It's Over (Alien Tort Statute litigation) (almost)

The Supreme Court has issued its Kiobel opinion, and it effectively ends the era of Alien Tort Statute litigation that began with the path-breaking Filartiga decision issued by the Second Circuit in 1980.  The ATS effectively opened the doors of the US judiciary to human rights victims who could not achieve justice elsewhere.  Now, that door is closed.

A few reactions to the Chief Justice Robert’s majority opinion, as well as Breyer’s (four-vote) concurrence.

First, there is much speculation that ATS cases will live albeit under different labels.  To a certain extent this is true.  The Torture Victim Protection Act (TVPA) explicitly applies extra-territorially, so Filartiga-type cases can proceed under the TVPA because Congress has sufficiently rebutted the presumption against territoriality that the majority applied in Kiobel.  Second, some victims might be able to file common-law tort claims in state courts for pre-existing causes of action – say wrongful death.  Although there is nothing preventing state courts from hearing these cases as long as personal jurisdiction is established (the defendant has been served process), there is still the pesky forum non conveniens doctrine that counsels against hearing claims that ought to be considered elsewhere.  This doctrine will presumably limit – although not foreclose – common law claims in state courts.

Second, Justice Roberts’ opinion has a pirate problem.  Everyone agrees that piracy falls within the classic set of Blackstonian offences that are permissible under the ATS – the Supreme Court’s own Sosa opinion made this point explicitly.  Roberts’ majority opinion does not shy away or attempt to overturn this precedent.  However, this stands in definite tension with his claim that the ATS does not apply extraterritorially.  Pirates operate on the high seas – outside the jurisdiction of the United States.  Consequently, the Roberts’ opinion would appear to contain a contradiction.

However, Roberts argues that piracy takes place outside the sovereign control of any country, which explains why it is still permissible under the ATS.  Under the Kiobel reasoning, only torts committed within the sovereign territory of other countries is usually disallowed.  Since piracy takes place outside the control of any sovereign territory, it is still fair game for the ATS.

There are two potential responses here.  The first, noted by Justice Breyer in his four-vote concurrence, is that piracy takes place on ships – and jurisdiction on ships is based on the flag that the ship is flying.  Consequently, it is incorrect to say that piracy takes place outside the sovereignty of another country.  While this is true, there is a second interesting response, already noted by Thomas Lee and other commentators, which is that the ATS might survive in other situations, like piracy, that take place outside the sovereign jurisdiction of any state.  These might include atrocities committed in so-called failed states – or terra nullius to use the more technical Latin phrase – where the sovereign control of the state has collapsed.  The idea of the failed state is underdeveloped in contemporary international law, and it has a worrisome pedigree.  John Yoo argued in one of his OLC “torture memos” that the Geneva Conventions did not apply to U.S. conduct in Afghanistan because Afghanistan was a failed state.  However, in the Kiobel context, the failed state argument might be used to the opposite effect: to establish legal regulation under the ATS.  Might the court entertain a future Kadic v. Karadzic-type case under the theory that Bosnia Herzegovina represented a failed state at the time of the Srebrenica massacre? I am doubtful, though perhaps Somalia provides a more secure example of a failed state where sovereign control is relatively absent (at least in some portions of the relevant territory).

A final point now about Justice Breyer’s concurrence.  Breyer concluded that he would have denied jurisdiction for the Kiobel plaintiffs but for different reasons. He included a handful of factors clustered around the connections the case has to U.S. national interests.  One of those factors for Breyer was that the corporation in question, although it had a U.S. office, did not have significant contacts with the United States, and second, the corporation was only accused of complicity (aiding and abetting) – as opposed to liability as a principal perpetrator.  

This last element is very striking and Breyer spent no time defending it, nor providing a citation to support it.  I say this is striking because, at least in the criminal law, it is a hallmark of American legal thought that accomplices are just as guilty as principal perpetrators (and subject to the same level of punishment).  Indeed, the federal criminal code provides for this explicitly.  To civil law countries that follow a Germanic model of criminal law, this American approach is absurd, because these other countries classify accomplices as embodying a lower form of liability subject to lesser penalties.  No such assumption follows in American criminal law, and therefore it is a bit odd to hear Breyer claim, without further support, that corporate aiding and abetting is somehow less serious than a corporation’s perpetration of atrocities as a principal.  Although I might agree with this as a normative matter (and in fact have argued this point in law review articles about international criminal law), I find it strange as a description of current American jurisprudence.