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The U.S. Supreme Court has finally decided Kiobel v. Royal Dutch Petroleum Co. It is the Court’s second modern decision applying the cryptic Alien Tort Statute (ATS), which was enacted in 1789. Since the 1980 court of appeals decision in Filartiga v. Pena-Irala permitting a wide of range human rights cases to go forward under the statute’s auspices, the ATS has garnered worldwide attention and has become the main engine for transnational human rights litigation in the United States. The statute itself and the decisions that it generates also serve as state practice that might contribute to the developing customary international law of civil universal jurisdiction, immunity for defendants in human rights cases, the duties of corporations, and the right to a remedy for violations of fundamental human rights. During the 1990s, the ATS became the focal point for academic disputes about the status of customary international law as federal common law. Indeed, to the extent that the “culture wars” have played out in U.S. foreign relations law, the ATS has been their center of gravity.
1 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).
2 The statute reads: “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.” 28 U.S.C. §1350 (2006).
3 630 F.2d 876 (2d Cir. 1980).
4 see Stephens, Beth et al., International Human Rights Litigation in U.S. Courts (2d ed. 2008).
5 see Jones v. Saudi Arabia  UKHL 26, – (appeal taken from Eng.) (Lord Bingham); id. at – (Lord Hoffmann); Donovan, Donald Francis & Roberts, Anthea, The Emerging Recognition of Universal Civil Jurisdiction, 100 AJIL 142, 146–49, 153–54 (2006); Paust, Jordan J., Human Rights Responsibilities of Private Corporations, 35 Vand. J. Transnat’l L. 801, 802–09 (2002); Wright, Jane, Retribution but No Recompense: A Critique of the Torturer’s Immunity from Civil Suit, 30 Oxford J. Legal Stud. 143, 160–62 (2010); cf. Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises, Business and Human Rights: Mapping International Standards of Responsibility and Accountability for Corporate Acts, para. 30, UN Doc. A/HRC/4/35 (Feb. 19, 2007).
6 see Bradley, Curtis A. & Goldsmith, Jack L., Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815 (1997); Koh, Harold Hongju, Is International Law Really State Law?, 111 Harv. L. Rev. 1824 (1998).
7 See, e.g., Bederman, David J., International Law Advocacy and Its Discontents, 2 Chi. J. Int’l L. 475 (2001).
8 Kiobel v. Royal Dutch Petroleum Co., 132 S.Ct. 1738 (2012) (mem.) (restoring case to active docket).
9 Kiobel v. Royal Dutch Petroleum Co., 132 S.Ct. 472 (2011) (mem.) (granting certiorari); see also Sarei v. Rio Tinto, PLC, 671 F.3d 736 (9th Cir. 2011) (en banc), vacated, 133 S.Ct. 1995 (2013) (mem.); Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011).
10 See, e.g., Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012), petition for certiorari filed, 81 USLW 3503 (Mar. 04, 2013) (NO. 12-1078, 12A707).
11 See Developments in the Law—Access to Courts, 122 Harv. L. Rev. 1151, 1193–94, 1196–99 (2009).
12 Sarei v. Rio Tinto, supra note 9; Sarei v. Rio Tinto, PLC, 550 F.3d 822, 825–26 (9th Cir. 2008) (en banc). In the 2013 memorandum decision in Rio Tinto, 133 S.Ct. 1995, the Supreme Court granted certiorari, vacated the Ninth Circuit’s judgment, and remanded for further consideration in light of its decision in Kiobel.
13 Compare Wiwa v. Royal Dutch Petroleum Co., 226 F.3d 88, 103–06 (2d Cir. 2000) (forum non conveniens disfavored in ATS cases),with Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, Kiobel v. Royal Dutch Petroleum (No. 10-1491), supra note 1, at 25 n.13 (explicitly disagreeing with the Second Circuit’s analysis in Wiwa).
14 see Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, supra note 13, at 21 (arguing that some aiding and abetting liability claims should not go forward under the ATS).
15 Compare Khulumani v. Barclay Nat’l Bank Ltd., 504 F.3d 254, 284–92 (2d Cir. 2007) (Hall, J.), aff ‘d sub nom due to lack of a quorum, Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008) (mens rea for aiding and abetting supplied by federal common law), with Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2d Cir. 2009) (mens rea supplied by customary International law).See also Chimëne I.Keitner,Conceptualizing Complicity in Alien Tort Cases, 60 Hastings L.J. 61 (2008).
16 see Jr.Bellia, Anthony J. & Clark, Bradford R., The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011); Bradley, Curtis A., The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–42 (2002); Burley, Anne-Marie, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 AJIL 461 (1989); Lee, Thomas H., The Safe-Conduct Theory of the Alien Tort Statute, 106 Colum. L. Rev. 830 (2006).
17 542 U.S. 692 (2004).
18 Compare Aldanav. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1247 (11th Cir. 2005) (holding that claims of cruel, inhuman, and degrading treatment do not meet the Sosa test), with in re S. African Apartheid Litig., 617 F.Supp.2d 228, 253–55 (S.D.N.Y. 2009) (holding to the contrary). See also Aldana v. Del Monte Fresh Produce, N.A., Inc., 452 F.3d 1284, 1284 (11th Cir. 2006) (Barkett, J., dissenting from denial of rehearing en banc).
19 Sosa v. Alvarez-Machain, 542 U.S. at 724 –25, 733 n.21; see also id. at 761 (Breyer, J., concurring in part and concurring in the judgment); Republic of Austria v. Altmann, 541 U.S. 677, 702 (2004); cf. id. at 714 (Scalia, J., concurring). But see id. at 733–38 (Kennedy, J., dissenting).
20 The Court appeared poised to consider the ATS in a 2008 case raising issues of deference to the executive branch and of aiding and abetting liability, but it lacked a quorum. Khulumani v. Barclay Nat’l Bank Ltd., supra note 15. Congress codified some claims that had been brought under the ATS by creating a federal cause of action for torture and extrajudicial killing. Torture Victim Protection Act of 1991, Pub. L. No. 102-256, sec. 2, 106 Stat. 73 (1992). The statute does not apply to corporations. Mohamad v. Palestinian Auth.,132 S.Ct. 1702 (2012).
21 Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1668–69.
22 Id. at 1669.
23 see Roger Alford, The Death of the ATS and the Rise of Transnational Tort Litigation, Opinio Juris, Apr. 17, 2013, at http://opiniojuris.org/2013/04/17/kiobel-instthe-death-of-the-ats-and-the-rise-of-transnational-tort-litigation/; see also Bradley, Curtis A., Supreme Court Holds That Alien Tort Statute Does Not Apply to Conduct in Foreign Countries, ASIL Insights (Apr. 18, 2013), at http://www.asil.org/insights130418.cfm. Several commentators have predicted that future ATS-type claims will be brought in state courts or under state law. see Christopher A. Whytock, Trey E. Childress & Mike Ramsey, After Kiobel: Human Rights Litigation in State Courts and Under State Law, U.C. Irvine L. Rev. (forthcoming 2013) (evaluating the viability of such claims).
24 see Oona Hathaway, Kiobel Commentary: The Door Remains Open to “Foreign Squared” Cases, Scotusblog (Apr. 18, 2013), at http://www.scotusblog.com/2013/04/kiobel-commentary-the-door-remains-open-to-foreign-squared-cases/.
25 See generally 1980s to the New Millennium, at http://www.shell.com/global/aboutshell/who-we-are/our-history/1980s-to-new-century.html. Other lawsuits included Wiwa v. Shell Petroleum, Wiwa v. Anderson, and Wiwa v. Shell Petroleum Dev. Co. of Nigeria. These cases settled in 2009. see Settlement Agreement and Mutual Release, available at http://ccrjustice.org/files/Wiwa_v_Shell_SETTLEMENT_AGREEMENT.Signed-1.pdf.
26 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1662–63.
27 See, e.g., Khulumani v. Barclay Nat’l Bank Ltd.,supra note 15; Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, supra note 18;Settlement in Principle Reached in Unocal Case, EarthRights Int’l, Dec. 13, 2004, at http://www.earthrights.org/content/view/104/62/; Peter Spiro,Chevron Wins ATS Case. Will Corporations Fight, Not Settle?, Opinio Juris (Dec. 2, 2008), at http://opiniojuris.org/2008/12/02/chevron-wins-ats-case-will-corporations-fight-not-settle/. Occasional cases are brought against corporations based on primary rather than secondary liability. see Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009).
28 See, e.g., Brief of United States as Respondent Supporting Petitioner at 46–50, Sosa v. Alvarez-Machain (No. 03-339), supra note 17.
29 See, e.g., id.; Brief for the United States as Amicus Curiae at 5–12, Presbyterian Church v. Talisman Energy Inc., 582 F.3d 244 (2d Cir. 2009) (No. 07-0016); Brief for the United States as Amicus Curiae at 2–3, Khulumani v. Barclay Nat’l Bank Ltd. (Nos. 05-2141, 05-2326), supra note 15; Brief for the United States as Amicus Curiae at 4, Doe v. Unocal Corp., 403 F.3d 708 (9th Cir. 2005) (Nos. 00-56603, 00-56628); see generally Stephens, Beth, Judicial Deference and the Unreasonable Views of the Bush Administration, 33 Brook. J. Int’l L. 773 (2008).
30 Sosa v. Alvarez-Machain, supra note 17.
31 Id. at 697–99.
32 Id. at 725, 731–32.
33 Id. at 727–28.
34 Id. at 736–37.
35 456 F.Supp.2d 457, 464 (2006), aff’d in part, Rev’d in part, 621 F.3d 111 (2nd Cir. 2010), aff’d, 133 S.Ct. 1659 (2013).
36 Kiobel v. Royal Dutch Petroleum Co., No.02 Civ. 7618 (KMW) (HBP), 2010 WL2507025 (S.D.N.Y. June 21, 2010).
37 see Wiwa v. Royal Dutch Petroleum Co., supra note 13. Some justices in Kiobel appeared to question whether the personal jurisdiction by the New York courts over the Dutch and UK defendants would pass constitutional muster. see Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1678 (Breyer, J., concurring in the judgment). The Court has subsequently granted certiorari in another ATS case based on general personal jurisdiction, but this time the defendant has the preserved the argument. DaimlerChrysler, A.G. v. Bauman, 133 S.Ct. 1995 (2013) (mem.) (granting certiorari).
38 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), aff’d, 133 S.Ct. 1659 (2013).
39 Kiobel v. Royal Dutch Petroleum Co., 642 F.3d 379 (2d Cir. 2011).
40 This split intensified after the plaintiffs petitioned for a writ of certiorari. see Flomo v. Firestone Natural Rubber Co., supra note 9; Sarei v. Rio Tinto,supra note 9;Doe v. Exxon Mobil Corp., 654 F.3d 11,39(D.C. Cir. 2011)
41 see Linda Greenhouse, Conflicts for Justices Halt Apartheid Appeal, N.Y. Times, May 13, 2008, at A 14.
42 See supra note 20.
43 Mohamad v. Palestinian Auth., supra note 20. The questions of corporate liability in Kiobel and Mohamad reached the Court at a time when many observers described its decisions as favoring corporations. See Corporations and the Court, Economist, June 25, 2011, at 75.
44 Transcript of Oral Argument at 6–13, Kiobel v. Royal Dutch Petroleum Co. (No. 10-1491), supra note 1(oral argument of Paul Hoffman on behalf of the petitioners on February 28, 2012).
45 Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1663 (quoting Kiobel v. Royal Dutch Petroleum Co., supra note 8).
46 Id. at 1672 (Breyer, J., concurring in the judgment) (quoting Morrison v. Nat’l Austl. Bank Ltd., 130 S.Ct. 2869, 2877 (2010)).
47 EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991).
48 Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1664 (quoting Morrison v. Nat’l Austl. Bank Ltd., 130 S.Ct. at 2878).
49 130 S.Ct. 2869.
50 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1672 (Breyer, J., concurring in the judgment).
51 Sosa v. Alvarez-Machain, supra note 17, at 714, 724–25; Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1664.
52 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1664.
53 Petitioners’ Supplemental Opening Brief at 34, 2012 WL 2096960, Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491), supra note 1.
54 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1664.
55 Id. at 1671–72 (Breyer, J., concurring in the judgment).
56 Id. at 1665 (majority opinion).
57 Id. at 1666–67.
58 Id. at 1667.
59 Id. Justice Breyer disagreed with this conclusion, reasoning that piracy takes place aboard vessels that are equivalent to the sovereign territory of their home country. Id. at 1672 (Breyer, J., concurring in the judgment).
60 Id. at 1668–69 (majority opinion).
61 Id. at 1667.
62 Id. at 1669–70 (Alito, J., concurring).
63 Id. at 1669.
64 See, e.g., In reS. African Apartheid Litig., 346 F.Supp.2d 538, 545 (2004) (“the South African police shot demonstrators ‘from cars driven by Daimler–Benz engines,’ [and] the regime tracked the whereabouts of African individuals on IBM computers”) (citation omitted).
65 See, e.g., Sosa v. Alvarez-Machain, supra note 17, at 698 (“[T]he [Drug Enforcement Agency] approved a plan to hire Mexican nationals to seize Alvarez and bring him to the United States for trial. As so planned, a group of Mexicans, including petitioner Jose Francisco Sosa, abducted Alvarez from his house, held him overnight in a motel, and brought him by private plane to El Paso, Texas, where he was arrested by federal officers.”)
66 See, e.g., In re S. African Apartheid Litig., 346 F.Supp.2d at 545 (alleging that the apartheid-era government of South Africa “received needed capital and favorable terms of repayment of loans from defendant banks”).
67 see Roger Alford, Kiobel Insta-Symposium: Degrees of Territoriality, Opinio Juris (Apr. 22, 2013), at http://opiniojuris.org/2013/04/22/kiobel-insta-symposium-degrees-of-territoriality/(listing examples); In re S. African Apartheid Litig., supra note 18.
68 See, e.g., Magnifico v. Villanueva, 783 F.Supp.2d 1217 (S.D. Fla. 2011) (alleging fraud and human trafficking in the Philippines designed to bring forced laborers to the United States).
69 See, e.g., Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc) (alleging that human rights abuses took place in Abu Ghraib prison, Iraq, when it was under the complete control of the United States); Yousuf v. Samantar, supra note 10 (alleging conduct that took place in Somalia, which is sometimes described as a “failed state”).
70 Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1667.
71 The majority opinion later reasons that the ATS should not interpreted to “provide a cause of action for conduct occurring in the territory of another sovereign.” Id. at 1669.
72 see William S. Dodge, Kiobel Insta-Symposium : The Pyrrhic Victory of the Bush Administration Position in Kiobel, Opinio Juris, Apr. 23, 2013, at http://opiniojuris.org/2013/04/23/kiobel-insta-symposiumthe-pyrrhicvictory-of-the-bush-administration-position-in-kiobel/ (noting that the Court’s language on corporate presence “should send chills down the spines of corporations domiciled in the United States (and their general counsels)”).
73 Compare Hathaway, supra note 24, with Meir Feder, Commentary: Why the Court Unanimously Jettisoned Thirty Years of Lower Court Precedent(and What That Can Tell Us About How to Read Kiobel), SCOTUSblog(Apr. 19, 2013), at http://www.scotusblog.com/2013/04/commentary-why-the-court-unanimously-jettisoned-thirty-years-of-lower-court-precedent-and-what-that-can-tell-us-about-how-to-read-kiobel/.
74 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1669 (Kennedy, J., concurring).
78 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).
79 see Baxter, William F., Separation of Powers, Prosecutorial Discretion, and the “Common Law” Nature of Antitrust Law, 60 Tex. L. Rev. 661, 663 (1982); Lemos, Margaret H., The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405, 429–30 (2008).
80 Am. Banana Co. v. United Fruit Co., 213 U.S. 347 (1909).
81 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1669;see generally Knox, John, A Presumption Against Extrajurisdictionality, 104 AJIL 35, 379–88 (2010) (discussing the purposes of the presumption).
82 Dodge, William S., Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. Int’l L. 85, 99 (1998).
83 In Hartford Fire Ins. Co. v. California, Justice Souter noted the American Banana cases but then said without explanation that “the Sherman Act applies to foreign conduct that was meant to produce and did in fact produce some substantial effect in the United States.” 509 U.S. 764, 795–96 (1993); see also id. at 814 (Scalia, J., dissenting) (stating that the presumption has been “overcome” in Sherman Act litigation and citing earlier decisions of the Court and the Second Circuit). Even when the Court declines to apply the Sherman Act to conduct abroad, it does not do so based on the presumption. see F. Hoffman-La Roche Ltd. v. Empagran S.A., 542 U.S. 155, 169 (2004). Today, amendments to the Sherman Act may make its extraterritorial application clear, but the Court had already ruled that the statute applied extraterritorially in Hartford Fire Ins. Co.
84 See supra text accompanying notes 56–57.
85 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1672–74 (Breyer, J., concurring in the judgment).
86 The historical record suggests that the ATS covered neither prize nor piracy, see Lee, supra note 16, at 866–68, but the point here is that for the same reason that prize and piracy were actionable in federal courts, the United States as a weak nation generally had a strong interest in the creation and enforcement of International law, as it could not depend on force alone to achieve its foreign policy objectives.
87 Cf. Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1668 (citing Bradley, supra note 16, at 641–42).
88 John Fabian Witt, Lincoln’s Code (2012).
89 see Frank Lambert, The Barbary Wars: American Independence in the Atlantic World 6–7 (2005).
90 See supra text accompanying note 59.
91 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1673 (Breyer, J., concurring in the judgment).
92 Id. at 1671.
93 Filartiga v. Pena-Irala, supra note 3, at 878 –79 (2nd Cir. 1980) (noting that Pena-Irala had sold his house Paraguay and came to the United States with his partner; the couple resided in the Brooklyn until their tourist visa expired and they were deported); In re Marcos Litigation, 25 F.3d 1467, 1469 (9th Cir. 1994) (noting that Marcos had fled the Philippines for Hawaii in 1986, where he was subsequently sued).
94 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1675 (Breyer, J., concurring in the judgment) (citing Sosa v. Alvarez-Machain, supra note 17, at 732).
95 Confirmation Hearing on the Nomination of John G. Roberts Jr. to Be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55, 142 (2005). Fealty to Sosa probably explains why the Court persisted in the view that the ATS applies to piracy, even while conceding that piracy made application of the presumption less clear. The respondents had argued that piracy does not come within the ATS, see Transcript of Oral Argument, supra note 44, at 23–26 (oral argument of Kathleen Sullivan on behalf of respondents on October 1, 2012), and there is historical support for that position. see Lee, supra note 16, at 866–68.
96 Transcript of Oral Argument, supra note 44, at 23–24, 37 (oral argument of Kathleen M. Sullivan on behalf of respondents on October 1, 2012).
97 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1667 (Breyer, J., concurring in the judgment).
98 The issue can arise in two postures. First, there might be a direct conflict between the presumption (no extra territorial application) and the views of the executive (apply the statute extraterritorially); this kind of conflict has been discussed extensively by academics but has not been resolved by courts. Second, the executive may submit its views on whether the presumption applies at all or is overcome on the facts of the case.
99 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1668–69 (2013).
100 Id. at 1664, 1666, 1668 (referring to the views of Congress).
101 Sosa v. Alvarez-Machain, supra note 17, at 733 n.21 (2004) (noting a “strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy”); id. at 761 (Breyer, J., concurring in part and concurring in the judgment); Republic of Austria v. Altmann, supra note 19, at 701–02 (similar). But see id. at 735–36 (Breyer, J., dissenting).
102 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1671, 1674, 1677 (Breyer, J. concurring in the judgment).
103 Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, supra note 13, at 3 (arguing that “canons of statutory construction, such as the presumption against extraterritorial application of an Act of Congress” are “not directly applicable” in ATS cases).
104 To illustrate this distinction, courts might defer on a case-specific basis (for example, “this case against IBM based on its conduct in South Africa does not threaten U.S. foreign relations or foreign policy”), or they might defer on more general principles (for example, “cases against U.S. nationals should go forward, even if based on conduct abroad”).see Republic of Austria v.Altmann, 541 U.S.at701–03(giving the government’s views on statutory interpretation “no special deference” but suggesting that deference might be afforded to the State Department’s “opinion on the implications of exercising jurisdiction over particular petitioners in connection with their alleged conduct”). Deference on more general principles is like the deference sought by the executive branch on the applicability of the presumption. Notice that general principles advocated by the executive in one case might be inconsistent with case-specific deference in another.
105 Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, supra note 13, at 3, 15–22.
106 Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984); cf. Republic of Austria v. Altmann, 541 U.S. at 701–02.
107 see Am. Ins. Ass’nv.Garamendi, 539 U.S. 396, 420–21(2003); see also Yelin, Lewis S., Head of State Immunity as Sole Executive Branch Lawmaking, 44 Vand. J. Transnat’l L. 911 (2011).
108 see Transcript of Oral Argument, supra note 44, at 44 (oral argument by General Donald B. Verrilli for the United States as amicus curiae, supporting respondents on October 1, 2012); see also Republic of Austria v. Altmann, 541 U.S. at 701–02 (views of the U.S. government as to the interpretation of Foreign Sovereign Immunities Act, see infra note 126, are “of considerable interest to the Court,” but “they merit no special deference”); Bradley, Curtis A., Chevron Deference and Foreign Affairs , 86 Va. L. Rev. 649, 680 (2000) (suggesting that “persuasiveness deference” is appropriate in ATS cases).
109 The government also opposed the presumption and lost in Morrison v. Nat’l Austl. Bank Ltd., supra note 46, see Paul B. Stephan, Morrison v. Nat’l Australia Bank, Ltd.: The Supreme Court Rejects Extraterritoriality, ASIL Insights (Aug. 2, 2010), and in EEOC v. Arabian Am. Oil Co., 499 U.S. 244 (1991). It unsuccessfully advocated for the presumption in Sosa, supra note 19, and in Rasul v. Bush, 542 U.S. 466 (2004). Cases in which the Court has agreed with the executive include Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155 (1993),Smith v. United States, 507 U.S. 197 (1993), and Microsoft Corp. v. AT&T Corp., 550 U.S. 437 (2007).
110 Republic of Austria v. Altmann, 541 U.S. at 701– 03; W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400 (1990).
111 see Eskridge, William N. & Baer, Lauren E., The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 Geo. L.J. 1083, 1111–15 (2008).
112 Id. at 1117, 1119 (noting that in 53.6 percent of cases surveyed, “the Court invoked no deference regime at all,” and asking “why the Court so often opts not to invoke a deference regime, especially given the range of deference regimes available and the Court’s strong rhetorical support for them”).
113 The political question and International comity doctrines might apply, but that is uncertain, as is the relationship between those doctrines and deference to the executive branch.
114 Posner, Eric A. & Sunstein, Cass R., Chevronizing Foreign Relations Law, 116 Yale L.J. 1170, 1198 (2007) (noting that “the Law has—peculiarly—not settled on a general principle of deference when an executive agency advances an interpretation of a statute that has foreign relations implications”).
115 In First National City Bank v. Banco Nacional de Cuba, a three-justice plurality accepted the so-called “Bernstein exception,” pursuant to which courts will not apply the act of state doctrine if the State Department says that they should not. First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759, 764–70 (1972). Six justices explicitly rejected the exception, however. Id. at 772–73 (Douglas, J., concurring in result); id. at 773 (Powell, J., concurring in the judgment); id. at 785–93 (Brennan, J., dissenting); see also Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 436 (1964) (expressing skepticism about a Reverse-Bernstein exception); W.S. Kirkpatrick & Co. v. Envtl. Tectonics Corp., 493 U.S. 400, 408 (rejectingan expansion of the act of state doctrine for cases that the State Department determines would embarrass foreign sovereigns).
116 Republic of Austria v. Altmann, supra note 19, at 735–36 (2004) (Kennedy, J., dissenting).
117 see Stephens, supra note 29, at 787–88 (surveying lower court cases).
118 Developments in the Law—Access to Courts, supra note 11, at 1193–99.
119 see Peter Strauss, “Deference” Is Too Confusing: Let’s Call Them “Chevron Space” and “Skidmore Weight,“ 112 Colum. L. Rev. 1143 (2012).
120 Ku, Julian & Yoo, John, Beyond Formalism in Foreign Affairs: A Functional Approach to the Alien Tort Statute, 2004 Sup. CT. Rev. 153, 181–98 (2004) (defending judicial deference to the executive branch in ATS cases based on democratic accountability and expertise); Posner & Sunstein, supra note 114.
121 see Posner & Sunstein, supra note 114, at 1204–07; Ku & Yoo, supra note 120, at 188 –99. Most of the academic response to the pro-deference position has focused on national security cases and statutes that constrain or empower the executive. See, e.g., Jinks, Derek & Katyal, Neal Kumar, Disregarding Foreign Relations Law, 116 Yale L.J. 1230 (2007). Neither is at issue here.
122 Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1699.
123 see Posner & Sunstein, supra note 114; Ku and Yoo, supra note 120.
124 There are also doctrinal and potential constitutional problems with these arguments, see infra text accompanying notes 105–19.
125 Jurisdiction of U.S. Courts in Suits Against Foreign States: Hearings Before the Subcomm. on Admin. Law and Governmental Relations, H. Judiciary Comm., 94th Cong. 34–35 (1976) (testimony of Monroe Leigh, legal adviser, Department of State) (testifying that case-by-case deference means that “the State Department becomes involved in a great many cases where we would rather not do anything at all, but where there is enormous pressure from the foreign government that we do something,” and adding that “in practice I would have to say to you in candor that the State Department, being a political institution, has not always been able to resist these pressures”).
126 Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified in scattered sections of 28 U.S.C.); Republic of Austria v. Altmann, supra note 19, at 715–38 (2004) (Kennedy, J., dissenting).
127 The effect might be less in ATS litigation because the cases are not brought against foreign sovereigns themselves. ATS cases brought against foreign corporations and individuals, however, have generated significant opposition from foreign governments. See, e.g., briefing in Sosa v. Alvarez-Machain, supra note 17; Yousuf v. Samantar, supra note 10, petition for certiorari filed; Matar v. Dichter, 563 F.3d 9 (2d Cir. 2009). Cases against U.S. nationals based on conduct abroad might not generate similar pressure from foreign sovereigns. But see in re S. African Apart heid Litig., supra note 18. In any event, most ATS cases are brought against foreign defendants.
128 see Bellinger, John, Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Beyond, 42 Vand. J. Transnat’l L. 1, 11 (2009) (focusing specifically on the difficulties that case-by-case submissions create for the executive).
129 Decisions of courts might also generate adverse reactions from foreign sovereigns, of course, see Zschernig v. Miller, 389 U.S. 429 (), but the immunity example suggests that they are not as damaging over the long-term as State Department decisions made on a case-by-case basis. Indeed, in Zschernig, the U.S. government disagreed with the Court: it did not believe that the state court statute and the court decisions applying it harmed U.S. foreign relations. Id. at 460–61 (Harlan, J., concurring in the result).
130 see Ku & Yoo, supra note 120, at 192.
131 The Court has rejected the claim that the act of state doctrine should not apply to purported violations of International Law unless the executive branch affirmatively states that the doctrine is applicable. The Court reasoned, in part, that “[o]ften the State Department will wish to refrain from taking an official position, particularly at a moment that would be dictated by the development of private litigation but might be inopportune diplomatically.” Banco Nacional de Cuba v. Sabbatino, supra note 115, at 436. In the immunity context, Congress did not just shift authority from the executive to the courts; it also enacted a federal statute guiding the court’s decision making. In that sense it is not analogous to the question of deference in the ATS context.
132 Cf. Stack, Kevin M., The President’s Statutory Power to Administer the Law, 106 Colum. L. Rev. 263 (2006) (arguing that, at a minimum, Skidmore requires the Reviewing court to consider the agency’s position and the basis for its view).
133 Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, supra note 13, at 21 & n.11, 22.
134 Brief of United States as Respondent Supporting Petitioner at 46–50, supra note 28.
135 see Memorandum for the United States as Amicus Curiae at 1, Filartiga v. Pena-Irala (No. 79-6090), supra note 3; Statement of Interest of the United States, Nat’l Coal. Gov’t of the Union of Burma v. Unocal, Inc., 176 F.R.D. 329 (C.D. Cal. 1997) (No. 96-6112).
136 Brief for the United States of America as Amicus Curiae, Trajano v. Marcos, 878 F.2d 1438 (9th Cir. July 10, 1989) (Nos. 86-2448, 86-15039, 86-2449, 86-2496, 87-1706, 87-1707).
137 Transcript of Oral Argument, supra note 44, at 43–44 (oral argument of General Donald B. Verrilli Jr. for the United States as amicus curiae, supporting the respondents).
138 Id.; see also Trajano v. Marcos, 978 F.2d 493, 498–500 (9th Cir. 1992) (noting the Justice Department’s change of position and concluding that the court was not bound by its submission). The Court did not mention the government’s opposition to the presumption in the Kiobel opinion. It did refer to the flip-flop issue in a back handed way. A sentence discussing the 1795 opinion of Attorney General Bradford noted that the solicitor general, “having once read the opinion” in one way, “now suggests” that the opinion could mean the opposite. In the next sentence the Court says that the “opinion defies a definitive reading and we need not adopt one here.” Kiobel v. Royal Dutch Petroleum Co., supra note 1, at 1668. Although the specific reference is to the Bradford Opinion, it is hard not to see this as a veiled reference to the government’s other (more substantial) changes of position.
139 see Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., supra note 106, at 865– 66.
140 Bradley, supra note 108, at 701.
141 see Freeman, Jody & Vermeule, Adrian, Massachusetts v. EPA: From Politics to Expertise , 2007 Sup. Ct. Rev. 51 (discussing the tension between democratic accountability and protecting agency decision making from politics); cf. Medellín v. Texas, 552 U.S. 491, 528 n.14 (2008) (describing earlier statements from the solicitor general’s office that contradicted its position in this case).
142 See supra note 159.
143 See Wuerth, Ingrid B., The Alien Tort Statute and Federal Common Law: A New Approach, 85 Notre Dame L. Rev. 1931 (2010) (developing this argument); see also Banco Nacional de Cuba v. Sabbatino, supra note 115, at 432–33 (“When articulating principles of International Law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protective of national concerns.”).
144 see Jurisdictional Immunities of the State (Ger. v. It.; Greece intervening), para. 55 (Int’l Ct. Justice Feb. 3, 2012).
145 Restatement (Third) of Foreign Relations Law of the United States §404 (1987); see also O’Keefe, Roger, Universal Jurisdiction: Clarifying the Basic Concept, 2 J. Int’l Crim. Just. 735 (2004). Universal jurisdiction is widely accepted for some criminal offenses—which may provide the basis for its application in civil cases. see Sosa v. Alvarez-Machain, supra note 17, at 761–62 (Breyer, J., concurring in part and concurring in the judgment); see also Vázquez, Carlos, Alien Tort Claims and the Status of Customary International Law, 106 AJIL 531, 542–43 (2012).
146 Sosa v.Alvarez-Machain, 542 U.S.at761–62(Breyer, J., concurring in part and concurring in the judgment).
147 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1674 (Breyer, J., concurring in the judgment).
148 Id. at 1675–76.
149 Id. at 1673–74.
150 Id. at 1674 –75.
151 Id.; see Restatement (Third) of the Foreign Relations Law of the United States §402 cmt. f (listing espionage, counterfeiting, and other examples).
152 see Langer, Máximo, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 AJIL 1, 40 (2011) (describing amended Spanish universal jurisdiction legislation as providing that “Spanish courts cannot assert universal jurisdiction unless the accused is on Spanish territory, or there is another relevant link between Spain and the case”); cf.van der Wilt, Harmen, Universal Jurisdiction Under Attack, 9 J. Int’l Crim. Just. 1043, 1047–50 (2011) (discussing whether universal jurisdiction includes a preference for criminal prosecution by the state of nationality or the state on whose territory the conduct occurred).
153 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1677 (Breyer, J., concurring in the judgment).
154 Petitioners’ Supplemental Opening Brief, supra note 53, at 38–40.
155 see Wuerth, supra note 143. But see Anthony J. Colangelo, Kiobel: Muddying the Distinction Between Pre scriptive and Adjudicatory Jurisdiction, Mary. J. Int’l L. (forthcoming 2013).
156 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. at 1673–74 (Breyer, J., concurring in the judgment).
157 Id. at 1667 (majority opinion) (referring to the ATS as “applying U.S. law”).
158 see Wuerth, supra note 143 (discussing choice of Law in ATS cases and arguing that all of the applicable Law is judge-made federal common law, the development of which is authorized by the statute).
159 Compare Cleveland, Sarah H., The Alien Tort Statute, Civil Society, and Corporate Social Responsibility, 56 Rutgers L. Rev. 971 (2004), and Pierre N. Leval, The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court, Foreign Aff., Mar./Apr. 2013, at 16, with Ramsey, Michael D., International Law Limits on Investor Liability in Human Rights Litigation, 50 Harv. Int’l L.J. 279 (2009), and Robert H. Bork, Op-Ed, Judicial Imperialism, Wall St. J., June 17, 2003, at A 16.
160 see Roberts, Anthea Elizabeth, Traditional and Modern Approaches to Customary International Law: A Reconciliation, 95 AJIL 757 (2001).
161 see Lauterpacht, H., Decisions of Municipal Courts as a Source of International Law, 1929 Brit. Y.B. Int’l L. 65, 69–70 ; Cedric Ryngaert, Jurisdiction in International Law 4 (2008).
162 The resolution of particular issues within one branch may, for example, depend upon the context in which they arise—for example, litigation versus state-to-state negotiations. see Wuerth, Ingrid, International Law in Domestic Courts and the Jurisdictional Immunities of the State Case , 13 Melb. J. Int’l L. 819, 833–34 (2012); Ingber, Rebecca, Interpretation Catalysts and Executive Branch Legal Decision-Making, 38 Yale J. Int’l L. (forth coming 2013).
163 See, e.g., van der Wilt, supra note 152 (discussing the development of a subsidiarity requirement for universal jurisdiction based on state practice in Europe).
164 see Benvenisti, Eyal, Reclaiming Democracy: The Strategic Uses of Foreign and International Law by National Courts, 102 AJIL 241 (2008).
165 See, e.g., Ferrini v. Federal Republic of Germany, Cass., sez. un., 11 marzo 2004, n.5044, 87 Rivista Di Diritto Internazionale[RDI]539(2004), 128 ILR 658 (reported by Andrea Bianchi at 99 AJIL 242 (2005)).
166 See, e.g., Medellín v. Texas, supra note 141; Giuseppe Cataldi, The Implementation of the ICJ’s Decision in the Jurisdictional Immunities of the State case in the Italian Domestic Order: What Balance Should be Made Between Fundamental Human Rights and International Obligations ?, Esil Reflections (Jan. 24, 2013), at http://www.esil-sedi.eu/node/281.
167 see Langer, supra note 152.
168 see Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law 23 (2010).
169 see Langer, supra note 152; van der Wilt, supra note 152; see also Ratner, Steven R., Belgium’s War Crimes Statute: A Postmortem, 97 AJIL 888, 889 (2003).
170 Krisch, supra note 168, at 306–07.
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