Salvaging the Charming Betsy in ATS Cases: A Response to Rio Tinto

There is much to be analyzed in the Ninth Circuit’s en banc decision in Sarei v. Rio Tinto. I am exercising a guest blogging privilege to address two aspects: its holding regarding the nature of the cause of action (and implicitly, the remedy) available under the ATS, and, the consequences of that holding to a proper understanding of the extension of that remedy to cases arising in a foreign territory. Having just presented on this topic, I will borrow heavily from those remarks. I apologize in advance for the length of this post. These are theoretically rich issues.

The Ninth Circuit held, correctly in my view, that the ATS effectively authorizes a federal, common law cause of action, and at least implicitly, a federal remedy. For that reason, it found that ATS cases arise under the laws of the United States. There is much scholarship in general agreement with this view, though disagreement remains about the implications of it. In any event, because the case arose in foreign territory between aliens, finding that the case arose under U.S. law was essential to the federal courts having a constitutional basis for exercising jurisdiction over it.

The court then held,

The norms being applied under the ATS are international, not domestic, ones, derived from international law. As a result, the primary considerations underlying the presumption against extraterritoriality—the foreign relations difficulties and intrusions into the sovereignty of other nations likely to arise if we claim the authority to require persons in other countries to obey our laws—do not come into play. This is because, Judge Kleinfeld’s contention notwithstanding, we are not asserting an entitlement to “make law” for the “entire planet.” Kleinfeld op. at 19431. Instead, and especially in light of Sosa, the ATS provides a domestic forum for claims based on conduct that is illegal everywhere, including the place where that conduct took place. It is no infringement on the sovereign authority of other nations, therefore, to adjudicate claims cognizable under the ATS, so long as the requirements for personal jurisdiction are met.
* * * *
We deal with the ATS, not RICO or a securities act. There are strong indications that Congress intended the ATS to provide jurisdiction for certain violations of international law occurring outside the United States, and there are no indications to the contrary. We therefore conclude that the ATS is not limited to conduct occurring within the United States or to conduct committed by United States citizens. The ATS, of course, expressly creates jurisdiction for claims asserted by aliens, so that there can be no dispute that claims may, indeed must, be asserted by entities that are not citizens of the United States.

Here the court is having its cake and eating it, too. The conduct-regulating norms that the court is enforcing are international and universal, but the remedial right is domestic and creates “arising under” jurisdiction. In essence, as both Trey Childress and Chimene Keitner have noted, this is a claim that a violation of the law of nations is the same as any other purely private, transitory, common law claim — one that follows individuals wherever they go and may be adjudicated in any forum with personal jurisdiction (subject to the application of conflict of laws principles). I question this view of the ATS on both historical and theoretical grounds.

The historical challenge to this view was largely made by Anthony Bellia and Brad Clark in the Chicago Law Review earlier this year. Their typically thorough and insightful focus was on the international and domestic legal context in which the First Congress adopted the original ATS. This context strongly implies that the ATS would have then applied only to law of nations violations by U.S. nationals, and less certainly, to violations by any individual within U.S. territory. From my research, I believe Bellia and Clark have it almost exactly right. But they eschewed the opportunity (no doubt for reasons of space) to “translate” this historical context to the contemporary world. I will briefly (a highly relative term in this context) attempt to fill that gap.

As Bellia and Clark noted, the original ATS was an effort to carry out the international obligations of the U.S. by allowing federal courts to compensate aliens for injuries resulting from law of nations violations potentially attributable to the U.S.  A failure to afford such a remedy, or to punish the perpetrator of the act, would have made the U.S. “responsible” for the law of nations violation, and might result in reprisals by, or war with, an offended foreign nation.

This is, unsurprisingly, very similar to the common law approach to individual punishment for law of war violations. As Colonel William Winthrop noted in his famous military law treatise, enemies who violated the laws of war and later came into U.S. custody could be punished. If they remained in the control of the enemy, a failure by the enemy to punish the violation effectively ratified the act and yielded the right of “retaliation” or reprisal — a reciprocal violation of the law of war.

I note, though, that Bellia and Clark extend the law of nations obligation/responsibility of the U.S. to all intentional torts committed by U.S. nationals against aliens both at home and abroad, including in foreign territory. I am not entirely certain that is accurate. I tend to believe the law of nations obligation to prevent injuries to aliens attached to territory, or to flagged or public vessels, where nations also possessed jurisdiction to prescribe and enforce their criminal laws. Extending it to a foreign country would fly in the face of the very strong notions of sovereignty that existed at the time.

Fashioning a common law civil remedy from the law of nations is, in this context, no less an act of domestic (a.k.a. municipal) law-making than the fashioning of a common law crime (or war-crime). It is an exercise of a state’s power to prescribe law. Blackstone’s commentary very clearly states that applying the law of nations to cases involving individuals creates domestic law. This is why I have argued that all “war crimes” adjudicated by military commissions prior to the 1949 Geneva Conventions were actually domestic, common law crimes, an approach maintained in the Uniform Code of Military Justice (and in the catch-all provision of the Military Commissions Act). My unpublished opinion is that their extraterritorial application to enemy foreign nationals is probably one of the earliest forms of the still-hotly-contested passive nationality jurisdiction. Other potential bases for extraterritorial application of domestic war crimes laws now exist, including “universality” for those laws punishing certain serious violations of the laws of war.

Because the ATS was designed to address a unique, national public interest, i.e., U.S. state responsibility for a law of nations violation, it is inappropriate to equate the federal cause of action and civil remedy afforded by the ATS to a private, transitory, tort claim under the common law. Providing a federal remedy was not required by the common law of nations, it was a deliberate domestic policy choice that allowed aliens the opportunity to pierce the veil of sovereignty and resolve these claims at an individual rather than a national level. This approach did not fully privatize the public interest associated with the underlying law of nations violation. If courts failed to properly address the violation, a foreign state remained free to independently pursue satisfaction at the national level. That is precisely why the First Congress enacted the ATS, to allow federal courts to redress these violations and resulting harms in cases involving aliens, cases in which state courts had been insufficiently sensitive to the international implications.

Lest there be any doubt about the unique U.S. public rather than the universal private interests at stake, recall that the original ATS also allowed suit for the violation of a treaty of the United States. In the original ATS era, such treaties were typically bilateral and would most often have altered the common/customary law of nations otherwise applicable to the signatories (rather than codify it, as many multilateral treaties now do). Thus, in treaty cases especially, the ATS addressed unique public interests of the U.S. under the law of nations (i.e. upholding its unique, bilateral treaty obligations), and only indirectly the private interests of injured aliens. (UPDATE: Perhaps I should have noted, this likens the ATS to RICO and the Securities Act rather than a private tort.)

Because the federal civil remedy afforded by the ATS is inextricable from the U.S. public interests underlying its enactment, it should be considered a purely domestic U.S. law/policy subject to the presumption against extraterritorial applicability. Furthermore, by observing Charming Betsy’s mandate to interpret federal statutes to be consistent with international law “unless no other construction remains,” any extraterritorial extension of the remedy it affords would also be limited by the principles of international law limiting the exercise of a state’s power to prescribe law. Because suits under the ATS may only be brought by aliens, this effectively limits the relevant principles to territoriality (cases arising in the U.S.) and nationality (cases involving acts by U.S. nationals abroad) in most cases.  It certainly would not allow the judiciary to address claims arising between aliens in foreign lands.

Some have claimed that the comtemporary international law of universal jurisdiction supports extension of this federal civil remedy to any case where the court has jurisdiction over the parties. In my humble opinion, the origins and current state of universal jurisdiction undermine this notion. Universal jurisdiction attached to acts of piracy so that any state could vindicate the public interests of the international community. Piracy threatened the international order, and therefore garnered its universal disapprobation. Its prevention required its punishment under the domestic law of all states.  (In other words, it required an exercise of both prescriptive and adjudicatory jurisdiction.) Genocide, certain war crimes and crimes against humanity ultimately became subject to universal jurisdiction for the same reasons. This does not support the idea that universal jurisdiction permits the extension of a state’s prescriptive and adjudicatory power to vindicate the private interests of individuals harmed by an international law violation wherever it occurs. Those interests remain, at this stage in the development of international law, a national rather than international concern.

This view has much to say about the nature of the law governing issues such as corporate liability under the ATS. I won’t discuss those now, but for informed readers the implications are probably obvious anyway.