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Kiobel and the New Battle Over Congressional Intent

Part of: Agora: Reflections on Kiobel

Published online by Cambridge University Press:  21 February 2018

David H. Moore
David H. Moore*
Affiliation:
Brigham Young University, J. Reuben Clark Law School
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Transnational human rights litigation under the Alien Tort Statute (ATS) has been plagued by the overarching question of the domestic legal status of customary international law (CIL). Kiobel v. Royal Dutch Petroleum Co. is the Supreme Court's second installment on the ATS. Like Sosa v. Alvarez-Machainbefore it, Kiobel does not expressly address the domestic legal status of CIL, but it does provide clues. Those clues suggest two insights: the Court views CIL as external to U.S. law, rather than as part of federal common law, and the role of CIL in future cases may be affected less by arguments about CIL's status as federal common law than by arguments about congressional intent.

Type
Agora: Reflections on Kiobel
Information
AJIL Unbound , Volume 107 , 2013 , pp. 9 - 13
Copyright
Copyright © American Society of International Law 2013

References

1 28 U.S.C. §1350.

2 I say “plagued” because this question has often obscured the injustice alleged in the litigation. ATS cases have involved troubling allegations of human rights abuses, such as genocide, torture, slavery, murder, and rape. In addition, the question has received extensive attention from scholars, including myself. Although the attention may have at times been inordinate, the question remains important, not least because of its significance for the vertical and horizontal distribution of governmental power.

3 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

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

5 For claims that Sosa supports the revisionist position, see Curtis A. Bradley, Jack L. Goldsmith & David H. Moore, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 HARV. L. REV. 869, 873, 902–10 (2007) (“[T]he decision in Sosa cannot reasonably be read as embracing the modern position and, indeed, is best read as rejecting it.”); and David H. Moore, An Emerging Uniformity for International Law, 75GEO.WASH. L. REV. 1, 8, 48–49 (2006) (“Far from endorsing the [modern] view of CIL, the Court nodded support for the [revisionist] position by demonstrating that the application of CIL in federal courts turns on congressional intent.”). For claims that Sosa supports the modern position, see Harlan Grant Cohen, Supremacy and Diplomacy: The International Law of the U.S. Supreme Court, 24 BERKELEY J. INT’L L. 273, 285 (2006) (“Justice Souter['s opinion in Sosa] resolves the debate. Customary international law is federal common law.”); Leila Nadya Sadat, An American Vision for Global Justice: Taking the Rule of (International) Law Seriously,4WASH. U.GLOBAL STUD. L. REV. 329, 342 (2005) (claiming that “a six-member majority of the Supreme Court rejected [the revisionist] view in Sosa v. Alvarez-Machain”); Martin S. Flaherty, The Future and Past of U.S. Foreign Relations Law, 67 LAW & CONTEMP. PROBS., Fall 2004, at 169, 173 (arguing that Sosa “confirm[s] that international custom was part of judicially enforceable federal law even in the absence of a statute”); Harold Hongju Koh, The 2004 Term: The Supreme Court Meets International Law, 12 Tulsa J. COMP. & INT’L L. 1, 12 (2004) (asserting that Sosa rejected the revisionist position); and Ralph G. Steinhardt, Laying One Bankrupt Critique to Rest: Sosa v. Alvarez-Machain and the Future of International Human Rights Litigation in U.S. Courts, 57 Vand. L. Rev. 2241, 2255 (2004) (asserting that “the Supreme Court [in Sosa] explicitly reaffirmed the orthodox legitimacy of international law as law of the United States … [and] repudiate[d] the revisionist view according to which ATS human rights actions were intrinsically illegitimate”).

6 William S. Dodge, Bridging Erie: Customary International Law in the U.S. Legal System After Sosa v. Alvarez- Machain, 12 Tulsa J. Comp. & INT’L. L. 87, 88 (2004) (footnote omitted); see also id. at 95–96; Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 Cornell L. Rev. 97, 104 n.27 (2004) (briefly asserting that Sosa “settled part of [the] debate, recognizing that some CIL is federal common law”).

7 Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938); see, e.g., Bradley, Goldsmith & Moore, supra note 5, at 902– 06.

8 Kiobel, 133 S.Ct. at 1669.

9 See id. at 1665–69 (finding no compelling evidence in the text or history of the ATS that Congress intended ATS “causes of action to reach conduct in the territory of a foreign sovereign”).

10 See id. at 1670–74 (Breyer, J., concurring) (interpreting the ATS by reference to CIL prescriptive jurisdiction principles, not the presumption against extraterritoriality).

11 See, e.g., id. at 1665–69 (majority opinion). Even though the Court did not rely on the CIL of prescriptive jurisdiction in limiting the reach of causes of action under the ATS, the Court might be motivated by the Constitution’s federalist principles to impose CIL-inspired— or more aggressive—limits on state causes of action addressing extraterritorial CIL violations.

12 See id. at 1664–65.

13 See, e.g., id. at 1666–68.

14 William S. Dodge, Understanding the Presumption Against Extraterritoriality, 16 Berkeley J. INT’L L. 85, 90 (1998).

15 See Morrison v. Nat’l Austl. Bank Ltd., 130 S.Ct. 2869, 2877–78 (2010). But cf. id. at 2885–86 (refusing to apply the Securities Exchange Act to certain domestic conduct causing foreign effects, given the risk of conflict with other states’ laws that Congress “‘would have addressed’” had it “intended such foreign application” (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 256 (1991))).

16 Kiobel, 133 S.Ct. at 1664–65, 1669. The Court also briefly alluded to a related justification for the presumption—“ separation-of-powers concerns” that the judiciary lacks the authority and competence to calibrate the extraterritorial reach of federal statutes. Dodge, supra note 14, at 90; see Kiobel, 133 S.Ct. at 1664 (noting that Congress “alone has the facilities necessary to make fairly … [the] important policy decision [of extraterritorial reach] where the possibilities of international discord are so evident and retaliative action so certain” (quoting Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 (1957))).

17 Kiobel, 133 S.Ct. at 1666 (emphases added); see also id. at 1664 (The ATS “allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.”).

18 See Bradley, Goldsmith & Moore, supra note 5, at 909.

19 See Kiobel, 133 S.Ct. at 1664 (noting that “[w]e typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad”).

20 See Morrison, 130 S.Ct. at 2875, 2881 n.5, 2883.

21 See, e.g., Moore, supra note 5, at 52.

22 Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2004).

23 See Bradley, Goldsmith & Moore, supra note 5, at 874–75.

24 See id. at 873, 878.

25 See Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1664 (2013).

26 See id. at 1672 (Breyer, J., concurring).

27 Torture Victim Protection Act, 28 U.S.C. §1350 note [here in after TVPA].

28 See, e.g., Curtis A. Bradley, The Costs of International Human Rights Litigation,2CHI. J. INT’L L. 457, 462–64 &n.26 (2001) (noting that some of the TVPA's legislative history supports open-ended ATS litigation while asserting that the statute's text does not).