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“Or a Treaty of the United States”: Treaties and the Alien Tort Statute After Kiobel

Part of: Agora: Reflections on Kiobel

Published online by Cambridge University Press:  21 February 2018

Geoffrey R. Watson
Geoffrey R. Watson*
Affiliation:
The Catholic University of America
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The decision in Kiobel v. Royal Dutch Petroleum Co. left open a number of questions about the scope of the Alien Tort Statute (ATS). One such question is the extent to which Kiobel ‘s holding on extraterritoriality applies to the oft-neglected final words of the ATS: “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.”What if one such treaty obliged the United States to provide a civil forum for litigation ofhumanrights violations that occurred abroad and did not involve piracy?

Type
Agora: Reflections on Kiobel
Information
AJIL Unbound , Volume 107 , 2013 , pp. 4 - 8
Copyright
Copyright © American Society of International Law 2013

References

1 Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013).

2 28 U.S.C. §1350 (emphasis added).

3 See, e.g., Bradley, Curtis A., The Costs of International Human Rights Litigation, 2 CHI. J. Int’L L. 457, 464–70 (2001).Google Scholar

4 Cf. Sean D. Murphy, Book Review, 104 AJIL 697, 697 (2010) (noting that “it is actually rather difficult to identify a new norm of international law that has emerged purely as a matter of widespread state practice, at least in the form of what states actually do on the ground”).

5 1 Op. Att’y Gen. 57, 58 (1795).

6 See Supplemental Brief for Respondents at 28–30, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491), cited in Kiobel, 133 S.Ct. at 1667–68. Briefs filed in Kiobel are available online at http:// cja.org/section.php?id_509.

7 Petitioners’ Supplemental Opening Brief at 13–15, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491); Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance at 10, Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013) (No. 10-1491).

8 That said, the framers of the ATS probably did not intend the statute to cover executive agreements. Executive agreements did develop in early American practice, but the term treaty was usually reserved for Article II treaties. See Bradford R. Clark, Domesticating Sole Executive Agreements, 93 VA. L. REV. 1573, 1581–84 (2007).

9 Kiobel, 133 S.Ct. at 1668.

10 Id. at 1669 (Kennedy, J., concurring).

11 Lee, Thomas H., The Safe-Conduct Theory of the Alien Tort Statute, 106 Google Scholar Colum. L. Rev. 830, 891–92 & n.312 (2006) (citing Definitive Treaty of Peace, U.S.-Gr. Brit., Art. VII, Sept. 3, 1783, 8 Stat. 80 [hereinafter Treaty of Paris]; Treaty of Amity, Commerce and Navigation, U.S.-Gr. Brit., Art. XXI, Nov. 19, 1794, 8 Stat. 116 [hereinafter Jay Treaty]).

12 Bradley, Curtis A., Attorney General Bradford's Opinion and the Alien Tort Statute, 106 Google Scholar AJIL 509, 521 n.82 (2012); Ishai Mooreville, A Question of Sovereignty: The History Behind Attorney General Bradford's 1795 Opinion on the Alien Tort Statute, 40 SYRACUSE J. INT’L L. & COM. 217 (2013).

13 Bradford issued his opinion on July 6, 1795, before the Jay Treaty entered into force, but just two weeks after the Senate gave conditional advice and consent to the treaty. The safer conclusion is that Bradford was thinking of the 1783 Treaty of Paris, not the Jay Treaty, especially as ratification of the Jay Treaty was controversial. At that time, of course, there was no Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 33, whose Article 18 obliges states to “refrain from acts which would defeat the object and purpose” of signed but unratified treaties. Moreover, Bradford was undoubtedly conscious of the constitutional requirement of ratification. Cf. Curtis A. Bradley, Unratified Treaties, Domestic Politics, and the U.S. Constitution, 48 HARV. Int’L L.J. 307, 314 (2007) (noting that “[t]he United States repeatedly had to remind other countries during the nineteenth century that its signature did not constitute a promise of ratification” (citing J.Mervyn Jones, Full Powers and Ratification 76–77 (1946))). Bradford presumably understood the difference between Senate advice and consent and actual ratification by the president—a distinction sometimes lost on modern Americans. Still, the timing of Bradford’s opinion creates some uncertainty. Moreover, the neutrality provision in the Treaty of Paris is less detailed than its counterpart in the Jay Treaty, which might have seemed more like the applicable lex specialis to Bradford. Article XXI of the Jay Treaty, for example, states that “the laws against all such offences and aggressions shall be punctually executed”; the Treaty of Paris contains no such provision.

14 Cf., e.g., Bradley, supra note 12, at 521 n.82 (“In any event, the issue [of which treaty Bradford had in mind] is not material to this essay.”).

15 See, e.g., 18 U.S.C. §3184 (conditioning international extradition on the existence of a “treaty or convention for extradition”); cf. OSS Nokalva, Inc. v. Eur. Space Agency, 617 F.3d 756, 761–66 (3d Cir. 2010) (holding that the International Organizations Immunities Act of 1945 (IOIA), 28 U.S.C. §288, incorporates later-enacted provisions of the Foreign Sovereign Immunities Act); Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998) (rejecting this view). The IOIA cases involve a later statute, not a later treaty, and, in any case, the Nokalva court has the better argument. See 2B SUTHERLAND STATUTORY CONSTRUCTION §51.08, at 192 (Norman J. Singer ed., 5th ed. 1992) (“A statute which refers to a subject generally adopts the law on the subject as of the time the law is enacted. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.”), quoted in Nokalva, 617 F.3d at 763.

16 See Reid v. Covert, 354 U.S. 1, 17–18 (1957) (plurality opinion).

17 Cf. S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (“The common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or quasi sovereign that can be identified … .”).

18 Sosa v. Alvarez-Machain, 542 U.S. 692, 735 (2004); cf. Bradley, supra note 3, at 464 (asserting that ATS plaintiffs avoid the treaty clause “[b]ecause of the limited way in which the President and Senate have consented tohuman rights treaties”).

19 See Oona A. Hathaway, Sabria McElroy&Sara Aronchick Solow, International Law at Home: Enforcing Treaties in U.S. Courts, 37 Yale J. Int’L L. 51, 77–78 (2012) (citing congressional legislation implementing non-selfexecuting treaties such as the Torture Victim Protection Act, the Hague Child Abduction Convention, and the Chemical Weapons Convention).

20 Id. at 78–83.

21 Cf. S. REP. NO. 102-249, at 3–4 (1991) (asserting that the Torture Victim Protection Act would help ensure that “torturers and death squads will no longer have a safe haven in the United States”), quoted in Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct. 1659, 1677 (2013) (Breyer, J., concurring).

22 See 18 U.S.C. §3184 (requiring a “treaty” for extradition).

23 Until 2008, such resolutions typically contained no references to the self-executing treaty doctrine, though they always included a Bricker Amendment. See, e.g., 148 CONG. REC. S11,057 (daily ed. Nov. 14, 2002) (extradition treaty with Peru); 146 CONG. REC. S23,086 (daily ed. Oct. 18, 2000) (South Africa & Sri Lanka); id. At S23,085 (Belize, Paraguay); 145 CONG. REC. S28110 (daily ed. Nov. 3, 1999) (Korea). The Senate Foreign Relations Committee did sometimes express the general view that such treaties were self-executing, see, e.g., SEN. EXEC. RPT. 106-26, at III (2000) (noting that “the legal procedures for extradition are governed by both federal statutes and self-executing treaties”), but such statements were not included in the resolution voted on by the full Senate.

24 Medellı´n v. Texas, 552 U.S. 491 (2008).

25 John R. Crook, Contemporary Practice of the United States Relating to International Law, 104 AJIL 100, 100 (2010) (Senate Foreign Relations Committee documenting self-executing character of new extradition treaties).

26 Hathaway, McElroy & Aronchick Solow, supra note 19, at 77 n.157.

27 See Sosa v. Alvarez-Machain, 542 U.S. 692, 745 (2004); 1 Restatement (Third) of the Foreign Relations Law of the United States §111(3)–(4) (1987).