest upon universal jurisdiction.  Under international law, they say, a nation has the ability to prosecute certain especially heinous crimes even in the absence of any tie to its territory or citizens, and the ATS can and should be read to incorporate this principle.  In this response, I will argue that universal jurisdiction is not a sound basis for broad ATS liability.

To begin, it’s worth noting that tying ATS liability to universal jurisdiction would in itself be a substantial limit that likely would dispose of the Kiobel case and many others.  The claims in Kiobel are for secondary liability – that is, the defendants are alleged to have aided and abetted the wrongful acts of the Nigerian government.  As I’ve argued in a prior article , although international law may recognize aiding and abetting liability under some circumstances, there is no international consensus that universal jurisdiction extends beyond the primary wrongdoer; many legal systems regard secondary offenders as materially less culpable.

A second preliminary point is that Filartiga v. Pena-Irala, invoked by defenders of broad ATS liability, is entirely distinct from Kiobel-type cases, both because the defendant there was the primary wrongdoer and, critically, because the defendant was a U.S. resident (though not a citizen).  It’s plausible to see the U.S. as having international responsibility to redress the wrongs of its residents so that it does not become a haven for international criminals.  In this view, Filartiga is consistent with Congress’s purposes in enacting the ATS – to provide redress where the U.S. would be internationally responsible.  Further, it may be the case that Congress would have understood the international law governing U.S. residents to be among the “laws of the United States” that convey Article III jurisdiction.  These questions are not presented in Kiobel, and need not be resolved in that case.  Non-U.S. corporations with only the barest minimum contacts with the U.S. aren’t equivalent to individual U.S. residents and there’s no plausible argument that, in the ordinary case, the U.S. is responsible for their acts (indeed, most countries likely wouldn’t recognize general personal jurisdiction over foreign corporations in such circumstances).  The same point can be made regarding Sosa v. Alvarez-Machain, which involved the extraterritorial actions of a non-citizen agent of the U.S. government – again, that is well within the purposes of the ATS and entirely distinct from corporations with only tenuous connections to the United States.

A third preliminary point is that invocation of the historical idea of transitory torts is entirely unhelpful to a broad view of the ATS and in fact points in the opposite direction.  It is likely true that in Anglo-American courts under certain circumstances an alien could sue another alien for a tort occurring abroad.  But under the transitory tort theory, the substantive law was foreign law, not local law.  As a result (apart from admiralty and maritime cases and cases affecting ambassadors), there would not have been Article III jurisdiction over such cases. Thus they couldn’t be brought in U.S. federal court, even if a broad grant of jurisdiction seemed to encompass them (as held in Mossman v. Higginson in 1800).

Turning now to the core argument for universal jurisdiction under the ATS, proponents of this approach write as if universal jurisdiction reflects a broad consensus that would take all international controversy out of ATS cases.  That is not so, for several reasons.  First, while there may be consensus on the idea of universal jurisdiction in the abstract, and it is reflected in some treaties and statutes, in actual practice it remains rare and typically invoked for non-citizen residents (as in Filartiga).  Assertions of pure universal jurisdiction (that is, with no nexus to the prosecuting country) in actual practice have been isolated and often contested.  For example, in a well-known episode, an assertion of universal jurisdiction in Belgian courts against U.S. officials for acts having no connection to Belgium encountered strong resistance from the U.S. and was withdrawn by a change in the statute.

Second, saying that there is consensus on the heinousness of certain offenses in the abstract does not translate into consensus on the application of abstract rules to particular facts.  There may be plenty of conflict over whether a particular set of actions constitutes, say, genocide or torture; and there may be plenty of conflict over whether the facts alleged actually occurred.  Consider, for example, an ATS suit based on allegations of genocide by Turkey against its Armenian population in the World War I era.  Regardless of how one thinks those allegations should be resolved, one could hardly say that their resolution by a U.S. court would be free from international tension and controversy.

Third, even if nations agree that a universal offense has occurred, they may differ sharply on the remedy.  The universal-jurisdiction-as-consensus argument works only if there is also consensus on the remedy.  Yet the proposal in ATS cases is generally that the U.S. should be free to create its own version of remedies to impose upon the world, without consulting international consensus.  And the U.S. idea of remedies, especially in civil cases, is assuredly not shared internationally: few countries accept the idea of broad civil remedies in the U.S. style, including punitive damages, class actions, and contingent attorneys’ fees.  Where the U.S. is immediately affected – that is, where the offense occurs in U.S. territory or involves U.S. citizens or residents – the U.S. has a strong claim that it should be able to impose contested remedies.  But where that connection is lacking – where the U.S. relies only on pure universal jurisdiction – the countries more immediately affected through territory or nationality will naturally feel that they, not the U.S., should determine the remedy.

None of these points necessarily shows that the U.S. cannot or should not pursue universal jurisdiction for heinous offenses.  But they are reasons that U.S. federal courts should not get ahead of Congress in doing so, especially on the strength of a statute which did not contemplate such an extension.

It’s therefore important to emphasize that Congress has been very cautious in addressing universal jurisdiction offenses.  For example, the War Crimes Act, 18 U.S.C. § 2441, applies only where U.S. nationals or members of the U.S. armed forces are the perpetrators or victims.  The Genocide Convention Implementation Act, 18 U.S.C. §§ 1091-92, limits criminal prosecution to U.S. citizens or residents or offenses within U.S. territory, and it specifically excludes a private right of action.  The Torture Victim Protection Act (TVPA) creates civil liability only for individuals and does not mention secondary liability.  Thus Kiobel-type claims could not be brought for genocide or war crimes under the statutes specifically directed to those offenses, and Kiobel itself could not be brought under the TVPA even though it includes claims for torture.

In sum, adopting a universal jurisdiction approach to the ATS is not consistent with the ATS’s purposes.    The U.S. has no general obligation to remedy international wrongs (even universal wrongs) having no connection with the U.S.   Adjudicating such wrongs, and thereby imposing U.S. legal standards, U.S. fact-finding, and U.S. remedies on the entire world, would endanger rather than protect U.S. foreign relations.  When Congress has legislated in the area of universal wrongs, it has done so narrowly, and it does not make sense for courts to use an ahistorical version of the ATS to accomplish what Congress has not.