by Professor Burt Neuborne [*]
The hope that the ATS would permit entrepreneurial lawyers to choreograph international human rights cases involving: (1) alien plaintiffs; (2) alien corporate defendants; and (3) acts wholly occurring abroad into an American court in an effort to take advantage of American discovery rules, Rule 23 class actions, and an independent judiciary is now history. All nine Justices in Kiobel slammed that door, which was probably a pipe dream in the first place. Chief Justice Roberts, writing for five Justices, including the maddeningly vague Justice Kennedy, ruled that the presumption against extraterritorial legislation blocked use of the ATS as a source of federal jurisdiction when neither the plaintiffs, nor the defendants, nor the operative facts had a significant link with the territorial United States. Mere corporate presence for the purposes of general jurisdiction over the defendant could not, ruled the Chief Justice, constitute the significant link to the territorial United States needed to rebut the presumption against extraterritorial legislation.
Although the grant by the United States of political asylum to the injured plaintiffs in Kiobel might have been deemed a significant link, and while it is a stretch to apply a presumption against extraterritorial effect to a jurisdictional statute designed to permit the efficient enforcement of customary international law claims that are binding throughout the civilized world, the Roberts opinion asks and answers the hard question of why the Delphic ATS should be read to make the United States judiciary the arbiter of worldwide international human rights claims having little or nothing to do with the United States. As I read the Breyer concurrence for the Court’s four liberals, they do not disagree that it would have been a form of judicial imperialism for the United States to make itself into a worldwide human rights tribunal in settings having little or nothing to do with the United States – except for general jurisdiction over a corporate defendant.
But the Kiobel majority says little or nothing about how to decide ATS cases where a significant link to the territorial United States exists, either because the injured plaintiff is a United States national, the defendant is a United States resident, and/or a significant proportion of the operative facts took place within the United States. The Breyer concurrence indicates that the ATS will apply in many such cases. The Roberts majority is silent on whether one or more of such links will rebut the presumption against extraterritoriality. The swing-vote Kennedy concurrence is purposefully vague on the issue. So, much ATS litigation will continue, albeit in a narrower set of cases involving allegations of significant links to the territorial United States. We can look forward to years of uncertainty, split decisions, and an eventual return trip to a reconstituted Court.
I want to ask a different question. Is it necessary – or wise – to continue to view the ATS as the principal source of judicial authority to hear transnational human rights cases in US courts? Remember that the core provisions of customary international law discussed in Sosa are part of both the federal and state common law. As such, they provide a cause of action for damages entirely apart from the ATS which was held in Sosa to be solely a jurisdictional statute. Two alternative federal jurisdictional statutes are available. First, a cause of action under core customary international law would arise under the laws of the United States for the purposes of 28 U.S.C. sec. 1331, providing general federal question jurisdiction. While the exchange between Justices Souter and Scalia at nn. 19 and 20 in Sosa counsel caution about the use of 1331 as a jurisdictional base for a customary international law claim, both Justice Scalia and Justice Souter were talking about using 1331 to expand the pool of judicially enforceable customary international law claims, not about using it to enforce the core claims that are already enforceable under the ATS. While the Erie problem must be confronted, it seems clear to me that Sosa recognizes that federal common law, including core customary international law, survived Erie and is enforceable in federal court.
The second possible source of federal jurisdiction is diversity or alienage jurisdiction under 28 U.S.C. § 1332. If complete diversity exists and the jurisdictional amount is satisfied, customary international law claims are merely a form of common law fully enforceable in a diversity case. In order to minimize Erie, I would characterize the customary international law claim as part of the common law of the state in which the federal court sits. Alternatively, it could be enforceable as federal common law, although 1331 would seem to be the more logical vehicle. In deciding whether 1332 jurisdiction exists, remember, first, that the named-plaintiff in a class action is the sole measure of the class’s citizenship; and, second, that as long as one class member satisfies the jurisdictional amount, everyone else can come in under 28 U.S.C. § 1367 supplemental jurisdiction.
Entirely apart from federal jurisdiction, maybe it’s time to explore the international human rights enforcement capabilities of state courts. As long as general jurisdiction of the defendant exists in a particular state, a customary international law claim should be enforceable in state court as a matter of state common law. Just as the federal government adopts customary international law as a form of federal common law, states are free to adopt international norms as part of the state common law, and are duty-bound to enforce federal common law if they would enforce a parallel state law claim. If you choose to deploy a state common law claim premised on customary international law, remember that you can bring it in state court, or use 1367 to pendent the state common law claim onto your federal common law claim under 1331, or your common law claim under 1332.
Finally, whatever the availability of American courts, it’s long past time to take judicial fora in other settings more seriously as enforcement engines for international human rights. We should be working to add clear civil jurisdiction to the Rome court to enforce core claim of customary international law on behalf of victims. The evolution of aggregate litigation options in many foreign courts opens yet another door. The bottom line is that Filartiga survives. Sosa survives. A visionary, but unrealistic hope about the use of American courts as a worldwide enforcement arm for international human rights has been dashed. But the struggle goes on.
* Professor Burt Neuborne is the Inez Milholland Professor of Civil Liberties and the founding Legal Director of the Brennan Center for Justice at NYU School of Law. For 45 years, he has been one of the nation’s foremost civil liberties lawyers, serving as National Legal Director of the ACLU from 1981-86, Special Counsel to the NOW Legal Defense and Education Fund from 1990-1996, and as a member of the New York City Human Rights Commission from 1988-1992.