When the Second Circuit decided in Filartiga v. Pena-Irala (1) that the Alien Tort Statute (ATS) provided a federal forum for international human rights claims, no one would have predicted that thirty-three years later in Kiobel v. Royal Dutch Petroleum Co. (2) the Supreme Court would use the presumption against extraterritoriality to limit those claims. (3) This Essay recounts some of the doctrinal developments in alien tort litigation during the intervening thirty-three years. (4)
After Filartiga, courts faced a choice whether to apply international law as the rule of decision or the law of the place where the tort occurred. Courts chose the international law road, with U.S. law providing the cause of action and the rules for damages. The Supreme Court ratified this choice in
Sosa v. Alvarez-Machain, (5) clarifying that the cause of action came not from the ATS itself but from federal common law. In the battles over aiding and abetting liability that followed, plaintiffs argued that federal common law should govern just about every issue of ATS litigation except the initial violation of international law, while defendants and the Bush Administration argued that the presumption against extraterritoriality should apply to the federal common law cause of action, the position the Supreme Court accepted in Kiobel. It appears in hindsight that the early decisions to apply international law rather than the lex loci delicti as the rule of decision in alien tort litigation ultimately provided the doctrinal hook for the Supreme Court to restrict alien tort suits with the presumption against extraterritoriality.
Certainly there were reasons to choose international law over foreign domestic law at the time. (6) Once alien tort litigation had started down the international law road, there were paths that might have skirted the extraterritoriality question more easily. (7) And it is possible that the Roberts Court would have found another doctrine to restrict alien tort suits had different choices been made. (8) Choices are inevitable in litigation as in life. The purpose of this Essay is to explore the doctrinal consequences of the choices that were made and to glance briefly down the road not taken.
I. FILARTIGA AND THE CHOICE OF LAW
Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth; (9)
The era of human rights litigation in U.S. courts began in 1980 with the Second Circuit's decision in Filartiga. (10) Joel and Dolly Filartiga, the father and sister of Joelito Filartiga, brought suit in U.S. district court against Americo Pena-Irala, a Paraguayan police inspector who overstayed his visa in the United States. (11) They alleged that Pena-Irala had tortured Joelito to death in retaliation for his father Joel's political activities. (12) On appeal, the Second Circuit held that the district court had subject matter jurisdiction under the Alien Tort Statute, which provides original 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." (13) Clearly, the Filartigas were aliens and torture is a tort. Supported by a memorandum filed by the U.S. government, (14) the Second Circuit also held that official torture was a violation of customary international law. (15) While this holding was sufficient to satisfy the statute, subject matter jurisdiction for federal courts also requires a basis in Article III of the Constitution, which the Second Circuit found in Article III's grant of jurisdiction over cases "arising under ... the Laws of the United States." (16) "The constitutional basis for the Alien Tort Statute is the law of nations, which has always been part of the federal common law." (17)
The Filartiga court emphasized that it was only deciding the question of subject matter jurisdiction and not "the issue of the choice of law to be applied, which will be addressed at a later stage in the proceedings. …