Issuu on Google+

THE KIOBEL DECISION: THE END OF AN ERA Fernando R. Tesón∗ I. BACKGROUND AND PRECEDENT: FROM FILARTIGA TO SOSA I started teaching international law in this country in 1984. I recall reading for the first time Filartiga v. Pena Irala 1 while anxiously preparing for my first class in the sweltering Arizona summer. I was moved. I thought the case exemplified the best of the American spirit, the universal concern with suffering and human dignity, the longstanding rejection of tyranny—in short, the rare Lockean instincts so prevalent in my adoptive land. Here, you have a lone federal judge in Manhattan allowing redress for brutal acts of a faraway tyrant. This was the first time since Nuremberg that we sensed there was some hope for the oppressed, that perpetrators could no longer trust that their twisted logic of “reasons of state” would grant them impunity for their crimes. But how could that happen? How could long-standing jurisdictional barriers (Filartiga concerned the torture and murder of a Par-

Tobias Simon Eminent Scholar and Professor of Law at Florida State Universi-


Filartiga v. Pena Irala, 630 F.2d 876 (2d Cir. 1980).




New York University Journal of Law & Liberty [Vol. 8:161

aguayan man by a Paraguayan official in Paraguay) be punctured in this way? The answer lies in an obscure statutory provision and in the entrepreneurship of a few public-interest lawyers and humanrights advocates. The Alien Tort Statute, enacted in 1789, gives federal courts original jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 2 By its plain language, the statute does not require that the tortious behavior occur in the United States, specify or constrain the kinds of violations of the “law of nations” (customary law) that trigger jurisdiction, or say that the “treaties of the United States” must be self-executing. 3 Since Filartiga, human rights litigation mushroomed, yet the road traveled by the Alien Tort Statute (ATS) was rocky. In 1984, a unanimous—but sharply divided as to rationale—D.C. court rejected a claim by Israeli victims of a PLO bombing in Israel in the TelOren case. 4 The three judges gave three different rationales: for Judge Robb, the issue was a political question unfit for the courts; 5 for Judge Edwards, it was not sufficiently clear that the bombings by a “national liberation” organization were a violation of the law of nations; 6 and for the third judge, Robert Bork, the ATS did not grant a cause of action but simply opened the courts, so that a new grant of jurisdiction by Congress was needed. 7 It was this last, more

28 U.S.C. § 1350. (2012). In the United States, treaties can be self-executing or non-self-executing. A selfexecuting treaty does not need congressional implementation; a non-self-executing treaty does. There is considerable debate about the relevant test for self-execution. The most recent Supreme Court decision held that treaties are self-executing when the U.S. “treaty makers”, the President and the Senate, so intended. See Medellin v. Texas, 552 U.S. 491 (2008). 4 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 789, 822, 827 (D.C. Cir. 1984). 5 Id. at 827. 6 Id. at 789. 7 Id. at 822. 2 3




technical theme that would preoccupy legal scholars at the end of the past century. Professors Curtis Bradley and Jack Goldsmith mounted a spirited attack against the ATS along Bork’s lines. 8 They claimed that the line of cases stemming from Erie Railroad Company v. Tompkins 9 precluded treating customary law as federal common law; therefore, they thought, the Filartiga line of cases rested on a constitutional mistake. Customary law could not provide a federal cause of action. Defenders of Filartiga reacted with equal vigor: to them, customary international law was federal common law and so the ATS did not need a subsequent jurisdictional grant from Congress. 10 In the words of Professor Neuman, “The existence and content of rules of customary international law that are binding on the United States [are] to be determined as a matter of federal law.” 11 This controversy finally reached the Supreme Court in 2005. In Sosa v. Alvarez-Machain, the court made a kind of Solomonic decision. It accepted Bradley and Goldsmith’s view that the ATS was a jurisdictional statute and could not by itself provide a cause of action. 12 But it also accepted the contrary view that judges could infer a federal cause of action from customary international law itself. 13 The Paquete Habana, then, which had held that “international law is

8 Curtis A. Bradley & Jack L. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 HARV. L. REV. 815 (1997). They reiterated this position following various lower-court decisions and the Supreme Court’s decision in Sosa. v. Alvarez-Machain, 542 U.S. 692 (2004). See Curtis A. Bradley, et. al., Customary International Law, and the Continuing Relevance of Erie, 118120 HARV. L. REV. 869 (2007). 9 Erie Railroad Company v. Tompkins, 304 U.S. 64., 78 (1938). 10 See generally Gerald L. Neumann, Sense and Nonsense about Customary International Law: A Response to Professors Bradley and Goldsmith, 66 FORDHAM L. REV. 371 (1997); Harold Hongju Koh, Is International Law Really State Law? 111 HARV. L. REV. 1824 (1998). 11 Neumann, supra note 10, at 376. 12 Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004). 13 Id. at 742.


New York University Journal of Law & Liberty [Vol. 8:161

part of our law,” and Filartiga, had not after all been overruled by Erie and its progeny. 14 Yet at the same time, the Court significantly restricted the kinds of customary-law norms that would meet the ATS’s jurisdictional threshold, thus addressing one worry of the critics of the “modern” position, namely, the potential arbitrariness of customary-law claims. The Court ruled that only customary-law norms that were sufficiently precise and agreed-upon by the international community qualified for purposes of finding jurisdiction under the ATS. The Supreme Court argued by analogy from founding historical materials. The Founders were concerned with a short list of international-law offenses. While in the 21st century international law had expanded (especially in the area of human rights), the Supreme Court urged us to retain the cautious spirit of the Founders: federal courts should only hear cases grounded on robust international law norms, not on norms that were merely emergent, vague, or desirable. In the words of the Court: [C]ourts should require any claim based on the present-day law of nations to rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized… [T]he judicial power should be exercised on the understanding that the door is still ajar subject to vigilant doorkeeping, and thus open to a narrow class of international norms today. Erie did not . . . bar any judicial recognition of new substantive rules, no matter what the circumstances, and post-Erie understanding has identified

14 The Paquete Habana, 175 U.S. 677 (1900). This is the landmark case where the Supreme Court accepted that customary law was part of American law, subject to modification or preemption by other sources of federal law




limited enclaves in which federal courts may derive some substantive law in a common law way. For two centuries we have affirmed that the domestic law of the United States recognizes the law of nations. 15 The restrictive view of customary law endorsed by the Sosa court was a wise move. Human rights activists, in their enthusiasm, had often put forth dubious claims about what customary law permitted or prohibited. The ATS litigation abounded in examples of this “custom inflation,” in which litigants attempted to confuse international-law-illiterate courts that their preferred outcomes were mandated by international law. 16 These excesses exacerbated judicial suspicions about the soundness of ATS claims. Justice Scalia, for example, complained that “[t]he notion that a law of nations can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates.” 17 And concurring in Tel-Oren, Judge Robb admonished that “federal courts should not be debating clubs for law professors.” 18 Justice Souter’s opinion in Sosa put an end to these excesses, but did not go as far as killing the ATS (as Justices Scalia, Thomas, and Roberts would

15 542 U.S. at 730. Both sides claimed victory after Sosa. Cf. Bradley, et. al., supra note 8; Ralph Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. AlvarezMachain and the Future of International Human Rights Litigation in U.S. Courts, 57 VAND. L. REV. 2241 (2004). 16 Some particularly outlandish examples: Weiskopf v. Neeman, No. 11-cv-665wmc, (W.D. Wis. March 20, 2013) (lawsuit by an American against a family court in Israel); Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (S.D. Tex. 2009) (lawsuit by Nepalese workers challenging Jordanian labor practices). 17 Sosa, 542 U.S. at 749-750. (Scalia, J., concurring). 18 Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 827 (D.C. Cir. 1984). (Robb, J., concurring). See also John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law? 59 STAN. L REv. 1175 (arguing that “unincorporated” customary law is undemocratic and vulnerable to manipulation).


New York University Journal of Law & Liberty [Vol. 8:161

have 19). He left the door open for customary law, but the entrance would be, from now on, subject to a kind of quality control of the customary-law norms by the federal courts.

II. THE DÉNOUEMENT: KIOBEL However, the Supreme Court had not spoken its last word. Enter Kiobel v. Dutch Petroleum. 20 Here plaintiffs sued Royal Dutch Petroleum Company (a Dutch and British corporation operating through a Nigerian subsidiary) for the corporation’s alleged complicity in the Nigerian Government’s brutal repression of demonstrations against Dutch s operations in Nigeria. From the outset, the parties focused on the issue of corporate liability. In a controversial decision, the Second Circuit ruled against the plaintiffs on the grounds that international law did not recognize corporate liability. 21 The Supreme Court granted certiorari on that issue, but then unexpectedly asked the parties to brief on the different issue of whether the ATS applied to events outside the United States, that is, whether or not the ATS had extraterritorial reach. 22 The Supreme Court unanimously ruled against the plaintiffs. Five Justices held that the ATS did not have extraterritorial reach. A four-member minority, however, rejected the majority’s rationale but concurred with the Court on these particular facts: they were too remote even under their favored, more generous jurisdictional test.

Sosa, 542 U.S. at 743-751 (2004) Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). 21 The Second Circuit’s decision in Kiobel conflicted with the D.C. Circuit opinion in Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011), vacated, 2013 WL 397013 (D.C. Cir. July 26, 2013). 22 Kiobel v. Dutch Petroleum Co., 132 S. Ct. 472 (2011). 19 20




A. THE FACTS Petitioners, who at the time were residents of Ogoniland, Nigeria, alleged that the corporation “had enlisted the Nigerian Government to the burgeoning demonstrations” against the corporation’s harmful environmental activities. 23 These acts of violence occurred mostly during the early 1990s, and had consisted (allegedly) of acts of “beating, raping, and killing residents and destroying or looting property.” 24 Petitioners alleged that the corporation had aided and abetted these crimes by providing food, transportation, and money to the perpetrators. Petitioners then received political asylum in the United States, where they lived as legal residents.

B. THE DECISION Petitioners alleged jurisdiction under the ATS. They invoked an array of international law violations: extra-judicial killings, crimes against humanity, torture and cruel treatment, arbitrary arrest and detention, violations of the rights to life, liberty, security and association, forced exile, and property destruction. 25 The Second Circuit, as indicated, had dismissed the complaint on the grounds that international law did not recognize corporate liability. 26 The Supreme Court took certiorari on that issue, but after oral argument it directed the parties to brief on the following question: “Whether and under what circumstances that ATS allows courts to recognize a

See, e.g., Amnesty International, Nigeria: Deaths Of Hundreds Of Boko Haram Suspects In Custody Requires Investigation, Amnesty International News (Oct. 15, 2013), dreds-boko-haram-suspects-custody-requires-investigation-2013-10-15 24 Kiobel, 133 S. Ct. at 1662. 25 Id. at 1663. 26 Id. 23


New York University Journal of Law & Liberty [Vol. 8:161

cause of action for violations of the law of nations within the territory of a sovereign nation other than the United States.” The Supreme Court affirmed on the grounds that the ATS does not rebut the presumption against extraterritoriality—a judge-made prudential doctrine that says that, absent congressional indication to the contrary, federal statutes are presumed not to apply outside the territory of the United States. In the words of the Court, “That canon provides that ‘[w]hen a statute gives no clear indication of an extraterritorial application, it has none.’” 27 In the view of the Court, the ATS lacked such indication; therefore, the presumption against extraterritoriality applied and plaintiffs’ claims, since they we based upon events occurring entirely outside the United States, were barred.

C. THE CONCURRENCE Justices Breyer, Ginsburg, Sotomayor, and Kagan concurred with the result but strongly disagreed with the Court’s rationale. 28 To them, the extraterritorial presumption was inapplicable—among other reasons, the ATS from its inception applied to one notorious extraterritorial event: piracy. Indeed, piracy was one of the few crimes against the law of nations that was in the minds of those who drafted the ATS. 29 Now, of course, piracy occurs in the high seas, so if (as everyone presumable agrees) the ATS covers a claim in tort by an alien against a pirate, then the ATS applies extraterritorially. The majority responded that the presumption of extraterritoriality has the goal of preventing clashes between U.S. laws and the

Id. (citing Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869, 2878 (2010)). Id. at 1670 (Breyer, J., concurring). 29 Id. at 1671-74. 27 28




laws of foreign nations. 30 Since allowing civil claims against pirates does not result in a clash with foreign laws, the presumption would not apply in the case of pirates. But the presumption applies on these facts because the events occurred, not on the high seas where no national jurisdiction reaches, but in the territory of a sovereign state, Nigeria. In the words of the majority, “Applying U.S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences.” 31 The concurring Justices were not convinced, The majority cannot wish this piracy example away by emphasizing that piracy takes place on the high seas. That is because the robbery and murder that make up piracy do not normally take place in the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies. 32 Most importantly, the concurrent opinion would have adopted a much more flexible standard on the issue of extraterritoriality. According to Justice Breyer, Considering these jurisdictional norms in light of both the ATS’s basic purpose (to provide compensation for those injured by today’s pirates) and Sosa’s basic caution (to avoid international friction), I believe that the statute provides jurisdiction where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the de-

Id. at 1664 (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)). Id. at 1672. 32 Id. at 1672. 30 31


New York University Journal of Law & Liberty [Vol. 8:161

fendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind. 33 Importantly, Justice Breyer urged the Court to answer the question posed by Sosa: who are today’s pirates? The concurrence answered with those who commit the “Great Crimes.” Justice Breyer wrote Certainly today’s pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are “fair game” where they are found. . . . And just as a nation that harbored pirates provoked the concern of other nations in past centuries, so harboring “common enemies of all mankind” provokes similar concerns today . . ., (major) war crimes, crimes against humanity, and systematic official torture. The concurrence, however, agreed that on these facts, the federal courts should not take jurisdiction. Not only were the contacts with the United States minimal, but the claims were based on defendants’ having aided and abetted others (The Nigerian Government) in committing these crimes, not on having committed crimes themselves. 34

33 34

Id. at 1673-74. Id. at 1677-78.




III. KIOBEL AND SOSA Does Kiobel coexist peacefully with Sosa? The answer is “yes.� The Sosa decision provided an important clarification of the contours of the ATS. First, as indicated, Sosa refused to overrule the Filartiga line of cases by accepting both the view that the ATS is a jurisdictional statute that does not itself provide a cause of action and the view that international law could provide a cause of action for aliens suing in tort. But, as we saw, the Sosa court imposed a stricter standard of quality control of the customary-law norms that could be invoked to satisfy the jurisdictional threshold: the norms had to be sufficiently precise and universally agreed upon. 35 Now of course, Sosa was a case where a great part of the alleged violations took place in U.S. territory. Hence, Sosa did not address the issue now briefed in Kiobel: whether or not courts should recognize a cause of action for violations of international law occurring outside the United States. Therefore, Sosa is perfectly consistent with Kiobel. A successful ATS claim must, from now on, be based upon: 1) Sufficiently precise and universally agreed upon rules of customary international law, and 2) Events occurring in the United States or with a sufficiently strong contact with the United States. What this means is that the role of the U.S. federal courts as a global tribunal for adjudicating civil claims for human rights violations is virtually dead. No longer can victims of state terror in dysfunctional societies hope that this forum will be available to them, and no longer will tyrants fear that the long arm of U.S. law will


Sosa v. Alvarez-Machain, 542 U.S. 692, 699 (2004).


New York University Journal of Law & Liberty [Vol. 8:161

reach them to provide some relief to those who endured their iniquities.

IV. SOME REFLECTIONS Should we welcome or decry Kiobel? Some libertarians have welcomed the decision: Just as the United States should not play policeman to the world, so our courts should not play tort-suit venue to the world. Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. 36 I disagree. On libertarian principles, we should welcome a forum for civil relief for victims of egregious violations of fundamental rights, even if they occur overseas. 37 Above all, as I explain below, I do not believe that the rationale for denying extraterritoriality rests on solid foundation. On the strictly doctrinal question, Kiobel is not entirely satisfying. The Court’s discussion of extraterritoriality could persuade (assuming one accepts its assumption, see below) except for the pesky issue of piracy, which suggests that the ATS had extraterritorial reach all along. One could lament that the Court

36 Walter Olson, SCOTUS Gets It Right in Kiobel, CATO AT LIBERTY (Apr. 17, 2013, 12:00 PM), 37 There is an uneasy tension between the libertarian commitment to strong individual rights and their equally strong commitment to isolation and nonintervention. I cannot pursue this large theme here, however. See Fernando Tesón, More on Libertarians and War, BLEEDING HEART LIBERTARIANS (Feb. 2, 2013), http://bleedin




threw away more than 30 years of lower-court precedent. And one could also observe (as the concurrence did) 38 that Sosa (which the majority endorsed) made no mention in dicta of the extraterritorial question; on the contrary, the only relevant dictum in Sosa (“who are today’s pirates?”) suggests extraterritorial reach. But in my view, the weakest link in the majority’s decision lies in its rationale for extraterritoriality when plaintiffs allege grave human rights violations. That rationale is the danger of our laws clashing with the laws of other nations and the respect owed to those nations’ sovereignty. Now think about the facts in Kiobel. Here we have a corrupt, tyrannical regime enlisted by a powerful corporation to violate the rights of individuals. If those facts are true, this particular government deserves no respect, nor do the “laws” that enable such atrocities. The rationale of the extraterritoriality presumption cannot be respect for the sovereignty of the nation involved, because sovereignty is supposed to serve some minimal purposes -at a minimum, to protect the rights of individuals and solve collective action problems. A government that behaves in the way alleged by the Kiobel petitioners is illegitimate and not entitled to respect. 39 It is a criminal enterprise. The rationale of the Kiobel court relies upon the outdated assumption that all governments are equal and thus entitled to equal respect. 40 Yet, given that the Congress chose not to insert a territorial constraint, the courts should be free to in-

Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1669-1670 (2013). I am relying on a philosophical, not sociological, conception of state legitimacy. For general explorations of the concept of legitimacy, see A. JOHN SIMMONS, JUSTIFICATION AND LEGITIMACY 122-157 (2001); MICHAEL HUEMER, THE PROBLEM OF POLITICAL AUTHORITY (2013). See also FERNANDO R. TESON, A PHILOSOPHY OF INTERNATIONAL LAW 1-38 (1998) (arguing that only liberal democracies are legitimate). My current views are now in LOREN LOMASKY & FERNANDO R. TESON, JUSTICE AT A DISTANCE, ch. 7 (forthcoming 2014). 40 An exemplar of the Westphalian tradition is HEDLEY BULL, THE ANARCHICAL SOCIETY (1980). 38 39


New York University Journal of Law & Liberty [Vol. 8:161

terpret the ATS extraterritorially. The legitimacy argument I suggest here is, I think, appropriate in the context of the extraterritoriality assumption, because the latter is a prudential, judge-made doctrine. From a larger policy perspective (and setting aside doctrinal considerations), providing a forum for the victims of egregious human rights violations, far from being an illegitimate exercise of imperial power, befits the role of the United States as a provider of international public goods. When the courts of other nations (usually subservient to the ruling elites) will not act to protect defenseless victims, providing a forum is an act of humanity, an instance of the hegemon doing the right thing. To see why my suggestion is not farfetched, consider other instances of hegemonic power, for example, the Obama administration’s intervention in Libya or the threat to use force in Syria to protect victims of chemical weapons. 41 I realize that this is executive action while the federal courts’ expansion of jurisdiction under the ATS is judicial action; but, from a functional viewpoint, this is not a crucial difference. On the contrary, assertion of extraterritorial jurisdiction by a federal court to protect victims of atrocities is less “disrespectful” than the threat to bomb another state in order to protect victims of prohibited weapons. In both cases, the United States is acting to protect persons. If anything, I would think that vindicating human rights in the courts is far more palatable than vindicating them by the sword, especially for libertarians.

41 The point in the text does not prejudge when humanitarian intervention may be justified. For a comprehensive review of the doctrine of humanitarian intervention, see FERNANDO R. TESÓN, HUMANITARIAN INTERVENTION: AN INQUIRY INTO LAW AND MORALITY (3d. ed., 2005). My current views are in Fernando R. Tesón, The Moral Basis of Armed Humanitarian Intervention Revisited, in THE ETHICS OF HUMANITARIAN INTERVENTION (Don Scheid ed., forthcoming 2014).




So for that reason, I prefer the concurrence’s approach (although it endorsed the result here), because it leaves room for a judicial response to the great crimes that nation-states all too often perpetrate. Plaintiffs already face a daunting barrier in the Foreign Sovereign Immunity Act. 42 Under this statute, they cannot sue the real perpetrators, sovereign governments, because egregious crimes are acts jure imperii (this is yet another outdated, unfortunate Westphalian idea that persists in domestic and international law). With Kiobel, the Supreme Court has gutted the one provision in our legislation that allows federal courts to advance the cause of global freedom by puncturing the sovereignty of tyrannical states. And it has done so on the questionable assumption that such states deserve respect. 43

28 U.S.C. §§ 1602-1611 (2012). I am addressing here the broader reasons that I think support the Filartiga line of cases and the Kiobel concurrence. I have not addressed other foreign-policy arguments that defenders of Kiobel may have, especially that court interventions may invade a prerogative of the executive. I should say in passing that I have little sympathy anyway for those arguments when applied to human rights questions. When persons are killed, maimed, and tortured, worries about the prerogatives of our politicians (let alone the prerogatives of the perpetrators) sound rather petty. 42 43

Teson formatted v 2