Whither Human Rights Litigation After Jesner v. Arab Bank?

by Christopher A. Whytock, Professor of Law, UC Irvine School of Law, guest contributor

In Jesner v. Arab Bank, the U.S. Supreme Court held that foreign corporations may not be defendants in Alien Tort Statute (ATS) suits. I agree that the Court’s decision and its reasoning are flawed, for many of the same reasons given in Justice Sotomayor’s dissenting opinion and in the earlier entries in this blog’s series on Jesner (see here, here and here). Rather than repeat criticisms already made, I speculate here about what might happen for human rights litigation after the Jesner decision.

 First, some human rights claims might still be pursued in federal courts. As Beth Stephens notes in her entry in this series, the holding in Jesner is limited to foreign corporations, so ATS suits against U.S. corporations (as well as against individuals) might still be viable in some cases. In addition, as Seth Davis and I extensively discuss in a recent article, State Remedies for Human Rights, non-ATS human rights claims might be pursued in federal court based on state law (including tort law) or, depending on choice-of-law analysis, based on foreign law.

 In State Remedies for Human Rights, Seth and I also discuss a second possibility: human rights claims in state courts based on state law, foreign law, or perhaps international law. As Nathan Miller has argued, the state court/state law approach may have the unfortunate consequence of treating human rights violations as merely “garden variety municipal torts” (p.506). As Justice Sotomayor puts it in her Jesner dissent, “A suit for state-law battery, even if based on the same alleged conduct, is not the equivalent of a federal suit for torture…” (p.29). But after Kiobel and Jesner, the approaches Seth and I discuss may be the only ones realistically available for many international human rights claims in American courts.

Even human rights claims in state courts and under state law will face a considerable number of potential legal barriers, including foreign relations removal, personal (and, in federal courts, subject matter) jurisdiction, the political question doctrine, the forum non conveniens doctrine, federal preemption, and others. Seth and I argue that when courts interpret, apply, and refine those doctrines, they should explicitly consider both a state’s interest in providing remedies for human rights violations and the importance of remedies for the individuals against whom those violations have been committed. If they determine that other considerations outweigh those remedial considerations, they should explicitly give reasons for why remedial considerations are outweighed. In our article, we defend our concept of state remedies for human rights as a matter of state law, federal law, international law, and political theory.

Unfortunately, Jesner illustrates just how lopsided the analysis can be. Justice Kennedy’s opinion (partly for the Court, partly for a plurality) emphasizes foreign relations concerns and business interests, but pays little attention to remedial considerations and fails to justify why it weighs the former so much more heavily than the latter in its reasoning.

 A third possibility is that suits that would have been filed in U.S. federal courts before the Kiobel and Jesner decisions will increasingly be filed in the domestic courts of other countries. Others have already observed that other countries’ domestic courts are open to human rights claims even as the U.S. Supreme Court is closing the door on ATS claims (see here and here.)

 This observation illuminates an ironic aspect of the plurality’s reasoning, which is based partly on a concern that allowing foreign corporations to be ATS defendants would have set a precedent that “could subject American corporations to an immediate, constant risk [of being defendants in human rights suits] in foreign courts…” (p.24). Instead, the Kiobel and Jesner precedents may lead foreign courts to increasingly step in to fill the gap in human rights accountability—including corporate accountability—that the U.S. Supreme Court’s approach risks exacerbating. The plurality does not seem to have imagined this possibility, even though there appears to be a broader trend toward greater multipolarity in transnational litigation, whereby the influence of foreign courts is growing as U.S. courts increasingly fall into a state of what Pamela Bookman has called litigation isolationism.

Regional and international human rights bodies are a fourth possibility—but given their limited jurisdiction and enforcement powers, this alternative will often be unavailable or ineffective. It is worth remembering that this is one reason why the international human rights system depends largely on domestic enforcement.

 Finally, it is easy to be too court-centric when thinking about human rights protection. Needless to say, non-litigation advocacy strategies for human rights protection will be as important as ever after Jesner, along with new litigation strategies.