2007] ATS RULES OF DECISION 469
tions that could be enforced through civil actions under the ATS were
not a closed class of violations but instead could encompass anything that
the international community condemned universally and that was as specifically
defined as the three paradigmatic Blackstone violations.
The Court’s resolution of Sosa provided a somewhat blurry conclusion
to a twenty-five year debate about the scope of the ATS.
The debate
began in 1980 with Filartiga when the Second Circuit found a Paraguayan
police officer to be subject to an ATS civil suit for acts of torture committed
in Paraguay.
67
Four years later, in Tel-Oren,
a splintered D.C. Circuit,
in failing to agree on anything except that the case at bar should be
dismissed,
highlighted two issues that became important in later jurisprudence
and, when interpreted in light of the historical purposes of the
ATS
presented above,
69
68
have relevance in the choice of law inquiry.
These two issues are discussed below in the next two subsections.
2. Causes of Action Under the ATS. — First, Judge Bork’s concurring
opinion squarely presented the argument that the statute did not provide
any causes of action other than the Blackstone trilogy but instead was
simply jurisdictional in nature.
Although Sosa at least partially rejects
this approach,
71
70
the statutory history suggests that the two positions may
not be particularly far apart after all. If the ATS was designed simply to
provide a forum for causes of action that were already available in state
courts, then, in one sense, the statute is only jurisdictional. At the same
time, however, the Sosa majority was correct to state that the ATS was
intended to federalize some common law causes of action based on customary
international law, even if they would still have been available in
66. Sosa, 542 U.S. at 732 (“[F]ederal courts should not recognize private claims under
federal common law for violations of any international law norm with less definite content
and acceptance among civilized nations than the historical paradigms familiar when
§ 1350 was enacted.”). The three violations of the law of nations listed by Blackstone were
piracy, offenses against ambassadors, and violations of safe conducts. See id. at 715
(referring to Blackstone’s trilogy). In the particular facts of the case in Sosa, the Court
found that a temporary arbitrary detention of a single day did not rise to the level of a
universally condemned international law violation to be recognized under the ATS. Id. at
738. The Court’s methodology invoked vigorous disagreement from Justice Scalia on the
cause of action issue. See id. at 749–50 (Scalia, J., concurring in part and concurring in the
judgment) (disagreeing that class of cognizable causes of action under ATS is still open).
67. Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (finding torture by state
official to be violation of law of nations and actionable under ATS).
68. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (dismissing
ATS suit against terror organization).
69. See supra Part I.A.
70. Tel-Oren, 726 F.2d at 799 (Bork, J., concurring) (“Neither the law of nations nor
66
any of the relevant treaties provides a cause of action that appellants may assert in courts of
the United States.”). As mentioned above, Judge Bork’s view eventually lost the day in
Sosa. See supra notes 63–66 and accompanying text.
71. Sosa, 542 U.S. at 729 (noting that “[a]ll Members of the Court agree that § 1350 is
only jurisdictional” but rejecting idea that causes of action cognizable under it are closed
to further development). But cf. id. at 743 (Scalia, J., concurring) (taking position
substantially similar to Judge Bork’s view in Tel-Oren that ATS is only jurisdictional).
470 COLUMBIA LAW REVIEW [Vol. 107:457
state courts.
The chief difference between the Sosa Court and the statutory
history presented above, then, is the level at which customary international
law was incorporated:
The statutory history suggests it was part
of state common law; Sosa suggests it is part of federal common law. Insofar
as the two bodies of law are not incompatible with each other, the
historical
perspective thus implies that courts should not be hesitant to
apply
state law touching on violations of the law of nations.
72
3. The State Action Requirement. — A second issue that became important
to ATS
jurisprudence was introduced in Judge Edwards’s concurring
opinion
in Tel-Oren.
While Judge Edwards took a broader view of the
jurisdiction/cause of action question, he rejected the plaintiffs’ claim because
it failed to allege a sufficient amount of state action, a requirement
he
viewed as necessary to sustain an ATS
claim.
As noted in Part I.C.4,
many of the violations that clearly satisfy the “law of nations” jurisdictional
prerequisite of the ATS
require some kind of state action.
The
invocation of a state action requirement—usually calling into question
the actions of a foreign sovereign country—raises the specter of doctrines,
such as act of state,
75
sovereign immunity,
74
76
comity,
77
73
and political
72. State courts have concurrent jurisdiction with the federal courts under the ATS.
See Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (codified as amended at 28 U.S.C.
§ 1350 (2000)). For an argument that giving state courts concurrent jurisdiction over
customary international law is required post-Erie, see White, supra note 48, at 75
(“Customary international law should remain a pocket of general law, both federal and
state, on which Erie has no effect.”).
73. But see, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985)
(declining to provide discretionary relief in ATS case because of concerns about becoming
inappropriately involved in foreign affairs); Tel-Oren, 726 F.2d at 791 (Edwards, J.,
concurring) (claiming state courts are inappropriate forums for resolving matters related
to foreign affairs).
74. See Tel-Oren, 726 F.2d at 795 (Edwards, J., concurring) (noting that terrorist
organizations likely do not fall within ambit of state action). The state action requirement
has had considerable lasting power and is evident in many subsequent ATS cases. See, e.g.,
Kadic v. Karadzic, 70 F.3d 232, 241–43, 245 (2d Cir. 1995) (finding state action sufficiently
present but noting that some types of international law violations, such as genocide, do not
require state action, and that acts committed in pursuit of international law violations that
do not require state action, even if those acts would normally require state action, also can
be committed by individuals without state involvement); cf. Corrie v. Caterpillar, Inc., 403
F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (rejecting aiding and abetting liability under
Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified
at 28 U.S.C. § 1350 note), because case did not sufficiently allege that defendant
corporation acted under “color of law”). The emphasis on the state action requirement
seems to be at least somewhat misplaced, for at least some types of law of nations
violations—for example, the Marbois incident, see supra notes 39–43 and accompanying
text—involved only private actors.
75. See, e.g., Kadic, 70 F.3d at 250 (noting that act of state defense was not available
because it had not been raised in lower court).
76. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438
(1989) (dismissing ATS suit brought by Liberian corporations against Argentina on
ground of sovereign immunity).
77. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 446 (2d Cir. 2000) (noting
defendant’s reliance upon role of comity in motion to dismiss); Doe I v. Exxon Mobil
2007] ATS RULES OF DECISION 471
question,
78
that could defeat the action in its cradle.
Each of these doctrines
is ostensibly designed to cabin judicial involvement in the management
of foreign affairs
80
79
and to respect the sovereignty of foreign nations.
But the justification for invoking these doctrines to bar ATS cases
and, indeed, the justification for the state action requirement itself, fall
away in many modern ATS cases that do not involve foreign governments,
such as when the offending actor is a domestic corporation (or perhaps a
disagreeable Frenchman on the streets of Philadelphia). Thus, insofar as
state action is viewed as a required element of an ATS case, it unnecessa-
81
Corp., 393 F. Supp. 2d 20, 24–25 (D.D.C. 2005) (declining to assume ATS jurisdiction over
question of whether genocide occurred in Indonesia because it “would be an
impermissible intrusion in Indonesia’s internal affairs”).
78. See, e.g., Corrie, 403 F. Supp. 2d at 1032 (dismissing ATS suit on basis of political
question doctrine). But see Kadic, 70 F.3d at 249 (declining to apply political question
doctrine to quasi-state actors in Bosnia).
79. These doctrines would be in addition to other judicial obstacles presumed to limit
the litigation of ATS cases, such as exhaustion of local remedies and forum non
conveniens. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 879–80, 890 (2d Cir. 1980)
(declining to reach forum non conveniens issue that was not considered by district court
and noting “foreign relations implications” of this issue); Corrie, 403 F. Supp. 2d at 1025–26
(dismissing Torture Victim Protection Act suit on basis of failure to exhaust remedies in
foreign jurisdiction). But see Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1089–99 (9th Cir.
2006) (declining to impose exhaustion of remedies requirement on ATS cases); Abiola v.
Abubakar, 267 F. Supp. 2d 907, 910 (N.D. Ill. 2003) (taking jurisdiction over ATS claim
despite failure of plaintiff to exhaust local remedies). On the various procedural and
doctrinal obstacles ATS plaintiffs face in prosecuting their claims, see Londis, supra note
28, at 169–97 (including discussions of forum non conveniens and state action
requirement).
80. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985)
(declining to provide discretionary relief in ATS case because of concerns about becoming
inappropriately involved in foreign affairs). Ultimately, similar concerns about
maintaining uniformity in foreign affairs are likely responsible for displacing state law with
federal law as the dominant rule of decision in ATS cases. See, e.g., Filartiga, 630 F.2d at
890 (“Questions of this nature are fraught with implications for the nation as a whole, and
therefore should not be left to the potentially varying adjudications of the courts of the
fifty states.”); cf. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (“There is . . . no
question that at some point an exercise of state power that touches on foreign relations
must yield to the National Government’s policy, given the ‘concern for uniformity in this
country’s dealings with foreign nations’ . . . .” (quoting Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 427 n.25 (1964))); Casto, supra note 4, at 482 (noting impact of
foreign affairs doctrine on courts’ ability to adjudicate ATS cases). But the presumption in
favor of a federal rule of decision in matters related to foreign affairs is only necessary to
prevent “‘significant conflict’ ” between state laws and federal policies and interests. See
Boyle v. United Techs. Corp., 487 U.S. 500, 507–08 (1988) (quoting Wallis v. Pan Am.
Petroleum Corp., 384 U.S. 63, 68 (1966)); Gary B. Born, International Civil Litigation in
United States Courts 15 (3d ed. 1996).
81. See, e.g., Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1204 (C.D. Cal. 2002)
(“The entire point of the comity doctrine is to afford consideration and respect to the laws
and interests of foreign sovereign nations.”), vacated in part on other grounds, Sarei, 456
F.3d at 1088–89. But see Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01
Civ. 9882, 2005 WL 2082846, at *1–*2 (S.D.N.Y. Aug. 30, 2005) (declining to dismiss ATS
case on international comity grounds despite Canada’s specific request that district court
do so).
472 COLUMBIA LAW REVIEW [Vol. 107:457
rily restricts the range within which the ATS was intended to operate.
With a state action requirement in place, while situations such as
Unocal’s comfortable relationship with the Burmese government
would
still be covered, other situations that do not implicate government or government-like
actors as explicitly as Unocal
might not be covered,
even
though the comity-based reasons to abstain from adjudicating cases involving
a foreign government are simply not as strong.
The state action requirement raises a parallel concern in the choice
of law inquiry. The sensitive nature of adjudicating ATS cases in an
American federal court—if not barring the case outright—is very likely to
lead to the application of foreign law by the American court,
again ultimately
justified on the basis of comity.
But in cases suggesting that an
American corporation has acted badly overseas, there are fewer reasons
to apply foreign law.
87
86
In these ways, ATS case law as it has developed since Filartiga has
strayed somewhat from its historical origins. Whereas the original statute
was concerned with state underenforcement of actions by aliens, current
doctrines are motivated more by a fear of state overenforcement of actions
by aliens.
The state action requirement, in addition to probably
being a consequence of the classical understanding that international law
88
85
83
84
82. See supra note 74 (noting that impetus for passage of ATS, the Marbois incident,
did not involve state action).
83. See Doe I v. Unocal Corp., 395 F.3d 932, 937 (9th Cir. 2002) (describing Unocal’s
joint venture with Myanmar’s government).
84. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000) (“If a plaintiff
does not allege conduct that supports private liability under international law, he or she
must plead that the conduct was ‘committed by state officials or under color of law’ in
order for the court to exercise jurisdiction under the Alien Tort Claims Act.” (quoting
Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995))).
85. See Casto, supra note 4, at 473–88 (concluding that ATS cases probably call for
application of foreign domestic law); see also Filartiga, 630 F.2d at 889 n.25 (noting
possibility of using foreign domestic law to resolve case on remand).
86. Classical tort choice of law principles do favor applying the law of the location of
the injury. See Restatement (Second) of Conflict of Laws § 145(2)(a) (1971). But the
Restatement acknowledges that its rationale is partly based on “the fact that in multistate
cases it is essential that the rules of decision promote mutually harmonious and beneficial
relationships in the interdependent community, federal or international,” see id. cmt. b,
which is essentially the equivalent of a comity rationale.
87. That is, the United States and its component states both have a definite interest in
regulating the international conduct of their corporations. Cf. Lee, supra note 1, at 906
(arguing that safe conduct interpretation of ATS extends to any situation where one
sovereign is implicitly responsible for actions of its citizens, including, perhaps, citizens
abroad).
88. Compare Dodge, Historical Origins, supra note 29, at 234–35 (“The Alien Tort
Clause appears to have been passed partly to ensure that aliens could sue for torts in
violation of the law of nations regardless of the vagaries of state law.”), with Taveras v.
Taveras, 397 F. Supp. 2d 908, 914–16 (S.D. Ohio 2005) (declining to exercise jurisdiction
under ATS to adjudicate child custody dispute even though plaintiff probably had no other
forum to adjudicate it and disfavoring implications of expanding jurisdiction).
822007] ATS RULES OF DECISION 473
implicates only rights between sovereigns,
seems to be a reaction to this
fear, stopping the application of state laws that were likely intended to be
applied.
89
C. Legal Issues in ATS Cases
With this statutory and case law history in mind, this Part now briefly
Despite the
federalization of ATS jurisprudence—indeed, perhaps because of it—significant
issues are still likely to arise.
The issues presented below are by
no means exclusive; courts adjudicating ATS cases are likely to face others
as norms that satisfy the Sosa standard develop.
highlights some of the legal issues that ATS cases can raise.
1. Procedural Issues. — Perhaps the least controversial issue raised by
ATS cases, given the tendency to favor forum law in procedural contexts
and the fact that federal law governs procedural questions for federal
causes of action, are the procedural questions these cases present. Chief
among these are questions related to statutes of limitations. Although
courts considering the question have decided that the appropriate statute
of limitations in ATS cases is ten years
—following the limitation set by
Congress in the Torture Victim Protection Act (TVPA)
92
—the precise
contours of the limitation have not been settled. For example, courts
have recently begun to consider the question of when the statute of limitations
should be tolled.
94
90
93
2. Family Law Issues. — One of the two cases that sustained jurisdiction
under the ATS
prior to Filartiga
highlights another set of issues that
could
be raised:
family law issues, including child custody questions. In
Adra v. Clift, a Lebanese man brought a suit under the ATS for custody of
his daughter, who had been taken to the United States by the child’s
mother using a passport obtained on false information.
The court used
a two-step approach to separate the jurisdictional question and the choice
of law question. It first found that the use of the falsely obtained passport
to remove the child from Lebanon in order to avoid enforcement of a
95
89. Historically, there was a distinction between private international law, which
governed relationships (typically commercial disputes) between individuals, and public
international law, which governed relationships between sovereign nation-states. See
Born, supra note 80, at 17. The law of nations in 1789 encompassed both. See id. at 18.
90. See also Beth Stephens & Michael Ratner, International Human Rights Litigation
in U.S. Courts 119–20 (1996) (noting choice of law issues that can be raised by ATS).
91. See, e.g., Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 532–33
(1949) (requiring application of forum state’s statute of limitations in diversity cases).
92. See, e.g., Jean v. Dor
´
elien, 431 F.3d 776, 778–79 (11th Cir. 2005) (“Under . . . the
ATCA, Plaintiffs have ten years from the date the cause of action arose to bring suit . . . .”);
Papa v. United States, 281 F.3d 1004, 1012–13 (9th Cir. 2002) (holding ten-year statute of
limitations of TVPA applicable to ATS).
93. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note
(2000)).
94. See, e.g., Arce v. Garcia, 434 F.3d 1254, 1265 (11th Cir. 2006) (permitting tolling
of limitations in TVPA suit).
95. 195 F. Supp. 857, 860–61 (D. Md. 1961).
91474 COLUMBIA LAW REVIEW [Vol. 107:457
Lebanese custody order constituted the tort in violation of the law of nations
necessary to sustain ATS
jurisdiction.
It then considered, but ultimately
ignored, Lebanese and other sources of law in making its custody
decision
and instead adopted Maryland law as the rule of decision.
96
Although it may have had some traction before Sosa, the approach in
Adra has apparently been rejected in light of Sosa’s requirement that only
universally and well-defined violations of international law could serve as
the basis for an ATS claim. Judge Edwards specifically mentions Adra in
his Tel-Oren concurrence, eventually concluding that following that approach
would only be appropriate in certain circumstances.
But in
Taveras v. Taveras, the Southern District of Ohio declined to follow the
Adra two-step process, instead finding that removal of a child from a foreign
country by a parent with custody under foreign law did not rise to
the
level of a violation of the law of nations required by Sosa
and, in any
event, disfavoring the ramifications of turning federal courts into international
family courts.
Such issues could, nevertheless, resurface in situations
that do meet the Sosa
standard.
99
100
3. Corporate Complicity. — Perhaps one of the most important questions
in current ATS
law, the issue of when a corporation can be held
liable
for the actions of foreign governments overseas has been presented
numerous
times.
Unocal’s invocation of international law to answer
the question, to be discussed in more depth below,
101
102
98
97
was granted en
96. Id. at 862–65. Apparently, the mother had not been a party to the proceedings
granting the father sole custody. See id. at 865.
97. See id. at 866. The judge hedged a little in that the decision did not explicitly say
whether the court was adopting a new federal common law rule or adopting the Maryland
rule of law outright, reasoning that the result would be identical under either approach.
See id.
98. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 788 (D.C. Cir. 1984) (Edwards, J.,
concurring) (including “torts committed by American citizens abroad, where redress in
American courts might preclude international repercussions” among those where
following Adra would be appropriate).
99. See 397 F. Supp. 2d 908, 913–16 (S.D. Ohio 2005) (holding that wrongful
transport of child to United States by parent with custody under foreign law does not
qualify as violation of law of nations under Sosa).
100. For example, the Taveras court specifically indicated that an allegation of abuse
of the child would have caused the court to exercise jurisdiction. See id. at 915 n.6 (“The
Court makes explicit, however, that the severity required for a finding of a law of nations
[violation] would almost certainly be present if an allegation of international child
abduction involved credible allegations of physical, verbal or sexual abuse.”).
101. See, e.g., Kiobel v. Royal Dutch Petroleum Co., No. 02-CV-7618, 2006 WL 39146,
at *2 (S.D.N.Y. Jan. 3, 2006) (requesting additional briefing on issue of how Sosa affected
aiding and abetting liability theories in ATS litigation); Doe I v. Exxon Mobil Corp., 393 F.
Supp. 2d 20, 24 (D.D.C. 2005) (dismissing aiding and abetting ATS case); Presbyterian
Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 321 (S.D.N.Y. 2003)
(noting that many courts have permitted aiding and abetting theories in ATS litigation).
Unocal is the most famous, invoking as it did an international rule of decision. See Doe I v.
Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002).
102. See infra Part II.A.2.
2007] ATS RULES OF DECISION 475
banc rehearing by the Ninth Circuit.
Because the case settled before
the rehearing,
104
103
the issue remains pertinent.
4. State Action. — Because many of the substantive international law
ATS
courts have often been required to define state action.
violations that pass the Sosa test require state action of some kind,
Many of these
courts have looked to federal statutory law, particularly 42 U.S.C. § 1983,
as a guide.
107
106
However, precise contours have not yet been laid out because,
in many ways, this question is interwoven with the question of corporate
complicity.
108
5. Substantive Tort Claims. — Finally, ATS claims could present substantive
tort claims that require some source of law to define.
The historical
genesis of the ATS,
the Marbois incident,
presented a claim for
assault and battery,
110
109
which is defined by neither federal nor international
law.
Though that kind of tort claim, requiring reasoning similar to
Adra, is likely to be rejected post-Sosa,
other types of torts—for example,
governmental interference with freedom of expression
111
—could
plausibly ripen into the type of claim that could survive Sosa. Still
103. Doe I v. Unocal Corp., 395 F.3d 978, 978–79 (9th Cir. 2003).
104. Doe I v. Unocal Corp., 403 F.3d 708, 708 (9th Cir. 2005) (granting parties’
motion to dismiss).
105. See Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995) (“[T]orture and summary
execution—when not perpetrated in the course of genocide or war crimes—are
proscribed by international law only when committed by state officials or under color of
law.”).
106. See id. at 245 (addressing question of how to define state action).
107. See 42 U.S.C. § 1983 (2000) (providing cause of action in United States when
state actor violates individual’s federal rights); see also Kadic, 70 F.3d at 245 (“The ‘color of
law’ jurisprudence of 42 U.S.C. § 1983 is a relevant guide to whether a defendant has
engaged in official action for purposes of jurisdiction under the Alien Tort Act.”); Craig
Forcese, Note, ATCA’s Achilles Heel: Corporate Complicity, International Law and the
Alien Tort Claims Act, 26 Yale J. Int’l L. 487, 502–10 (2001) (describing ways in which
§ 1983 law can be incorporated into ATS cases).
108. Two examples illustrate the ways in which state action can intertwine with
corporate complicity. In Sinaltrainal v. Coca-Cola Co., the corporate defendant was accused
of aiding and abetting a paramilitary group, but the court still required a pleading that the
corporation was acting under color of law. See 256 F. Supp. 2d 1345, 1353 (S.D. Fla. 2003).
In Corrie v. Caterpillar, Inc., because the plaintiff could not show that the defendant
controlled the actions of the Israel Defense Forces, the district court dismissed a claim
against the manufacturer of equipment that incidentally killed a peace demonstrator when
the Israel Defense Forces bulldozed a house. See 403 F. Supp. 2d 1019, 1027 (W.D. Wash.
2005).
112
105
109. See supra notes 39–43 and accompanying text.
110. See, e.g., Casto, supra note 4, at 491–92 (describing Marbois incident).
111. See supra Part I.C.2 (discussing and noting post-Sosa rejection of Adra two-step
approach to ATS interpretation).
112. See, e.g., Guinto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal. 1986) (dismissing
ATS suit on grounds “that a violation of the First Amendment right of free speech does not
rise to the level of such universally recognized rights and so does not constitute a [violation
of the] ‘law of nations’”); cf. Zhou v. Peng, 286 F. Supp. 2d 255, 258–60 (S.D.N.Y. 2003)
(disposing of ATS suit against Chinese government official arising out of Tiananmen
Square protests for technical issues related to service of process).
tions that could be enforced through civil actions under the ATS were
not a closed class of violations but instead could encompass anything that
the international community condemned universally and that was as specifically
defined as the three paradigmatic Blackstone violations.
The Court’s resolution of Sosa provided a somewhat blurry conclusion
to a twenty-five year debate about the scope of the ATS.
The debate
began in 1980 with Filartiga when the Second Circuit found a Paraguayan
police officer to be subject to an ATS civil suit for acts of torture committed
in Paraguay.
67
Four years later, in Tel-Oren,
a splintered D.C. Circuit,
in failing to agree on anything except that the case at bar should be
dismissed,
highlighted two issues that became important in later jurisprudence
and, when interpreted in light of the historical purposes of the
ATS
presented above,
69
68
have relevance in the choice of law inquiry.
These two issues are discussed below in the next two subsections.
2. Causes of Action Under the ATS. — First, Judge Bork’s concurring
opinion squarely presented the argument that the statute did not provide
any causes of action other than the Blackstone trilogy but instead was
simply jurisdictional in nature.
Although Sosa at least partially rejects
this approach,
71
70
the statutory history suggests that the two positions may
not be particularly far apart after all. If the ATS was designed simply to
provide a forum for causes of action that were already available in state
courts, then, in one sense, the statute is only jurisdictional. At the same
time, however, the Sosa majority was correct to state that the ATS was
intended to federalize some common law causes of action based on customary
international law, even if they would still have been available in
66. Sosa, 542 U.S. at 732 (“[F]ederal courts should not recognize private claims under
federal common law for violations of any international law norm with less definite content
and acceptance among civilized nations than the historical paradigms familiar when
§ 1350 was enacted.”). The three violations of the law of nations listed by Blackstone were
piracy, offenses against ambassadors, and violations of safe conducts. See id. at 715
(referring to Blackstone’s trilogy). In the particular facts of the case in Sosa, the Court
found that a temporary arbitrary detention of a single day did not rise to the level of a
universally condemned international law violation to be recognized under the ATS. Id. at
738. The Court’s methodology invoked vigorous disagreement from Justice Scalia on the
cause of action issue. See id. at 749–50 (Scalia, J., concurring in part and concurring in the
judgment) (disagreeing that class of cognizable causes of action under ATS is still open).
67. Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir. 1980) (finding torture by state
official to be violation of law of nations and actionable under ATS).
68. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 775 (D.C. Cir. 1984) (dismissing
ATS suit against terror organization).
69. See supra Part I.A.
70. Tel-Oren, 726 F.2d at 799 (Bork, J., concurring) (“Neither the law of nations nor
66
any of the relevant treaties provides a cause of action that appellants may assert in courts of
the United States.”). As mentioned above, Judge Bork’s view eventually lost the day in
Sosa. See supra notes 63–66 and accompanying text.
71. Sosa, 542 U.S. at 729 (noting that “[a]ll Members of the Court agree that § 1350 is
only jurisdictional” but rejecting idea that causes of action cognizable under it are closed
to further development). But cf. id. at 743 (Scalia, J., concurring) (taking position
substantially similar to Judge Bork’s view in Tel-Oren that ATS is only jurisdictional).
470 COLUMBIA LAW REVIEW [Vol. 107:457
state courts.
The chief difference between the Sosa Court and the statutory
history presented above, then, is the level at which customary international
law was incorporated:
The statutory history suggests it was part
of state common law; Sosa suggests it is part of federal common law. Insofar
as the two bodies of law are not incompatible with each other, the
historical
perspective thus implies that courts should not be hesitant to
apply
state law touching on violations of the law of nations.
72
3. The State Action Requirement. — A second issue that became important
to ATS
jurisprudence was introduced in Judge Edwards’s concurring
opinion
in Tel-Oren.
While Judge Edwards took a broader view of the
jurisdiction/cause of action question, he rejected the plaintiffs’ claim because
it failed to allege a sufficient amount of state action, a requirement
he
viewed as necessary to sustain an ATS
claim.
As noted in Part I.C.4,
many of the violations that clearly satisfy the “law of nations” jurisdictional
prerequisite of the ATS
require some kind of state action.
The
invocation of a state action requirement—usually calling into question
the actions of a foreign sovereign country—raises the specter of doctrines,
such as act of state,
75
sovereign immunity,
74
76
comity,
77
73
and political
72. State courts have concurrent jurisdiction with the federal courts under the ATS.
See Judiciary Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (codified as amended at 28 U.S.C.
§ 1350 (2000)). For an argument that giving state courts concurrent jurisdiction over
customary international law is required post-Erie, see White, supra note 48, at 75
(“Customary international law should remain a pocket of general law, both federal and
state, on which Erie has no effect.”).
73. But see, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985)
(declining to provide discretionary relief in ATS case because of concerns about becoming
inappropriately involved in foreign affairs); Tel-Oren, 726 F.2d at 791 (Edwards, J.,
concurring) (claiming state courts are inappropriate forums for resolving matters related
to foreign affairs).
74. See Tel-Oren, 726 F.2d at 795 (Edwards, J., concurring) (noting that terrorist
organizations likely do not fall within ambit of state action). The state action requirement
has had considerable lasting power and is evident in many subsequent ATS cases. See, e.g.,
Kadic v. Karadzic, 70 F.3d 232, 241–43, 245 (2d Cir. 1995) (finding state action sufficiently
present but noting that some types of international law violations, such as genocide, do not
require state action, and that acts committed in pursuit of international law violations that
do not require state action, even if those acts would normally require state action, also can
be committed by individuals without state involvement); cf. Corrie v. Caterpillar, Inc., 403
F. Supp. 2d 1019, 1027 (W.D. Wash. 2005) (rejecting aiding and abetting liability under
Torture Victim Protection Act of 1991, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified
at 28 U.S.C. § 1350 note), because case did not sufficiently allege that defendant
corporation acted under “color of law”). The emphasis on the state action requirement
seems to be at least somewhat misplaced, for at least some types of law of nations
violations—for example, the Marbois incident, see supra notes 39–43 and accompanying
text—involved only private actors.
75. See, e.g., Kadic, 70 F.3d at 250 (noting that act of state defense was not available
because it had not been raised in lower court).
76. See, e.g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 438
(1989) (dismissing ATS suit brought by Liberian corporations against Argentina on
ground of sovereign immunity).
77. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 446 (2d Cir. 2000) (noting
defendant’s reliance upon role of comity in motion to dismiss); Doe I v. Exxon Mobil
2007] ATS RULES OF DECISION 471
question,
78
that could defeat the action in its cradle.
Each of these doctrines
is ostensibly designed to cabin judicial involvement in the management
of foreign affairs
80
79
and to respect the sovereignty of foreign nations.
But the justification for invoking these doctrines to bar ATS cases
and, indeed, the justification for the state action requirement itself, fall
away in many modern ATS cases that do not involve foreign governments,
such as when the offending actor is a domestic corporation (or perhaps a
disagreeable Frenchman on the streets of Philadelphia). Thus, insofar as
state action is viewed as a required element of an ATS case, it unnecessa-
81
Corp., 393 F. Supp. 2d 20, 24–25 (D.D.C. 2005) (declining to assume ATS jurisdiction over
question of whether genocide occurred in Indonesia because it “would be an
impermissible intrusion in Indonesia’s internal affairs”).
78. See, e.g., Corrie, 403 F. Supp. 2d at 1032 (dismissing ATS suit on basis of political
question doctrine). But see Kadic, 70 F.3d at 249 (declining to apply political question
doctrine to quasi-state actors in Bosnia).
79. These doctrines would be in addition to other judicial obstacles presumed to limit
the litigation of ATS cases, such as exhaustion of local remedies and forum non
conveniens. See, e.g., Filartiga v. Pena-Irala, 630 F.2d 876, 879–80, 890 (2d Cir. 1980)
(declining to reach forum non conveniens issue that was not considered by district court
and noting “foreign relations implications” of this issue); Corrie, 403 F. Supp. 2d at 1025–26
(dismissing Torture Victim Protection Act suit on basis of failure to exhaust remedies in
foreign jurisdiction). But see Sarei v. Rio Tinto, PLC, 456 F.3d 1069, 1089–99 (9th Cir.
2006) (declining to impose exhaustion of remedies requirement on ATS cases); Abiola v.
Abubakar, 267 F. Supp. 2d 907, 910 (N.D. Ill. 2003) (taking jurisdiction over ATS claim
despite failure of plaintiff to exhaust local remedies). On the various procedural and
doctrinal obstacles ATS plaintiffs face in prosecuting their claims, see Londis, supra note
28, at 169–97 (including discussions of forum non conveniens and state action
requirement).
80. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985)
(declining to provide discretionary relief in ATS case because of concerns about becoming
inappropriately involved in foreign affairs). Ultimately, similar concerns about
maintaining uniformity in foreign affairs are likely responsible for displacing state law with
federal law as the dominant rule of decision in ATS cases. See, e.g., Filartiga, 630 F.2d at
890 (“Questions of this nature are fraught with implications for the nation as a whole, and
therefore should not be left to the potentially varying adjudications of the courts of the
fifty states.”); cf. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 413 (2003) (“There is . . . no
question that at some point an exercise of state power that touches on foreign relations
must yield to the National Government’s policy, given the ‘concern for uniformity in this
country’s dealings with foreign nations’ . . . .” (quoting Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 427 n.25 (1964))); Casto, supra note 4, at 482 (noting impact of
foreign affairs doctrine on courts’ ability to adjudicate ATS cases). But the presumption in
favor of a federal rule of decision in matters related to foreign affairs is only necessary to
prevent “‘significant conflict’ ” between state laws and federal policies and interests. See
Boyle v. United Techs. Corp., 487 U.S. 500, 507–08 (1988) (quoting Wallis v. Pan Am.
Petroleum Corp., 384 U.S. 63, 68 (1966)); Gary B. Born, International Civil Litigation in
United States Courts 15 (3d ed. 1996).
81. See, e.g., Sarei v. Rio Tinto, PLC, 221 F. Supp. 2d 1116, 1204 (C.D. Cal. 2002)
(“The entire point of the comity doctrine is to afford consideration and respect to the laws
and interests of foreign sovereign nations.”), vacated in part on other grounds, Sarei, 456
F.3d at 1088–89. But see Presbyterian Church of Sudan v. Talisman Energy, Inc., No. 01
Civ. 9882, 2005 WL 2082846, at *1–*2 (S.D.N.Y. Aug. 30, 2005) (declining to dismiss ATS
case on international comity grounds despite Canada’s specific request that district court
do so).
472 COLUMBIA LAW REVIEW [Vol. 107:457
rily restricts the range within which the ATS was intended to operate.
With a state action requirement in place, while situations such as
Unocal’s comfortable relationship with the Burmese government
would
still be covered, other situations that do not implicate government or government-like
actors as explicitly as Unocal
might not be covered,
even
though the comity-based reasons to abstain from adjudicating cases involving
a foreign government are simply not as strong.
The state action requirement raises a parallel concern in the choice
of law inquiry. The sensitive nature of adjudicating ATS cases in an
American federal court—if not barring the case outright—is very likely to
lead to the application of foreign law by the American court,
again ultimately
justified on the basis of comity.
But in cases suggesting that an
American corporation has acted badly overseas, there are fewer reasons
to apply foreign law.
87
86
In these ways, ATS case law as it has developed since Filartiga has
strayed somewhat from its historical origins. Whereas the original statute
was concerned with state underenforcement of actions by aliens, current
doctrines are motivated more by a fear of state overenforcement of actions
by aliens.
The state action requirement, in addition to probably
being a consequence of the classical understanding that international law
88
85
83
84
82. See supra note 74 (noting that impetus for passage of ATS, the Marbois incident,
did not involve state action).
83. See Doe I v. Unocal Corp., 395 F.3d 932, 937 (9th Cir. 2002) (describing Unocal’s
joint venture with Myanmar’s government).
84. See, e.g., Bigio v. Coca-Cola Co., 239 F.3d 440, 448 (2d Cir. 2000) (“If a plaintiff
does not allege conduct that supports private liability under international law, he or she
must plead that the conduct was ‘committed by state officials or under color of law’ in
order for the court to exercise jurisdiction under the Alien Tort Claims Act.” (quoting
Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995))).
85. See Casto, supra note 4, at 473–88 (concluding that ATS cases probably call for
application of foreign domestic law); see also Filartiga, 630 F.2d at 889 n.25 (noting
possibility of using foreign domestic law to resolve case on remand).
86. Classical tort choice of law principles do favor applying the law of the location of
the injury. See Restatement (Second) of Conflict of Laws § 145(2)(a) (1971). But the
Restatement acknowledges that its rationale is partly based on “the fact that in multistate
cases it is essential that the rules of decision promote mutually harmonious and beneficial
relationships in the interdependent community, federal or international,” see id. cmt. b,
which is essentially the equivalent of a comity rationale.
87. That is, the United States and its component states both have a definite interest in
regulating the international conduct of their corporations. Cf. Lee, supra note 1, at 906
(arguing that safe conduct interpretation of ATS extends to any situation where one
sovereign is implicitly responsible for actions of its citizens, including, perhaps, citizens
abroad).
88. Compare Dodge, Historical Origins, supra note 29, at 234–35 (“The Alien Tort
Clause appears to have been passed partly to ensure that aliens could sue for torts in
violation of the law of nations regardless of the vagaries of state law.”), with Taveras v.
Taveras, 397 F. Supp. 2d 908, 914–16 (S.D. Ohio 2005) (declining to exercise jurisdiction
under ATS to adjudicate child custody dispute even though plaintiff probably had no other
forum to adjudicate it and disfavoring implications of expanding jurisdiction).
822007] ATS RULES OF DECISION 473
implicates only rights between sovereigns,
seems to be a reaction to this
fear, stopping the application of state laws that were likely intended to be
applied.
89
C. Legal Issues in ATS Cases
With this statutory and case law history in mind, this Part now briefly
Despite the
federalization of ATS jurisprudence—indeed, perhaps because of it—significant
issues are still likely to arise.
The issues presented below are by
no means exclusive; courts adjudicating ATS cases are likely to face others
as norms that satisfy the Sosa standard develop.
highlights some of the legal issues that ATS cases can raise.
1. Procedural Issues. — Perhaps the least controversial issue raised by
ATS cases, given the tendency to favor forum law in procedural contexts
and the fact that federal law governs procedural questions for federal
causes of action, are the procedural questions these cases present. Chief
among these are questions related to statutes of limitations. Although
courts considering the question have decided that the appropriate statute
of limitations in ATS cases is ten years
—following the limitation set by
Congress in the Torture Victim Protection Act (TVPA)
92
—the precise
contours of the limitation have not been settled. For example, courts
have recently begun to consider the question of when the statute of limitations
should be tolled.
94
90
93
2. Family Law Issues. — One of the two cases that sustained jurisdiction
under the ATS
prior to Filartiga
highlights another set of issues that
could
be raised:
family law issues, including child custody questions. In
Adra v. Clift, a Lebanese man brought a suit under the ATS for custody of
his daughter, who had been taken to the United States by the child’s
mother using a passport obtained on false information.
The court used
a two-step approach to separate the jurisdictional question and the choice
of law question. It first found that the use of the falsely obtained passport
to remove the child from Lebanon in order to avoid enforcement of a
95
89. Historically, there was a distinction between private international law, which
governed relationships (typically commercial disputes) between individuals, and public
international law, which governed relationships between sovereign nation-states. See
Born, supra note 80, at 17. The law of nations in 1789 encompassed both. See id. at 18.
90. See also Beth Stephens & Michael Ratner, International Human Rights Litigation
in U.S. Courts 119–20 (1996) (noting choice of law issues that can be raised by ATS).
91. See, e.g., Ragan v. Merchs. Transfer & Warehouse Co., 337 U.S. 530, 532–33
(1949) (requiring application of forum state’s statute of limitations in diversity cases).
92. See, e.g., Jean v. Dor
´
elien, 431 F.3d 776, 778–79 (11th Cir. 2005) (“Under . . . the
ATCA, Plaintiffs have ten years from the date the cause of action arose to bring suit . . . .”);
Papa v. United States, 281 F.3d 1004, 1012–13 (9th Cir. 2002) (holding ten-year statute of
limitations of TVPA applicable to ATS).
93. Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350 note
(2000)).
94. See, e.g., Arce v. Garcia, 434 F.3d 1254, 1265 (11th Cir. 2006) (permitting tolling
of limitations in TVPA suit).
95. 195 F. Supp. 857, 860–61 (D. Md. 1961).
91474 COLUMBIA LAW REVIEW [Vol. 107:457
Lebanese custody order constituted the tort in violation of the law of nations
necessary to sustain ATS
jurisdiction.
It then considered, but ultimately
ignored, Lebanese and other sources of law in making its custody
decision
and instead adopted Maryland law as the rule of decision.
96
Although it may have had some traction before Sosa, the approach in
Adra has apparently been rejected in light of Sosa’s requirement that only
universally and well-defined violations of international law could serve as
the basis for an ATS claim. Judge Edwards specifically mentions Adra in
his Tel-Oren concurrence, eventually concluding that following that approach
would only be appropriate in certain circumstances.
But in
Taveras v. Taveras, the Southern District of Ohio declined to follow the
Adra two-step process, instead finding that removal of a child from a foreign
country by a parent with custody under foreign law did not rise to
the
level of a violation of the law of nations required by Sosa
and, in any
event, disfavoring the ramifications of turning federal courts into international
family courts.
Such issues could, nevertheless, resurface in situations
that do meet the Sosa
standard.
99
100
3. Corporate Complicity. — Perhaps one of the most important questions
in current ATS
law, the issue of when a corporation can be held
liable
for the actions of foreign governments overseas has been presented
numerous
times.
Unocal’s invocation of international law to answer
the question, to be discussed in more depth below,
101
102
98
97
was granted en
96. Id. at 862–65. Apparently, the mother had not been a party to the proceedings
granting the father sole custody. See id. at 865.
97. See id. at 866. The judge hedged a little in that the decision did not explicitly say
whether the court was adopting a new federal common law rule or adopting the Maryland
rule of law outright, reasoning that the result would be identical under either approach.
See id.
98. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 788 (D.C. Cir. 1984) (Edwards, J.,
concurring) (including “torts committed by American citizens abroad, where redress in
American courts might preclude international repercussions” among those where
following Adra would be appropriate).
99. See 397 F. Supp. 2d 908, 913–16 (S.D. Ohio 2005) (holding that wrongful
transport of child to United States by parent with custody under foreign law does not
qualify as violation of law of nations under Sosa).
100. For example, the Taveras court specifically indicated that an allegation of abuse
of the child would have caused the court to exercise jurisdiction. See id. at 915 n.6 (“The
Court makes explicit, however, that the severity required for a finding of a law of nations
[violation] would almost certainly be present if an allegation of international child
abduction involved credible allegations of physical, verbal or sexual abuse.”).
101. See, e.g., Kiobel v. Royal Dutch Petroleum Co., No. 02-CV-7618, 2006 WL 39146,
at *2 (S.D.N.Y. Jan. 3, 2006) (requesting additional briefing on issue of how Sosa affected
aiding and abetting liability theories in ATS litigation); Doe I v. Exxon Mobil Corp., 393 F.
Supp. 2d 20, 24 (D.D.C. 2005) (dismissing aiding and abetting ATS case); Presbyterian
Church of Sudan v. Talisman Energy, Inc., 244 F. Supp. 2d 289, 321 (S.D.N.Y. 2003)
(noting that many courts have permitted aiding and abetting theories in ATS litigation).
Unocal is the most famous, invoking as it did an international rule of decision. See Doe I v.
Unocal Corp., 395 F.3d 932, 949 (9th Cir. 2002).
102. See infra Part II.A.2.
2007] ATS RULES OF DECISION 475
banc rehearing by the Ninth Circuit.
Because the case settled before
the rehearing,
104
103
the issue remains pertinent.
4. State Action. — Because many of the substantive international law
ATS
courts have often been required to define state action.
violations that pass the Sosa test require state action of some kind,
Many of these
courts have looked to federal statutory law, particularly 42 U.S.C. § 1983,
as a guide.
107
106
However, precise contours have not yet been laid out because,
in many ways, this question is interwoven with the question of corporate
complicity.
108
5. Substantive Tort Claims. — Finally, ATS claims could present substantive
tort claims that require some source of law to define.
The historical
genesis of the ATS,
the Marbois incident,
presented a claim for
assault and battery,
110
109
which is defined by neither federal nor international
law.
Though that kind of tort claim, requiring reasoning similar to
Adra, is likely to be rejected post-Sosa,
other types of torts—for example,
governmental interference with freedom of expression
111
—could
plausibly ripen into the type of claim that could survive Sosa. Still
103. Doe I v. Unocal Corp., 395 F.3d 978, 978–79 (9th Cir. 2003).
104. Doe I v. Unocal Corp., 403 F.3d 708, 708 (9th Cir. 2005) (granting parties’
motion to dismiss).
105. See Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995) (“[T]orture and summary
execution—when not perpetrated in the course of genocide or war crimes—are
proscribed by international law only when committed by state officials or under color of
law.”).
106. See id. at 245 (addressing question of how to define state action).
107. See 42 U.S.C. § 1983 (2000) (providing cause of action in United States when
state actor violates individual’s federal rights); see also Kadic, 70 F.3d at 245 (“The ‘color of
law’ jurisprudence of 42 U.S.C. § 1983 is a relevant guide to whether a defendant has
engaged in official action for purposes of jurisdiction under the Alien Tort Act.”); Craig
Forcese, Note, ATCA’s Achilles Heel: Corporate Complicity, International Law and the
Alien Tort Claims Act, 26 Yale J. Int’l L. 487, 502–10 (2001) (describing ways in which
§ 1983 law can be incorporated into ATS cases).
108. Two examples illustrate the ways in which state action can intertwine with
corporate complicity. In Sinaltrainal v. Coca-Cola Co., the corporate defendant was accused
of aiding and abetting a paramilitary group, but the court still required a pleading that the
corporation was acting under color of law. See 256 F. Supp. 2d 1345, 1353 (S.D. Fla. 2003).
In Corrie v. Caterpillar, Inc., because the plaintiff could not show that the defendant
controlled the actions of the Israel Defense Forces, the district court dismissed a claim
against the manufacturer of equipment that incidentally killed a peace demonstrator when
the Israel Defense Forces bulldozed a house. See 403 F. Supp. 2d 1019, 1027 (W.D. Wash.
2005).
112
105
109. See supra notes 39–43 and accompanying text.
110. See, e.g., Casto, supra note 4, at 491–92 (describing Marbois incident).
111. See supra Part I.C.2 (discussing and noting post-Sosa rejection of Adra two-step
approach to ATS interpretation).
112. See, e.g., Guinto v. Marcos, 654 F. Supp. 276, 280 (S.D. Cal. 1986) (dismissing
ATS suit on grounds “that a violation of the First Amendment right of free speech does not
rise to the level of such universally recognized rights and so does not constitute a [violation
of the] ‘law of nations’”); cf. Zhou v. Peng, 286 F. Supp. 2d 255, 258–60 (S.D.N.Y. 2003)
(disposing of ATS suit against Chinese government official arising out of Tiananmen
Square protests for technical issues related to service of process).
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