III- Unsettled issues following Kiobel
- Unsettled legal questions
1.1 Determining the content of a violation of the law of nations
Before Sosa, federal district courts conditioned a finding of a violation of the law of nations upon conduct that was unlawful in regard of specific, universal and obligatory norms of international law.
As to the content of the law of nations, Sosa was of little help in that it merely referred to “norms of international character accepted by the civilized world” (…)“withdefinite content and acceptance among civilized nations”. Kiobel was of greater help as it specifically pointed to torture, genocide, crimes against humanity and war crimes as conduct that fell within the substantial scope of the ATS.
Following those takeaways, one could predict that a great amount of time would be needed to further define the substantive reach of the ATS through a case-by-case analysis.
1.2 Determining the proper venue
- Is there an exhaustion principle? Should petitioners first sue where an individual resides; in its home state or concerning corporations where they are incorporated?
While the principle of universal jurisdiction is accepted in criminal matters, can this reasoning be extended to the ATS, designed not to punish but to grant relief?
A functional argument would lead to distinguish those two different issues and therefore treat them differently.
- As under federal common law, can the forum non conveniens doctrine apply?
Both Filartiga and Marcos were not of much help as the domestic courts where the conduct occurred were unlikely to prosecute. Therefore, does the exhaustion principle apply when the claim is unlikely to be tried in accordance with due process of law standards?
What if an alternate forum exists? Should U.S courts dismiss a pending claim on the ground that an adequate alternative forum? At this stage, it seems that those questions remain unresolved.
- How to assess whether an adequate alternate forum exists?
The Supreme Court has not provided a clear-cut framework for determining if and when, U.S courts should dismiss a claim on grounds that a more appropriate forum exist? International law's principles, if observed would surely point to a positive answer. However, some would argue that the ATS constitutes federal common law and as such should not be read in light of International law’s principles.
Notwithstanding this pure domestic approach, a consequential argument would insist on direct adverse effects on foreign policy, infringements upon sovereignty to oppose a strict national construction of the statute. Consistent with those comity principles that must be complied with even by the Supreme Courts of the most powerful countries, U.S Courts should dismiss a case if both a more appropriate forum existed and the likelihood of obtaining damages following a fair trial was guaranteed.
In addition, the federal rules of evidence also apply the forum non conveniensdoctrine[15]. Therefore, applying that latter doctrine to an ATS claim would entail dismissal of the case if another forum were better suited to hear it insofar as it would present closer ties to the case and provided due process standards.
1.3 Determining the proper defendant
Should corporations that aid and abet governments in committing crimes within the ATS’ scope be held accountable? More specifically, can non-U.S corporations be prosecuted under the ATS for aiding and abetting violations of the law of nations in a non US-territory? The outcomes in Marcos[16] and Doe[17] seem to suggest so. Does it however follow that the Supreme Court is willing to uphold such a solution? If so, to what extent? Such an issue could not be addressed in Kiobel as the claim was dismissed for lack of jurisdiction due to an overseas’ conduct failing to touch and concern U.S territory. That issue remains to be clarified but it is likely that it will hinge upon two criteria, namely: 1) the level of involvement of a corporation in aiding and abetting; 2) a peculiarly atrocious conduct rising to the level of a violation of the law of nations.
2. Unsettled foreign policy questions
2.1 The separation of powers' issue raised by the ATS
The Constitution vests foreign powers in both the executive and the Senate. Does it follow that the judiciary would have to comply with a State department’s order to dismiss an ATS claim on grounds of averting undesirable foreign policy consequences?
Such a question is not theoretical, as many countries have filed briefs expressing their concerns about an extraterritorial reach of the ATS. One might argue that the same logic as that governing universal jurisdiction’s principles in criminal matters should be extended to ATS’ claims.
It should however be pointed out that sentencing a defendant for a criminal act is one thing; granting relief as to any civil action by an alien for a tort is another.
Tenants of expanding universal jurisdiction’ principles would emphasize that an ATS claim is necessarily predicated upon the commission of one of the most atrocious felony. By drawing an analogy to the atrociousness of the conduct, they would insist that expending the ATS’ scope as is the case regarding universal jurisdiction is consistent.
However, opponents to a broad construction of the ATS would stress differences in aims: while universal jurisdiction is designed to preclude defendants from impunity following criminal acts, an ATS claim is intended to grant relief.
2.2. Is the ATS subject to a statute of limitations?
At this stage, neither Sosa nor Kiobel provided any indication as to whether a statute of limitation existed. Were the courts to conclude to the inexistence of such a time limit, would it expedient or desirable to see a defendant sued in U.S federal courts, say 30 or 40 years after the alleged perpetration of a violation of the law of nations abroad?
Some would respond affirmatively, likening an ATS suit to any Criminal lawsuit, which does not provide for any statute of limitations regarding the most serious offences. Others would insist on the exceptionality of an ATS extraterritorial application, which would a trigger a strict construction and therefore a time limit for suing. We are of the opinion that the latter argument should prevail, for it is consistent with comity principles.
2.3 What about the risks of adverse consequences on foreign relations?
Under the comity doctrine, States ought to recognize the validity and legal effect of acts carried out by the executive, legislative and judicial branches of other nations provided it is not inconsistent with public policy. Comity is intended to enable a peaceful coexistence of Sovereigns, by inviting countries to refrain from acting in a way that would demean the laws of another State. Indeed, one can easily infer all of the potential disputes that too broad an extraterritorial reach of the ATS would entail.
Conflicts would arise out of disagreements regarding the scope of a violation of the law of nations. Let’s assume a sovereign State that does not consider a specified felony to fall within the definition of a violation of the law of nations. It would likely disapprove of one of its citizen to be sued in U.S federal courts on grounds that a tort committed in violation of the law of nations occurred on its soil.
Therefore, in order to prevent potential conflicts and possible deterioration of foreign relations, U.S courts ought to construe the ATS’ notion of a violation of the law of nations by reference to accepted norms of International law. In addition, were a consensus among countries be reached as to the content of International law, risks of adverse consequences upon foreign relations would diminish.
2.4 What if other nations were to apply their own versions of Alien tort statute?
Justice Breyer addresses such a concern as follows: “Since enforcement of an international norm by one nation’s courts implies that other nations’ courts may do the same, I would ask whether the exercise of jurisdiction under the ATS is consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its laws and their enforcement?"
Were all nations to apply their own versions of the ATS, threats to foreign relations would inevitably arise. The Supreme Court in Kiobel foresaw these risks and therefore curtailed the ATS’ extraterritorial reach to exceptional cases.
Ideally, though, we are of the opinion that Congress should pass an Act delineating with greater precision the realm of the ATS. Such legal action would prove more respectful of the Constitution, which vests foreign policy powers in both the Senate and the President.
Still, even more narrowly construed, risks of other countries passing their own version of the ATS could seriously harm foreign relations in the long run. To bar this from happening, were these risks about to materialize, only a treaty could prevent and settle potential unfolding disputes.
2.5. What about risks of conflicts with the ICC?
The rationale for the ATS extraterritorial application is to prevent the U.S from becoming a safe harbor for perpetrators of enemies of all mankind. It shares a common objective with the ICC.
How therefore to prevent any risks of overlap?
- The first issue is whether an ATS claim adjudicated by U.S Courts will permit another trial before the ICC?
Both textual and purpose interpretations of the Rome Statute establishing the ICC would suggest to a possibility for the ICC to hear a criminal case despite previous lawsuits in U.S federal courts. Indeed, the ICC’s Rome Statute provides that: In general, a case will be inadmissible if it has been or is being investigated or prosecuted by a State with jurisdiction. Following a strict constructionism doctrine, a claim under the ATS whose object is to exert jurisdiction over “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” does not constitute a prosecution or an investigation leading to a prosecution. Therefore, it seems that the ICC’s prosecutor will be able to bring to justice perpetrators of genocide, war crimes, and crimes against humanity whose civil liability was already held under an ATS claim.
The ne bis in idem rule as recalled in article 20 of the Rome Statute provides as follows: “Except as provided in this Statute, no person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court. An ATS claim results either in an award of damages or no liability but not an acquittal or conviction.
- The second issue, reciprocally, is whether a federal court could hear an ATS claim after it was tried in The Hague?
It seems that US courts could not hear an ATS claim after a trial before the ICC. Indeed, under comity principles, US courts most likely would dismiss the claim on grounds that the ICC has jurisdiction not only to sentence perpetrators of these 3 egregious felonies but also to compensate the victims.
* * *
Pas de contribution, soyez le premier