Tag Archives: international law

A New Supreme Court Case Shows What Might’ve Been in Kiobel

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For some time now, Susan and I have been saying that courts already have a number of tools at their disposal to limit the reach of the ATS, even before Kiobel. Because of those tools, there was really no need for the Court to reach out and limit the scope of the potential substantive claims that could be brought under the ATS. Although the Court was concerned that the ATS permitted undue judicial interference in foreign affairs, courts could’ve already used things like personal jurisdiction, comity, forum non conveniens, and the like to keep themselves out of distant foreign fights.

The Supreme Court granted cert in a case today that shows just how that could’ve worked. DaimlerChrysler AG v. Bauman might first first appear to be a rather dry personal jurisdiction case, lovable only to civil-procedure nerds. But the root question–whether a company may be subjected to a lawsuit in the United States based only on the acts of its subsidiary–goes to a question quite close to the one in Kiobel. (And interestingly, Bauman includes claims under the ATS.) If the court uses Bauman to reemphasize the jurisdictional importance of corporate separateness, then all the problems that the Court was trying to solve in Kiobel would’ve gone away.

Take Kiobel itself as an example. That case involved a Nigerian subsidiary (who was the primary tortfeasor) and a British/Dutch parent. So far as I know, the Nigerian subsidiary had no contacts with the United States, so personal jurisdiction would be hard to establish as to that defendant. (I believe that the District Court ultimately dismissed the Nigerian subsidiary for that very reason.) The British/Dutch parent had an office in the United States, which probably shouldn’t be enough for jurisdiction.  But see Wiwa v. Royal Dutch Petro., 226 F. 3d 88, 92 (2d Cir. 2000). So if we’re being truthful, the lower courts were probably comfortable exercising jurisdiction over the British/Dutch parent because of the parent’s “American connection” through a separate, American subsidiary. But if Bauman goes the way that I expect, than that connection wouldn’t be nearly enough. 

In any event, the Supreme Court probably took Bauman because it applies a test embraced by Wiwa, and Wiwa was invoked (and repudiated) by a few of the players in Kiobel. In other words, the Supreme Court was reminded that a bad case was floating out there and saw a chance to fix it. Still, I wish that Bauman had also reminded the Court that Kiobel was a needless overreach, which could’ve been avoided through the strict application of first-year civil-procedure principles. Too late now.

-Michael

These Aren’t The Droids … Err … Jurisdictional Hooks You’re Looking For

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Folks are already getting creative in their efforts to define potential claims under the new, post-Kiobel ATS. Over at Opinio Juris, Thomas Lee suggests:

Another [case where the ATS might still be invoked] might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

I’m not sure how that would work. If we’re talking about bringing claims against the individual offender, then you’re going to run into problems with the Westfall Act, which transforms tort claims against federal actors (acting in their official capacties) into Federal Tort Claims Act claims against the United States.  See, e.g., Garcia v. Sebelius, 867 F. Supp. 2d 125, 134-36 (D.D.C. 2012) (magically tranforming ATS claims into FTCA claims). And the FTCA bars claims that arise from (a) intentional torts; or (b) acts in foreign countries, so ATS claims would be dead-in-the water. See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 700-12 (2004). For the same reason, a potential alien plaintiff couldn’t bring a claim against the United States directly.

-Michael

Citizens United Is Not Relevant

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Josh Blackman, who I usually agree with, writes this:

What precedent is *not* cited anywhere in Kiobel?

Citizens United. Not a single citation anywhere. So much for an expansion of the corporate-personhood-bugaboo.

I don’t get it. Kiobel, as written, doesn’t really go anwhere near the corporate liability issue. How on Earth would Citizens United then be relevant? One could just as easily say:

What precedent is *not* cited anywhere in Kiobel?

Roe v. Wade. Not a single citation anywhere. So much for an expansion of the abortion-rights-bugaboo.

-Michael

Kiobel: Hating on Common Law?

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My last post on Kiobel got me thinking: is this just a product of good-ole-fashioned conservative hatred of judge-made law? The first part of the majority’s analysis begins by noting that the statute wasn’t used much for the first 200 years or so of its existence. The fact that the Court needed to cite this rather irrelevant fact hints that the Court is none-to-pleased with the emergence of the ATS as an honest-to-goodness statute of judge-made liability, and feels that it’s killing off a statute that never should have developed into anything in the first place. And, in the same vein, the Court later complains about the difficulties of defining standards of liability in the international law context. So what? That difficulty should have been apparent to the Court in Sosa, but it wasn’t a reason to trash the statute then, and it shouldn’t be now.

Erie said more than 70 years ago that ”[t]here is no federal general common law.” I get the sense in reading Kiobel that the conservatives continue to wish that were true, even though the ATS cries out for quite a different conclusion.

-Michael

Congressional Wishes vs. Federal Common Law

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One of the incongruities of Kiobel comes from the fact that the Court is looking to Congress’ wishes or intent in trying to figure out whether the ATS applies abroad. As the Court simultaneously concedes, the ATS is really a very thin reed that opens the window to jurisdiciton, and it is courts that actually determine whether a claim exists. See Kiobel, slip op. at 5 (“[The ATS] instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. … [T]he question is not what Congress has done but instead what courts may do.”)

I’m not aware of any other case involving this kind of “federal common law” where Congress’ intentions are treated as relevant, let alone decisive. The closest situation I can bring to mind is Federal Rule of Evidence 501, which instructs courts to apply common law notions of privilege. With some rare exceptions, I do not believe that courts analyzing privileges under that rule go back to the original Congressionally-enacted rule and ask what the rule’s “intent” was. My point is, I struggle with the idea that Congress put the power to define this cause of action in the hands of courts–under some very fuzzily-defined standards–but courts are unwilling to use that power in a certain fashion because courts did not receive a particular form of instruction from Congress.

More to come later.

-Michael

Update: Howard Wasserman does a better job of explaining this than I do.

Misunderstanding the Presumption Against Extraterritoriality

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The Supreme Court applied the infamous presumption against extraterritoriality today to knock out Kiobel v. Royal Dutch Petroleum. The majority opinion is so terrible that Susan and I have spent the last couple hours basically yelling at each other over gChat. But now I’d like to focus on one aspect of the opinion that I find particularly infuriating: Roberts’ misapprehension of the presumption itself.

First, let’s imagine that there are three areas of the world:

  • The United States (our territory);
  • All other countries (their territory); and
  • Land belonging to no one (the high seas, Antarctica, etc.).

The language of the Alien Tort statute is pretty heavy on language suggesting it applies to all three of these areas–it mentions “aliens” and “the law of nations,” among other things. But we know that the statute applies to at least the first and third areas, as the Sosa decision told us that the law can apply to piracy.  (Let’s ignore the fact that boats sailing on the high seas might actually be considered part of their flag countries.)

The majority, from all appearances, believes that the presumption against extraterritoriality can only be overcome where it can be shown that Congress specifically intended for the relevant law to apply to all three areas. Laws governing “uncontrolled” areas, like the high seas, evidently aren’t relevant because they don’t ”impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign.” So, even though the ATS reaches two of the three, it can’t be said to be “extraterritorial.”

Wrong, wrong, wrong.

First of all, the presumption against extraterritoriality presumes that a law does not reach any conduct outside the United States’ borders, whether that conduct occurs in uncontrolled areas or areas controlled by other countries.  See, e.g., Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949) (“[L]egislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.”); Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 357 (1909) (“All legislation is prima facie territorial.”). So, any admittedly covered conduct outside the borders of the United States would meaningfully rebut the presumption. This is really the converse of the well-accepted principle that the presumption against extraterritoriality applies even to “uncontrolled” areas–well, except in the case of the ATS, as of today.  See generally Smith v. United States, 507 U.S. 197, 204 (1993) (applying the presumption to conduct in Antarctica).

Second, Roberts seems to think that the presumption against extraterritoriality is motivated by a concern over undue interference in other nations’ affairs. That would be stupid, as notions like comity, or even personal jurisdiction, could help address concerns over undue interference in separate sovereign affairs. In fact, Charming Betsy (which tells us to interpret laws in conformity with international law) would also keep us from overreaching, as it would lead courts to punish extraterritorial conduct only when international law actually imbues the United States with prescriptive jurisdiction. But all of this is something of a moot point because Roberts’ premise is false. The presumption is not motivated by concerns of interference. (If it was, it would probably be called something like “the presumption against intercessiones terra firma,” rather than the presumption against extraterritoriality.)  Rather, the Court has taken great pains to stress that it is “based on the assumption that Congress is primarily concerned with domestic concerns.”  Foley Bros., 336 U.S. at 285; accord Small v. United States, 544 U.S. 385, 388 (2005); Smith, 507 U.S. at 204 n.5. (If it were otherwise, the presumption analysis would probably always begin with an analysis of whether there is any conflict in the first place, as courts do in domestic conflict-of-law cases. But that’s not the way it works.) Given that every Justice seemed to concede that Congress was not only concerned with domestic matters when it passed the ATS, the presumption should have been overcome.

Susan and I will have a lot more to say about this. In the meantime, head over to Opinio Juris to get some good analysis, including this post from Julian Ku.

-Michael

Update: In rereading Morrison, the most recent extraterritoriality case, I found that even that decision acknowledged that conflicts of law have very little to do with the presumption.  See Morrison v. Nat’l Australia Bank Ltd., No. 08-1191, slip op. at 6 (S. Ct. June 24, 2010) (“The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law.”).

The Senkaku Islands, Pt. I: UNCLOS, the EEZ, and the Conflict Between Land- and Sea-Based Sovereignty Regimes

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In the East China Sea, north off the coast of Taiwan and south off the coast of Okinawa, there exists an island chain consisting of five small islets, and three smaller rocks. These islands — known as the Senkaku Islands in Japan, the Diaoyu Islands in China, and the Diaoyutai Islands by Taiwan — are the subject of a longstanding territorial dispute between those three states, and in recent months the dispute has become heated once again. military and diplomatic sparring over the islands has resumed once again.

China claims the islands are part of its sovereign territory, having been wrongfully stolen by Japanese military expansions in the late 19th century. Japan, in turn, claims that it is the rightful sovereign of the Senkakus, alleging that the islands were terra nullius until 1895, when Japan incorporated the islets by cabinet decision. Japan further asserts sovereign title to the islands owing to China’s failure to object to Japan’s claims of sovereignty for over seventy years, until China first raised a competing claim to the islands in 1970.

Not coincidentally, China’s first assertions of sovereignty over the Senkakus were made just one year after seismic surveys of the sea floor surrounding the islands had discovered the existence of significant oil and gas reserves. But while the discovery of natural resources in the East China Sea precipitated the ongoing territorial dispute between China and Japan, during this same time period there was another event occurring that would prove equally responsible: the development of modern international law of the sea. As result, the Senkaku Islands became a massively valuable commodity, and a previously dormant territorial dispute has become a flashpoint. Both Japan and China argue that, under international law, they are the rightful owners of the land.

The problem is, despite all the diplomatic strife and threats of military action, no one actually wants the Senkaku Islands.

And why would they? Seriously, look at these things:

Hardly anything there to speak of — and these are the three of the four biggest islets in the Senkaku Islands. In all, the island chain is nothing more than a barren 1,700 acres of sand, scrub, and rock. A few endangered moles live there, along with some feral goats, but the Senkakus are not suitable for human habitation. It is debatable whether any fresh water sources even exist on the islands, and previous attempts at establishing industry on Uotsuri, the largest islet, have all ended in failure.

The above-water portions of the Senkaku Islands are of negligible value. But the islands’ worthlessness is irrelevant to the intensity of the dispute over their ownership. China and Japan do not seek possession of the Senkakus because they wish to possess the islands, but because possession of the Senkakus is a mechanism for obtaining possession over the surrounding sea. In other words: possession of the Senkakus is a means, not an end.

In previous eras, when competing claims of sovereignty over a territory could not be determined by reference to either treaties or to customary international law, there did remain one additional mechanism that states could resort to for conclusively resolving the question of ownership. That particular mechanism, however, has now been expressly prohibited by Article 2 of the UN charter. With sovereignty-by-conquest no longer a sanctioned means of dispute resolution, and when the states involved in the dispute have no interest in submitting the matter to an adjudicative body, the result is an effective stalemate. In a fruitless attempt to resolve the conflict by reference to international law, Japan and China have now been reduced to squabbling over ancient maps and conflicting historical accounts.

This is the current status of the Senkaku Islands, and of numerous other disputed island territories off the coast of China and Japan. Japan and China can each point to various 19th century maps or little-noticed governmental decrees to bolster their claims of sovereignty. But based on the existing historical record concerning the occupation and use of the Senkaku Islands, neither China nor Japan can convincingly demonstrate a superior claim.

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Susan’s Theory of the Secret Fifth Amendment in Kiobel, as explained via gchat

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Michael:
I had a thought
The entire United States argument against extraterritorial application in this case is built around something like act-of-state doctrine.
Why don’t we just apply act-of-state doctrine?

Susan:
You could, and it should be part of it. But even Nigeria didn’t actually make a law saying human rights abuses is totes okay.
And also “but the country said it was okay” is not a get out of jail free card once you start with the genocide stuff.

Michael:
Well, wait.
Act of state is just the judgment of the legality of another nation’s conduct, right?

Susan:
Yes, but we’re not (necessarily) judging another nation’s conduct, for one — it’s a Kirkpatrick situation. And second, I don’t think the purposes of the act of state doctrine are supported if it’s interpreted to require a court to go “whelp, it’s not my place to say that another country shouldn’t commit genocide.”

Michael:
No

Susan:
Act of State = choice of law.

Michael:
Pause
I’m saying that the United States’ argument is built around an idea that seems roughly equivalent to act-of-state.

“HERE, ALTHOUGH PETITIONERS’
SUIT IS AGAINST PRIVATE CORPORATIONS ALLEGED TO
HAVE AIDED AND ABETTED HUMAN RIGHTS ABUSES BY THE GOVERNMENT
OF NIGERIA, ADJUDICATION OF THE SUIT WOULD NECESSARILY
ENTAIL A DETERMINATION ABOUT WHETHER THE NIGERIAN
GOVERNMENT OR ITS AGENTS HAVE TRANSGRESSED LIMITS IMPOSED
BY INTERNATIONAL LAW”

Susan:
Ohhh, no I’d disagree with you. I have a half-written post on it, but I’d argue the U.S.’s position incorporates the international component of the 5th amendment.

Susan:
Yeah, but that’s foreign affairs stuff. Act of State requires a court to select the foreign sovereign’s law for the court’s rules of decision.

Michael:
?!

Susan:
So it’s kinda where jus cogens comes into play. Nigeria can’t make a law saying “lol genocide is okay.”

Michael:
This is the definition I’m familiar with:
“This doctrine says that a nation is sovereign within its own borders, and its domestic actions may not be questioned in the courts of another nation.”
Wait
I understand now

Susan:
That’s the one sentence version, but it doesn’t mean that U.S. courts are categorically forbidden from questioning foreign countries’ acts.

Michael:
We’re talking about two conceptions of the act-of-state doctrine.
Mine was the broader one.
Yours is the more limited Supreme Court version.
Fair.

Susan:
“As we said in Ricaud, “the act within its own boundaries of one sovereign State …
becomes … a rule of decision for the courts of this country.” 246 U.S. at 310. Act of state
issues only arise when a court must decide–that is, when the outcome of the case turns upon–
the effect of official action by a foreign sovereign. When that question is not in the case,
neither is the act of state doctrine.”
I agree with you, I think, as far as aiding and abetting cases go.
Maybe for different reasons, though.

Michael:
I’m not saying that I think Kiobel actually implicates act of state.
I’m just saying that the U.S. position sounds much like act of state, such that there is no need to make new law if the U.S. is correct.

Susan:
Yeah, agreed.
I think the U.S. is 100% right.

Michael:
But…
Ugh
The U.S. thinks that there IS a need to make new law DESPITE the fact that we have act of state doctrine to solve the very problem that the U.S. uses to support the supposed need for new law.

Susan:
Okay wait I’m misunderstanding, then. What new law does the US think is needed?

Michael:
1) The U.S. believes that the Court should hold that the ATS does not apply extraterritorially in cases involving corporations.
2) It substantiates that position at least in part by invoking a notion that sounds just like act of state doctrine.

Michael:
See the United States’ distinction between “individual foreign perpetrators” and corporations

Susan:
When found residing in the United States.
An individual foreigner abroad (that somehow still had sufficient US contacts) would be in the same place.

Michael:
Maybe it would be more accurate to say that the U.S. is against ATS liability for the extraterritorial acts of corporations that do not have their principal place of business or headquarters here

Susan:
Yeah, part of the equation is subsidy-to-parent jurisdictional veil piercing.

Michael:
Maybe I was over-emphasizing the U.S.’s use of the word “individual.”

Susan:
This is why it’s all a 5th Amendment Due Process issue. The reasonableness of the US’s adjudicative jurisdiction here is both unconstitutional and in violation of international law.

My take was that individual humans can usually only really “be” in one spot at one time. Corporations are in many places at once. So a corporation’s existence in the US is not dispositive, like a human’s is.

Michael:
I see.
An interesting argument, but the U.S. is making that argument as a matter of international law and foreign policy, not from a Fifth Amendment perspective, no?

Susan:
Okay so maybe they don’t specifically say it, but it’s in there if you squint hard enough.

Michael:
Hahaha.
The “secret” Fifth Amendment argument?

Susan:
The Fifth Amendment in Exile.
Basically, the ATS is open ended, and hands out causes of action for int’l law violations like candy (pretend all of this is true)
But the court, before exercising jurisdiction, still has to consider: Personal jurisdiction, exhaustion of remedies, forum non conveniens,
Act of State, international comity, choice of law, political question doctrine, foreign affairs/case-specific judicial deference, and in corporate cases, corporate/subsidy-parent veil piercing issues.
All of these doctrines have some Due Process consideration behind them. (Separation of powers for a lot of them, too, but due process is a biggie.)
Even if the text of the ATS creates an opening for these suits, it’s just a grant of subject matter jurisdiction. All of the Due Process jurisdictional questions must be considered separately.
Like they would in any foreign-defendant case, but because of the subject matter, the judicial due process doctrines are firing on all cylinders.
So when you have a pirate residing in the U.S. being sued for torture and genocide he did abroad, and his home country says “fuck that bastard, you can sue him,” and the U.S. political branches are going, “fuck that bastard, you can sue him,” then the due process concerns evaporate.

Michael:
Interesting.
I still don’t think the United States is making that argument
But ok.

Susan:
I think in section C they are getting at it,
even if they don’t invoke the magic words of Due Process. But everything the US is counseling the court to consider is a doctrine that was invented either to serve due process, separation of powers, or both.

Michael:
You should write a post
A quick post.

Susan:
Maybe at lunch I’ll play around with getting my other post to work in WP.
Or maybe I’ll be uber-lazy and just copy and paste the chat.

Michael:
There you go.

Entity Liability Under the TVPA and the ATS: Why the Supreme Court’s Decision in Mohamad Is Probably Irrelevant to Kiobel

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Last week, the Supreme Court issued its opinion in Mohamad v. Palestinian Authority, et al., the TVPA case that was argued on the same day as Kiobel. The majority opinion, written by Justice Sotomayor, is a rather prosaic summary of Statutory Interpretation 101, and the opinion as a whole deftly avoids grappling with any of deeper questions of law that the TVPA could potentially implicate.

This is not entirely surprising, as the question before the court in Mohamad was relatively straightforward: does the TVPA’s authorization of suit against “[a]n individual” extended liability only to natural persons? The Court unanimously answered yes, citing the dictionary as its predominant authority for its conclusion. The Court also relies heavily on the perceived “ordinary usage” of the word ‘individual,’ noting that “no one, we hazard to guess, refers in normal parlance to an organization as an ‘individual.’”

Although Mohamad may be a heavily formalistic opinion, it is a hard to disagree with its conclusions. Given then TVPA’s structure, there just isn’t much need, or room, for nuance. Justice Breyer, in the decision’s only concurring opinion, did make a mild qualification of his decision, noting that the TVPA’s use of the specific word “individual” is insufficiently determinative by itself to justify a limitation on liability to natural persons. Breyer quickly moves to conclude, however, that the legislative history of the TVPA erases any doubt, and fully supports the Court’s ultimate decision.

In all likelihood, then, the decision in Mohamad will not give us much insight into how the Court will handle the question of corporate liability under the Alien Tort Statute. Although Mohamad v. Palestinian Authority, et al. and Kiobel v. Royal Dutch Petroleum have strong superficial similarities — a similarity plainly acknowledged by the Court through its decision to hear arguments for both on the same day — it seems likely that the Court’s ultimate decisions in those cases will have little relevance to one another. Sotomayor’s opinion in fact openly acknowledges the two cases’ dissimilar postures, noting that the ATS “offers no comparative value here regardless of whether corporate entities can be held liable[.]“

This is because entity liability under the TVPA, as addressed in Mohamad, involves a straightforward question of statutory interpretation. Entity liability under the ATS, in contrast, involves an extremely convoluted question of statutory interpretation coupled with an equally convoluted interpretation of  the law of nations. It doesn’t matter which side of the argument you take in Kiobel — for that, you’re never going to find the answer to prove your case in the pages of a dictionary.

And the statutory interpretation element is the less important prong, in examining the question of entity liability under the ATS. As the class of defendants is not defined by the ATS, the issue of corporate liability is not determined by reference to the legislator’s choice of language, but rather by reference to either Federal common law or to international law, or, more likely still, to some admixture of both.

Ultimately, the TVPA, unlike the ATS, is an almost purely domestic instrument. Although the TVPA indirectly incorporates international law in its definition of extrajudicial killing, and, in its preamble, specifically cites that the statute’s purpose is to carry out the U.S.’s obligations under international treaties, the TVPA is simply not a creature of the law of nations.

The TVPA was specifically designed by the U.S. Congress to accomplish certain specified domestic goals. If instead the TVPA had been drawn directly from international instruments, however, it seems very likely that a different conclusion would have been reached in Mohamad. In particular, Article 14 of the UN Convention Against Torture (“the CAT”) would seem to lobby in favor of vicarious liability in civil claims brought by torture victims:

 ”Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”

The CAT’s specification that states are to implement civil claims that provide for “an enforceable right to fair and adequate compensation” suggests that the CAT is concerned not simply with imposing punitive, quasi-criminal measures against torturers, but rather with implementation of an effective means for torture victims to be compensated for their injuries. A system of vicarious liability for torture is therefore more consistent with goals of the CAT as expressed in Article 14, as this would increase the likelihood of full reparations being made to torture victims. This is because vicarious liability is specifically geared towards making tort victims whole, whereas a system of pure individual liability emphasizes concern at seeing a wrong-doer punished.

Instead of incorporating this broad goal of repairing torture victims to the fullest extent possible, as articulated by the CAT, the U.S. Congress made plain its desire to see that only morally culpable wrong-doers were to be held financially culpable under the TVPA. This same legislative background is nonexistent when it comes to the ATS, however, making the Court’s analysis in Mohamad irrelevant to their ultimate determination of the similar question posed by Kiobel.

-Susan

Is There an Easy Jurisdictional Answer to Kiobel? (Nope.)

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Professors Brad Clark and Anthony Bellia have again offered some thoughts on the Alien Tort Statute in advance of the Supreme Court’s arguments in Kiobel. This time, in a short essay to be published in the Georgetown Journal of International Law, the professors suggest that alien-on-alien torts are not covered by the Alien Tort Statute. If this turns out to be true, the professors reason that only U.S. corporate defendants could face suit; such suits wouldn’t need to rely on the ATS because they would likely meet the requirements of diversity jurisdiction. Thus, the issue of corporate liability under the ATS would largely be a moot point.

The professors’ argument is a nifty one, but I think it rests on the faulty premise that the ATS was “originally intended” to cover only suits by aliens against U.S. citizens. The professors distinguish between a tortious act of a U.S. citizen (which they say could be imputed to the United States if it were left unredressed) and a tortious act of an alien (which supposedly “was not directly imputed to the United States under the law of nations if the United States failed to redress it.”)

Of course, the professors’ approach ignores Susan’s excellent discussion of how the original impetus for the ATS might have been an alien-on-alien crime in the United States.

But perhaps more importantly, it ignores the fact that nations have certain obligations related to the acts of persons other than their own citizens. It’s not a simple matter of imputation. In the criminal context, for instance, nations have an obligation not to shield a wrongdoer (whatever his citizenship) who is justly sought by another country. It might be said that the duty arises from the obligation of the “refuge” state to provide a means for the requesting state to vindicate its own interests. Likewise, in the tort context, Nation A has an obligation to provide redress for an injury to a citizen of Nation B because, absent such redress, the wrongdoer might avoid penalty by using Nation A as a (personal) jurisdictional shield. Acting as a shield might then provoke Nation B, who under well-understood principles of diplomatic protection might then take action against Nation A.  Indeed, one authority suggests that “the assault or wrongful treatment of foreigners was one of the major reasons for the incitement of war,” regardless of the nationality of the offender.

The Marbois Incident, which Susan posits led to the ATS in the first place, is actually an excellent example of this idea in practice. When one Frenchman committed a violation of the law of nations against another Frenchman, France obviously had no grounds to be angry towards the United States based on any theory of “imputation.” Rather, France took issue with the United States’ independent failure to provide a remedy; America’s interests were “stand[ing] in the way of French justice.” (To be fair, the perpetrator in the Marbois incident was nominally an American, but it was well-understood that the citizenship was pretextual.)

As Professor William Dodge has also noted, Congress first reacted to the Marbois incident (and another minor incident involving a New York police officer) by recommending to the states that they provide for punishment of violations of the law of nations. This resolution had two critical elements: (a) allowing torts suits to be brought by the alien for the breach of a treaty or international law; and (b) an indemnification provision for harm to the United States caused by the breach. Interestingly, while the indemnification provision applied only to acts committed by United States citizens, there is no similar limitation as to the tort suit portion. Thus, early Congresses seemed to anticipate that any defendant could face liability for a violation of the law of nations.

Let’s also not forget the plain text of the ATS. While the Act obviously provides for an alien plaintiff, it does not define the relevant class of defendants. Complementary state laws, such as one in Connecticut, did indeed define the defendant class, but they defined it broadly: any person whatsoever.

In sum, while I can appreciate the efforts of Professors Clark and Bellia, I think they err in reviving this long dead argument (which Curtis Bradley seems to have been making for some time now).  The puzzle of Kiobel cannot be so easily solved.

-Michael

*The Professors also bring back the old argument that Article III does not anticipate any independent jurisdiction of courts to enforce the law of nations.  I think that point has already been well-addressed before, so I choose not to rehash it here.  A quick read of Filartiga should suffice to address that concern.  See Filartiga v. Pena-Irala, 630 F.2d 876, 885-87 (2d Cir. 1980).

[H/T: Volokh]