ABDULLAHI VS PFIZER

Case Summary:

Background:
A group of Nigerian children and their guardians alleged that Pfizer experimented on 200 children suffering from meningitis
without their consent or knowledge. At the time of the 1996 meningitis epidemic in northern Nigeria, Pfizer was attempting
to obtain Food and Drug Administration (FDA) approval for a new antibiotic Trovafloxacin Mesylate (Trovan). The
complainants further alleged that Pfizer purposefully under-dosed the children treated with the well-established and FDA-
approved drug Ceftriaxone in order to skew the trial results in favour of Trovan. 11 children died as a result of the trial and
many others were left blind, paralysed or brain-damaged.

The complainants filed a claim under the Alien Tort Statute (ATS) grounded in the prohibitions of the Nuremberg Code, the
World Medical Association's Declaration of Helsinki, the guidelines of the Council for International Organisations of
Medical Services and the International Covenant on Civil and Political Rights which categorically forbid medical
experimentation without consent.

Issue and resolution:

Prohibition on medical experimentation on non-consenting human subjects. Although the US has not ratified or adopted the
above international instruments, the ATS provides that District Courts have jurisdiction in civil actions committed in
contravention of the law of nations, or customary international law. The Second Circuit Court of Appeal held that the
restriction on medical experimentation without consent is a norm of international law and is capable of being enforced
under the ATS. The case was subsequently referred back to the District Court for further proceedings.

Court reasoning:
The Court held that the three-part test to determine whether the restriction was an obligation under customary international
law was satisfied. The test required the restriction to be (1) universal in nature; (2) specific and definable; and (3) of mutual
concern. The Court gave the following reason for each strand of the test:

(1) The legal principles of the Nuremberg Code and the ICCPR are examples of the normality and universality of this
restriction;
(2) The allegations stated that Pfizer carried out these experiments knowingly and purposefully which went beyond a simple
isolated case of failing to obtain consent, and would therefore be clearly covered by the restriction on experimentation on
non-consenting human beings; and
(3) The case was of mutual concern to both the US and Nigeria as such conduct could foster distrust, reduce co-operation
between nations and generate substantial anti-American feeling in the region.
Dissenting Opinion:
Circuit Judge Wesley dissented for the following reasons: (1) customary international law only applies to state actors and not
to private actors such as Pfizer; (2) the restriction should not be regarded as a customary norm simply because other States
have prohibited this behaviour; (3) the international instruments listed above were put forward by private organisations who
were not in a position to create laws; and (4) some of the instruments came into effect after the incident happened without
reference to any retrospective effect.

Impact:
In July 2009, Pfizer petitioned the US Supreme Court to appeal this ruling. In November, the Supreme Court asked the US
Solicitor General to file a brief, which he did in May 2010, denying Pfizer's petition. On 23 February 2011, the parties
announced that they had reached a confidential settlement in the lawsuit.
Following various proceedings in Nigeria, Pfizer and the Kano state government came to an out-of-court settlement worth
$75 million in August 2009. A new lawsuit was filed by the victims in November 2013 in the Federal High Court in Kano who
complained that, by restricting the criteria for compensation, Pfizer had breached the terms of the 2009 agreement. In
November 2014, Pfizer paid out full and final compensation to the 14 victims who passed the DNA tests in accordance with
the terms of the 2009 settlement

HASEGAWA VS. KITAMURA KAZUHIRO HASEGAWA and NIPPON ENGINEERING CONSULTANTS CO., LTD., vs

MINORU KITAMURA

FACTS:

Nippon Engineering Consultants (Nippon), a Japanese consultancy firm providing technical and management support in the
infrastructure projects national permanently residing in the Philippines. The agreement provides that Kitamaru was to
extend professional services to Nippon for a year. Nippon assigned Kitamaru to work as the project manager of the Southern
Tagalog Access Road (STAR) project. When the STAR project was near completion, DPWH engaged the consultancy services
of Nippon, this time for the detailed engineering & construction supervision of the Bongabon-Baler Road Improvement
(BBRI) Project. Kitamaru was named as the project manger in the contract.

Hasegawa, Nippon’s general manager for its International Division, informed Kitamaru that the company had no more
intention of automatically renewing his ICA. His services would be engaged by the company only up to the substantial
completion of the STAR Project.

Kitamaru demanded that he be assigned to the BBRI project. Nippon insisted that Kitamaru’s contract was for a fixed term
that had expired. Kitamaru then filed for specific performance & damages w/ the RTC of Lipa City. Nippon filed a MTD.

Nippon’s contention: The ICA had been perfected in Japan & executed by & between Japanese nationals. Thus, the RTC of
Lipa City has no jurisdiction. The claim for improper pre-termination of Kitamaru’s ICA could only be heard & ventilated in
the proper courts of Japan following the principles of lex loci celebrationis & lex contractus.

The RTC denied the motion to dismiss. The CA ruled hat the principle of lex loci celebrationis was not applicable to the case,
because nowhere in the pleadings was the validity of the written agreement put in issue. It held that the RTC was correct in
applying the principle of lex loci solutionis.

ISSUE:

Whether or not the subject matter jurisdiction of Philippine courts in civil cases for specific performance & damages
involving contracts executed outside the country by foreign nationals may be assailed on the principles of lex loci
celebrationis, lex contractus, “the state of the most significant relationship rule,” or forum non conveniens.

HELD:

NO. In the judicial resolution of conflicts problems, 3 consecutive phases are involved: jurisdiction, choice of law, and
recognition and enforcement of judgments. Jurisdiction & choice of law are 2 distinct concepts. Jurisdiction considers
whether it is fair to cause a defendant to travel to this state; choice of law asks the further question whether the application
of a substantive law w/c will determine the merits of the case is fair to both parties. The power to exercise jurisdiction does
not automatically give a state constitutional authority to apply forum law. While jurisdiction and the choice of the lex fori will
often coincide, the “minimum contacts” for one do not always provide the necessary “significant contacts” for the other. The
question of whether the law of a state can be applied to a transaction is different from the question of whether the courts of
that state have jurisdiction to enter a judgment.

In this case, only the 1st phase is at issue—jurisdiction. Jurisdiction, however, has various aspects. For a court to validly
exercise its power to adjudicate a controversy, it must have jurisdiction over the plaintiff/petitioner, over the
defendant/respondent, over the subject matter, over the issues of the case and, in cases involving property, over the res or
the thing w/c is the subject of the litigation. In assailing the trial court's jurisdiction herein, Nippon is actually referring to
subject matter jurisdiction.

Jurisdiction over the subject matter in a judicial proceeding is conferred by the sovereign authority w/c establishes and
organizes the court. It is given only by law and in the manner prescribed by law. It is further determined by the allegations of
the complaint irrespective of whether the plaintiff is entitled to all or some of the claims asserted therein. To succeed in its
motion for the dismissal of an action for lack of jurisdiction over the subject matter of the claim, the movant must show that
the court or tribunal cannot act on the matter submitted to it because no law grants it the power to adjudicate the claims.

In the instant case, Nippon, in its MTD, does not claim that the RTC is not properly vested by law w/ jurisdiction to hear the
subject controversy for a civil case for specific performance & damages is one not capable of pecuniary estimation & is
properly cognizable by the RTC of Lipa City. What they rather raise as grounds to question subject matter jurisdiction are the
principles of lex loci celebrationis and lex contractus, and the “state of the most significant relationship rule.” The Court
finds the invocation of these grounds unsound.

Lex loci celebrationis relates to the “law of the place of the ceremony” or the law of the place where a contract is made. The
doctrine of lex contractus or lex loci contractus means the “law of the place where a contract is executed or to be
performed.” It controls the nature, construction, and validity of the contract and it may pertain to the law voluntarily agreed
upon by the parties or the law intended by them either expressly or implicitly. Under the “state of the most significant
relationship rule,” to ascertain what state law to apply to a dispute, the court should determine which state has the most
substantial connection to the occurrence and the parties. In a case involving a contract, the court should consider where the
contract was made, was negotiated, was to be performed, and the domicile, place of business, or place of incorporation of
the parties. This rule takes into account several contacts and evaluates them according to their relative importance with
respect to the particular issue to be resolved.

Since these 3 principles in conflict of laws make reference to the law applicable to a dispute, they are rules proper for the
2nd phase, the choice of law. They determine which state's law is to be applied in resolving the substantive issues of a
conflicts problem. Necessarily, as the only issue in this case is that of jurisdiction, choice-of-law rules are not only
inapplicable but also not yet called for.

Further, Nippon’s premature invocation of choice-of-law rules is exposed by the fact that they have not yet pointed out any
conflict between the laws of Japan and ours. Before determining which law should apply, 1st there should exist a conflict of
laws situation requiring the application of the conflict of laws rules. Also, when the law of a foreign country is invoked to
provide the proper rules for the solution of a case, the existence of such law must be pleaded and proved.

It should be noted that when a conflicts case, one involving a foreign element, is brought before a court or administrative
agency, there are 3 alternatives open to the latter in disposing of it: (1) dismiss the case, either because of lack of
jurisdiction or refusal to assume jurisdiction over the case; (2) assume jurisdiction over the case and apply the internal law
of the forum; or (3) assume jurisdiction over the case and take into account or apply the law of some other State or
States. The court’s power to hear cases and controversies is derived from the Constitution and the laws. While it may choose
to recognize laws of foreign nations, the court is not limited by foreign sovereign law short of treaties or other formal
agreements, even in matters regarding rights provided by foreign sovereigns.

Neither can the other ground raised, forum non conveniens, be used to deprive the RTC of its jurisdiction. 1st, it is not a
proper basis for a motion to dismiss because Sec. 1, Rule 16 of the Rules of Court does not include it as a ground. 2nd,
whether a suit should be entertained or dismissed on the basis of the said doctrine depends largely upon the facts of the
particular case and is addressed to the sound discretion of the RTC. In this case, the RTC decided to assume jurisdiction.
3rd, the propriety of dismissing a case based on this principle requires a factual determination; hence, this conflicts
principle is more properly considered a matter of defense.
 KIOBEL, individually and on behalf of her late husband KIOBEL, et al. vs.

ROYAL DUTCH PETROLEUM CO. et al.

Petitioners, Nigerian nationals residing in the United States, filed suit in federal court under the Alien Tort Statute, alleging
that respondents—certain Dutch, British, and Nigerian corporations—aided and abetted the Nigerian Government in
committing violations of the law of nations in Nigeria. The ATS provides that “[t]he district courts shall have original
jurisdiction of 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.”. The District Court dismissed several of petitioners’ claims, but on interlocutory appeal, the Second Circuit
dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability. This Court granted
certiorari, and ordered supplemental briefing on whether and under what circumstances courts may recognize a cause of
action under the ATS, for violations of the law of nations occurring within the territory of a sovereign other than the United
States.

Held: The presumption against extraterritoriality applies to claims under the ATS, and nothing in the statute rebuts that
presumption.

(a) Passed as part of the Judiciary Act of 1789, the ATS is a jurisdictional statute that creates no causes of action. It
permits federal courts to “recognize private claims [for a modest number of international law violations] under federal
common law.” . In contending that a claim under the ATS does not reach conduct occurring in a foreign sovereign’s territory,
respondents rely on the presumption against extraterritorial application, which provides that “[w]hen a statute gives no clear
indication of an extraterritorial application, it has none,”. ___, ___. The presumption “serves to protect against unintended
clashes between our laws and those of other nations which could result in international discord.”. It is typically applied to
discern whether an Act of Congress regulating conduct applies abroad, see, e.g., id., at 246, but its underlying principles
similarly constrain courts when considering causes of action that may be brought under the ATS. Indeed, the danger of
unwarranted judicial interference in the conduct of foreign policy is magnified in this context, where the question is not what
Congress has done but what courts may do. These foreign policy concerns are not diminished by the fact that Sosa limited
federal courts to recognizing causes of action only for alleged violations of international law norms that are “ ‘specific,
universal, and obligatory,”

(b) The presumption is not rebutted by the text, history, or purposes of the ATS. Nothing in the ATS’s text evinces a clear
indication of extraterritorial reach. Violations of the law of nations affecting aliens can occur either within or outside the
United States. And generic terms, like “any” in the phrase “any civil action,” do not rebut the presumption against
extraterritoriality. See, e.g., Morrison, supra, at ___. Petitioners also rely on the common-law “transitory torts” doctrine, but
that doctrine is inapposite here; as the Court has explained, “the only justification for allowing a party to recover when the
cause of action arose in another civilized jurisdiction is a well-founded belief that it was a cause of action in that place,”. The
question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even
international law. The question is instead whether the court has authority to recognize a cause of action under U. S. law to
enforce a norm of international law. That question is not answered by the mere fact that the ATS mentions torts.

The historical background against which the ATS was enacted also does not overcome the presumption. When the ATS
was passed, “three principal offenses against the law of nations” had been identified by Blackstone: violation of safe
conducts, infringement of the rights of ambassadors, and piracy. Prominent contemporary examples of the first two
offenses—immediately before and after passage of the ATS—provide no support for the proposition that Congress expected
causes of action to be brought under the statute for violations of the law of nations occurring abroad. And although the
offense of piracy normally occurs on the high seas, beyond the territorial jurisdiction of the United States or any other
country, applying U. S. law to pirates does not typically impose the sovereign will of the United States onto conduct
occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy
consequences. A 1795 opinion of Attorney General William Bradford regarding the conduct of U. S. citizens on both the high
seas and a foreign shore is at best ambiguous about the ATS’s extraterritorial application; it does not suffice to counter the
weighty concerns underlying the presumption against extraterritoriality. Finally, there is no indication that the ATS was
passed to make the United States a uniquely hospitable forum for the enforcement of international norms.

KIOBEL VS ROYAL DUTCH PETROLEUM

Procedural History

Petitioners originally brought five suits under the ATS in the Eastern District of New York between 2004 and 2010 on behalf
of murdered and injured victims of terrorist acts that, plaintiffs contend, were knowingly funded by defendant, Arab Bank,
PLC to the tune of several million dollars. A majority of the plaintiffs—about 6,000—are foreign nationals. They sought
recovery for the deaths caused in part by the bank’s willingness to accept donations, maintain accounts, and transfer funds
on behalf of and to known terrorist groups.

Arab Bank is a Jordanian financial institution with international branches, including one in New York. Petitioners originally
brought action against the corporation to hold it accountable for the actions of its human agents, including the chairman,
the board, and other high-ranking employees. The complaint alleged that knowing abetters of terrorist activities by Hamas
and other groups violate human rights protections guaranteed by international law.

While many of the terrorist attacks in question occurred in the Middle East between 1995 and 2005, some of the funds used
to finance the alleged terrorist accounts went through the New York office’s Clearing House Interbank Payment System
(CHIPS), in transactions involving U.S. dollars as a primary or intermediary currency. Additionally, plaintiffs allege that the
New York branch of Arab Bank was used to launder money for a Texas-based nonprofit suspected of supporting Hamas, the
Holy Land Foundation for Relief and Development (HLF).

The district court dismissed the claims, holding as a matter of statutory interpretation and Second Circuit precedent that the
ATS prohibited corporate liability. The Second Circuit affirmed this decision.

Petitioners filed for certiorari on the grounds that the district court decision relied on the Second Circuit’s ruling in Kiobel v.
Royal Dutch Petroleum, which categorically precluded ATS suits against corporations but was affirmed by the Supreme
Court on different grounds—leaving open the question of whether the ATS allows for corporate liability. The Supreme
Court granted cert on April 3, 2017. By the time the court took up the case, the litigation had been ongoing for thirteen
years.

The Supreme Court’s Opinion

The justices produced an array of fractured opinions. Writing for the majority, Kennedy, joined by Chief Justice John Roberts
and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch denied recognizing corporate liability on the basis of the
judicial restraint called for by the language, purpose, and history of the ATS. Roberts and Thomas also joined Kennedy in a
plurality opinion basing the decision on the application of the two-part test established in Sosa v. Alvarez-
Machain (described below), which counsels against creating new corporate liability. Alito concurs in part, rather than
applying the Sosa test, argues that separation of powers makes judicial creation of a new liability unconstitutional if it does
not expressly serve the purpose of the ATS. Gorsuch also concurs in part and does not reach the Sosa test, writing that
Article III diversity requirements and the original meaning of the ATS require the dismissal of the case at hand.

Majority Opinion: History of the ATS

Kennedy contextualizes the motivation for the ATS by describing the shortcoming of the U.S. Articles of Confederation in
holding private parties accountable for harms to foreigners caused by treaty or international law violations. Accordingly, the
founders afforded federal courts the power to adjudicate cases and controversies between Americans and foreigners
in Article III, and implemented this power in the passage of the Judiciary Act of 1789.

The ATS was enacted as a part of the Judiciary Act to give district courts “original jurisdiction of 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.” Kennedy cites the Supreme
Court’s holding that the statute is “strictly jurisdictional” and does not give rise to any new causes of actions not already
available under international law. It was originally enacted against the backdrop of an international common law
understanding of obligations between individuals, as opposed to state obligations to other states and people, which at the
time were limited to “violation of safe conducts, infringements of the rights of ambassadors, and piracy.”

It was against this background that the Supreme Court held in Sosa that Congress drafted the ATS “to furnish jurisdiction for
a relatively modest set of actions alleging violations of the law of nations.” The goal was to avoid foreign entanglements by
affording aliens a right to a remedy when the unavailability of one might provoke a foreign nation to hold the country
accountable for the offending action instead. However, Kennedy goes on to explain that the statute was near-dormant for its
first 190 years of its existence, until rising awareness of mass atrocities and events such as the Nuremberg Trials renewed
its relevance.

Since the first case of this new era, Filartiga v. Pena-Irala, the Supreme Court has endeavored to identify boundaries to the
ATS and balance the judicial role in this process against the political branches. In Filartiga, the family of a victim tortured
and murdered by Paraguayan police officers filed suit against one of the officers residing in New York. Congress addressed
doubts regarding the court’s jurisdiction over the case in the middle of the trial by enacting the Torture Victim Protection Act
of 1991, which incorporated international law in creating a clear statutory cause of action for foreign plaintiffs in torture
cases and extrajudicial killings. Kennedy states that the passage of the TVPA ushered in a period of more frequent and
complex ATS suits involving “large groups of foreign plaintiffs suing foreign corporations in the United States for alleged
human-rights violations in other nations.”

In light of this and the introduction of statutory causes of action, the Supreme Court further restrained its role in creating or
extending common law causes of action. Fifteen years ago, in Sosa, the court reaffirmed its ability to recognize common law
causes of actions based on modern day international law—but it reversed both lower courts’ interpretations that the ATS
creates a new cause of action for violation of international law. The opinion especially called out the pressing separation-of-
powers and foreign-relations concerns in these cases, counseling for “vigilant doorkeeping.”

In an effort to further avoid overstepping the judiciary’s role, the Supreme Court then applied the presumption against
extraterritoriality to the ATS. Five years ago, in Kiobel v. Royal Dutch Petroleum, the court held that aliens cannot bring suit
in a United States court for conduct that occurred entirely, or primarily, in another country, unless the domestic conduct is
sufficient to displace the strong presumption against extraterritoriality. Although the case also involved a foreign
corporation, the court did not reach that issue on the merits, dismissing the case on the grounds that its conduct was
extraterritorial.

In Kiobel, Kennedy wrote a one-paragraph concurrence to Roberts’s majority opinion, suggesting that one day the
extraterritoriality of the ATS may require “further elaboration and explanation.” In Jesner, Kennedy endeavors to provide just
that.

Plurality Opinion

Corporate Liability

Kennedy explains the plurality’s decision to reach the issue of corporate liability under the ATS—that is, instead of simply
dismissing the case on the grounds that Arab Bank did not meet the standard for minimum contacts with the U.S. for the
court to have jurisdiction—as a matter of efficiency. “[I]f there is no liability for Arab Bank, the length and costly litigation
concerning whether corporate contacts like those alleged here suffice to impose liability would be pointless.” Even here,
Kennedy points to the ongoing friction this suit has caused between the United States and Jordan as a motivation for
resolving the issue completely.

A plurality of the court would proceed to apply the test it established in Sosa: (1) Can the plaintiff demonstrate that the
alleged violation is “of a norm that is specific, universal, and obligatory?” (2) Even assuming that, would allowing the case
to proceed under the ATS be a proper exercise of judicial discretion, in light of concerns over foreign affairs and separation
of powers? Kennedy acknowledges that the “two inquiries inform each other and are, to that extent, not altogether
discrete.”

The first prong of the test is informed by footnote 20 from Sosa, which writes that a “related consideration is whether
international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant
is a private actor such as a corporation or individual.” The plurality reads this to mean that international law must inform not
only the conduct prohibited but also which subjects can be held accountable.

In addressing the first prong of the Sosa test—whether the norm violated is “specific, universal, and obligatory”—the court’s
opinion soundly rejects petitioners’ proposition that the shift in international law after World War II to holding individuals
accountable for human rights violations, not just nation-states, extends to corporations or other artificial entities. As
support, Kennedy cites the fact that international criminal tribunals “often exclude corporations from their jurisdictional
reach,” from the Nuremberg Tribunal to more modern venues. He distinguishes the International Convention for the
Suppression of the Financing of Terrorism, an example put forth by petitioners to argue that international law does in fact
hold corporations accountable, as a treaty requiring nations to create laws to hold corporations accountable—not as a law
holding corporations accountable themselves. In support, he argues the U.S. satisfied its obligations under this treaty by
creating private rights of action under the Anti-Terrorism Act, the Bank Secrecy Act, and the Terrorism Sanctions
Regulations, none of which extend causes of action to aliens. The convention does not require countries “to hold
corporations liable in common-law tort actions raising claims under international law.”

Kennedy’s opinion acknowledges both that domestic law holds corporations accountable for the actions of their agents, and
that “the enormity of the offenses that can be committed against persons in violation of international human-rights
protections” can show that corporations should be held liable for the crimes of their agents. But he writes that “the
international community has not yet taken that step, at least in the specific, universal, and obligatory manner required
by Sosa.”

Petitioners also argued that the question of corporate liability is not one of substantive principle requiring the interpretation
of law and precedent, but rather a case-by-case question of remedies available. The plurality finds this “far from obvious,”
but does not reach a conclusion. By finding that there is sufficient doubt under the first prong of the test, the court moves to
the second prong of the test to determine whether the judiciary should defer to Congress and allow it to “determine in the
first instance whether that universal norm has been recognized and, if so, whether it is prudent and necessary to direct its
enforcement in suits under the ATS.”

In engaging the second prong of the Sosa test, the plurality highlights its deferential precedence in issues involving foreign
affairs, along with Congress’s superior competence in navigating policy implications of new private causes of actions.

First, it acknowledges that its recent precedents have “cast doubt on the authority of courts to extend or create private
causes of action even in the realm of domestic law.” In Correctional Services Corp. v. Malesko, a case declining to extend
a Bivens remedy, the Supreme Court refused to extend the availability of Bivens actions to hold corporations accountable.
As with the case at hand, the court saw the issue raised by Malesko as a complicated issue best left for Congress.
The opinion continues to explain that “the separation-of-powers concerns that counsel against courts creating private rights
of action apply with particular force in the context of the ATS,” because the statute necessarily implicates foreign policy. The
court does not hold that the judiciary may never recognize a new cause of action under the ATS, but does conclude it is
inappropriate to do so here.

In further support of this conclusion, the court points to the TVPA, the only cause of action under the ATS created by
Congress, which only extends to natural persons. The court finds that, in so limiting the statute’s scope, Congress already
made the policy decision ex ante about the value of holding corporations accountable under the ATS, which “[a]bsent a
compelling justification, courts should not deviate from that model.”

Petitioners try to distinguish the TVPA from the case at hand by arguing that Congress limited the statute to individuals
because it was concerned that, given that the legal definitions of torture and extrajudicial killings require state action, any
corporation sued would necessarily qualify for sovereign immunity as an agent of a foreign state. The court counters this
argument by citing to Mohamad v. Palestinian Authority, which held that the TVPA excludes all corporations, not just
sovereign ones, and by pointing out that plaintiffs can use non-statutory causes of actions against corporations as surrogate
defendants to challenge the conduct of foreign governments.

The court then rejects petitioners’ argument that the Anti-Terrorism Act’s ability to hold corporations liable is evidence that
there should be a common law cause of action against corporations as well. Instead, the plurality holds that the ATA further
supports the court’s conclusion that ATS does not extend to corporations: Congress limited the former statute to nationals,
and acknowledging for a common law cause of action would allow aliens to circumvent Congress’s express intention in
excluding them under the ATA by simply bringing a suit under the ATS.

Finally, the court concludes it is not necessary to hold corporations liable to carry out the goals of the ATS. First, it suggests
plaintiffs can bring suit in other ways, such as seeking to hold the individual agents of the corporation accountable. In fact,
the plurality implies this would be more desirable than plaintiffs ignoring “human perpetrators and concentrat[ing] instead
on multinational corporate entities.” Second, the court raises the concern that holding foreign corporations liable under the
ATS would open the door for reciprocal action, placing U.S. corporations at risk of foreign lawsuits. It fears setting a
precedent that discourages foreign investment, especially in developing countries with potential histories of alleged human-
rights violations. Third, it underlines the fact that foreign corporations generate complicated legal questions that hinge on
questions of policy and foreign affairs, such as what qualifies as minimum contact with the United States under Kiobel.
These unique challenges counsel judicial restraint. The court explicitly chooses not to decide “whether these allegations
[against Arab Bank] are sufficient to ‘touch and concern’ the United States under Kiobel.”

Potential Political Responses

The plurality then engages in a discussion of potential paths the political branches can take to address corporate liability
under the ATS, if they feel compelled to do so.

First, Congress could open up liability under the ATS to corporations by statute, if it finds that doing so would best serve the
goals of holding parties accountable for human rights violations. Second, if Congress is concerned about reciprocal action
from foreign nations, it can limit liability to corporations that meet certain preconditions. Finally, Congress can find that
corporate liability is only appropriate when management has been “actively complicit in the crime.” The court uses these
three possible paths, as well as potential others, to support the proposition that the appropriate solution requires a delicate
balance of policy interests best made by the political branches.

The opinion explains that because Congress and the president comprise “the branches most immediately responsive to, and
accountable to, the electorate” any action they take in holding corporations accountable would have “special power and
force.”
Alito’s Concurrence

Justice Alito wrote separately, concurring with the majority in the decision that the ATS does not allow suits against foreign
corporations, but arguing that this is required not only by “judicial caution,” which the majority focuses on, but also the
separation of powers.

Alito explains that the ATS was enacted at a time when federal courts recognized “general common law,” which courts later
struck down in Erie R. Co. v. Tompkins. Therefore, in Sosa, the court limited its own ability to create federal common law to
cases in which Congress had conferred on it the authority to do so, through statutes such as the ATS.

Alito is “not certain that Sosa was correctly decided”—but assuming it is controlling, the second step of the Sosa test
requires the court to decline creating a cause of action that would foil Congress’s purpose in enacting the ATS: avoiding
diplomatic strife. In doing so, the court would be “unconstitutionally usurping” the legislative branch’s authority. The
opinion proceeds to point out various examples of ATS suits against foreign corporations provoking international strife, and
notes that “when states do not object to this sort of corporate liability as a legal matter, they may be concerned about ATS
suits against their corporations for political reasons.”

Alito rejects any judicial creation of liability unless there is affirmative evidence that the creation of that liability would
“actively decrease diplomatic disputes.” In the absence of this evidence, such action would be unauthorized and therefore
unconstitutional. The possibility that liability might theoretically ameliorate diplomatic tensions, as proposed by the dissent,
does not meet this standard.

Gorsuch’s Concurrence

Gorsuch writes that the lawsuit should be dismissed for two fundamental reasons not touched on by the majority. He “would
end ATS exceptionalism” and urges future courts to consider his justifications for judicial restraint before “taking up cases
like this one.”

First, Gorsuch casts doubt on the holding in Sosa that allows judges to recognize common law causes of actions beyond the
original three recognized under English common law as adopted by the American courts at the time the ATS was passed. He
sees such undertakings by courts as going beyond judicial duty into policy-making, which is best and most appropriately left
in the province of the political branches. As stated in Sosa, the ATS is no exception because it was meant to serve strictly
jurisdictional purposes; in his view, “[a] statute that creates no new causes of action ... creates no new causes of action.”

But even if the court continues to uphold the Sosa framework for judicially created causes of action, it must still refuse to
recognize a new cause of action in this case. Gorsuch agrees with the majority that if a cause of action has not been
warranted in the hundreds of years since the statute’s passage, it is not warranted now. He calls for judges to decline such
activism when doing so necessarily requires making judgments about “delicate questions of national affairs.”

Finally, he claims that Article III of the Constitution prevents the court from hearing this suit, because as a matter of
interpretation, it requires there to be at least one domestic defendant for courts to hear a case. The diversity-of-citizenship
requirement for federal cases cannot typically be satisfied by two sides consisting entirely of aliens, and Gorsuch argues the
same standard is applicable for the ATS. As support, Gorsuch writes that other statutes enacted under the Judiciary Act
alongside the ATS, which also involve civil cases “where an alien is a party,” have been interpreted to require diversity
conditions to be met. He would limit the ATS to cases in which a foreign plaintiff holds a domestic defendant accountable
under international law.

Thomas’s Concurrence
Justice Thomas joins the majority and plurality opinions in full, for “correctly applying our precedents” while also agreeing
with Alito and Gorsuch’s concurrences. He supports Gorsuch’s call for future judicial restraint from creating new causes of
action under the ATS and his conclusion that the ATS does not apply to suits between foreign plaintiffs and foreign
defendants. He also echoes Alito’s concern that the court must exercise extra caution when creating a new cause of action
would risk international strife.

Dissent

Justice Sonia Sotomayor, writing the dissent and joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan,
criticizes the court for “absolv[ing] corporations from responsibility under the ATS for conscience-shocking behavior.” She
argues that nothing in the “corporate form in itself” raises foreign policy concerns distinct from foreign individuals in a
manner that would require the court to immunize corporations.

First Prong of the Sosa Test

First, Sotomayor writes that the plurality misunderstands the nature of international law by asking whether there is “a
specific, universal, and obligatory norm of liability for corporations,” and thereby misapplies the first step of Sosa. That first
step focuses on the substantive norms of international law that prohibit certain conduct, such as slavery, genocide, and
extrajudicial killing. Sotomayor argues that while Sosa requires there to be international consensus about the norm to be
violated, there need not be such agreement to decide that corporations should be held liable.

Sotomayor points to the text of the statute to support her argument that there is a “distinction between prohibiting conduct
and determining enforcement.” The language of the statute reads: “The district courts shall have original jurisdiction of 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.”

Sotomayor interprets “of the law of nations” to modify “violation,” not “civil action.” This leaves the door open for countries
to establish appropriate means of enforcement as they see fit, rather than looking to international law.

Sotomayor rejects the court’s reading of footnote 20 in Sosa, interpreting it not as a charge to courts to look to international
law in limiting liability against subjects, but as an acknowledgement that the violative nature of conduct can turn on the
nature of the perpetrating party as either an independent actor or an actor on behalf of the state. Therefore, she believes the
court must ask under the first prong of Sosa whether the norm of financing terrorist conduct is ubiquitously prohibited. Then
it must ask whether there is “sufficient consensus” that the defendant being sued can be alleged with violating that norm.
Here, she characterizes the Arab Bank as independent of the state at issue—so the bank qualifies under international legal
standards as a party prohibited from financing terrorism.

Having established that the norm underlying the ATS claim is supported by international law, Sotomayor writes that it is a
matter left to states whether the norm should be enforced by holding accountable the responsible individual or the
corporate entity through which the individual worked. She criticizes the plurality’s emphasis on the absence of criminal
tribunals holding corporations accountable, as there has been no such corollary tribunal to hold natural persons civilly
liable. Instead, looking to states’ collectively and individual enforcement actions “makes clear that corporations are subject
to certain obligations under international law.” Accordingly, Sotomayor lists several examples including the United States
Military Tribunal’s prosecution of corporate executives and the International Criminal Tribunal for Rwanda’s finding three
that non-natural entities were responsible for genocide.

The dissent also calls attention to International Convention for the Suppression of the Financing of Terrorism, which requires
nations to hold individuals and corporations accountable for funding terrorist activities under domestic law. By prohibiting
this conduct by corporations and allowing states to design their own enforcement schemes, the convention maintains the
possibility for countries to allow foreign individuals to sue foreign corporations, at the discretion of the state.
Having rejected the plurality’s theory that the court must look to international law to determine whether corporations can be
held liable, Sotomayor proceeds to interpret the statute itself to assess whether the ATS can, under a plain language
reading, hold corporations liable. She concludes that it can: The statute’s language confers jurisdiction for civil tort action,
under which corporations have been historically held accountable. What’s more, the statute limits the class of potential
plaintiffs to aliens, but includes no such limiting language about classes of defendants.

In confronting Gorsuch’s concurrence, Sotomayor first rebukes the claim that Sosa overstepped in holding that courts were
authorized to recognize private causes of action based on the modern law of nations. She argues that if Congress sought to
limit the available torts under the ATS to “violations of safe conduct, assaults against ambassadors, [and] piracy,” then
lawmakers could have done so by adding that limit in plain language to the statute. Instead, Congress created causes of
action arising under the “law of nations” and “treaties of United States”—which suggests torts as they develop over time, not
limited to the three causes of actions described by Gorsuch as available at the time. Therefore, she urges, we must ask:
“[W]ho are today’s pirates?”

Second, Sotomayor rejects Gorsuch’s theory that Article III requires a domestic defendant in an ATS suit. As a legal matter,
she argues, Sosa foreclosed this argument by allowing claims under “federal common law,” which is not similarly limited by
Article III’s diversity requirements as a matter of pragmatism. She references the logic in Saeri v. Rio Tinto, a case in which
the Supreme Court concluded that federal courts have Article III jurisdiction to hear ATS cases between aliens and that the
first Congress’s intentions could not be interpreted to remove federal courts’ capacity to enforce international norms
because of formalistic limits. Therefore, the Saeri court held there are “limited enclaves in which federal courts may derive
from substantive law in a common law way.” Further, Sotomayor contends, “our Nation has an interest not only in providing
a remedy when our own citizens commit law of nations violations, but also in preventing our Nation from serving as a safe
harbor for today’s pirates.”

Second Prong of the Sosa Test

In assessing the plurality’s analysis under the second prong of the Sosa test, Sotomayor argues that there is nothing
inherent about corporations that justifies precluding all future ATS suits against them.

She believes the court mischaracterizes “the relatively minor connection between the terrorist attacks at issue in this case
and the alleged conduct in the United States” as evidence of the perils of extending liability to foreign corporations, when in
fact that connection merely goes to an assessment of whether the claims “touch and concern the territory of the United
States ... with sufficient force” to overcome the presumption against extraterritoriality. Arab Bank’s complaint that it was
being sued as a surrogate for the acts of foreign governments is not an argument against corporate liability, but simply an
expression of frustration over its liability for aiding and abetting terrorism. Sotomayor further states that even Jordan, with
whom the court argues the United States risked souring relations, was not worried about corporate liability. Rather, Jordan
felt the suit was an affront to sovereignty because of its extraterritorial nature, not because the defendant was a corporation.

In this way, Sotomayor brushes aside the court’s conclusion under the second prong of the Sosa test as a misapplied
concern about extraterritoriality, not corporate liability. Sotomayor would have remanded the suit to the Second Circuit to
address whether any existing doctrine can serve to hold Arab Bank accountable. The Second Circuit could have concluded
that the defendant’s minimum contacts with the United States were insufficient and thereby dismissed the case for lack of
personal jurisdiction. Or, the Second Circuit could have dismissed the ATS suit if the plaintiff had not exhausted the
remedies available in her domestic forum, on forum non conveniens grounds, for reasons of international comity. These
options would allow the judicial branch to address concerns about extraterritoriality or inadvertent incitement of geopolitical
strife without foreclosing all ATS actions against corporations. The majority, she argues, “prefers to use a sledgehammer to
crack a nut.”
Addressing the court’s concerns regarding deference to the political branches, Sotomayor suggests that both the executive
and legislative branches have expressed support for holding corporations liable in various reports and briefs weighing in on
related matters.

She then argues that the court over-relies on the TVPA to conclude that by limiting liability in cases of torture and
extrajudicial killing to natural persons, Congress meant to foreclose all international law ATS liability for corporations. She
argues that the TVPA first makes legal action available to all persons—not just all aliens, like the ATS—and it uses the word
“individuals” in limiting defendants, which the ATS does not. Accordingly, she points to precedents in Mohamed and
congressional reports that state the TVPA was meant to augment, not curtail, the ATS.

Next, Sotomayor responds to the court’s conclusion that the availability of corporate liability for terrorism suits brought by
U.S. nationals under the ATA suggests Congress did not intend for corporate liability under the ATS. First, she argues that the
ATA confirms that “Congress exercises its judgment as to the appropriateness of corporate liability on a norm-by-norm
basis, and that courts should do the same when considering whether to permit causes of action corporations under the
ATS.” Second, she rejects the criticism that allowing corporate liability would allow aliens to bypass the limitations of the
ATA by bringing suit under the ATS: litigants have the ability to bring both suits simultaneously, and have even done so in the
case before the court. Instead, the ATA should be read as extending to U.S. nationals the legal avenues already available to
aliens under the ATS. The statutes are not incompatible but complementary.

Although the court asserts that plaintiffs were unable to show that corporate liability is essential to the ATS, Sotomayor
responds that the court has never previously required a plaintiff to show the ATS is the exclusive means of recovery to
succeed. But even so, she believes there is a strong argument that leaving open the possibility of corporate liability in this or
a future case may be the best way to serve Congress’s intent in enacting the ATS. She describes the uniquely powerful and
problematic role corporations play in terrorism today—especially as financiers of crimes in exchange for potential profit—
portending that an inability to hold corporations accountable for international violations would make impossible the
statute’s goal of avoiding international conflict by providing foreign nationals with due remedies.

Sotomayor concludes by calling attention to the stark contrast of a corporation’s potential domestic liability for wrongdoing
but its complete immunity from “human rights abuses [abroad], however egregious they may be.”
 LAKHDAR BOUMEDIENNE VS BUSH

Facts of the case

In 2002 Lakhdar Boumediene and five other Algerian natives were seized by Bosnian police when U.S. intelligence officers
suspected their involvement in a plot to attack the U.S. embassy there. The U.S. government classified the men as enemy
combatants in the war on terror and detained them at the Guantanamo Bay Naval Base, which is located on land that the
U.S. leases from Cuba. Boumediene filed a petition for a writ of habeas corpus, alleging violations of the Constitution's Due
Process Clause, various statutes and treaties, the common law, and international law. The District Court judge granted the
government's motion to have all of the claims dismissed on the ground that Boumediene, as an alien detained at an
overseas military base, had no right to a habeas petition. The U.S. Court of Appeals for the D.C. Circuit affirmed the
dismissal but the Supreme Court reversed in Rasul v. Bush, which held that the habeas statute extends to non-citizen
detainees at Guantanamo.

In 2006, Congress passed the Military Commissions Act of 2006 (MCA). The Act eliminates federal courts' jurisdiction to
hear habeas applications from detainees who have been designated (according to procedures established in the Detainee
Treatment Act of 2005) as enemy combatants. When the case was appealed to the D.C. Circuit for the second time, the
detainees argued that the MCA did not apply to their petitions, and that if it did, it was unconstitutional under the
Suspension Clause. The Suspension Clause reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may require it."

The D.C. Circuit ruled in favor of the government on both points. It cited language in the MCA applying the law to "all cases,
without exception" that pertain to aspects of detention. One of the purposes of the MCA, according to the Circuit Court, was
to overrule the Supreme Court's opinion in Hamdan v. Rumsfeld, which had allowed petitions like Boumediene's to go
forward. The D.C. Circuit held that the Suspension Clause only protects the writ of habeas corpus as it existed in 1789, and
that the writ would not have been understood in 1789 to apply to an overseas military base leased from a foreign
government. Constitutional rights do not apply to aliens outside of the United States, the court held, and the leased military
base in Cuba does not qualify as inside the geographic borders of the U.S. In a rare reversal, the Supreme Court granted
certiorari after initially denying review three months earlier.

Question

1. Should the Military Commissions Act of 2006 be interpreted to strip federal courts of jurisdiction over habeas
petitions filed by foreign citizens detained at the U.S. Naval Base at Guantanamo Bay, Cuba?
2. If so, is the Military Commissions Act of 2006 a violation of the Suspension Clause of the Constitution?
3. Are the detainees at Guantanamo Bay entitled to the protection of the Fifth Amendment right not to be deprived of
liberty without due process of law and of the Geneva Conventions?
4. Can the detainees challenge the adequacy of judicial review provisions of the MCA before they have sought to
invoke that review?

Conclusion

A five-justice majority answered yes to each of these questions. The opinion, written by Justice Anthony Kennedy, stated that
if the MCA is considered valid its legislative history requires that the detainees' cases be dismissed. However, the Court
went on to state that because the procedures laid out in the Detainee Treatment Act are not adequate substitutes for the
habeas writ, the MCA operates as an unconstitutional suspension of that writ. The detainees were not barred from seeking
habeas or invoking the Suspension Clause merely because they had been designated as enemy combatants or held at
Guantanamo Bay. The Court reversed the D.C. Circuit's ruling and found in favor of the detainees. Justice David H. Souter
concurred in the judgment. Chief Justice John G. Roberts and Justice Antonin Scalia filed separate dissenting opinions.
. MCA §7 denies the federal courts jurisdiction to hear habeas actions, like the instant cases, that were pending at the time
of its enactment. Section §7(b)’s effective date provision undoubtedly applies to habeas actions, which, by definition,
“relate to … detention” within that section’s meaning. Petitioners argue to no avail that §7(b) does not apply to a
§2241(e)(1) habeas action, but only to “any other action” under §2241(e)(2), because it largely repeats that section’s
language. The phrase “other action” in §2241(e)(2) cannot be understood without referring back to §2241(e)(1), which
explicitly mentions the “writ of habeas corpus.” Because the two paragraphs’ structure implies that habeas is a type of
action “relating to any aspect of … detention,” etc., pending habeas actions are in the category of cases subject to the
statute’s jurisdictional bar. This is confirmed by the MCA’s legislative history. Thus, if MCA §7 is valid, petitioners’ cases
must be dismissed. Pp. 5–8.

2. Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the
Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at
Guantanamo. Pp. 8–41.

(a) A brief account of the writ’s history and origins shows that protection for the habeas privilege was one of the few
safeguards of liberty specified in a Constitution that, at the outset, had no Bill of Rights; in the system the Framers
conceived, the writ has a centrality that must inform proper interpretation of the Suspension Clause. That the Framers
considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension
Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in
times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and
Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring
that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the
“delicate balance of governance.” Hamdi, supra, at 536. Separation-of-powers principles, and the history that influenced
their design, inform the Clause’s reach and purpose. Pp. 8–15.

(b) A diligent search of founding-era precedents and legal commentaries reveals no certain conclusions. None of the
cases the parties cite reveal whether a common-law court would have granted, or refused to hear for lack of jurisdiction, a
habeas petition by a prisoner deemed an enemy combatant, under a standard like the Defense Department’s in these
cases, and when held in a territory, like Guantanamo, over which the Government has total military and civil control. The
evidence as to the writ’s geographic scope at common law is informative, but, again, not dispositive. Petitioners argue that
the site of their detention is analogous to two territories outside England to which the common-law writ ran, the exempt
jurisdictions and India, but critical differences between these places and Guantanamo render these claims unpersuasive.
The Government argues that Guantanamo is more closely analogous to Scotland and Hanover, where the writ did not run,
but it is unclear whether the common-law courts lacked the power to issue the writ there, or whether they refrained from
doing so for prudential reasons. The parties’ arguments that the very lack of a precedent on point supports their respective
positions are premised upon the doubtful assumptions that the historical record is complete and that the common law, if
properly understood, yields a definite answer to the questions before the Court. Pp. 15–22.

(c) The Suspension Clause has full effect at Guantanamo. The Government’s argument that the Clause affords petitioners
no rights because the United States does not claim sovereignty over the naval station is rejected. Pp. 22–42.

(i) The Court does not question the Government’s position that Cuba maintains sovereignty, in the legal and technical
sense, over Guantanamo, but it does not accept the Government’s premise that de jure sovereignty is the touchstone of
habeas jurisdiction. Common-law habeas’ history provides scant support for this proposition, and it is inconsistent with the
Court’s precedents and contrary to fundamental separation-of-powers principles. Pp. 22–25.

(ii) Discussions of the Constitution’s extraterritorial application in cases involving provisions other than the Suspension
Clause undermine the Government’s argument. Fundamental questions regarding the Constitution’s geographic scope first
arose when the Nation acquired Hawaii and the noncontiguous Territories ceded by Spain after the Spanish-American War,
and Congress discontinued its prior practice of extending constitutional rights to territories by statute. In the so-called
Insular Cases, the Court held that the Constitution had independent force in the territories that was not contingent upon
acts of legislative grace. See, e.g., Dorr v. United States, 195 U. S. 138. Yet because of the difficulties and disruption
inherent in transforming the former Spanish colonies’ civil-law system into an Anglo-American system, the Court adopted
the doctrine of territorial incorporation, under which the Constitution applies in full in incorporated Territories surely
destined for statehood but only in part in unincorporated Territories. See, e.g., id., at 143. Practical considerations likewise
influenced the Court’s analysis in Reid v. Covert, 354 U. S. 1, where, in applying the jury provisions of the Fifth and Sixth
Amendments to American civilians being tried by the U. S. military abroad, both the plurality and the concurrences noted the
relevance of practical considerations, related not to the petitioners’ citizenship, but to the place of their confinement and
trial. Finally, in holding that habeas jurisdiction did not extend to enemy aliens, convicted of violating the laws of war, who
were detained in a German prison during the Allied Powers’ post-World War II occupation, the Court,
in Johnson v. Eisentrager, 339 U. S. 763, stressed the practical difficulties of ordering the production of the prisoners, id., at
779. The Government’s reading of Eisentrager as adopting a formalistic test for determining the Suspension Clause’s reach
is rejected because: (1) the discussion of practical considerations in that case was integral to a part of the Court’s opinion
that came before it announced its holding, see id., at 781; (2) it mentioned the concept of territorial sovereignty only twice
in its opinion, in contrast to its significant discussion of practical barriers to the running of the writ; and (3) if the
Government’s reading were correct, the opinion would have marked not only a change in, but a complete repudiation of, the
Insular Cases’ (and later Reid’s) functional approach. A constricted reading of Eisentrager overlooks what the Court sees as
a common thread uniting all these cases: The idea that extraterritoriality questions turn on objective factors and practical
concerns, not formalism. Pp. 25–34.

(iii) The Government’s sovereignty-based test raises troubling separation-of-powers concerns, which are illustrated by
Guantanamo’s political history. Although the United States has maintained complete and uninterrupted control of
Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to
noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s basic
charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire,
dispose of, and govern territory, not the power to decide when and where its terms apply. To hold that the political branches
may switch the Constitution on or off at will would lead to a regime in which they, not this Court, say “what the law
is.” Marbury v. Madison, 1 Cranch 137, 177. These concerns have particular bearing upon the Suspension Clause question
here, for the habeas writ is itself an indispensable mechanism for monitoring the separation of powers. Pp. 34–36.

(iv) Based on Eisentrager, supra, at 777, and the Court’s reasoning in its other extraterritoriality opinions, at least three
factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the
adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then
detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application
of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy
combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style
trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and
detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s
German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite
control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the
Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the
Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas
courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s
mission in post-War Germany. Pp. 36–41.

(d) Petitioners are therefore entitled to the habeas privilege, and if that privilege is to be denied them, Congress must act
in accordance with the Suspension Clause’s requirements. Cf. Rasul, 542 U. S., at 564. Pp. 41–42.

3. Because the DTA’s procedures for reviewing detainees’ status are not an adequate and effective substitute for the
habeas writ, MCA §7 operates as an unconstitutional suspension of the writ. Pp. 42–64.

(a) Given its holding that the writ does not run to petitioners, the D. C. Circuit found it unnecessary to consider whether
there was an adequate substitute for habeas. This Court usually remands for consideration of questions not decided below,
but departure from this rule is appropriate in “exceptional” circumstances, see, e.g., Cooper Industries, Inc. v. Aviall
Services, Inc., 543 U. S. 157, 169, here, the grave separation-of-powers issues raised by these cases and the fact that
petitioners have been denied meaningful access to a judicial forum for years. Pp. 42–44.

(b) Historically, Congress has taken care to avoid suspensions of the writ. For example, the statutes at issue in the Court’s
two leading cases addressing habeas substitutes, Swain v. Pressley, 430 U. S. 372, and United States v. Hayman, 342 U. S.
205, were attempts to streamline habeas relief, not to cut it back. Those cases provide little guidance here because, inter
alia, the statutes in question gave the courts broad remedial powers to secure the historic office of the writ, and included
saving clauses to preserve habeas review as an avenue of last resort. In contrast, Congress intended the DTA and the MCA to
circumscribe habeas review, as is evident from the unequivocal nature of MCA §7’s jurisdiction-stripping language, from the
DTA’s text limiting the Court of Appeals’ jurisdiction to assessing whether the CSRT complied with the “standards and
procedures specified by the Secretary of Defense,” DTA §1005(e)(2)(C), and from the absence of a saving clause in either
Act. That Congress intended to create a more limited procedure is also confirmed by the legislative history and by a
comparison of the DTA and the habeas statute that would govern in MCA §7’s absence, 28 U. S. C. §2241. In §2241,
Congress authorized “any justice” or “circuit judge” to issue the writ, thereby accommodating the necessity for factfinding
that will arise in some cases by allowing the appellate judge or Justice to transfer the case to a district court. See §2241(b).
However, by granting the D. C. Circuit “exclusive” jurisdiction over petitioners’ cases, see DTA §1005(e)(2)(A), Congress has
foreclosed that option in these cases. Pp. 44–49.

(c) This Court does not endeavor to offer a comprehensive summary of the requisites for an adequate habeas substitute.
It is uncontroversial, however, that the habeas privilege entitles the prisoner to a meaningful opportunity to demonstrate
that he is being held pursuant to “the erroneous application or interpretation” of relevant law, INS v. St. Cyr, 533 U. S. 289,
302, and the habeas court must have the power to order the conditional release of an individual unlawfully detained. But
more may be required depending on the circumstances. Petitioners identify what they see as myriad deficiencies in the
CSRTs, the most relevant being the constraints upon the detainee’s ability to rebut the factual basis for the Government’s
assertion that he is an enemy combatant. At the CSRT stage the detainee has limited means to find or present evidence to
challenge the Government’s case, does not have the assistance of counsel, and may not be aware of the most critical
allegations that the Government relied upon to order his detention. His opportunity to confront witnesses is likely to be more
theoretical than real, given that there are no limits on the admission of hearsay. The Court therefore agrees with petitioners
that there is considerable risk of error in the tribunal’s findings of fact. And given that the consequence of error may be
detention for the duration of hostilities that may last a generation or more, the risk is too significant to ignore. Accordingly,
for the habeas writ, or its substitute, to function as an effective and meaningful remedy in this context, the court conducting
the collateral proceeding must have some ability to correct any errors, to assess the sufficiency of the Government’s
evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceeding. In
re Yamashita, 327 U. S. 1, 5, 8, and Ex parte Quirin, 317 U. S. 1, 23–25, distinguished. Pp. 49–57.

(d) Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute
for habeas. Among the constitutional infirmities from which the DTA potentially suffers are the absence of provisions
allowing petitioners to challenge the President’s authority under the AUMF to detain them indefinitely, to contest the CSRT’s
findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and
to request release. The statute cannot be read to contain each of these constitutionally required procedures. MCA §7 thus
effects an unconstitutional suspension of the writ. There is no jurisdictional bar to the District Court’s entertaining
petitioners’ claims. Pp. 57–64.

4. Nor are there prudential barriers to habeas review. Pp. 64–70.

(a) Petitioners need not seek review of their CSRT determinations in the D. C. Circuit before proceeding with their habeas
actions in the District Court. If these cases involved detainees held for only a short time while awaiting their CSRT
determinations, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case
for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. But these qualifications
no longer pertain here. In some instances six years have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. To require these detainees to pursue the limited structure of DTA review before proceeding
with habeas actions would be to require additional months, if not years, of delay. This holding should not be read to imply
that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. Except in
cases of undue delay, such as the present, federal courts should refrain from entertaining an enemy combatant’s habeas
petition at least until after the CSRT has had a chance to review his status. Pp. 64–67.

(b) In effectuating today’s holding, certain accommodations—including channeling future cases to a single district court
and requiring that court to use its discretion to accommodate to the greatest extent possible the Government’s legitimate
interest in protecting sources and intelligence gathering methods—should be made to reduce the burden habeas
proceedings will place on the military, without impermissibly diluting the writ’s protections. Pp. 67–68.

5. In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the
courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first
principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by
adherence to the separation of powers. Pp. 68–70.

SAUDI ARABIAN AIRLINES VS REBESENCIO

Being a flight attendant in an international airline company has its perks. Just imagine, your work office is high up in the air
at 41,000 feet above ground. But just like any work place, discrimination is still present in this occupation. In a previous
post, we tackled a labor issue concerning the dismissal of an employee by reason of pregnancy. This 2015 case tackles on
discrimination of women in the airline industry.

The Facts of the Case.

In this case, Respondents (complainants before the Labor Arbiter) were recruited and hired by Saudia as Temporary Flight
Attendants with the accreditation and approval of the Philippine Overseas Employment Administration. After undergoing
seminars required by the Philippine Overseas Employment Administration for deployment overseas, as well as training
modules offered by Saudia (e.g., initial flight attendant/training course and transition training), and after working as
Temporary Flight Attendants, respondents became Permanent Flight Attendants. They then entered into Cabin Attendant
contracts with Saudia: Ma. Jopette M. Rebesencio (Ma. Jopette) on May 16, 1990; Montassah B. Sacar-Adiong
(Montassah) and Rouen Ruth A. Cristobal (Rouen Ruth) on May 22, 1993; and Loraine Schneider-Cruz (Loraine) on August
27, 1995.

Respondents continued their employment with Saudia until they were separated from service on various dates in 2006.
Respondents contended that the termination of their employment was illegal. They alleged that the termination was made
solely because they were pregnant.

Saudia anchored its disapproval of respondents’ maternity leaves and demand for their resignation on its “Unified
Employment Contract for Female Cabin Attendants” (Unified Contract). Under the Unified Contract, the employment of a
Flight Attendant who becomes pregnant is rendered void. It provides:

(H) Due to the essential nature of the Air Hostess functions to be physically fit on board to provide various services required
in normal or emergency cases on both domestic/international flights beside her role in maintaining continuous safety and
security of passengers, and since she will not be able to maintain the required medical fitness while at work in case of
pregnancy, accordingly, if the Air Hostess becomes pregnant at any time during the term of this contract, this shall render
her employment contract as void and she will be terminated due to lack of medical fitness.(Emphasis supplied)

On November 8, 2007, respondents filed a Complaint against Saudia and its officers for illegal dismissal and for
underpayment of salary, overtime pay, premium pay for holiday, rest day, premium, service incentive leave pay, 13th month
pay, separation pay, night shift differentials, medical expense reimbursements, retirement benefits, illegal deduction, lay-
over expense and allowances, moral and exemplary damages, and attorney’s fees.

The issue to be resolved in the instant case is whether or not there was an illegal dismissal of the respondents?
The Supreme Court's Decision.

Yes, the respondents were illegally dismissed.

The initial issue here was whether or not the Philippine courts have jurisdiction over the case. Petitioner Saudia states that
the Philippine courts have no jurisdiction and that the law that should be applied in the instant case is Saudi Arabia law. The
Court stated that this is incorrect. The Court has jurisdiction in this case.

The Court stated in the case;

Saudia asserts that stipulations set in the Cabin Attendant contracts require the application of the laws of Saudi Arabia. It
insists that the need to comply with these stipulations calls into operation the doctrine of forum non conveniens and, in turn,
makes it necessary for Philippine tribunals to refrain from exercising jurisdiction. Forum non conveniens, like the rules of
forum shopping, litis pendentia, and res judicata, is a means of addressing the problem of parallel litigation. While the rules
of forum shopping, litis pendentia, and res judicata are designed to address the problem of parallel litigation within a single
jurisdiction, forum non conveniens is a means devised to address parallel litigation arising in multiple jurisdictions.

On the matter of pleading forum non conveniens, we state the rule, thus: Forum non conveniens must not only be clearly
pleaded as a ground for dismissal; it must be pleaded as such at the earliest possible opportunity. Otherwise, it shall be
deemed waived.

It further stated:

Forum non conveniens finds no application and does not operate to divest Philippine tribunals of jurisdiction and to require
the application of foreign law. Saudia invokes forum non conveniens to supposedly effectuate the stipulations of the Cabin
Attendant contracts that require the application of the laws of Saudi Arabia.

So informed and animated, we emphasize the glaringly discriminatory nature of Saudia’s policy. As argued by respondents,
Saudia’s policy entails the termination of employment of flight attendants who become pregnant. At the risk of stating the
obvious, pregnancy is an occurrence that pertains specifically to women. Saudia’s policy excludes from and restricts
employment on the basis of no other consideration but sex.

We do not lose sight of the reality that pregnancy does present physical limitations that may render difficult the performance
of functions associated with being a flight attendant. Nevertheless, it would be the height of iniquity to view pregnancy as a
disability so permanent and immutable that it must entail the termination of one’s employment. It is clear to us that any
individual, regardless of gender, may be subject to exigencies that limit the performance of functions. However, we fail to
appreciate how pregnancy could be such an impairing occurrence that it leaves no other recourse but the complete
termination of the means through which a woman earns a living.

Oddly enough, the petitioner Saudia themselves stated that the Saudi law does not allow the termination of employment of
women who take maternity leaves;

Consistent with lex loci intentionis, to the extent that it is proper and practicable (i.e., “to make an intelligent decision”),
Philippine tribunals may apply the foreign law selected by the parties. In fact, (albeit without meaning to make a
pronouncement on the accuracy and reliability of respondents’ citation) in this case, respondents themselves have made
averments as to the laws of Saudi Arabia. In their Comment, respondents write:

Under the Labor Laws of Saudi Arabia and the Philippines[,] it is illegal and unlawful to terminate the employment of any
woman by virtue of pregnancy. The law in Saudi Arabia is even more harsh and strict [sic] in that no employer can terminate
the employment of a female worker or give her a warning of the same while on Maternity Leave, the specific provision of
Saudi Labor Laws on the matter is hereto quoted as follows: “An employer may not terminate the employment of a female
worker or give her a warning of the same while on maternity leave.” (Article 155, Labor Law of the Kingdom of Saudi Arabia,
Royal Decree No. M/51.)

The Court then decided:

WHEREFORE, with the MODIFICATIONS that first, petitioner Brenda J. Betia is not solidarily liable with petitioner Saudi
Arabian Airlines, and second, that petitioner Saudi Arabian Airlines is liable for moral and exemplary damages. The June 16,
2011 Decision and the September 13, 2011 Resolution of the Court of Appeals in CA-G.R. SP. No. 113006 are
hereby AFFIRMED in all other respects. Accordingly, petitioner Saudi Arabian Airlines is ordered to pay respondents:
 UNITED STATES COURT OF APPEALS,DISTRICT OF COLUMBIA CIRCUIT.

HWANG GEUM JOO, ET AL., APPELLANTS V. JAPAN, MINISTER YOHEI KONO, MINISTER OF FOREIGN AFFAIRS, APPELLEE.

With her on the brief were Peter D. Keisler, Assistant Attorney General, Kenneth L. Wainstein, U.S. Attorney, and Mark B.
Stern, Attorney. With him on the brief were Jonathan S. Franklin and Lorane F. Hebert. Sharon Swingle, Attorney, U.S.
Department of Justice, argued the cause for amicus curiae United States of America in support of appellee. With her on
the brief were David A. Handzo and Richard Heideman. Craig A. Hoover argued the cause for appellee. With her on the
briefs were Michael D. Hausfeld, Barry A. Fisher, David Grosz, and Bill Lann Lee. Jenny S. Martinez argued the cause for
amici curiae Askin, et al. in support of appellants. Before:  GINSBURG, Chief Judge, and SENTELLE and TATEL, Circuit
Judges. Agnieszka M. Fryszman argued the cause for appellants.

Having had the benefit of further briefing and argument, we affirm the judgment of the district court on the ground that the
case presents a nonjusticiable political question, namely, whether the governments of the appellants' countries foreclosed
the appellants' claims in the peace treaties they signed with Japan. The case returns to us now on remand from the
Supreme Court. We again review the district court's dismissal of the appellants' complaint alleging Japanese soldiers
“routinely raped, tortured ․ [and] mutilated” them, along with thousands of other women, in occupied countries before and
during World War II. Hwang Geum Joo v. Japan, 332 F.3d 679, 681 (D.C.Cir.2003).

Background I.

332 F.3d at 680, 681. 1350, “seeking money damages for [allegedly] having been subjected to sexual slavery and torture
before and during World War II,” in violation of “both positive and customary international law.” In brief, the appellants are
15 women from China, Taiwan, South Korea, and the Philippines;  in 2000 they sued Japan in the district court under the
Alien Tort Statute, 28 U.S.C. § The facts of this case are set forth in our previous opinion, id. at 680-81.

Id. at 67. 172 F.Supp.2d at 64 n. 8. The district court went on to hold in the alternative that the complaint presents a
nonjusticiable political question, noting that “the series of treaties signed after the war was clearly aimed at resolving all
war claims against Japan.” Accordingly, the district court did not consider the second requirement for jurisdiction under
that exception-that “Japan's alleged conduct caused a ‘direct effect’ in the United States.” 1605(a)(2). The district court
dismissed the appellants' complaint, Hwang Geum Joo v. Japan, 172 F.Supp.2d 52, 63 (D.D.C.2001), concluding first that
Japan's alleged activities did not “arise in connection with a commercial activity” and therefore did not fall within the
commercial activity exception in the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §

Hwang Geum Joo v. Japan, 542 U.S. 901, 124 S.Ct. 2835, 159 L.Ed.2d 265 (2004). Accordingly, the Court granted the
appellants' petition for a writ of certiorari, vacated our judgment, and remanded the case to this court for further
consideration in light of Altmann. The Supreme Court, however, held in Republic of Austria v. Altmann, 541 U.S. 677, 699,
124 S.Ct. 2240, 159 L.Ed.2d 1 (2004), that the FSIA applies to all cases filed thereunder “regardless of when the
underlying conduct occurred.” We affirmed on the ground that Japan would have been afforded absolute immunity from
suit in the United States at the time of the alleged activities, 332 F.3d at 685, and that the Congress did not manifest a
clear intent for the commercial activity exception to apply retroactively to events prior to May 19, 1952, when the State
Department first espoused the restrictive theory of immunity later codified in the FSIA, id. at 686.

Analysis II.

Id. Japan, and the United States as amicus curiae, again argue that Japan enjoys sovereign immunity because its alleged
activities w 1605(a)(2), and to remand the case to the district court for it to decide in the first instance whether Japan's
alleged actions “cause[d] a direct effect in the United States.” The appellants again urge this court to reverse the district
court's holding that their claims are not “based upon ․ act[s] ․ in connection with a commercial activity,” 28 U.S.C. §ere not
commercial and, in any event, that the appellants' complaint presents a nonjusticiable political question.

The appellants, however, citing Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d
210 (1998), contend that “[b]efore reaching [the] political question [doctrine], this [c]ourt must establish jurisdiction”
under the FSIA. We turn first to that issue. As explained below, we agree with the latter argument and therefore do not
address the issue of sovereign immunity.

The Order of Proceeding A.

Tenet v. Doe, 544 U.S. 1, ---- n. 4, 125 S.Ct. 1230, 1235 n. 4, 161 L.Ed.2d 82 (2005). The court must therefore “address
questions pertaining to its or a lower court's jurisdiction before proceeding to the merits.” 523 U.S. at 101-02, 118 S.Ct.
1003. As the Supreme Court stated in Steel Co., “For a court to pronounce upon the meaning ․ of a state or federal law
when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires.”

That is not how the Supreme Court sees the matter: The appellants apparently assume, but point to no authority
suggesting, a dismissal under the political question doctrine is an adjudication on the merits.

[T]he concept of justiciability, which expresses the jurisdictional limitations imposed upon federal courts by the ‘case or
controversy’ requirement of Art. III, embodies ․ the ․ political question doctrine[ ] ․ [T]he presence of a political question
[thus] suffices to prevent the power of the federal judiciary from being invoked by the complaining party.

Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974).

1330-that is, whether Japan is entitled to sovereign immunity under the FSIA, see Creighton Ltd. v. Gov't of the State of
Qatar, 181 F.3d 118, 121 (D.C.Cir.1999) (the FSIA “is the sole basis for obtaining jurisdiction over a foreign state in our
courts”)-before considering whether the complaint presents a nonjusticiable political question, see Ruhrgas, 526 U.S. at
585, 119 S.Ct. 1563 (“It is hardly novel for a federal court to choose among threshold grounds for denying audience to a
case on the merits”). 125 S.Ct. at 1235 n. 4. Likewise, we need not resolve the question of the district court's subject-
matter jurisdiction under 28 U.S.C. § As the Supreme Court stated in Tenet, “application of the Totten rule of dismissal,
[92 U.S. 105, 23 L.Ed. 605 (1876),] like the abstention doctrine of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d
669 (1971), or the prudential standing doctrine, represents the sort of ‘threshold question’ we have recognized may be
resolved before addressing jurisdiction.” 139 F.3d 247, 255 (1998). Rather, as this court held In re Papandreou, “a
court that dismisses on other non-merits grounds such as forum non conveniens and personal jurisdiction, before finding
subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles
underlying ․ Steel Company.” Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584, 119 S.Ct. 1563, 143 L.Ed.2d 760
(1999) (within court's discretion to address personal jurisdiction before subject-matter jurisdiction);  see also Toca
Producers v. FERC, 411 F.3d 262, 264 (D.C.Cir.2005) (addressing ripeness before standing). Moreover, Steel Co. “does
not dictate a sequencing of jurisdictional issues.”

The Political Question Doctrine B.

Rather, we defer to the judgment of the Executive Branch of the United States Government, which represents, in a thorough
and persuasive Statement of Interest, that judicial intrusion into the relations between Japan and other foreign governments
would impinge upon the ability of the President to conduct the foreign relations of the United States. As explained below,
our Constitution does not vest the authority to resolve that dispute in the courts. The appellants maintain those treaties
preserved, and Japan maintains they extinguished, war claims made by citizens of those countries against Japan. The War
in the Pacific has been over for 60 years, and Japan has long since signed a peace treaty with each of the countries from
which the appellants come.
 There the Supreme Court explained that “[p]rominent on the surface of any case held to involve a political question is
found” at least one of six factors, the first of which is “a textually demonstrable constitutional commitment of the issue to a
coordinate political department ․” Id. at 217, 82 S.Ct. 691. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663
(1962), remains the starting point for analysis under the political question doctrine. * Id. Courts are therefore to focus their
analysis upon “the particular question posed, in terms of the history of its management by the political branches.” Id. at
211, 82 S.Ct. 691. Of course, questions concerning foreign relations “frequently ․ involve the exercise of a discretion
demonstrably committed to the executive or legislature”;  the Court cautioned, however, that “it is error to suppose that
every case or controversy which touches foreign relations lies beyond judicial cognizance.”

Id. “In such cases,” the Court explained, “there is a strong argument that federal courts should give serious weight to the
Executive Branch's view of the case's impact on foreign In Sosa, the Court took note of certain class actions seeking
damages for those injured by “the regime of apartheid that formerly controlled South Africa”;  in each case the United States
had filed a Statement of Interest counseling dismissal because prosecution of the case would interfere with South Africa's
policy of “deliberately avoid[ing] a ‘victors' justice’ approach to the crimes of apartheid” in favor of “confession and
absolution ․ reconciliation, reconstruction, reparation and goodwill.” Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S.Ct.
2739, 2766 n. 21, 159 L.Ed.2d 718 (2004). The Supreme Court has recently given further direction more closely related
to the legal and factual circumstances of this case:  A policy of “case-specific deference to the political branches” may be
appropriate in cases brought under the Alien Tort Statute. 541 U.S. at 702, 124 S.Ct. 2240;  see also id. at 714, 124 S.Ct.
2240 (Breyer, J., concurring) (citing district court's opinion in this case). Id. Similarly, the Court in Altmann noted that a
Statement of Interest concerning “the implications of exercising jurisdiction over [a] particular [foreign government] in
connection with [its] alleged conduct ․ might well be entitled to deference as the considered judgment of the Executive on a
particular question of foreign policy.” policy.”

332 F.3d at 685. As we explained in our previous opinion, Article 14 of the 1951 Treaty of Peace between Japan and the
Allied Powers, 3 U.S.T. 3169, “expressly waives ․ ‘all claims of the Allied Powers and their nationals arising out of any
actions taken by Japan and its nationals in the course of the prosecution of the war.’ ” With these principles in mind, we
turn to “the particular question posed” in this case, Baker, 369 U.S. at 211, 82 S.Ct. 691, namely, whether the series of
treaties Japan concluded in order to secure the peace after World War II foreclosed the appellants' claims.

1350.”  Although the appellants acknowledge that “it may seem anomalous that aliens may sue where similar claims of
U.S. nationals are waived,” they argue “that is precisely the result contemplated by ․ the [Alien Tort Statute], 28 U.S.C. §
Neither, they argue, did the subsequent agreements between Japan and the governments of their countries. The appellants
from China, Taiwan, and South Korea argue that because their governments were not parties to the 1951 Treaty, the waiver
of claims provision in Article 14 did not extinguish their claims. *

To the extent the subsequent treaties between Japan and the governments of the appellants' countries resolved the claims
of their respective nationals, the 1951 Treaty at a minimum obliges the courts of the United States not to disregard those
bilateral resolutions. Indeed, Article 26 of the Treaty obligated Japan to enter “bilateral” peace treaties with non-Allied
states “on the same or substantially the same terms as are provided for in the present treaty,” which indicates the Allied
Powers expected Japan to resolve other states' claims, like their own, through government-to-government agreement.
Even if we assume, however, as the appellants contend, that the 1951 Treaty does not of its own force deprive the courts of
the United States of jurisdiction over their claims, it is pellucidly clear the Allied Powers intended that all war-related claims
against Japan be resolved through government-to-government negotiations rather than through private tort suits. See
Statement of Interest of the United States at 28 (“it manifestly was not the intent of the President and Congress to preclude
Americans from bringing their war-related claims against Japan ․ while allowing federal or state courts to serve as a venue
for the litigation of similar claims by non-U.S. nationals”). “Anomalous” is an understatement.
1225 U.N.T.S. 269. Finally, in 1972 Japan and the People's Republic of China issued a Joint Communiqué in which China
“renounce[d] its demand for war reparation from Japan,” and in 1978 Japan and China affirmed in a formal treaty of peace
that “the principles set out in [the Joint Communiqué] should be strictly observed.” 1). 583 U.N.T.S. 258, 260 (Art. II, §
In 1965 Japan and the Republic of Korea (South Korea) entered into an agreement providing that “the problem concerning
property, rights, and interests of the two Contracting Parties and their nationals ․ and concerning claims between the
Contracting Parties and their nationals ․ is settled completely and finally.” Then in 1952 Japan reached an agreement with
the Republic of China (Taiwan), 138 U.N.T.S. 37, which did not expressly mention the settlement of individual claims but did
state in Article XI that “[u]nless otherwise provided for in the present Treaty ․ any problem arising between [the parties] as a
result of the existence of a state of war shall be settled in accordance with the relevant provisions of the [1951] Treaty.”
136 U.N.T.S. at 137, ratified 260 U.N.T.S. 450. First, the Republic of the Philippines, as an Allied Power, was a signatory to
the 1951 Treaty itself and thus at least purported to waive the claims of its nationals.

As evidenced by the 1951 Treaty itself, when negotiating peace treaties,

Settlement agreements have lumped, or linked, claims deriving from private debts with others that were intergovernmental
in origin, and concessions in regard to one category of claims might be set off against concessions in the other, or against
larger political considerations unrelated to debts. governments have dealt with ․ private claims as their own, treating them
as national assets, and as counters, ‘chips', in international bargaining.

Louis Henkin, Foreign Affairs and the Constitution 300 (2d edition 1996);  see Dames and Moore v. Regan, 453 U.S. 654,
688, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981) (upholding President's authority to settle claims of citizens as “a necessary
incident to the resolution of a major foreign policy dispute between our country and another [at least] where ․ Congress
acquiesced in the President's action”);  Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 424, 123 S.Ct. 2374, 156 L.Ed.2d 376
(2003) (acknowledging “President's authority to provide for settling claims in winding up international hostilities”).

In Ware v. Hylton, 3 U.S. (3 Dall.) 199, 230, 1 L.Ed. 568 (1796), a case brought by a British subject to recover a debt
confiscated by the Commonwealth of Virginia during the war, Justice Chase wrote: The Supreme Court first expressed the
same understanding with respect to the Treaty of Paris ending the War of Independence, which expressly provided for the
preservation of private claims. Above at 300. Indeed, Professor Henkin reports that “except as an agreement might
provide otherwise, international claim settlements generally wipe out the underlying private debt, terminating any recourse
under domestic law as well.” 332 F.3d at 685. The governments of the appellants' countries apparently had the
authority-at least the appellants do not contest the point-to bargain away their private claims in negotiating a peace with
Japan and, as we noted previously, it appears “in fact [they] did.”

I apprehend that the treaty of peace abolishes the subject of the war, and that after peace is concluded, neither the matter
in dispute, nor the conduct of either party, during the war, can ever be r(Emphasis supplied). Hence it follows, that the
restitution of, or compensation for, British property confiscated, or extinguished, during the war, by any of the United States,
could only be provided for by the treaty of peace;  and if there had been no provision, respecting these subjects, in the treaty,
they could not be agitated after the treaty, by the British government, much less by her subjects in courts of justice. All
violencies, injuries, or damages sustained by the government, or people of either, during the war, are buried in oblivion;  and
all those things are implied by the very treaty of peace;  and therefore not necessary to be expressed. evived, or brought
into contest again.

Id. In order to adjudicate the plaintiffs' claims, the court would have to resolve their dispute with Japan over the meaning of
the treaties between Japan and Taiwan, South Korea, and China, which, as the State Department notes in arguing this case
is nonjusticiable, would require the court to determine “the effects of those agreements on the rights of their citizens with
respect to events occurring outside the United States.” Statement of Interest at 31. Japan does not agree, nor does the
Department of State, which takes the position that “[t]he plaintiffs' governments ․ chose to resolve those claims through
international agreements with Japan.” Contrary to that principle, the appellants insist the treaties between Japan and
Taiwan, South Korea, and China preserved the claims of individuals by failing to mention them (a claim that would be
untenable with respect to the Philippines).

Statement of Interest at 29;  see also S.Rep. No. 82-2, 82d Cong., 2d Sess. 12 (1952) (“Obviously insistence upon the
payment of reparations in any proportion commensurate with the claims of the injured countries and their nationals would
wreck Japan's economy, dissipate any credit that it may possess at present, destroy the initiative of its people, and create
misery and chaos in which the seeds of discontent and communism would flourish”);  Aldrich v. Mitsui Garamendi, 539
U.S. at 423 n. 12, 123 S.Ct. 2374. And with respect to that question, the history of management by the political branches,
Baker, 369 U.S. at 211, 82 S.Ct. 691, is clear and consistent:  Since the conclusion of World War II, it has been the foreign
policy of the United States “to effect as complete and lasting a peace with Japan as possible by closing the door on the
litigation of war-related claims, and instead effecting the resolution of those claims through political means.” The question
whether the war-related claims of foreign nationals were extinguished when the governments of their countries entered into
peace treaties with Japan is one that concerns the United States only with respect to her foreign relations, the authority for
which is demonstrably committed by our Constitution not to the courts but to the political branches, with “the President
[having] the ‘lead role.’ ” & Co. (USA), Case No. 87-912-Civ-J-12, Slip Op. at 3 (M.D.Fla. Jan. 20, 1988) (following State
Department's recommendation to dismiss private claim as barred by 1951 Treaty);  In re World War II Era Japanese Forced
Labor Litigation, 114 F.Supp.2d 939, 946-48 (N.D.Cal.2000) (same).

At the same time, the Executive's interpretation of a treaty is ordinarily entitled to “great weight,” Sumitomo Shoji Am., Inc.
v. Avagliano, 457 U.S. 176, 184-85, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982). It is of course true, as the appellants point
out, that in general “the courts have the authority to construe treaties and executive agreements,” Japan Whaling Ass'n v.
Am. Cetacean Soc'y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986);  see also Ungaro-Benages v. Dresdner
Bank AG, 379 F.3d 1227, 1235-36 (11th Cir.2004).

The Executive's judgment that adjudication by a domestic court would be inimical to the foreign policy interests of the
United States is compelling and renders this case nonjusticiable under the political question doctrine. Decidedly not. Is
it the province of a court in the United States to decide whether Korea's or Japan's reading of the treaty between them is
correct, when the Executive has determined that choosing between the interests of two foreign states in order to adjudicate
a private claim against one of them would adversely affect the foreign relations of the United States? Ex. 2 at 12). See
Reply Brief of Appellants at 15 n. 14 (quoting Korean Foreign Minister as saying that “it is the government's position that
the [Treaty of 1965] does not have any effect on individual rights to bring claims or lawsuits,” Decl. of Prof. Chang Rok Kim,
Pls.' Opp. Mot. Dismiss. Consider:  According to the appellants the Republic of Korea does not agree with Japan's
understanding that the treaty between them extinguished the appellants' claims against Japan. Statement of Interest at
34-35. Rather, the Executive has persuasively demonstrated that adjudication by a domestic court not only “would undo”
a settled foreign policy of state-to-state negotiation with Japan, but also could disrupt Japan's “delicate” relations with
China and Korea, thereby creating “serious implications for stability in the region.” Here, however, the United States is not
a party to the treaties the meaning of which is in dispute, and the Executive does not urge us to adopt a particular
interpretation of those treaties.

Conclusion III.

For the court to disregard that judgment, to which the Executive has consistently adhered, and which it persuasively
articulated in this case, would be imprudent to a degree beyond our power. Altmann, 541 U.S. at 702, 124 S.Ct. 2240;  Cf.
Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir.2005) ( “Condemning-for its wartime actions-a foreign government with
which the United States was at war would require us to review an exercise of foreign policy judgment by the coordinate
political branch to which authority to make that judgment has been constitutionally committed”). In so doing we defer to
“the considered judgment of the Executive on [this] particular question of foreign policy.” We hold the appellants'
complaint presents a nonjusticiable political question, namely, whether the governments of the appellants' countries
resolved their claims in negotiating peace treaties with Japan.

For the foregoing reasons, the judgment of the district court is 332 F.3d at 687. Accordingly, as we said when this case
was previously before us, “much as we may feel for the plight of the appellants, the courts of the United States simply are
not authorized to hear their case.”

Affirmed.

FOOTNOTES

FOOTNOTE Id. .  Other factors that indicate a political question, the Court in Baker explained, are:  “a lack of judicially
discoverable and manageable standards for resol[ution];  or the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion;  or the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches of government;  or an unusual need for
unquestioning adherence to a political decision already made;  or the potentiality of embarrassment from multifarious
pronouncements by various departments on one question.”

FOOTNOTESierra Club v. EPA, 292 F.3d 895, 900 (D.C.Cir.2002) (“our caselaw makes clear that an argument first made in
the reply comes too late”). This argument, raised for the first time in the appellants' fourth and final brief on appeal, comes
far too late for the court to consider, cf. .  Despite the district court's having dismissed their complaint on the ground that
“the series of treaties signed after the war was clearly aimed at resolving all war claims against Japan” and that a United
States “court is not the appropriate forum in which plaintiffs may seek to reopen those discussions,” 172 F.Supp.2d at 67,
the appellants argue for the first time in their post-remand Supplemental Reply Brief that because they allege injuries
dating back to 1931, their claims did not arise solely from “the prosecution of the war,” which in Article 8(a) of the 1951
Treaty is defined as having begun on September 1, 1939, the day Germany invaded Poland.

GINSBURG, Chief Judge.

 VINUYA VS EXECUTIVE SECRETARY

FACTS:

This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of
preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the
DOJ, and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC, established
for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World
War.

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of
the “comfort women” stations in the Philippines. But officials of the Executive Department declined to assist the petitioners,
and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by
Japan’s compliance with the Peace Treaty between the Philippines and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion
amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes
committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of
reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.

On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of Understanding for
medical and welfare support programs for former comfort women. Over the next five years, these were implemented by the
Department of Social Welfare and Development.

ISSUE:

WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official apology
and other forms of reparations against Japan.

RULING:

Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine
whether to espouse petitioners’ claims against Japan.

Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch
of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.”

One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct of the
foreign relations of our government is committed by the Constitution to the executive and legislative–‘the political’–
departments of the government, and the propriety of what may be done in the exercise of this political power is not subject
to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose welfare they advance or imperil.
But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to
construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should
espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is
demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive
Department has already decided that it is to the best interest of the country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.

The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and
especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of
diplomatic, consular and other officials.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy
interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For the
to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a
coordinate political branch to which authority to make that judgment has been constitutionally committed.

From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time
has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion to assess
the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the
petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are
appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the international
legal system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf. By
taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his
behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international
law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to
whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they
can do is resort to national law, if means are available, with a view to furthering their cause or obtaining redress. All these
questions remain within the province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not shown
that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed,
or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of
jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing
obligations owed by States towards the community of states as a whole. Essential distinction should be drawn between the
obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field
of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights
involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general international norms of equivalent authority
WHEREFORE, the Petition is hereby DISMISSED.
 MOVESIAN VS VICTORIA VERSICHERUNG

FACTUAL AND PROCEDURAL HISTORY

In 2000, the California legislature enacted section 354.4, which provides that California courts may entertain various
insurance claims brought by "Armenian Genocide victim[s]" arising out of policies issued or in effect between 1875 and
1923. The law also extends the statute of limitations for such claims. Section 354.4 reads in relevant part:

(a) The following definitions govern the construction of this section:

(1) "Armenian Genocide victim" means any person of Armenian or other ancestry living in the Ottoman Empire during the
period of 1915 to 1923, inclusive, who died, was deported, or escaped to avoid persecution during that period.

(2) "Insurer" means an insurance provider doing business in the state, or whose contacts in the state satisfy the
constitutional requirements for jurisdiction, that sold life, property, liability, health, annuities, dowry, educational, casualty,
or any other insurance covering persons or property to persons in Europe or Asia at any time between 1875 and 1923.

(b) Notwithstanding any other provision of law, any Armenian Genocide victim, or heir or beneficiary of an Armenian
Genocide victim, who resides in this state and has a claim arising out of an insurance policy or policies purchased or in
effect in Europe or Asia between 1875 and 1923 from an insurer described in paragraph (2) of subdivision (a), may bring a
legal action or may continue a pending legal action to recover on that claim in any court of competent jurisdiction in this
state, which court shall be deemed the proper forum for that action until its completion or resolution.

(c) Any action, including any pending action brought by an Armenian Genocide victim or the heir or beneficiary of an
Armenian Genocide victim, whether a resident or nonresident of this state, seeking benefits under the insurance policies
issued or in effect between 1875 and 1923 shall not be dismissed for failure to comply with the applicable statute of
limitation, provided the action is filed on or before December 31, 2010.[[2]]

In 2003, Movsesian and several other individuals filed this class action against Defendants Victoria Versicherung AG
("Victoria"), Ergo Versicherungsgruppe AG ("Ergo"), and Munchener Ruckversicherungs-Gesellschaft Aktiengesellschaft
AG ("Munich Re"). Munich Re is the parent company of Victoria and Ergo. The class consists of persons of Armenian
descent who claim benefits under Defendants' life insurance policies issued or in effect in the Ottoman Empire between
1875 and 1923.

Plaintiffs seek damages from Defendants on theories of breach of contract, breach of the covenant of good faith and fair
dealing, unjust enrichment, and constructive trust. Plaintiffs rely on section 354.4 in order to bring their claims now. Munich
Re moved to dismiss all claims, Fed.R.Civ.P. 12(b)(6), arguing that section 354.4 is unconstitutional because it violates the
Due Process Clause of the 14th Amendment to the Constitution and because *1071 it is preempted under the foreign
affairs doctrine. Munich Re also asserted that it is not a proper defendant and that the class members lack standing to bring
claims under section 354.4.

The district court held that section 354.4 is not preempted under the foreign affairs doctrine. It also held that the class
members have standing to bring their claims, that Munich Re is a proper defendant, and that section 354.4 does not violate
the Due Process Clause. The court denied Munich Re's motion to dismiss the claims for breach of contract and breach of the
covenant of good faith and fair dealing, but granted Munich Re's motion to dismiss the unjust enrichment and constructive
trust claims.

Munich Re filed a motion to certify the district court's order for interlocutory appeal. The district court granted the motion
and stayed the case. Munich Re timely petitioned this court for permission to pursue an interlocutory appeal, and we
granted the petition. On appeal, the parties addressed three issues: (1) whether section 354.4 is preempted under the
foreign affairs doctrine; (2) whether Munich Re is a proper defendant; and (3) whether the class members have standing to
bring their claims. A three-judge panel affirmed. Movsesian v. Victoria Versicherung AG, 629 F.3d 901 (9th Cir.2010). We
then took this case en banc, thereby vacating the panel's opinion. Movsesian v. Victoria Versicherung AG, No. ___ F.3d ___
(9th Cir.2011).

STANDARD OF REVIEW

We review de novo the district court's decision on a Rule 12(b)(6) motion to dismiss. Pakootas v. Teck Cominco Metals,
Ltd., 452 F.3d 1066, 1072 (9th Cir. 2006). Similarly, we review de novo questions of law. Id.

DISCUSSION

A. The Foreign Affairs Doctrine and Field Preemption

The Constitution gives the federal government the exclusive authority to administer foreign affairs. See, e.g., United States v.
Pink, 315 U.S. 203, 233, 62 S. Ct. 552, 86 L. Ed. 796 (1942) ("Power over external affairs is not shared by the States; it is
vested in the national government exclusively."); Hines v. Davidowitz, 312 U.S. 52, 63, 61 S. Ct. 399, 85 L. Ed. 581 (1941)
("The Federal Government, representing as it does the collective interests of the forty-eight states, is entrusted with full and
exclusive responsibility for the conduct of affairs with foreign sovereignties.... Our system of government is such that the
interest of the cities, counties and states, no less than the interest of the people of the whole nation, imperatively requires
that federal power in the field affecting foreign relations be left entirely free from local interference.").

Under the foreign affairs doctrine, state laws that intrude on this exclusively federal power are preempted. Foreign affairs
preemption encompasses two related, but distinct, doctrines: conflict preemption and field preemption. Am. Ins. Ass'n v.
Garamendi, 539 U.S. 396, 418-20, 123 S. Ct. 2374, 156 L. Ed. 2d 376 (2003). Under conflict preemption, a state law
must yield when it conflicts with an express federal foreign policy. See id. at 421, 123 S. Ct. 2374 ("The exercise of the
federal executive authority means that state law must give way where, as here, there is evidence of clear conflict between
the policies adopted by the two."); Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th
Cir.2010) ("The Supreme Court has declared state laws unconstitutional under the foreign affairs doctrine when the state
law conflicts *1072 with a federal action such as a treaty, federal statute, or express executive branch policy."), cert.
denied, ___ U.S. ___, 131 S. Ct. 3055, 180 L. Ed. 2d 885 (2011).

But the Supreme Court has made clear that, even in the absence of any express federal policy, a state law still may be
preempted under the foreign affairs doctrine if it intrudes on the field of foreign affairs without addressing a traditional state
responsibility. This concept is known as field preemption or "dormant foreign affairs preemption." Deutsch v. Turner
Corp., 324 F.3d 692, 709 n. 6 (9th Cir.2003).

In Pink, 315 U.S. at 233, 62 S. Ct. 552, and Hines, 312 U.S. at 63, 61 S. Ct. 399, the Supreme Court recognized that the
Constitution implicitly grants to the federal government a broad foreign affairs power. See also Deutsch, 324 F.3d at 709
("Because the Constitution mentions no general foreign affairs power, and because only a few specified powers related to
foreign affairs are expressly denied the states, one might assume that, with certain exceptions, states are free to pursue
their own foreign policies. This is not, however, the case. To the contrary, the Supreme Court has long viewed the foreign
affairs powers specified in the text of the Constitution as reflections of a generally applicable constitutional principle that
power over foreign affairs is reserved to the federal government."). The existence of this general foreign affairs power
implies that, even when the federal government has taken no action on a particular foreign policy issue, the state generally
is not free to make its own foreign policy on that subject.

For example, in Zschernig v. Miller, 389 U.S. 429, 440-41, 88 S. Ct. 664, 19 L. Ed. 2d 683 (1968), the Supreme Court
recognized that, even in the absence of any treaty, federal statute, or executive order, a state law may be unconstitutional if
it "disturb[s] foreign relations" or "establish[es] its own foreign policy." There, the Court considered the constitutionality of
an Oregon probate law that imposed conditions under which aliens could receive Oregon property by succession or
testamentary disposition. Id. at 430-31, 88 S. Ct. 664. The state statute provided for escheat unless the nonresident alien
could demonstrate that the foreign country from which the alien came granted various reciprocal rights to United States
citizens. Id.

The Oregon statute conflicted with no express policy of the federal government. Id. at 440-41, 88 S. Ct. 664. Indeed, the
federal government's amicus curiae brief stated: "The government does not contend that the application of the Oregon
escheat statute in the circumstances of this case unduly interferes with the United States' conduct of foreign
relations." Id. at 434, 88 S. Ct. 664 (internal quotation marks and ellipsis omitted).

But the absence of a conflict did not settle the question of preemption. Instead, the Court analyzed the purpose and
operation of the Oregon statute to determine whether it constituted an "intrusion by the State into the field of foreign affairs
which the Constitution entrusts to the President and the Congress." Id. at 432, 88 S. Ct. 664. In order for field preemption
to apply, the Oregon law had to have "more than some incidental or indirect effect in foreign countries." Id. at 434, 88 S.
Ct. 664. (internal quotation marks omitted).

The Court concluded that application of the Oregon law invited courts to conduct detailed inquiries into the political systems
and conduct of foreign nations. Id. at 433-40, 88 S. Ct. 664. In applying the statute,

the probate courts of various States have launched inquiries into the type of *1073 governments that obtain in particular
foreign nations— whether aliens under their law have enforceable rights, whether the so-called "rights" are merely
dispensations turning upon the whim or caprice of government officials, whether the representation of consuls,
ambassadors, and other representatives of foreign nations is credible or made in good faith, whether there is in the actual
administration in the particular foreign system of law any element of confiscation.

Id. at 433-34, 88 S. Ct. 664. The application of the law therefore required value-laden judgments about the actions and
policies of foreign nations and the credibility of foreign representatives. "As one reads the Oregon decisions, it seems that
foreign policy attitudes, the freezing or thawing of the `cold war,' and the like are the real desiderata. Yet they of course are
matters for the Federal Government, not for local probate courts." Id. at 437-38, 88 S. Ct. 664 (footnote omitted). The
Court also noted that "[s]uch attitudes are not confined to the Oregon courts," citing a number of decisions from other
states expressing a desire to keep United States money out of the grasp of communist or authoritarian nations. Id. at 437 n.
8, 88 S. Ct. 664.

Although the Oregon probate statute conflicted with no federal law and appeared, at first blush, simply to regulate
property— a traditional area of state responsibility— the Supreme Court held that the law was preempted under the foreign
affairs doctrine. Id. at 440-41, 88 S. Ct. 664. "The statute as construed seems to make unavoidable judicial criticism of
nations established on a more authoritarian basis than our own. It seems inescapable that the type of probate law that
Oregon enforces affects international relations in a persistent and subtle way." Id. at 440, 88 S. Ct. 664.

More than three decades later, in Garamendi, the Supreme Court clarified when the application of the field preemption
doctrine might be appropriate. There, the Court addressed the constitutionality of California's Holocaust Victim Insurance
Relief Act of 1999 ("HVIRA"), which required any insurer doing business in California to disclose information about all
policies it sold in Europe between 1920 and 1945. Garamendi, 539 U.S. at 401, 123 S. Ct. 2374. Although the Court
ultimately concluded that HVIRA was preempted because of a direct conflict with express federal policy, the Court also
provided valuable insight into the doctrine of field preemption. The Court explained:

The two positions [conflict preemption and field preemption] can be seen as complementary. If a State were simply to take a
position on a matter of foreign policy with no serious claim to be addressing a traditional state responsibility, field
preemption might be the appropriate doctrine, whether the National Government had acted and, if it had, without reference
to the degree of any conflict, the principle having been established that the Constitution entrusts foreign policy exclusively to
the National Government. Where, however, a State has acted within what Justice Harlan called its "traditional
competence," but in a way that affects foreign relations, it might make good sense to require a conflict, of a clarity or
substantiality that would vary with the strength or the traditional importance of the state concern asserted.

Thus, Garamendi suggests that, under a field preemption analysis, when a state law (1) has no serious claim to be
addressing a traditional state responsibility and (2) intrudes on the federal government's foreign affairs power, the
Supremacy Clause prevents the state statute from taking effect.

In Von Saher, we applied those principles to a California statute that extended the statute of limitations for civil actions to
recover looted Holocaust-era artwork. After concluding that the statute, Cal.Civ. Proc.Code § 354.3, did not conflict directly
with any express federal foreign policy, we conducted a thorough field preemption analysis and held the statute
unconstitutional.

First, we addressed the question whether section 354.3 concerned an area of traditional state responsibility. Von
Saher, 592 F.3d at 964-65. We acknowledged that the general subject area of the statute, the regulation of stolen property,
is traditionally an area of state responsibility. Id. at 964. But we did not stop there. Instead, we inquired into the "real
purpose" of the statute to determine whether it concerned an area of traditional state responsibility:

Property, of course, is traditionally regulated by the state. But § 354.3 cannot be fairly categorized as a garden variety
property regulation. Section 354.3 does not apply to all claims of stolen art, or even all claims of art looted in war. The
statute addresses only the claims of Holocaust victims and their heirs. Section 354.3(b).

Courts have consistently struck down state laws which purport to regulate an area of traditional state competence, but in
fact, affect foreign affairs. See, e.g., Garamendi, The Garamendi Court in dicta rejected the "traditional state interests"
advanced by California in support of HVIRA, finding instead that the real purpose of the state law was the "concern for the
several thousand Holocaust survivors said to be living in the state." Garamendi, 539 U.S. at 426, 123 S. Ct. 2374. Though
§ 354.3 purports to regulate property, an area traditionally left to the states, like HVIRA, § 354.3's real purpose is to
provide relief to Holocaust victims and their heirs.

Von Saher, 592 F.3d at 964 (parallel citations omitted). We concluded that, although the statute's goal of providing relief to
Holocaust victims was laudable, "[i]n so doing, California can make `no serious claim to be addressing a traditional state
responsibility.'"

We then turned to the question whether section 354.3 intruded on a power expressly or impliedly reserved by the
Constitution to the federal government. Id. at 965-68. Section 354.3 attempted to provide redress for wartime wrongs, and
"[t]he legislative findings accompanying *1075 the statute repeatedly reference the `Nazi regime,' `Nazi persecution,'
and `the many atrocities' the Nazis committed." Id. at 966. The application of the statute would often entail inquiry into the
reparation efforts of foreign nations, which itself would involve an examination of underlying allegations of Nazi
transgressions. Id. at 967. We ultimately concluded that section 354.3 intruded on the federal government's power to make
and resolve war, holding that the federal government's failure to act did not "justify California's intrusion into a field
occupied exclusively by the federal government." Id. at 965-68.

Field preemption is a rarely invoked doctrine. Id. at 963. Supreme Court jurisprudence makes clear, however, that field
preemption may be appropriate when a state intrudes on a matter of foreign policy with no real claim to be addressing an
area of traditional state responsibility. We followed that guidance in Von Saher, and we must follow it here.

B. The Constitutionality of Section 354.4

Keeping in mind the principles that we have just articulated, we now address the constitutionality of section 354.4.

1. Section 354.4 does not concern an area of traditional state responsibility.

Plaintiffs argue that section 354.4 concerns an area of traditional state responsibility because it regulates insurance. But,
as we noted in Von Saher, the required inquiry cannot begin and end, as Plaintiffs suggest, with the area of law that the state
statute addresses. 592 F.3d at 964-65. On the contrary, we must look further to determine the "real purpose of the state
law." Id. at 964; see also Garamendi, 539 U.S. at 425-26, 123 S. Ct. 2374 (rejecting purported state interest in regulating
insurance business and blue sky laws, and concluding that the real purpose of the statute was to provide redress for
Holocaust victims); Von Saher, 592 F.3d at 964 ("Though § 354.3 purports to regulate property, an area traditionally left to
the states, like HVIRA, § 354.3's real purpose is to provide relief to Holocaust victims and their heirs."); cf. Zschernig, 389
U.S. at 440, 88 S. Ct. 664 ("The several States, of course, have traditionally regulated the descent and distribution of
estates. But those regulations must give way if they impair the effective exercise of the Nation's foreign policy.").

Here, the text and legislative history of section 354.4 leave no doubt that the law "cannot be fairly categorized as a garden
variety" insurance regulation. Von Saher, 592 F.3d at 964. Section 354.4 is not a neutral law of general application. It
applies only to a certain class of insurance policies (those issued or in effect in Europe and Asia between 1875 and 1923)
and specifies a certain class of people ("Armenian Genocide" victims and their heirs) as its intended
beneficiaries. See Garamendi, 539 U.S. at 425-26, 123 S. Ct. 2374 ("But, quite unlike a generally applicable `blue sky'
law, HVIRA effectively singles out only policies issued by European companies, in Europe, to European residents, at least 55
years ago. Limiting the public disclosure requirement to these policies raises great doubt that the purpose of the California
law is an evaluation of corporate reliability in contemporary insuring in the State." (citations omitted)). And, just as
in Garamendi, the legislative findings accompanying the statute plainly reveal its true purpose.[3]See S.1915 § 1(c), 1999-
2000 Reg. Sess. (Cal.2000) ("It is the specific *1076 intent of the Legislature to ensure that Armenian Genocide victims
and their heirs be permitted to have an expeditious, inexpensive, and fair forum in which to resolve their
claims...."); Garamendi, 539 U.S. at 426, 123 S. Ct. 2374 ("Indeed, there is no serious doubt that the state interest
actually underlying HVIRA is concern for the several thousand Holocaust survivors said to be living in the State. § 13801(d)
(legislative finding that roughly 5,600 documented Holocaust survivors reside in California).").

Thus, it is clear that the real purpose of section 354.4 is to provide potential monetary relief and a friendly forum for those
who suffered from certain foreign events.[4] This is precisely the same purpose underlying HVIRA, the statute held
unconstitutional in Garamendi, and section 354.3, the state law held preempted in Von Saher. As Garamendi and Von
Saher make clear, that goal, however laudable it may be, "is not an area of `traditional state responsibility,' and the statute
is therefore subject to a field preemption analysis." Von Saher, 592 F.3d at 965; see also Garamendi, 539 U.S. at 425-
26, 123 S. Ct. 2374 (noting the weakness of the state's interest in vindicating the insurance claims of Holocaust survivors).
In sum, section 354.4 does not concern an area of traditional state responsibility.

2. Section 354.4 intrudes on the federal government's foreign affairs power.

We turn, finally, to the question whether section 354.4 intrudes on a power expressly or impliedly reserved to the federal
government. We conclude that section 354.4 intrudes on the federal government's exclusive power to conduct and regulate
foreign affairs.

Section 354.4 has "more than some incidental or indirect effect" on foreign affairs. Zschernig, 389 U.S. at 434, 88 S. Ct.
664. The statute expresses a distinct political point of view on a specific matter of foreign policy. It imposes the politically
charged label of "genocide" on the actions of the Ottoman Empire (and, consequently, present-day Turkey) and expresses
sympathy for "Armenian Genocide victim[s]." Cal.Civ.Proc.Code § 354.4. The law establishes a particular foreign policy for
California— one that decries the actions of the Ottoman Empire and seeks to provide redress for "Armenian Genocide
victim[s]" by subjecting foreign insurance companies to lawsuits in California. See id.; Zschernig, 389 U.S. at 441, 88 S. Ct.
664 (holding that, even in the absence of a conflicting federal policy, a state may violate the constitution by "establish[ing]
its own foreign policy").

Furthermore, the statute's jurisdictional grant is predicated on a determination that the claim is brought by an "Armenian
Genocide victim, or heir or beneficiary of an Armenian Genocide victim." Cal.Civ.Proc. Code § 354.4(b). "`Armenian
Genocide victim' means any person of Armenian or other ancestry living in the Ottoman Empire during the period of 1915 to
1923, inclusive, who died, was deported, or escaped to avoid persecution during that period." Id. § 354.4(a)(1). Courts
applying this provision may therefore have to decide whether the policyholder "escaped to avoid persecution," id., which in
turn would require a highly politicized inquiry into the conduct of a foreign nation, see Zschernig, 389 U.S. at 435-36, 88 S.
Ct. 664 (finding *1077 preempted an Oregon statute that invited courts to engage in highly politicized analysis of foreign
nations' governments and conduct).

The passage of nearly a century since the events in question has not extinguished the potential effect of section 354.4 on
foreign affairs. On the contrary, Turkey expresses great concern over the issue, which continues to be a hotly contested
matter of foreign policy around the world. See, e.g., Turkey retaliates over French `genocide' bill, BBC, Dec. 22, 2011
(reporting that the Turkish prime minister announced measures against France after the French National Assembly passed a
bill criminalizing denial of the "Armenian Genocide"); Peter Baker, Obama Marks Genocide Without Saying the Word, N.Y.
Times, Apr. 25, 2010, at A10 (noting that President Obama was careful to avoid using the word "genocide" during a
commemorative speech in an attempt to "avoid alienating Turkey, a NATO ally, which adamantly rejects the genocide
label").

In conclusion, section 354.4 expresses a distinct point of view on a specific matter of foreign policy. Its effect on foreign
affairs is not incidental; rather, section 354.4 is, at its heart, intended to send a political message on an issue of foreign
affairs by providing relief and a friendly forum to a perceived class of foreign victims. Nor is the statute merely
expressive.[5] Instead, the law imposes a concrete policy of redress for "Armenian Genocide victim[s]," subjecting foreign
insurance companies to suit in California by overriding forum-selection provisions and greatly extending the statute of
limitations for a narrowly defined class of claims. Thus, section 354.4 "has a direct impact upon foreign relations and may
well adversely affect the power of the central government to deal with those problems." Zschernig, 389 U.S. at 441, 88 S.
Ct. 664. Section 354.4 therefore intrudes on the federal government's exclusive power to conduct and regulate foreign
affairs.

CONCLUSION

Because California Code of Civil Procedure section 354.4 does not concern an area of traditional state responsibility and
intrudes on the field of foreign affairs entrusted exclusively to the federal government, we hold that section 354.4 is
preempted. We remand the case to the district court with instructions to dismiss all claims revived by that statute.

REVERSED and REMANDED with instructions.

NOTES

[1] Because we conclude that section 354.4 is preempted, we need not and do not reach any other issues.

[2] In 2011, California revised the law to extend the statute of limitations under section 354.4(c) from December 31, 2010,
to December 31, 2016.

[3] We need not and do not decide how courts might determine the real purpose of a statute when that purpose is not
apparent from the legislative findings and scope of the statute.
[4] We express neither agreement nor disagreement with the California legislature's viewpoint. We simply observe that
California's main goal in enacting section 354.4 was to provide redress for individuals who were, in its view, victims of a
foreign genocide, and that that goal falls outside the realm of traditional insurance regulation.

[5] We need not and do not offer any opinion about California's ability to express support for Armenians by, for example,
declaring a commemorative day
 HA DATU TAWAHIG VS CEBU CITY PROSECUTOR

Ha Datu Tawahig also known as Roderick Sumatra filed a petition for mandamus to compel Singco and her co-respondents,
all public prosecutors from Cebu City, to end his case. He alleged that the Dadantulan Tribal Court cleared him of rape.

Associate Justice Marvic Leonen, however, denied the petition.

He ruled that nowhere in Republic Act 8371 or the Indigenous People's Rights Act that states that courts of law are to
abandon jurisdiction over criminal proceedings in favor of mechanisms applying customary law.

"Petitioner derives no right from the Dadantulan Tribal Court to be spared from criminal liability. The Regional Trial Court is
under no obligation to defer to the exculpatory pronouncements made by the Dadantulan Tribal Court. Instead, it must
proceed to rule on petitioner's alleged liability with all prudence and erudition," read the decision.

In 2006, a complaint of rape was filed before the Cebu City Prosecutor's Office against Sumatra.

The Prosecutor's Office has elevated the case to the court after finding probable cause.

Singco issued a warrant of arrest in 2007. Sumatra was only arrested in 2013.

Following his arrest, Sumatra filed a motion to quash and supplemental motion to quash, invoking the Indigenous People's
Right Act that the court had no jurisdiction over his case.

Sumatra, through counsel, asserted that the issue was purely a dispute involving indigenous cultural communities over
which customary laws must apply in accordance with their tribal justice system and under the jurisdiction of the National
Commission on Indigenous Peoples.

Singco, however, denied the motion.

Hence, the petition.

In its ruling, the SC stated that individuals belonging to indigenous cultural communities who were charged with criminal
offenses cannot invoke the Indigenous People's Rights Act to evade prosecution and liability under the courts of law.

"The application of customary laws may enable a measure of reparation for private injuries engendered by criminal
offenses, but it will never enable the consummate recompense owed to the State and the Filipino people. Ultimately then,
yielding prosecution would mean sanctioning a miscarriage of justice," read the decision.

To yield criminal prosecution would be able to disregard the state and the Filipino people as the objects of criminal
offenses, the SC added. (FREEMAN)