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Alien Tort Claims and the Status of Customary International Law

Published online by Cambridge University Press:  20 January 2017

Carlos M. Vázquez
Carlos M. Vázquez*
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Extract

Much of the recent debate about the status of customary international law in the U.S. legal system has revolved around the alien tort provision of the Judiciary Act of 1789, currently section 1350 of Title 28. In Filártiga v. Peña-Irala, the decision that launched modern human rights litigation in the United States, the Court of Appeals for the Second Circuit relied on the view that customary international law has the status of federal common law in upholding section 1350’s grant of federal jurisdiction over a suit between aliens. The court’s position that customary international law was federal law was the prevailing view at the time—a view that has subsequently been dubbed the “modern position.” It was the view set forth in the black letter of the Restatement (Third) of Foreign Relations Law. Filártiga triggered a revisionist challenge to the modern position, with revisionists arguing that customary international law has the status of federal law only if given that status through statute or treaty, or perhaps through sole executive action; in the absence of such incorporation, customary international law has, at best, the status of State law in our legal system.

Type
Agora: Kiobel
Information
American Journal of International Law , Volume 106 , Issue 3 , July 2012 , pp. 531 - 546
Copyright
Copyright © American Society of International Law 2012

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References

1 1 Stat. 73, 77.

2 28 U.S.C. §1350 (2012).

3 Filártiga v. Peña-Irala, 630 F.2d 876, 885-86 (2d Cir. 1980).

4 Bradley, Curtis A. & Goldsmith, Jack L., Customary International Law as Federal Common Law: A Critique of the Modem Position, 110 Harv. L. Rev. 815 (1997)CrossRefGoogle Scholar.

5 Restatement (Third) of the Foreign Relations Law of the United States §111 (1987) [here in after Restatement (Third)] (“International law and international agreements of the United States are law of the United States and supreme over the law of the several States.”).

6 See Bradley & Goldsmith, supra note 4, at 863, 868, 870.

7 References herein to the States of the Union (such as California) will be capitalized; references to states in the international sense (such as the United States) will not be.

8 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert, granted, 132 S.Ct. 472 (Oct. 17, 2011) (No. 10-1491 ). A continually updating set of documents on the Supreme Court proceedings in Kiobel is available at http://www.scotusblog.com/case-files/cases/kiobel-v-royal-dutch-petroleum-et-al.

9 On what the modern position does and does not entail, see generally Vázquez, Carlos M., Customary International Law as U.S. Law: A Critique of the Revisionist and Intermediate Positions and a Defense of the Modern Position, 86 Notre Dame L. Rev. 1495, 1515-16, 1538-54 (2011)Google Scholar.

10 The Federalist No. 80, at 476 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

11 For elaboration of the structural case for the modern position, see Vázquez, supra note 9, at 1517-20.

12 542 U.S. 692 (2004).

13 Id. at 725-28.

14 130 S.Ct. 2278 (2010).

15 See Bradley, Curtis A. & Goldsmith, Jack L., Foreign Sovereign Immunity, Individual Officials, and Human Rights litigation, 13 Green Bag 2d 9, 16 (2009)Google Scholar.

16 Brief of Chevron Corp., et al. as Amici Curiae in Support of Respondents, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 3,2012) (Jack L. Goldsmith, Counsel of Record) [hereinafter Chevron Brief]; see also Brief of Amici Curiae BP America, et al. in Support of Respondents, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 3, 2012) [hereinafter Bp Brief].

17 See Bradley, Curtis A., Goldsmith, Jack L. & Moore, David H., Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869, 902-07 (2007)Google Scholar.

18 I argue in part III that international law gives states the power to prescribe civil remedies as a matter of domestic law even for torture having no connection to the forum state. My point here is that international law itself imposes only criminal responsibility.

19 For the propositions in this paragraph, see Vázquez, supra note 9, at 1504-05.

20 See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001).

21 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 148-49 (2d Cir. 2010).

22 Brief of Amicus Curiae the Cato Institute in Support of Respondents, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 3, 2012); Chevron Brief, supra note 16, at 17-21.

23 Brief for Petitioners, Kiobel v. Royal Dutch Petroleum Co., at 18-20, No. 10-1491 (Dec. 14, 2011); Brief for Respondents, Kiobel v. Royal Dutch Petroleum Co., at 2-3, No. 10-1491 (Jan. 27, 2012).

24 Brief for Respondents, Kiobel v. Royal Dutch Petroleum Co., at 20-23, No. 10-1491 (Jan. 27, 2012).

25 Indeed, because one of the key purposes of the corporate form is to insulate shareholders from liability, refusal to recognize the corporate form in the context of violations of customary international law would threaten share holders with liability under theories of agency, a result that the defendants in these cases would presumably not welcome. See Vázquez, Carlos M., Direct vs. Indirect Obligations of Corporations Under International Law, 43 Colum. J. Transnat’l L. 927, 944 (2005)Google Scholar.

26 Filártiga v. PeñaIrak, 630 F.2d 876, 878-79 (2d Cir. 1980).

27 U.S. Const. Art. III, §2, cl. I. (“The judicial Power shall extend to all. . . Controversies . . . between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”).

28 Filártiga, 630 F.2d at 885-86.

29 Sosa v. Alvarez-Machain, 542 U.S. 692, 739-50 (2004) (Scalia, J., concurring in part and dissenting in part).

30 Brief for Amici Curiae Law Professors of Constitutional and Federal Civil Procedure Law in Support of Respondents, at 3-6, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (Feb. 3, 2012).

31 See Bellia, Anthony J. Jr. & Clark, Bradford R., Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute, 43 Geo. J. Int’l L. (forthcoming 2012)Google Scholar at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2008254; see also Bellia, Anthony J. Jr. & Clark, Bradford R., The Alien Tort Statute and the Law of Nations, 78 U. Chi. L. Rev. 445 (2011)Google Scholar. A similar argument was developed earlier in Bradley, Curtis A., The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587 (2002)Google Scholar. For responses, see Collins, Michael G., The Diversity Theory of the Alien Tort Statute, 42 Va. J. Int’l L. 649 (2002)Google Scholar, and Dodge, William S., The Constitutionality of the Alien Tort Statute: Some Observations on Text and Context, 42 Va. J. Int’l L. 687 (2002)Google Scholar.

32 See Sosa, 542 U.S. at 725-28.

33 See T.B. Harms Co. v. Eliscu, 339 F.2d 823, 827 (2d Cir. 1964); Fallon, Richard H. Jr., Manning, John F., Meltzer, Daniel J. & Shapiro, David L., Hart and Wechsler’s the Federal Courts and the Federal System 782 (6th ed. 2009)Google Scholar [hereinafter Hart & Wechsler].

34 241 U.S. 257, 260 (1916).

35 See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 495 (1983). In Verlinden the Court held that Congress had the power to create federal court jurisdiction, under the Foreign Sovereign Immunities Act, over suits by a foreigner against a foreign state.

36 See Vázquez, Carlos M., The Federal “Claim “ in the District Courts: Osborn, Verlinden, and Protective Juris diction, 95 Cal. L. Rev. 1731, 1736 (2007)Google Scholar.

37 Illinois v. Milwaukee, 406 U.S. 91 (1972); Hart & Wechsler, supra note 33, at 783-84.

38 Erie R.R. v. Tompkins, 304 U.S. 64 (1938).

39 Restatement (Third), supra note 5, ch. 2, intro. note.

40 Id. §111, cmt. d.

41 Vázquez, supra note 9, at 1501-02.

42 See id. at 1611.

43 Osborn v. Bank of U.S., 22 U.S. 738 (1824).

44 Cf. The Federalist No. 80, supra note 10, at 485 (“So great a proportion of the cases in which foreigners are parties involve national questions, that it is by far most safe and most expedient to refer all those in which they are concerned to the national tribunals.”).

45 See Bellia, Anthony J. Jr., Article III and the Cause of Action, 89 Iowal, Rev. 777 (2004)Google Scholar; Vázquez, supranote 36, at 1735-36.

46 See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 492 (1983) (Osborn “reflects a broad conception of ‘arising under’ jurisdicrion, according to which Congress may confer on the federal courts jurisdiction over any case or controversy that might call for the application of federal law”); Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 471 (1957) (Frankfurter, J., dissenting) (reading Osborn to hold that Congress may confer jurisdiction pursuant to Article Ill’s “arising under” clause “whenever there exists in the background some federal proposition that might be challenged, despite the remoteness of the likelihood of actual presentation of such a federal question”).

47 See Mesa v. California, 489 U.S. 121 (1989), in which the Court interpreted 28 U.S.C. §1442 narrowly to avoid a difficult question about the scope of Article Ill’s arising under clause.

48 Wechsler, Herbert, Federal Jurisdiction and the Revision of the Judicial Code, 13 Law & Contemp. Probs. 216, 224-25 (1948)CrossRefGoogle Scholar; see Hart & Wechsler, supra note 33, at 758-59; Vázquez, supra note 36, at 1749-50 (describing and defending Wechsler’s theory).

49 U.S. Const. Art. I, §8, cl. 10.

50 Mishkin, Paul J., The Federal “Question” in the District Courts, 53 Colum. L. Rev. 157, 189 (1953)CrossRefGoogle Scholar; see Hart & Wechsler, supra note 33, at 759-60.

51 For this reason, the theories propounded by Mishkin and others have come to be known as theories of “protective jurisdiction.” See Hart & Wechsler, supra note 33, at 759, 764-65.

52 See generally Vázquez, supra note 9, at 1520—38.

53 Bellia, Anthony J. Jr. & Clark, Bradford R., The Federal Common Law of Nations, 109 Colum. L. Rev. 1, 46-48 (2009)Google Scholar.

54 11 U.S. (7 Cranch) 32 (1812).

55 Hart & Wechsler, supra note 33, at 610 (citing cases).

56 See Bellia & Clark, supra note 53, at 7, 17, 46; see also Vázquez, supra note 9, at 1522-38.

57 See Vázquez, supra note 8, at 1525-30.

58 New York Life Insurance Co. v. Hendren, 92 U.S. 286, 288 (1875) (Bradley, J., dissenting) (dissent in Hendren discussed in Vázquez, supra note 9, at 1529-30).

59 This is the thrust of the argument made in Bellia & Clark, The Alien Tort Statute and the Law of Nations, supra note 31, at 507-10.

60 See Respublica v. De Longchamps, 1 U.S. 111 (1784).

61 See Sosa v. Alvarez-Machain, 542 U.S. 692, 716-18 (2004).

62 See Articles on Responsibility of States for Internationally Wrongful Acts, Art. 8, in Report of the International Law Commission on the Work of Its Fifty-Third Session, UN GAOR, 56th Sess., Supp. No. 10, at 47, UN Doc. A/56/10 (2001) (“The conduct of a person or group of persons shall be considered an act of a State under inter national law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”).

63 Bellia and Clark do not quite concede that such disputes would implicate the responsibility of the United States, see Bellia & Clark, The Alien Tort Statute and the Law of Nations, supra note 31, at 519-20, but they rely heavily on the work of Vattel, who writes that, when a sovereign admits aliens into his territory, “he engages to protect them as his own subjects, and to afford them perfect security, as far as depends on him.” de Vattel, Emer, The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns, bk. II, ch. viii, §104 (Chitty, Joseph ed., 1883) (1758)Google Scholar, available at http://www.constitution.org/vattel/vattel_02.htm. For a discussion of the influence of Vattel and contemporaneous scholars on the Founders, see Richardson, Brian, The Use of Vattel in the American Law of Nations, 106 AJIL 447 (2012)Google Scholar.

64 Bellia & Clark, The Alien Tort Statute and the Law of Nations, supra note 31, at 520.

65 The Federalist No. 80, supra note 10, at 476; see also id. (“[I]t is at least problematical whether an unjust sentence against a foreigner, where the subject of controversy was wholly relative to the lex loci, would not, if unredressed, be an aggression upon his sovereign . . . .”).

66 Bellia & Clark, The Alien Tort Statute and the Law of Nations, supra note 31, at 519.

67 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.”).

68 See Vázquez, supra note 9.

69 See id. at. 1546-52.

70 See id. at 1550-51.

71 ‘Bellia and Clark never acknowledge that the Court in Sosa characterized the cause of action as having the status of federal common law. They state that “the Court did not conclude that the [Alien Tort Statute] created a federal common law cause of action,” Bellia & Clark, The Alien Tort Statute and the Law of Nations, supra note 31, at 549, which is technically true because the Court held that the section 1350 was purely jurisdictional. But the Court did elsewhere clearly hold that the cause of action, as it exists today, is one that is “created” by the federal courts as a matter of federal common law. Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2004). Bellia and Clark also argue that the majority “rejected Justice Scalia’s assertion that ‘a federal-common-law cause of action of the sort the Court reserves discretion to create would “arise under” the laws of the United States, not only for purposes of Article III but also for purposes of statutory federal-question jurisdiction.’ “ Bellia & Clark, The Alien Tort Statute and the Law of Nations, supra note 31, at 549. But the Court did not disagree with Justice Scalia’s assertion that a federal common law cause of action would arise under federal law for purposes of Article III and the federal question statute (which is self-evidently true for the reasons discussed supra text accompanying notes 32-37). Rather, the majority merely denied that its holding implied that section 1331 could support the creation of federal common law in the same way that section 1350 can. Sosa, 542 U.S. at 731 n.19; see Vázquez, supra note 9, at 1508 n.64.

72 See Chevron Brief, supra note 16, at 10-17; Bp Brief, supra note 16, at 24-27.

73 William Dodge has argued that suits under sectionl350 do not implicate international principles of jurisdiction to prescribe because the defendant’s conduct is already unlawful as a matter of international law. Dodge, William S., Alien Tort Litigation and the Prescriptive Jurisdiction Fallacy, 51 Harv. Int’l L.J. Online 35 (2010)Google Scholar, at http://www.harvardilj.org/2010/05/online_51_dodge/. I would say that suits under section 1350 represent a lesser exercise of jurisdiction to prescribe than when the state prescribes the primary rule of conduct. For this reason, the requirements imposed by international law in this context are arguably less demanding. But jurisdiction to prescribe is being exercised to some extent when domestic law supplies a remedy for conduct that is independently unlawful under international law. See Vazquez, Carlos M., Jurisdiction and Human Rights: Two Puzzles, in Human Rights At the Center: Les Droits de l’homme au Centre 507 (Werro, Franz, Besson, Samantha & Hottelier, Michel eds., 2006 Google Scholar).

74 Restatement (Third), supra note 4, §402(2).

75 Id. §402(3).

76 The Restatement (Third) notes:

A state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism, even where none of the bases of jurisdiction indicated in section 402 is present.

Id. §404.

77 E.g., Chevron Brief, supra note 16, at 11-12.

78 See Restatement (Third), supra note 4, §702.

75 Donovan, Donald Francis & Roberts, Anthea, The Emerging Recognition of Universal Civil Jurisdiction, 100 AJIL 142, 144-45 (2006)CrossRefGoogle Scholar.

80 See, e.g., International Covenant on Civil and Political Rights, Art. 9, Dec. 16, 1966, 999 UNTS 171.

81 Sosa v. Alvarez-Machain, 542 U.S. 692, 760-63 (2004) (Breyer, J., concurring).

82 See Chevron Brief, supra note 16, at 16 (citing Bradley, Curtis A., Universal Jurisdiction and U.S. Law, 2001 U. Chi. Legal F. 323, 347Google Scholar).

83 See Stephens, Beth, Individual Enforcing International Law. The Comparative and Historical Context, 52 Depaul L. Rev. 433, 454-56 (2002)Google Scholar; Roht-Arriaza, Naomi, The Pinochet Precedent and Universal Jurisdiction, 35 New Eng. L. Rev. 311, 311-12 (2001)Google Scholar (describing the privately initiated prosecution of Augusto Pinochet in Spanish court over the objection of the public prosecutors and the opposition of the country’s executive branch); see also Langer, Maximo, The Diplomacy of Universal Jurisdiction: The Political Branches and the Transnational Prosecution of International Crimes, 105 AJIL 1, 10-41 (2011)CrossRefGoogle Scholar (discussing various levels of executive branch control over criminal proceedings).

84 This is certainly the case in the United States.

85 This conclusion is in accord with the Restatement (Third), which notes that, while “[i]n general, jurisdiction on the basis of universal interests has been exercised in the form of criminal law,. . . international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy.” Restatement (Third), supra note 4, §404, cmt. b.

86 This seems to be the thrust of the Chevron Brief, supra note 16, at 4-5.

87 If a state breaches international law limits on prescriptive jurisdiction in order to advance the substantive goals of international law, the advancement of the substantive goals might be thought to mitigate the violation of inter national law to some extent (although not entirely, as the jurisdictional limit, by its nature, takes precedence over the substantive one). by contrast, if a state exceeds those limits to advance purely domestic goals, there is nothing to mitigate its violation of international law.

88 See Chevron Brief, supra note 16, at 29 (relying on 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.”)).

89 See, e.g., Bradley & Goldsmith, supra note 4, at 816.

90 For a description of Oklahoma’s “Save Our State” Amendment and similar initiatives in other States, see Vázquez, supra note 9, at 1496-97.

91 See Zschernig v. Miller, 389 U.S. 429, 440-41 (1968).

92 See, e.g., Bradley & Goldsmith, supra note 4, at 861-70.

93 See supra text accompanying note 10.

94 See Vázquez, supra note 9, at 1527 (text accompanying note 151 (discussing Oliver Am. Trading Co. v. Mex ico, 264 U.S. 440 (1924))), 1532 (text accompanying note 173 (discussing Ker v. Illinois, 119 U.S. 436 (1886))).

95 See generally Vázquez, supra note 9.