Kiobel's Broader Significance: Implications for International Legal Theory

The U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. has ushered in a new era for human rights enforcement. Unanimously, the Court ended so–called foreigncubed human rights cases, that is, litigation where foreign plaintiffs sue foreign defendants for activity occurring abroad. The broadest form of universal civil jurisdiction that the Second Circuit's decision in Filártiga v.Pena–Irala once appeared to promise is over. Alien Tort Statute (ATS) litigation, while not foreclosed, has become more limited.

This outcome, ultimately, would be a muted victory for international legal norms in U.S. courts.
KIOBEL 'S BROADER SIGNIFICANCE: IMPLICATIONS FOR INTERNATIONAL LEGAL THEORY By Austen L. Parrish* The U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. 1 has ushered in a new era for human rights enforcement. Unanimously, the Court ended so-called foreigncubed human rights cases, that is, litigation where foreign plaintiffs sue foreign defendants for activity occurring abroad. The broadest form of universal civil jurisdiction that the Second Circuit's decision in Filártiga v. Peña-Irala 2 once appeared to promise is over. Alien Tort Statute 3 (ATS) litigation, while not foreclosed, has become more limited.
So far, the analysis of Kiobel has been doctrinal, focusing, for example, on whether the Supreme Court correctly applied the presumption against extraterritoriality. 4 Alternatively, the commentary has been forward-looking, discussing the types of cases that will be seen after Kiobel 5 or predicting the next battleground for human rights advocacy. 6 For its part, the popular press has caricatured the decision either as representing the end to plaintiff 's litigation run amok 7 or as signaling the United States' deference to corporate interests over human rights interests. 8 Kiobel, however, has broader significance. The decision reflects a rejection of attempts to reconceive global governance, from both left-leaning and right-leaning academics. In Kiobel, the Court unanimously refused to adopt the unilateral approach encouraged by pluralists and other modern internationalists that would displace international multilateral approaches to global governance. The Court also did not fully embrace the perspective championed by international law skeptics, who would prefer that international norms have no role in U.S. jurisprudence. Justice Stephen Breyer's concurrence particularly reinforces the view that U.S. courts should heed international jurisdictional norms, while reaffirming that exorbitant assertions of extraterritoriality are disfavored-a position that is consistent with long-standing international law principles. 9 The Kiobel decision, then, is friendlier to international law than some have suggested. While Kiobel deprives advocates of one enforcement tool, the decision vindicates, rather than undermines, the interests of the human rights community. Kiobel suggests that efforts to build respect for human rights will need to occur multilaterally, instead of through unilateral extraterritorial regulation. If it spurs a reexamination of how to rebuild and legitimize international institutions, the decision's rejection of two popular theories in legal scholarship will be a welcome development.

Rejecting Global Legal Pluralism
The approach that the Court most roundly rejected is one that has been in ascendance among legal scholars recently: global legal pluralism. Legal pluralists have sought to take descriptive accounts from other disciplines, particularly sociology and anthropology, and turn them into normative theories for global governance. 10 By staking a normative vision, they distinguish themselves from earlier pluralists who sought to better understand the world but not create an alternative jurisprudence. 11 Unlike traditional international law scholars, pluralists contend that international norms in the age of globalization are best created and enforced at the substate level. 12 Pluralists have sought, among other objectives, to change and redefine jurisdictional rules. 13 They have sought to exploit, not resolve or manage, normative conflict and have attempted to expand jurisdictional bases to enable local courts to develop international law. Harold Koh's transnational legal process, while not defined as "pluralist," in many ways seeks to develop international law through substate actors in this way. 14 9 Developments in the Law: Extraterritoriality, 124 HARV. L. REV. 1226, 1228 (2011) (describing how the "exceptionalism of extraterritoriality reflects the foundational ideals of the international state system"). 10  Yet global legal pluralism, as prescription, is no friend to international human rights. It rejects the universal norms upon which human rights depend and instead relies on domestic courts as experimentation sites where norms will develop and later migrate to the international system. This approach to global governance requires a unique faith that courts in other countries will interpret and develop human rights in a specific (and similar) way. But little suggests that this sort of consensus exists. 15 The concern, then, is less that other nations will hale U.S. citizens into their courts for alleged violations 16 but that other courts will develop norms of civil liability that are in tension, or are even inconsistent, with human rights. 17 For these reasons, the pluralist recipe for promoting human rights everywhere will likely be (despite best intentions) counterproductive. 18 Extraterritorial regulation of foreigners is problematic for other reasons too. Many view this kind of regulation as inherently illegitimate. 19 Even if a substantive right could be universally agreed upon, procedural mechanisms for justice vary. Other nations view American adjudication skeptically and-rightly or wrongly-perceive American courts as biased, 20 just as Americans often view foreign courts skeptically. 21 Extraterritorial regulation of nonnationals is also seen as undemocratic 22 and reflective of American exceptionalism and legal imperialism in its worst form. 23 That Chief Justice John Roberts's majority opinion was unsympathetic to court-encouraged pluralistic approaches was unsurprising. 24 But Breyer's concurrence also rejected them by failing to find that Congress had authorized universal civil jurisdiction. 25 While Breyer would look to "international jurisdictional norms" to determine the ATS's reach, 26 he was unwilling to find that those norms permitted a free-for-all, where each nation's courts could claim authority to hear any case in the world. Both opinions relied on a more traditional territorial understanding "where distinct American interests [would need be] at issue" for jurisdiction to attach. 27 Citing Justice Joseph Story, both the majority and Breyer's concurrence noted that Congress adopted the ATS when it was clear that "[n]o nation ha[d] ever yet pretended to be the custos morum of the whole world." 28

Rejecting Sovereigntism
Yet Kiobel was not a victory for right-leaning theorists either. Over the last fifteen to twenty years, a group of legal scholars (often referred to as international law skeptics or Sovereigntists) have attacked international law and its institutions, 29 arguing that international law must be narrowly cabined to avoid undermining American interests. 30 For Sovereigntists, international law usually undermines democratic sovereignty. They generally recoil when courts cite to foreign law 31 and oppose the creation of international institutions. From this perspective, ATS litigation constitutes an attempt by left-leaning groups to infuse internationalist values where they do not belong.
In many ways, the Sovereigntist position is an attempt to redefine and constrain the role of courts. Sovereigntists appear more animated by separation of powers and federalism concerns than by concerns over developing effective global governance. 32 The Court, however, did not fully adopt or endorse the Sovereigntist approach. The majority came closest, with its invocation of legislative primacy. 33 But the majority's application of the presumption against extraterritoriality was similar to how the Court has long approached jurisdictional rules. The Court was reluctant to assume that Congress had authorized the broadest reach of possible jurisdiction. 34 The Court's majority opinion was consistent with 27 Id. at 1674. 28 Id. at 1668 (majority opinion); id. at 1674 (Breyer, J., concurring). 29  international law's respect for sovereignty and self-determination. 35 Breyer's concurrence also was not sympathetic to the skeptics' view, as it sought to interpret the statute "consistent with international law and foreign practice." 36 In addition, the entire Court foreclosed only foreigncubed cases. Kiobel says little about how to decide ATS claims when significant ties to the United States exist. The least controversial claims from an international law perspectivethose seeking to hold U.S. actors liable for human rights violations, especially in places under U.S. control-should remain viable. 37 For international law skeptics, Kiobel does little to insulate American jurisprudence from transnational norms. 38

Conclusion
The doctrinal issues in Kiobel are important. The decision reflects culture-war-type debates over tort reform, the role of courts, separation of powers, and federalism. 39 The case, however, also says something important about approaches to global governance. The decision may mark the beginning of a welcome retreat from a failed strategy of aggressive American unilateralism that has been promoted by both right-leaning and left-leaning academics.
Much work remains in the human rights area. Tremendous barriers to justice exist. International law and institutions remain underdeveloped, often to the benefit of multinational corporations and other actors. Our courts can and should play an important role in enforcing and developing international law, particularly to hold our own citizens accountable for human rights abuses (whether occurring in the United States or abroad). The hope after Kiobel is that the human rights community will turn away from unilateral enforcement and focus its attention on rebuilding international law and its institutions. In this way, Kiobel underscores the failings of two extremes in legal scholarship-one that has sought to isolate internationalism, and another that has sought to privilege unilateralism. CORPORATIONS AND TRANSNATIONAL LITIGATION: COMPARING KIOBEL WITH THE JURISPRUDENCE OF ENGLISH COURTS By Andrew Sanger* As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) 1 must "touch and concern the territory of the United States . . . with sufficient force" for federal courts to recognize a federal common