The Future of Human Rights Litigation after Kiobel
Alford, Roger P., Notre Dame Law Review
This Article begins from the premise that the Alien Tort Statute (ATS) no longer serves a useful purpose in litigating human rights claims. (1) As others have argued in this issue, that premise may not be correct. (2) Assuming it is, however, one should anticipate that human rights lawyers will pursue alternative avenues for relief.
As outlined below, there are a surprising number of options available under federal, state, and foreign law. The most obvious alternatives are not necessarily the most effective. The Torture Victim Protection Act (TVPA), for example, will be of no value to plaintiffs pursuing claims against corporations or governments. (3) The Racketeer Influenced and Corrupt Organizations Act (RICO) regulates a vast array of unlawful conduct, but has its own territorial limits. (4) State statutes that regulate unfair business practices and consumer fraud are promising avenues to address secondary harms to domestic consumers and competitors, but offer no direct relief to human rights victims. (5)
The most important alternative avenue is tort law. (6) Indeed, one could say that the future of human rights litigation in the United States depends on refashioning human rights claims as state or foreign tort violations. Almost every international law violation is also an intentional tort. Torture is assault and battery. Terrorism is wrongful death. Slavery is false imprisonment. Rather than pursuing claims for wrongful conduct under the ATS, those same victims could plead violations of domestic or foreign tort laws. Courts seized with such claims should apply choice of law principles to assess the appropriate tort law to resolve the dispute. If the United States has a paramount interest in addressing the human rights violation, then that likely will result in the application of domestic tort law. Otherwise, traditional choice of law analysis applied in the international human rights context will often result in the application of foreign tort law.
Other avenues for relief remain untested. One of the most uncertain avenues is to plead violations of international law as part of foreign law. (7) If international law has been incorporated into the law of most countries around the world, it follows that a violation of international law will often also be a violation of foreign law. By employing choice of law principles to invoke foreign law, plaintiffs can pursue international law claims incorporated into foreign law. This is most obvious in monist states that directly apply international law into domestic law. But even dualist states implement international law either directly or indirectly. In Kiobel v. Royal Dutch Petroleum Co., (8) for example, the plaintiffs could have alleged human rights violations under Nigerian law because human rights treaties and customary international law form part of Nigerian law.
Another untested avenue for relief is to plead federal common law violations of the law of nations in state courts or federal courts exercising foreign diversity jurisdiction. (9) Assuming the statutory presumption against extraterritoriality limits the scope of the ATS and not the underlying federal common law claims, there is nothing to prevent plaintiffs from pursuing common law claims elsewhere. Nor is there anything that prevents state courts from recognizing international law violations as state common law claims. Such claims would not be subject to the statutory presumption against extraterritoriality, but would be subject to territorial limits imposed by constitutional and international law.
Finally, if international law forms part of domestic and foreign law, then applying the choice of law doctrine of false conflicts would permit courts to apply the international law that is incorporated into domestic law rather than the international law that forms part of foreign law. (10) In the absence of a conflict between the potentially applicable foreign law and domestic law, the forum is free to apply domestic law. …