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Some Quick Thoughts on Transnational Human Rights Litigation in American Courts After Kiobel

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.

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