Jesner and the Supreme Court’s Ongoing Assault on International Human Rights

For a time, the federal judiciary was a scourge of some of the most evil people, who committed some of the most heinous crimes in the world. Almost uniquely, U.S. courts for over a generation oversaw civil suits against dictators, despots, and their authoritarian henchman involved in prolonged arbitrary dentation, torture, crimes against humanity, extrajudicial murder, and genocide regardless of where it occurred. Even a partial list of those called to answer for their misdeeds reads like a Who’s Who of the most despicable figures to appear on the world stage in recent times: Radovan Karadžić, Ferdinand Marcos, the leaders of South Africa’s apartheid regime, Muammar Gaddafi and associated terrorist groups, not to mention a host of lesser accomplices like Americo Pena-Irala, effectively the head of a Uruguayan death squad under the regime of strongman Alfredo Stroessner. Add to this various multinational corporations that credible press reports indicated were complicit in such activities as the clearing of indigenous peoples and murder of environmental activists who stood in their way. As journalist and author Cam Simpson recently stated, “American courts were the centerpiece for people to bring international human rights cases.”[1] In this role they served as a rare bastion of accountability in a world of impunity.

Simpson knows whereof he speaks. Consider the harrowing case he recounts in his recent book, The Girl From Kathmandu: Twelve Dead Men and a Woman’s Quest for Justice.[2] The twelve dead men were Nepali workers who were brutally killed by insurgents at the outset of the second Gulf War in Iraq. The video of their execution was the first of its kind to go viral on the Internet. The victims did not wind up in a warzone out of free choice. The Nepalis had travelled to Jordan in the belief that they would have jobs waiting there. Instead they were trafficked with the knowledge of the American contractor, KBR Haliburton, for whom they were sent to work at a U.S. military base in Iraq under a U.S. government contract. Back in Nepal, the devastated young widow of one of the men who was killed, Kamala Magar, put her life back together against daunting odds. With the help of American human rights lawyers, including a former Peace Corps volunteer in Nepal, Magar decided to become a plaintiff in a suit against KBR, among others, for the kidnapping and trafficking of the twelve men.[3] At the end of the proceedings, the District Judge stated that what had occurred was “more vile than anything that this court has previously confronted.”[4]

By hearing such cases, “the least dangerous branch” enhanced American foreign policy in innumerable ways. For a start it showed that the U.S. government, or part of it, could side with the vast majority of the voiceless and oppressed against powerful authoritarian governments and interests, even when these were associated with other U.S. agencies. Such willingness helped offset the many blunders of the political branches—that seeking short-term strategic gain with an authoritarian ruler alienated the many whom they ruled in the long run. No less importantly, American judges helped render credible the nation’s until-recently perennial claims to global leadership in human rights. Most fundamentally, U.S. courts demonstrated that the nation’s commitment to the rule of law, domestic and international, was not empty diplomatic rhetoric.

The judiciary could play this underappreciated role in American foreign policy not through indifference to the law, but precisely through fidelity to it. The international human rights litigation that the courts shepherded was and remains faithful to history, both to the dictates of the First Congress of the United States, and more generally to the founding generation’s commitment to separation of powers in foreign and domestic matters alike. Subsequent precedent and custom have yet to overturn these foundational commitments, and in certain respects have strengthened them. In this light, the workings of modern international relations have only made the need for the judiciary to apply the law, especially in foreign affairs, all the more urgent. Modern international relations have proven to be yet one more (and underappreciated) factor in the inexorable rise of executive power in particular. The need for the courts to preserve their historic role of maintaining a balance among the three branches has grown, not diminished. For all these reasons, the legacy the courts had established in international human rights litigation remained singularly faithful to the Constitution, domestic law, and international obligations.

And then the Supreme Court got involved.

I. Glory Days

The vehicle for most, though not all, international human rights litigation in the U.S. is, of course, the Alien Tort Statute (ATS). The ATS in its totality states that: “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.”[5] Once upon a time, almost every account of the ATS began with Judge Henry Friendly’s observation that it “is a kind of legal Lohengrin; although it has been with us since the first Judiciary Act . . . no one seems to know whence it came.”[6]  Scholarship has since shed light on the statute’s origins, in no small part to meet the demands of modern opponents and proponents. Yet it was true enough that for nearly 200 years the ATS lay unknown and unused.

Then came Filartiga v. Pena-Irala.[7] In 1979, Dr. Joel Filartiga and his daughter, Dolly, both citizens of Paraguay, filed the first modern ATS suit in U.S. Federal District Court in Brooklyn against Americo Norberto Pena-Irala, also a Paraguayan citizen, for the kidnapping, torture, and murder of Filatiga’s 17 year old son, Joelito. They alleged that Pena, who had been the inspector-general of the local police, had orchestrated the crimes. Dolly asserted that later on the day of the abduction, the police brought her to Pena’s home, “where she was confronted with the body of her brother, which evidenced marks of severe torture. As she fled, horrified, from the house, Pena followed after her shouting, ‘Here you have what you have been looking for for so long and what you deserve. Now shut up.’”[8] The Filartigas claimed that Joelito had been targeted because of his father’s opposition to Paraguay’s then-dictator, Alfredo Stroessner. Dolly had ultimately fled to the U.S. and settled in Washington, D.C. Not long thereafter, she discovered that Pena-Irala had moved to Brooklyn. After consulting with the Center for Constitutional Rights, she decided to attempt a civil action under the ATS.

Their case fell literally within the terms of the statute. They were aliens. They sought to bring an action for a tort only. The violations they asserted, torture and extrajudicial murder, were well established under customary international law as it had developed since World War II. The District Court nonetheless dismissed the complaint. The Second Circuit reversed and let the suit go forward. The opinion could not have come from a more improbably source. Judge Irving Kaufman had come to national prominence as the district judge who presided over the trial of Ethel and Julius Rosenberg, whom he sentenced to death after their convictions for passing nuclear secrets to the Soviets. Worse, in considering the sentence, he had allegedly engaged in impermissible ex parte contacts with the federal prosecutors on the case, including the notorious Roy Cohn.[9] Kaufman nonetheless effectively wrote a manifesto for the domestic enforcement of international human rights. The main issue centered on whether customary international law addressed how nations treated persons within their own borders and jurisdiction. Kaufman and the court answered yes, drawing upon numerous sources to satisfy the first main requirement of international custom—that a principle command a near consensus of the world’s nations. Typical of American courts, the Second Circuit did not address the other main requirement that international lawyers consider—whether nations have acted out of a sense of legal obligation. That did not prevent the court from rightly concluding that torture in particular was a core violation of international law.[10]

Filartiga ushered in over thirty years of often high profile, international human rights litigation in U.S. courts. The cases roughly came in two waves. The first fifteen years or so witnessed something of a golden age. On the Filartiga model, foreign victims of authoritarian regimes used the federal judiciary as a kind of “truth commission” to establish that they or their loved ones had been arbitrarily detained, disappeared, or killed, whether or not they could actually obtain damages. Representative successes, often default judgments, included the following: a suit against an Indonesian general for a summary execution of a New Zealand national in East Timor;[11] an action brought by Kanjobol Indians against a former Guatemalan defense minister for torture, disappearance, and extrajudicial killing;[12] and a suit against Radovan Karadžić, the leader of the Republika Srpska, for, among other things, genocide.[13] Successes in this vein continued in cases such as Yousuf v. Samantar, in which the courts denied a former prime minister of Somalia immunity from suit for torture, arbitrary detention, and extrajudicial killing.[14]

Every circuit court to consider the new spate of ATS cases approved. Outside the courtroom, Congress lent tacit approval, as well, in passing the Torture Victim Protection Act of 1991, which opened ATS-type suits to U.S. citizens for torture and extrajudicial killing.[15] Likewise supportive was the executive, Republican and Democratic, in numerous amicus briefs. Among the few prominent dissenting voices was Judge Robert Bork, who argued that the law-of-nations violations on which the ATS permitted suit were frozen to those that existed when the act was passed in 1789.[16] That would have meant that not even torture, much less much else in modern human rights law, would have been covered. Bork, however, was all but a lone voice.

Then human rights victims started suing corporations. And the pushback began. This second wave of ATS suits reflected a simple reality. Multi-national corporations, often more powerful than most states, not infrequently work hand-in-hand with authoritarian regimes on mutually beneficial projects. And sometimes pursuing such joint projects involves horrific human rights violations. An early case, Doe v. UNOCOL,[17] illustrates the dynamic. In 1996 a group of Burmese villages brought suit against UNOCOL, a multi-national oil company, for aiding and abetting the Myanmar military dictatorship in committing human rights violations to, in turn, assist UNOCOL to put an oil pipeline in their region. Among the alleged violations were forced labor, torture, rape, and extrajudicial killing. The parties ultimately settled.[18] Cases such as UNOCOL multiplied. Yet as anyone might have predicted, suing major corporations meant more formidable opposition than suing former Paraguayan police officials. For one thing, the position of the executive branch at the highest levels switched from support to opposition. More importantly, corporate defendants could hire the nation’s most prestigious law firms. Such firms came complete with, among other assets, former Supreme Court clerks and Justice Department officials more than willing to use their legal talents and creativity to make sure that human rights victims would come nowhere near having their day in court.[19]

II. No Steps Forward, No Steps Back

The counterattack ultimately reached the Supreme Court. The first ATS case the justices would hear in fact would decide the fate of all litigation under the statute. For proponents of human rights, Sosa v. Alvarez-Machain[20] could scarcely have presented either a bolder challenge or worse facts. Dr. Humberto Alvarez-Machain allegedly had kept alive Enrique Camarena-Salazar, a U.S. Drug Enforcement Administration agent, so he could be tortured longer before being executed by a Mexican drug cartel that discovered he was an undercover agent.[21] Alvarez had already had a case go to the Supreme Court when he challenged his abduction by U.S. officials, who had spirited him out of Mexico to stand trial in the U.S. rather than obtain custody under a U.S./Mexican extradition treaty. The doctor did stand trial and was acquitted. Turning the tables, he then brought suit against his abductors. In the case of the Mexican authorities who aided and abetted their U.S. counterparts, Alvarez brought a claim under the ATS, alleging arbitrary detention in violation of customary international law.[22] His acquittal notwithstanding, his case did not exactly conjure the sympathetic story of a noble dissident crushed and tortured by an authoritarian regime.

Conversely, the challenge to the ATS put forward on behalf of Sosa, the lead Mexican defendant, was far-reaching. Not coincidentally, they reflected the views of the solicitor general as well as an array of corporate associations. The argument was simple and fatal. The only thing that the text of the ATS did was to confer jurisdiction on federal district courts. It did not provide for a cause of action—in essence a license to sue—a necessary requirement for any civil action to go forward. The modern legal axiom held that a statute granting jurisdiction without another creating a cause of action meant that the courts could hear a given claim, but no one could bring it.[23] Had the justices accepted this argument, the results would have been momentous. Such a conclusion would have meant that the ATS cases of the previous quarter-century had been illegitimate. Prospectively, it would also have meant that no more ATS suits could have gone forward, whether against corporations or the official henchmen of authoritarian regimes.

A majority decided otherwise.[24] In an especially rigorous and nuanced opinion, Justice Souter preserved what had been the first wave of ATS suits, and partially left the door open for the second. The Sosa Court conceded that had the ATS been enacted today, a jurisdictional grant without an express cause of action would indeed have put an end to the matter. The ATS was, however, passed by the First Congress in the late eighteenth century. Here Justice Souter rightly argued that in that period, a grant of jurisdiction brought with it an expectation that courts would use their common-law-making power to fashion a cause of action. He further followed the dominant view of recent historical scholarship on the ATS to conclude that the First Congress would have specifically expected the federal courts to fashion three causes of action based on the contemporary law of nations: claims by ambassadors who had suffered assault; suits for violation of “safe conduct” (basically a guarantee by a national government that specified individuals could travel unmolested through its territory); and actions against pirates. Justice Souter then distilled two features common to these examples that would serve as the requisites for new causes of action as customary international law evolved. Any new such judge-made causes would have to command a “consensus of civilized nations.” They would also have had to develop with a degree of specificity.

The Court’s formulation preserved reliance on international law, yet did not get it exactly right. Modern customary international law—effectively the successor to “the law of nations”—conventionally must also meet two requirements. The first is “general practice,” which might better be conceived as general public commitment. To meet this condition, an overwhelming majority of the world’s states must consistently, and for some sustained period, act or pledge to prohibit or require some action. Next, it must be determined that states behaved as they did out of a sense of legal obligation, somewhat pretentiously known as opinio juris (sive necessitatus). Sosa adopts half this formulation, but substitutes for the other. The Court’s slightly off-putting requirement of a “consensus of civilized nations” accords with the idea of general practice closely enough. Justice Souter, however, overlooked opinio juris and instead insisted that a proposed norm be specific.

All that said, the distinction did not make much of a difference. For many commentators, the opinion juris hurdle is all but circular—establish a legal obligation by showing that states acted out of a sense that they were subject to the obligation sought to be established—and does little work. Generally, opinio juris is inferred from the existence of general practice. For its part, specificity could lead to the rejection of certain claims. The Convention Against Torture, for example, gives a detailed definition of the practice. It does not, however, define “cruel, inhuman and degrading treatment.” An especially lazy American judge might throw up his or her hands as to the meaning of “cruel, inhuman and degrading treatment,” rather than look to comparative and international decisions, much less to the general comments of the Convention’s implementation committee defining the concept. For the most part, however, the important test remained, establishing a general practice that amounted to a consensus.

Whatever else, the Sosa formula meant that at the very least the “classic” Filartiga-type ATS suits were safe. Torture, extrajudicial killing, slavery, genocide, and prolonged arbitrary detention all easily meet both prerequisites. Also clear was that Alvarez might have won the war for the statute, but would lose the battle himself. The Court correctly observed that prolonged arbitrary detention was an established violation of international custom, but no less correctly held that the doctor’s 24-hour detention in no way was “prolonged.” Less clear would be the idea that private corporations could “aid and abet” such state-sanctioned human rights violations.[25]

III. Retreat, Baby, and Surrender

For this reason, the opponents of the ATS were far from done. Success came out of the blue from the same Court of Appeals that handed down Filartiga. In fact, as recently as 2007, the Second Circuit had endorsed the idea that a human rights victim could allege that a corporation had aided and abetted state human rights violations.[26] Then, just three years later, came Kiobel v. Royal Dutch Petroleum Co.[27] This case involved a group of Nigerian nationals suing Dutch, British, and Nigerian oil companies for, among other things, torture and extrajudicial killing in connection with the running of a pipeline. In a stunning exercise of judicial activism, the majority baldly declared that corporations could not be sued under the statute. It reached this conclusion notwithstanding the absence of supporting statutory text and the usual presumption that tort liability runs to both natural and corporate persons under domestic law. As Judge Leval’s masterful separate opinion makes clear, the majority mainly relied on the irrelevant determination that customary international law does not impose criminal, as opposed to civil, liability on corporations for human rights violations.[28]

The Supreme Court took the case, but not ultimately the issue it originally presented. It did grant certiorari, accept briefs, and hear oral argument on corporate liability. But in a rare move, it ordered the case be held over and reargued on a different issue—whether and to what extent the ATS applied extraterritorially. In a greater blow to human rights accountability, the Court answered with a qualified no.[29]

Writing for the majority, Chief Justice Roberts began his analysis with the presumption against applying federal statutes abroad. Curiously, he noted that this rule “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.”[30] He further suggested that this concern weighed even more heavily when, as Sosa concluded, Congress left it to the courts to craft the cause of action. Why any of this mattered when the only causes of action the courts could create were, by definition, universal, the opinion did not address. The Chief Justice stumbled even more badly over the statute’s history. Among other things, he ran into obvious difficulties arguing that piracy, one of the three law-of-nations violations that the First Congress had in mind when enacting the ATS, was not extraterritorial. Likewise, he could not fully reconcile the 1795 statement of Attorney General Edmund Bradford that suggested that causes of action under the ATS applied to conduct in Africa. Despite all these difficulties, the presumption carried the day. According to the Court, future claims would have to “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.”[31] On this view, Filartiga itself arguably should have been dismissed.

Justice Breyer, joined by three others, concurred with an alternative approach.[32] He rejected outright applying the presumption against extraterritoriality for the obvious reasons. It does not square either with Attonery General Bradford’s opinion or the contemporary concern about piracy. More obviously, judicial authorization of a suit for the violation of a universal norm by definition cannot create clashes between U.S. law and the laws of other nations. Instead, Justice Breyer argued that any limits on applying the ATS abroad should come from international law. On this basis, he suggested that he would find jurisdiction under the statutes where: “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest,” including the interest of insuring that the U.S. does not become a safe harbor for torturers and other violators of fundamental international human rights.[33] In this instance, Kiobel’s claim did not fit into any of the three categories. Nonetheless, on this view, Filartiga and many of the cases in its wake could have gone forward.

Justice Breyer’s approach is at once more faithful to the ATS and, no less importantly, to the separation of powers. First consider the relevant history. As Justice Breyer points out, the presumption cannot be easily reconciled with the role of piracy or the views of Attorney General Bradford. Nor can it be easily reconciled with scholars who stress the founding generation’s desire for the U.S. to be seen as fully committed to the law of nations. Beyond this, Justice Breyer might also have pointed out that the First Congress’s expectation that the judiciary fashion a cause of action based on international law in no way cuts against judges limiting these to a U.S. territory. The founding generation, to the contrary, expressed confidence in the ability of the judiciary to say what the law is, including international law, as a further power for it to maintain balance among all three branches. Second, nothing in intervening constitutional custom undercuts this role. If anything, two generations of current ATS jurisprudence point the other way. Finally, modern international relations have only made the need for judicial accountability that much greater. The mutual empowerment of executives worldwide, especially in ways that put pressure on fundamental rights and evade domestic checks, makes those domestic checks even more essential. For that reason, a more expansive reading of Justice Breyer’s third category would ideally include Kiobel’s claim as well.

IV. Bring on Your Wrecking Ball: Jesner

Much the same critique applies to the Court’s most recent blow to the ATS, which adds insult to Kiobel II’s injury. For the opponents of human rights litigation, even Kiobel II left untied one substantial loose end—whether corporations could be sued when a claim touched and concerned the territory of the United States. The Court finally decided the issue this past term in Jesner v. Arab Bank.[34] As before, its decision accepted the invitation of the corporate bar not merely to limit ATS litigation, but to eviscerate it. In this instance, the judicial overreaction took the form of adopting the Second Circuit’s activist reading of the statute to confine liability to natural persons rather than the multinational corporations that aid and abet, employ, or otherwise encourage them. In short, no matter how heinous the human rights violation, a corporation cannot be sued.

The case itself involved mainly foreign nationals alleging that a New York branch of a Jordanian bank aided and abetted multiple acts of terrorism over the course of a decade in the Middle East. The underlying human rights violations at issue, had they been more thoroughly considered, would easily have met the Sosa test. These centered on a series of suicide bombings against civilians conducted by such groups as Hamas. Such acts could qualify as extrajudicial killing and violations of the customary international humanitarian law of armed conflict, among others. These violations, in turn, command both an international consensus and are defined with reasonable specificity.

The suit, however, focused not on the terrorist groups that committed these heinous acts, but one of the institutions that financed them. The defendant, Arab Bank, is a major financial organization based in Jordan with branches around the world, including New York. According to the victims and their families, Arab Bank maintained bank accounts for the terrorists and their front groups and allowed the accounts to be used to pay the families of suicide bombers. On this basis, the complaint claimed that the bank had aided and abetted the underlying human rights violations. In contrast to extrajudicial killing, the “aiding and abetting” in ATS litigation is less clear-cut. On one theory, it meets the Sosa test as a matter of customary international law. On another view, federal courts can recognize the claim as filling interstices in the statute as a matter of federal common law. Perhaps ironically, the Second Circuit itself had upheld an ATS claim against a corporation for aiding and abetting, with different members of the panel endorsing each approach. They did so prior to Judge Cabranes endorsing a very different and novel approach that eliminated the possibility of suing corporations under any theory.

With Jesner, the Court adopted this corporate version of a nuclear option. Yet apart from this core conclusion, the justices for the most part went their separate ways. The main opinion came from Justice Kennedy, only slivers of which commanded a majority.[35] Most of that consisted of a more-or-less anodyne recounting of the history of the ATS and its reception by the Supreme Court. The only operative portion of his analysis that commanded a majority was a fairly pedestrian and muddled excursion speculating on international relations. Here the Court notes that the ATS was intended to promote harmony “by ensuring foreign plaintiffs a remedy for international-law violations.”[36] Countering a number of scholars, the opinion narrows this commitment to “circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable,”[37] rather than a more positive vision of U.S. promotion of international law and human rights. From here, the opinion does not ask whether corporate liability per se accords with its narrower conception of international harmony. Rather, it focuses on a narrow subset of cases in which suits against a foreign corporation might lead to tension between the U.S. and a foreign state. At no point does the Court consider the foreign policy implications of an American multinational aiding and abetting human rights violations. Or of a foreign corporation aiding and abetting in which concerned states, including the state in which the violations may have occurred, applaud the effort at accountability. Or of suits in which the objections come from authoritarian states with the result that such suits promote harmony and goodwill toward the U.S. with both a majority of that state’s population and democratic states that themselves promote international law and fundamental rights—arguably the chief effect of the previous four decades of ATS litigation.

No more compelling is the main part of Justice Kennedy’s opinion, endorsed by only Chief Justice Roberts and Justice Thomas. For the most part, this reads more-or-less like a cover version of the Second Circuit’s original Kiobel decision. First, it recycles the mistaken proposition that international law controls the issue of corporate liability. As in Kiobel, the plurality does not engage in extensive independent analysis. Instead, the opinion mainly relies on a footnote in Sosa that noted that a “related consideration” in ATS claims “is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation.”[38] Having posed the wrong question, the plurality offers a more plausible answer. As Justice Kennedy happily notes, even Judge Leval conceded that corporate liability for international human rights violations had not achieved the type of consensus among states that Sosa envisioned , and that there was no universal, specific, or obligatory norm that holds corporations directly accountable for human rights violations.[39]

The opinion ends in the last refuge of a court seeking to avoid applying the law in foreign affairs. Specifically, Justice Kennedy sounds the historically recent yet already tired idea that “the political branches, moreover, surely are better positioned than the Judiciary to determine if corporate liability would, or would not, create special risks of disrupting good relations with foreign governments.”[40] Several passages along these lines, in fact, did command a majority. These similarly recycle a trope that arose with the nation’s rise as a global power and the corresponding ascent of the executive. The courts, for example, should hesitate to create new ATS causes of action because, “[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.”[41] The courts should hesitate and not allow suits against corporations because they “are not well suited to make the required policy judgments that are implicated by corporate liability in cases like this one.”[42] Foregoing international relations analysis, however, apparently applies only when it supports the Court’s conclusion. Earlier, not just the plurality, but the actual majority concluded that one reason to reject corporate human rights liability was precisely because their take on international relations suggested that U.S. foreign policy would be better off if U.S. courts could not entertain suits against foreign corporations, whether engaged in trafficking, torture, extrajudicial killing, crimes against humanity, or genocide.[43]

Not even this conclusion sufficed for the Court’s newest justice. In a lone, partial concurrence, Justice Gorsuch would have dispensed with the ATS nearly root and branch.[44] His opinion first attacks Sosa’s conclusion that the ATS contemplates that the federal courts would fashion new causes of action based upon customary international law. On this point he notably bypasses Sosa’s careful historical analysis that the First Congress, in the pre-positivist context of the late-eighteenth century, expected that courts would fashion causes of action once granted jurisdiction. Next, the concurrence argues that the only constitutional basis for the ATS is diversity jurisdiction, which in turn means that the only suits that can be brought must have a U.S. party as the defendant. Finally, Justice Gorsuch argues that the ATS nonetheless did serve an important purpose in its day. Specifically, the provision addressed violations of safe-conduct—the law-of-nations protection accorded to designated foreigners passing through a state—by U.S. citizens. This conclusion does cite certain respected scholars. It fails to point out, however, that it interprets their work as narrowly as possible. More importantly, the opinion fails to mention that Sosa relied on the prevailing scholarly opinion that the ATS also sought redress for violations against ambassadors and for piracy. Justice Gorsuch does admit that his historical conclusions are open to dispute. At this point, he justifies erring on the side of judicial self-abnegation with the same tropes against judicial involvement in foreign affairs that the plurality rehearsed.

Justice Sotomayor, in a four-justice dissent, offered a corrective based upon international law, statutory text, history, and purpose, and, finally, foreign policy concerns.[45] First, the dissent at great length plausibly argues that international law focuses on conduct, such as extrajudicial killing, not on the mechanisms for penalizing such conduct, such as tort liability against corporate persons who facilitate such conduct. Next, the dissent pointedly notes that the text of the ATS places no limits on possible defendants, that tort suits against corporate persons have a long history under federal common law, and that allowing suits against corporations who assist in wanton violations of international law surely furthers the statute’s express purpose. Laudably, the dissent also directly ventures into foreign affairs. Among other points, Justice Sotomayor asserts that there is no “reason to believe that the corporate form in itself raises serious foreign policy concerns” any more than does suits against natural persons.[46] In all, the only significant specific argument that the dissent overlooks goes back to the statute’s immediate history. At the time the First Congress convened, English common law already had numerous precedents of early corporations, such as the British East India Company, being sued for violations of the law of nations.[47] Otherwise, Justice Sotomayor’s opinion is as rigorous as it is forceful in concluding:

[W]e permit a civil suit to proceed against a paint company that long knew its product contained lead yet continued to sell it to families, or against an oil company that failed to undertake requisite safety checks on a pipeline that subsequently burst. There is no reason why a different approach should obtain in the human rights context.[48]

The saga of the Alien Tort Statute once more shows a conflicted Court threatening to more and more cede its proper role. Whatever else, the statute demonstrates that the founding generation had some concern about judicial enforcement of individual rights guaranteed under international law. Since its rediscovery in Filtartiga, much has been written about its specific legislative history. While not the only plausible reading, Justice Souter’s take in Sosa, as noted, reflects what fairly represents the majority view among scholars. Likewise, there is every reason to believe that the First Congress would have expected suits against corporations. Yet more generally, and no less importantly, nothing in the founding’s history justifies the current judicial timidity on display in the fragments that commanded a majority in Jesner. After a century-and-a-half hiatus, what custom had emerged in the lower courts consistently upheld a broad reading of the ATS, that both Kiobel II and Jesner effectively ignored. Finally, modern international relations further serve to confirm the need for precisely the type of international human rights litigation that the ATS represents. Executive officials worldwide increasingly interact to empower one another. This development has, among other things, increased their power compared to other domestic institutions, and accordingly made it easier for them to evade the constraints of those institutions, even when violating fundamental rights. This is all the more reason to maintain the ability of domestic checks in any given nation, including the United States, to hold violators and their accomplices accountable for flouting universal norms.

V. The Rising?

Between the Court and the corporate bar, the Alien Tort Statue today resembles the human rights victims that put it to such notable use. The ATS may be bruised and battered. Yet, like the Filartigas through Kamala Magar, it also may not pay to count it out too soon. Despite Justice Gorsuch’s best efforts, the Court would clearly permit certain suits, and has arguably left room for still others. Beyond this, the Court’s assault on international human rights litigation is not so well entrenched as to preclude a rollback. To the contrary, other justices have already provided reasoning based on text, history, structure, precedent, and even international relations, which offers greater fidelity to the founders and the First Congress, as well as a more enlightened understanding of American courts providing redress for modern international human rights atrocities. Whether by a change in the Court’s composition or a change in the viewpoint of one of their colleagues, this group needs but one additional vote to prevail.

Even on the most hostile reading, the Court has not prohibited ATS suits altogether. Most obviously, after Jesner an alien may still bring suit for an international human rights violation that occurred within U.S. territory so long as the defendant is not a corporation. Then again, various Catch-22’s lurk. Most international human rights violations effectively require some underlying state action nexus. Assuming that any such violations occurring within U.S. territory would be committed by American officials, a host of immunity doctrines face potential litigants. That would leave open several less likely scenarios. Suit could be brought against a private (natural) person for a violation such as genocide on U.S. soil, an act that does not require state involvement. Or an official from a foreign state, perhaps aided and abetted by a private (natural) person, may travel to the U.S., commit torture or extrajudicial killing, and so be open to suit.

Still, nothing in the Court’s current case law precludes much broader applications. Here Justice Breyer pointed the way. Chief Justice Roberts’s majority opinion may have bequeathed the restriction that an ATS claim must “touch and concern the territory of the United States.”[49] But it made no attempt to define it. To claims arising on U.S. territory, Justice Breyer’s four-justice concurrence added the sensible suggestion that any case involving U.S. defendants would justify applying the ATS abroad. Immunity doctrines aside, this category would and should hold accountable U.S. officials involved in such practices as trafficking Nepali workers to U.S. bases. Justice Breyer’s third category holds open the possibility of a broader application still. As noted, he suggested that “touch and concern” include cases in which “the defendant’s conduct substantially and adversely affects an important American national interest.”[50] For Justice Breyer, that idea at the very least meant that the U.S. should not be seen as a safe haven for human rights violators, such as Pena. Yet it could be applied even further. One possibility would be violations committed by foreign officials allied or trained by the U.S., as was too often the case with authoritarian regimes in Latin America in the 1980s. Still one more would simply be the idea that the violation of universal human rights norms always concerns the U.S., with the corollary that federal court redress for such violations on balance enhances the nation’s standing around the world. None of this would get around Jesner’s carve out on behalf of multinational corporations. But such applications would help mitigate the damage that the Court has done both to human rights litigation and to a proper understanding of its statutory basis.

Pushing back from within the recent precedents may be fine so far as it goes. The true corrective, however, remains reconsidering those precedents as, if not unworkable in practice, then unsound in principle, textual interpretation, historical understanding, structural inference, decades of previous custom, and international relations analysis. Jesner’s missteps, not to mention those of Kiobel, have already been sketched. What remains is the necessity to keep pointing them out, even as litigants navigate within the many limitations these cases impose. That task will be none the easier if and when Judge Brett Kavanaugh takes his seat on the Court. He has already demonstrated that his views on the ATS, and international law in general, are downright antediluvian.[51] Then again, the Kavanaugh appointment does not alter the current voting configuration, other than arguably adding a voice even more hostile to international human rights than Justice Gorsuch.

The good news is that any reconsideration of the Court’s recent missteps will be easier with regard to Jesner. Four justices stand united under Justice Sotomayor’s strong, cogent dissent. Their counterparts in the majority, by contrast, appear to share an antipathy to corporate liability, but not a coherent approach on which to base it. Kiobel presents a greater challenge. There, all nine members of the Court effectively endorsed a canon against extraterritorial application of a statute that addresses violations, which by definition are universal, therefore impose no distinctive American rule abroad, and so obviate the basis for the canon. Yet even here, four justices subscribing to Justice Breyer’s concurrence offer a way to mitigate much of the damage.

No doubt  Jesner, as Kiobel before it, marks a giant leap backward from the most meager accountability for some of humanity’s most despicable acts. It reflects, among other things, the combined forces of wooden legal analysis and sustained corporate power. This is not a combination easily overcome, but neither are the human rights violations that the ATS addresses. To do so requires leveraging the last forty years of ATS litigation and scholarship, the better to resist, even to roll back, the new status quo that a bare majority of the Court offers. To the extent that effort succeeds, American courts may again become seen as the “centerpiece” of accountability in a world in which that value is in increasingly short supply.

---

* Martin S. Flaherty is the Leitner Family Professor of International Human Rights Law at Fordham University School of Law School and visiting professor at Princeton University’s Woodrow Wilson School of Public and International Affairs. He is the author of the forthcoming book, Why Justice Should Follow the Flag: Restoring the Supreme Court to its Rightful Place in Foreign Affairs (Princeton University Press, 2019).

[1] Author Discussion on War, C-SPAN (June 10, 2018), https://www.c-span.org/video/?446055-9/author-discussion-war.

[2] Cam Simpson, The Girl from Kathmandu: Twelve Dead Men and a Woman’s Quest for Justice (2018).

[3] Adhikari v. Daoud & Partners, 697 F. Supp. 2d 674 (S.D. Tex. 2009).

[4] Simpson, supra note 2, at 366 (quoting Adhikari v. Daoud & Partners, 95 F. Supp. 3d 1013, 1024 (S.D. Tex. 2015)).

[5] 28 U.S.C. § 1350 (2016).

[6] ITT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975).

[7] Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980).

[8] Id. at 878.

[9] An Open Letter to Judge Irving Kaufman, N.Y. Times (June 19, 1977), https://www.nytimes.com/1977/06/19/archives/an-open-letter-to-judge-irving-r-kaufman.html.

[10] Filartiga, 630 F.2d at 878.

[11] Todd v. Panjaitan, No. 92-12255-PBS, 1994 WL 827111 (D. Mass. Oct. 26, 1994).

[12] Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. Apr. 12, 1995).

[13] Kadic v. Karadžić, 70 F.3d 232 (2d Cir. 1995).

[14] Yousuf v. Samantar, 699 F.3d 763 (4th Cir. 2012).

[15] 28 U.S.C. § 1350 (2016).

[16] Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 812-16 (D.C. Cir. 1984) (Bork, J., concurring).

[17] Doe 1 v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002).

[18]Unocal Lawsuit (re Myamar), Bus. & Hum. Rts. Resource Ctr., https://www.business-humanrights.org/en/unocal-lawsuit-re-myanmar.

[19] For a prescient analysis, see Thomas H. Lee, The Three Lives of the Alien Tort Statute: The Evolving Role of the Judiciary in U.S. Foreign Relations, 89 Notre Dame L. Rev. 1645, 1665-67 (2014).

[20] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

[21] Id. at 697-99.

[22] United States v. Alvarez-Machain, 504 U.S. 655 (1992).

[23] Sosa, 542 U.S. at 712-24.

[24] Id. at 696-738.

[25] Id. at 725-38.

[26] Khulumani v. Barclay Nat’l Bank, Ltd., 504 F.3d 254 (2d Cir. 2007).

[27] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010).

[28] Id. at 149 (Leval, J., concurring).

[29] Kiobel v. Royal Dutch Petroleum Co. (Kiobel II), 569 U.S. 108 (2013).

[30] Id. at 115 (2013) (quoting EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991)).

[31] Kiobel II, 569 U.S. at 124-25.

[32] Id. at 127 (Breyer, J., concurring).

[33] Id.

[34] Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).

[35] Id. at 1388.

[36] Id. at 1406.

[37] Id.

[38] Id. at 1399-1400.

[39] Id. at 1396.

[40] Id. at 1408.

[41] Id. at 1403.

[42] Id. at 1407.

[43] Id. at 1407-08.

[44] Id. at 1412 (Gorsuch, J., concurring in part).

[45] Id. at 1419 (Sotomayor, J., dissenting).

[46] Id. at 1436.

[47] Brief of Professors of Legal History Barbara Aronstein Black, William R. Casto, Martin S. Flaherty, Nasser Hussain, Stanley N. Katz, John V. Orth, and Anne-Marie Slaughter in Support of Plaintiffs-Appellants for Reversal at 12, Jesner v. Arab Bank. PLC, 808 F.3d 144 (2d Cir. 2015) (No. 13-3605), 2014 WL 1647606, at *11-*17.

[48] Jesner, 138 S. Ct. at 1436 (Sotomayor, J., dissenting).

[49] Kiobel v. Royal Dutch Petroleum Co. (Kiobel II), 569 U.S. 108, 124-25 (2013).

[50] Id. at 133 (Breyer, J., concurring).

[51] Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011); Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007) (Kavanaugh, J., dissenting). See Jamie Mayerfeld, Brett Kavanaugh and the Risk of a Return to Torture, Just Security (Aug. 10, 2018), https://www.justsecurity.org/60238/brett-kavanaugh-risk-return-torture/.