What We Don't Talk About When We Talk About Extraterritoriality: Kiobel and the Conflict of Laws

Abstract

In Filartiga v. Pena Irala, a federal appeals court thirty-four years ago famously asserted universal jurisdiction over the death of a Paraguayan by torture inflicted in Paraguay at the hands of a Paraguayan official. Under Filartiga, international human rights litigation, with occasional success, had become an established feature of American justice when, in 2013, in Kiobel v. Royal Dutch Petroleum Co., the Supreme Court put a stop to it. Far more compelling critiques of Kiobel than this paper’s merely technical, doctrinal, and interest-analytical ones undoubtedly will be made. This paper simply brings to bear perspectives from the law of conflict of laws on the question whether the unanimous decision in Kiobel was unavoidable, as the reluctantly concurring minority apparently believed. Three lines of argument are advanced. First, the Kiobel Court’s extension of “comity” to courts of corrupt countries or courts of home countries of corrupt companies, cannot be justified, as the Court supposed, by unsupported hypotheses about Filartiga’s dangers. The feared risks of harm to our foreign relations and of retaliatory tort suits abroad are not materializing and remain wholly speculative. Instead, there is increasing admiration and emulation of Filartiga abroad. Second, the Court’s perception that every element of Kiobel was foreign, although widely shared, was equally unreal. Properly understood, Kiobel’s facts invoked postulates reflected in Supreme Court cases on the place of trial and the law applied. These established principles might have helped at least the liberal Justices to see that an outcome furthering the rule of law was not foreclosed. Finally, Kiobel was wrongly decided even if the Court were right about the facts. The facts of Filartiga may more appropriately be seen as “foreign” than the facts of Kiobel. Although the author of the minority concurrence in Kiobel suggested a possible national interest in adjudicating Kiobel, none of the Justices in Kiobel saw the fundamental national interest in all Filartiga litigation.