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Kiobel and the Law of Nations

  • Zachary D. Clopton (a1)

Extract

Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the SupremeCourt justices addressed not the substance of ATS cases but the reach of that statute.

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References

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1 28 U.S.C. §1350 (“The district courts shall have original jurisdiction of 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 The Supreme Court has required that “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.” Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

3 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1663 (2013); Sosa, 542 U.S. at 732. In Kiobel, for example, the plaintiffs brought international law claims for crimes against humanity, torture and cruel treatment, and arbitrary arrest and detention. 133 S.Ct. at 1663.

4 Kiobel, 133 S.Ct. 1659.

5 See, e.g., Jay, Stewart, The Status of the Law of Nations in Early American Law, 42 Vand. L. Rev. 819, 821–22 (1989). For a summary of U.S. interpretation of international jurisdictional law, see 1 Restatement (Third) of the Foreign Relations Law of the United States §§401–88 (1987) [hereinafter Restatement].

6 Prescriptive (or legislative) jurisdiction is defined as the authority of a state “to make its law applicable to the activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court.” Restatement, supra note 5, §401(a).

7 E.g., William S. Dodge, Alien Tort Litigation and the Prescriptive Jurisdiction Fallacy, 51 Harv. Int’L L.J. Online 35, 37–44 (2010), at http://www.harvardilj.org/articles/dodge.pdf (arguing that the courts are not subject to prescriptive jurisdictional rules because they are applying (not prescribing) substantive law); Anthony Colangelo, Kiobel Insta-Symposium: Kiobel Contradicts Morrison, OPINIO JURIS, May 10, 2013, at http://opiniojuris.org/2013/05/10/kiobel-insta-symposium-kiobel-contradicts-morrison (arguing that the presumption against extraterritoriality, a prescriptive jurisdictional rule, should not apply to ATS cases because no U.S. conduct-regulating rule exists).

8 E.g., Michael D. Ramsey, International Law Limits on Investor Liability in Human Rights Litigation, 50Harv. Int’L L.J. 271 (2009). One could treat the ATS as impliedly creating causes of action within the limits established by international jurisdictional law or as authorizing federal courts to define common-law causes of action within the limits established by international law. See Cannon v. Univ. of Chi., 441 U.S. 677 (1979) (implied causes of action); Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957) (implied federal common lawmaking power). Those international law limits could be read into the term law of nations in the ATS or applied via the Charming Betsy canon. See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains … .”).

9 Restatement, supra note 5, §402.

10 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664–69 (2013) (applying the presumption against extraterritoriality).

11 Id. at 1673 (Breyer, J., concurring).

12 Id. at 1674 (“I would interpret the statute as providing jurisdiction only where distinct American interests are at issue.”); see also Julian Ku & John Yoo, The Supreme Court Unanimously Rejects Universal Jurisdiction, Forbes.Com, Apr. 21, 2013, at http://www.forbes.com/sites/realspin/2013/04/21/the-supremecourt- unanimously-rejects-universal-jurisdiction (observing that every justice in Kiobel rejected universal jurisdiction).

13 Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).

14 Adjudicatory (or judicial) jurisdiction is defined as the authority of a state “to subject persons or things to the process of its courts or administrative tribunals, whether in civil or in criminal proceedings, whether or not the state is a party to the proceedings.” Restatement, supra note 5, §401(b); see id. §§421–23.

15 Compare id. §421, cmt. e (noting that “‘[t]ag’ jurisdiction, i.e., jurisdiction based on service of process on a person only transitorily in the territory of the state, is not generally acceptable under international law”), with Burnham v. Superior Court, 495 U.S. 604, 628 (1990) (finding personal jurisdiction on this basis).

16 Compare Restatement, supra note 5, §421 (describing international law of prescriptive jurisdiction), with Goodyear Dunlop Tires Operations, SA v. Brown, 131 S.Ct. 2846 (2011) (limiting, but not eliminating, general jurisdiction in U.S. law).

17 Perhaps the Supreme Court could have limited ATS cases by infusing law-of-nations causes of action with lawof- nations limits on adjudicatory jurisdiction, see supra note 8, or by applying some notion of “international due process” to law-of-nations claims, Soc’y of Lloyd's v. Ashenden, 233 F.3d 473, 479–81 (7th Cir. 2000) (discussing “international due process” in a judgment recognition case).

18 E.g., Supplemental Brief of Professors of Civil Procedure and Federal Courts as Amici Curiae on Reargument in Support of Petitioners, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491); Supplemental Brief of Yale Law School Center for Global Legal Challenges as Amicus Curiae in Support of Petitioners, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491). The Kiobel briefs are available online at http://cja.org/section.php?id!509. Perhaps this decision will prove wise—if the Court also adds adjudicatoryjurisdiction requirements to the class of ATS cases that survived Kiobel—because the remaining ATS rgime would be narrower in both prescriptive and adjudicatory reach.

19 For a case in which the Supreme Court could entertain limits on adjudicatory jurisdiction, see Bauman v. DaimlerChrysler Corp., 644 F.3d 909 (9th Cir. 2011), cert. granted, 133 S.Ct. 1995 (U.S. Apr. 22, 2013) (No. 11-965).

20 Kiobel, v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664–65 (2013).

21 Rosalyn Higgins, Problems and Process: International Law and Howwe Use it 56 (1994).

Kiobel and the Law of Nations

  • Zachary D. Clopton (a1)

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