Social Justice, Libertarianism

The End of an Era: The Kiobel Decision

Yesterday the Supreme Court issued a ruling that virtually ended more than 30 years of human rights litigation in United States courts. Starting with the landmark Filartiga case, foreigners have been able to rely on the Alien Tort Statute to bring suits in American courts against human rights violators, usually their own governments (if plaintiffs could overcome the sovereign immunity barrier), but also corporations complicitous in the violations. (I spare you the legal technicalities here, since this is not a legal blog. For those interested, see here and here. For today’s coverage of the decision in the legal blogosphere, start here.)

The Court held that the statute applies only to violations of international law that occur in United States territory or otherwise have a strong connection with the United States. The decision was unanimous on these facts (which concerned alleged complicity of Shell Corporation with the Nigerian government in human rights violations against Nigerian victims in Nigerian territory). But the concurrent opinion, who agreed with the result because it thought these facts were too remote, would have adopted a more generous interpretation of the statute that would have allowed these lawsuits if they involved foreign policy interests of the United States, including the interest in not allowing our country to become a safe haven for murderers and torturers. Perhaps human rights advocates overplayed their hand by bringing this particular case. Had they not done so, the prior Sosa decision would have still allowed them to litigate less extravagant cases.

Libertarians have already welcomed this decision on the grounds that the United States courts should not be the courts of the world. Even less should courts serve (as Judge Robb once said) as debating clubs for law professors arguing about what is and is not prohibited under international law.

But for myself, I agree with human rights advocates who deplore the decision.  Sure, advocates have made mistakes. Often they have been driven by political agendas and attempted to create new human rights out of thin air. But the Filartiga line of cases was not about questionable left-wing welfare rights. They were lawsuits that sought relief for victims of the most truculent violations of classical-liberal negative rights, those that are dear to libertarians. To me, that the courts of this country could, under certain conditions, hear the claims of victims of brutal oppression by governments (sometimes in cahoots with big corporations), victims who would have had no other form of redress, was a badge of honor for the United States, a reminder that this country, in spite of its failings, still remained the beacon of light that was always supposed to be.

  • mercrono

    Just as a small correction, there was no “dissent” in this case. Agreement with the judgment was unanimous. Justice Breyer’s separate opinion was a concurrence in the judgment.

    Also, just in response to this sentiment — “To me, that the courts of this country could, under certain conditions, hear the claims of victims of brutal oppression by governments (sometimes in cahoots with big corporations), victims who would have had no other form of redress, was a badge of honor for the United States” — it’s worth noting that nothing in the Court’s decision prevents Congress from amending the ATS to allow for such a practice.

    The Court didn’t find that that there was anything unconstitutional about the ATS’s grant of jurisdiction to the federal district courts; rather, it simply held that the usual presumption against extraterritorial application of statutes applied to the ATS, and thus that it should not be interpreted to encompass actions committed abroad, by foreign entities, against foreign entities. That seems to me like a relatively ordinary exercise in statutory interpretation, and Congress is free to change the law if it shares the sentiment you express above.

    • Fernando Teson

      I agree with you. I didn’t claim that the decision was wrong as a matter of constitutional law; indeed, as you say, it is a relatively ordinary exercise in statutory interpretation. I only said that I deplore it as a matter of policy. By the way, I don’t think Congress will amend the ATS anytime soon.

  • martinbrock

    What happens when a foreign plaintiff wins a suit against a foreign human rights violator in a U.S. court? Does a judge order the President to send in the marines to collect a settlement, or does he just pat himself on the back for being a beacon of International Justice?

    Since U.S. courts routinely quash suits against human rights violations by the United State itself, pretending to care about violations in the rest of the world seems more nauseatingly disingenuous than sublimely just.

    • Aguy

      Once a judgment is entered, the plaintiff can seek to have it exercised against assets the defendant holds in the U.S., and then take the judgment to other countries and ask their court systems to recognize and enforce the judgment against the defendant’s assets in their countries as well.


    Hi Fernando,
    I agree with your analysis in so far as it pertains to matters of justice, but I’m wondering whether your disagreement with Kiobel doesn’t illustrate an inherent limitation in relying on international law to secure it. What I mean is that any legal system, international or otherwise, must start with the presumption that all participants are entitled to equal respect, including those states that honor (at least to some degree) the rule of law and those that violate it in the most obscene ways possible.

    Thus, any legislation or decision of our courts establishing jurisdiction over certain matters (e.g. rights violations committed abroad) implicitly accepts the jurisdiction of foreign courts over like matters, including the actions of our citizens or corporations acting abroad. Of course, our notion of what constitutes a rights-violation will be radically different than those of other nations, particularly the less savory ones. Such competing claims may then place great burdens on international commerce and travel, while not materially if at all advancing the interests of justice.

    • Fernando Teson

      Hi, Mark, thanks for this.
      Let me tell you why I reject the position you sketch. The real participants (in a moral sense) in the international legal system are not states but individuals. Governments are supposed to be the mere agents of individuals. They are not entitled to respect per se. If the government is in fact NOT an agent of individuals, then it is not only not entitled to respect, but deserves to be scorned (although, for independent reasons, not necessarily invaded). Morally, these tyrants are like kidnappers who hold their citizens hostage at gunpoint. So when the courts of the United States hear cases from the victims of these tyrants, they accord at least some respect to the victims, and underscore that the governments who tortured them have no moral standing at all. So it s false that a civil judgment against the tyrant fails to respect the state, because the state deserves no respect per se, This is even more true when “the state” is really a criminal enterprise, as is usually is in these cases..


        Hi Fernando,
        Again, I think you are speaking from the perspective of morality, and I agree with your verdict. But from the perspective of how international law actually works, and the theory behind it, is it not true that if we claim the right to render legal judgment against foreign nationals for their acts abroad against non-U.S. citizens, we must accept a parallel right on the part of foreign powers to render similar judgments against our citizens?

        • Fernando Teson

          As a matter of course, I would expect courts in reasonable constitutional democracies not to render these judgments in favor of citizens of similar societies that can get redress in their local courts. On the other hand, I have no trouble with a French court rendering a judgment against an American corporation that was complicitous in grave human rights violations by a tyrannical regime.

    • Rick Latta

      Hi, so I am Aguy above. I have one thought. Customary international law is not the same as a legal right of a particular nation. Customary international law has a different standard for recognition (there is a different system for recognizing customary international law than for recognizing what are the statutes or common laws of a particular nation). Also, all nations are taken to be bound by international customary law. The ATS creates standing (not a cause of action in itself) for non-citizens to bring a civil claim in a U.S. court, but limits the scope of that action to customary international law or applicable treaty law, as I understand it. A non-citizen could not use the ATS to argue that another non-citizen violated a U.S. constitutional right in non-America, if that makes sense.

  • Aguy

    So, it seems like SCOTUS has been pulling back from Filartiga for a few years now. I think it may have to do with the growth in international common law since 1789.

    • Aguy

      Meant international customary law, not common law.

      • j_m_h

        What is this the distinction between international customary law and international common law? I didn’t think there was an international common law concept at all but it sounds like there might be something along those lines out there.

        • Aguy

          No, I think you are right that there is no international common law. There might be some precedents that have binding effect within some international organizations’ dispute resolution bodies, but no common international law as such. I meant to say customary international law all along, which is taken to be a source of binding international law, and to which the ATS refers when it talks about “committed in violation of the law of the nations.”

  • les kyle Nearhood

    One of the big problems I had with some of these type of lawsuits is that they held international corporations liable for the most tenuous connections with government programs. Just because a company does business and pays taxes in a country does not mean they are enabling every human right abuse in that nation. I know that some cases the corporations had a much more direct hand in human rights abuses. But often they did not.

    One could question if a company who makes electric motors used by Drones could be brought to trial for aiding in illegal drone strikes by our own government? My view would be no.

  • TracyW

    You seem to be jumping to assume that the people in question are both victims, and are victims claiming against their oppressors. But defending yourself against a lawsuit launched thousands of km away, in a foreign country, is a big deal. Justice should be applied to the defendant as well as the plaintiff. Noticeably we have many limits on what the police can do to defendants in criminal cases, in the name of justice, even though that may harm the interests of the victims.

    Yes, Shell is a multi-national company, but presumably many of the witnesses it would look to to defend itself against an American lawsuit are in Nigeria, or other countries scattered around the world, a number of them not hired by Shell, a number of them possibly Nigerian government officials who would probably be very reluctant to travel to the USA to testify. This is not a good set up for finding justice.