The ATS and Extraterritoriality

by Anthony Colangelo

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law]

I suspect the extraterritoriality issue has taken on renewed significance after the Supreme Court’s decision in Morrison v. Nat’l Aust. Bank, which, as many readers know, addressed the extraterritorial reach of the Securities Exchange Act. According to the Court in Morrison, “When a statute gives no clear indication of an extraterritorial application, it has none.” The question now is whether this reinvigorated presumption applies to the ATS. 

In a recent article in the Virginia Law Review, I argued that the ATS and other statutes that implement or authorize the implementation of international law (like statutes enacted pursuant to the Offences Clause or that implement treaties) are distinguishable, and that the presumption against extraterritoriality should not apply to them. The principal rationales behind the presumption, according to the Supreme Court, are to avoid discord resulting from “clashes between our laws and those of other nations” inside foreign territory and to heed the assumption that when Congress legislates, it does so with only domestic concerns in mind. But unlike the Exchange Act—which would involve the projection of a U.S. norm into foreign territory—statutes that implement international law purport to apply a law that is also applicable inside the foreign territory. Concerns about extraterritorial applications of U.S. law conflicting with foreign law inside foreign territory thus largely disappear, since the U.S. law by nature will not conflict with the international law also operative inside the foreign territory. Moreover, while the conventional assumption that Congress legislates with only domestic concerns in mind may make sense for statutes reflecting national values and preferences, that assumption holds far less intuitive force when Congress implements international law—which, after all, deals by definition with foreign nations and shared values and preferences with those nations. Morrison also explained that courts could consider “context” in determining whether a statute has extraterritorial application; here the context is that the statute authorizes application of international, not domestic, law. And in that connection, the relevant canon of construction should be Charming Betsy, which would allow and even encourage extraterritoriality in some cases, even where there is no U.S. connection (as in universal jurisdiction). In other words, when Congress authorizes application of international law, it should be presumed to authorize application of all of international law, including the relevant international law of jurisdiction, which may contemplate extraterritoriality.

This argument could prove attractive to the Court in Kiobel for a couple of reasons: (1) It would allow the Court to decide Kiobel consistently with Sosa and other pre-Morrison cases like Filartiga that have already endorsed, whether affirmatively or by implication, the application of the ATS to foreign conduct and harms. The argument would thus save the ATS from the post-Morrison presumption against extraterritoriality. (2) It also would effectively resolve the corporate liability question without having to necessarily resolve the gnarly choice-of-law question. If, as petitioners had requested, U.S. courts use domestic principles of corporate liability under the ATS, courts would then be applying U.S. norms inside foreign territories in a way that could create conflicts of laws and friction, thereby triggering the presumption against extraterritoriality as to those U.S law principles of liability. The result would be that the ATS still allows suits alleging conduct and harms inside foreign territory, but only to the extent courts faithfully apply extant rules of international (not domestic common) law.

11 Responses

  1. Prof. Colangelo, couldn’t one just as easily say the “context” is a jurisdictional statute (Sosa), where narrowing presumptions are often applied, leaving it to Congress to correct if it wants (eg complete diversity; well-pleaded complaint rule and protective jurisdiction).

  2. Such an approach would require clarity  (presumably and preferably from the Court) as to whether the law of nations is or is not to be understood as synonymous with customary international law, yes?

  3. Response…
    Anthony: by analogy, could one use the Bowman rationale, applicable when protective jurisdiction pertains, re: two factors: (1) the right of the United States under customary international law regarding universal jurisdiciton to use judicial sanctions irrespective of the locus of the conduct, and (2) the presumption that Congress would not both enact a statute to serve this funciton and undermine this intention by limiting the statute’s reach?
    U.S. v. Bowman, 260 U.S. 94, 98 (1922), quoted in U.S. v. bin Laden et al. (SDNY 2000).

  4. Thank you for the responses to my post. The jurisdictional point is really interesting and worth exploring. It has actually been used to the opposite effect by human rights litigants and their supporters to suggest that there should be no limits on extraterritoriality, since the statute just creates jurisdiction and then courts essentially engage in a choice-of-law analysis and apply international law the same way they would apply, say, foreign law (or the lex loci delicti). I have some trouble with that analogy as I explain in the article. And it would be great if the Court clarified whether the law of nations is truly synonymous with customary international law, though I suspect most people think that is the case (though I could be wrong). As for Bowman, that’s a good point too, and one might get there through “context.” On the other hand, courts haven’t been receptive to this type of Bowman argument since Morrison came down (and it has been made). To the extent Bowman survives Morrison it may do so only because it is a criminal case. In that vein, it seems to me that Morrison shouldn’t apply at all to government enforcement actions. If a purpose behind the presumption against extraterritoriality is to avoid unintentional conflicts in separation of powers terms (as Prof. Kontorovich noted in a previous comment thread), that concern vanishes when you have the government itself bringing the case.

  5. Response…
    And where did such “narrowing presumptions” originate and when, not among the Founders or Framers, not at the time of enactment of the ATS, not for many years later as part of a questionable judicial indirect “legislation” trying to second-guess the Congress and President (who signs legislation into law).  Moreover, the presumption that legislation only applies in U.S. territory is facially inconsistent with the subject matter incorporated by reference into the ATS, would be inconsistent with the existence of universal jurisdiciton, would be inconsistent with a rule of construciton that WAS created near the time of enactment of the ATS (the Charming Betsy rule), and has not been uniform — e.g., consider the Bowman exception and its rationale (and the rationale would survive a decision in Morrison).  At the time of formation, the U.S. had a keen interst in avoiding “denial of justice” to aliens, which was part of (and still is) the customary law of nations.
    Concerning the fact that the law of nations was what we term customary international law, see, e.g., Paust, International Law as Law of the United States  chpt. 1 (2 ed. 2003).

  6. Prof. Paust,
    I think there is a case that the Charming Betsy canon largely swings against you and Prof. Colangelo in this case.  Applying the ATS to foreign-cubed cases would inject the United States into disputes that have nothing to do with avoiding “denial of justice” claims made against the United States.  Charming Betsy is at least a good place to start considering that legislating based on territoriality and nationality is not terribly controversial in modern international law, whereas legislating foreigners’ conduct in other countries has not met with general approval.  You’ll obviously counter this point by saying that international law clearly allows for universal jurisdiction in many instances, and Restatement sec. 404 and so forth.  I still don’t think that the First Congress had any of that in mind when they enacted the statute in 1789.  Indeed, I very much doubt that the Congress wanted to regulate foreigners’ conduct against other foreigners while they were both in a foreign country.
    Still, if it were a United States national who committed an actionable ATS tort abroad, and then retreated back to the United States, that could potentially bring about a viable “denial of justice” claim from another country (and thereby a just reason for a declaration of war upon the United States).  I think your “extraterritoriality” argument works in this respect.

  7. Response…
    Joshua: but, at a minimum, they were admittedly concerned with piracy committed abroad (on a foreign flag vessel or a U.S. flag vessel) and universal jurisdiciton with respect thereto.
    And, in any event, Charming Betsy today would require us to read the ATS in a way that does not deny the customary and treaty-based human right to an effective remedy for human rights violations (recognized, e.g., in Articles 2(3) and 14(1) of the ICCPR as supplemented by General Comment No. 24, among others).  Using a territorial limit would definitely violate such human rights law.

  8. I’m not saying that there should only be a territorial limit.   In this vein, the recent Supreme Court order in Kiobel went out of its way to direct the litigants to NOT address how piracy may or may not be extraterritorial.  Piracy is now off the table.
    Regarding Charming Betsy, I’m admittedly not as much of an expert in that opinion as Prof. Colangelo, but it occurs to me that the Morrison decision was part of a long line of precedent interpreting that decision and the canon of construction for which it initially stood.
    I believe the above should obviate your concern with “using a territorial limit” with regard to human rights law.  But one thing that puzzles me is that if your interpretation of the ICCPR is correct, why haven’t any other countries held that civil liability exists for foreign-cubed cases?  Treaties are really a different story for me.  The problem with Kiobel and almost all of the ATS cases out there now is that they don’t really rely on claims provided for under any treaties, but under customary international law/law of nations.  The plaintiffs have no qualms whatsoever, though, in pointing to random phrases or dicta from whatever treaty might help their case when attempting to argue for a universal harm in the mold of the original Blackstonian three.

  9. I am not sure the question of whether LoN = CIL is settled.  See the quote below from D.C. Circuit Court in Doe v. Exxon Mobil (2011) 

    “Our dissenting colleague incorrectly implies that the definition of customary international law is synonymous with the law of nations. Dis. Op. at 1, 26 n.10. Rather, as the ICJ Statute indicates, customary international law is one of the sources for the law of nations. The misconception appears also in Kiobel, 621 F.3d at 116, 621 F.3d at 116, and Flores, 414 F.3d at 237 & n.2, where the cited authorities for treating the “law of nations” as a synonym for “customary international law” do not support the proposition. Nor did the Supreme Court in Sosa treat as equivalent customary international law and the law of nations generally.”

  10. True enough on the CIL/LON issue.  I was aware of the controversy, but this is really just a semantic debate that shouldn’t really affect the ultimate result in Kiobel.

  11. Thank you for these great comments. I will try to respond to all of them but forgive me if I miss something. Let me begin with “foreign cubed” cases, which international lawyers have been calling universal jurisdiction for some time now when it involves a violation and application of substantive international law, perhaps making the term’s transplant and implications from the securities context imprecise, which involves projecting U.S. norms to foreigners abroad. I’m not sure why, even had drafters of the ATS not had these claims specifically in mind (I personally don’t know exactly what they had in mind), that is or should be controlling. In Sosa the Supreme Court said that ATS claims “must be gauged against the current state of international law.” Also, the drafters themselves didn’t view the law of nations as something static, but rather as a set of norms that evolves over time. Thus it may be more faithful to use “the current state of international law” (as the Supreme Court directed), and unfaithful to freeze it in 1789 contrary to the drafters’ views. In any event, I would agree that the universal jurisdiction case is the toughest. But I am not willing to concede it. ATS cases rely overwhelmingly on criminal law analogies for the law of nations and I don’t see why that should be different for jurisdiction. Though as my work on universal jurisdiction suggests, I would require a very high threshold for a violation to be actionable in this context–one that would meet and likely surpass Sosa’s test.

    Next, I should emphasize that the presumption against extraterritoriality and Charming Betsy parted ways a while ago, with the presumption as Morrison articulated it taking a very territorial view while Charming Betsy would allow, encourage, and even require extraterritoriality in some situations. Thus Justice Scalia’s dissent in Hartford Fire and the Court’s decision in Empagran were not about the presumption against extraterritoriality, but rather whether applying U.S. law to transnational claims would be reasonable under international law. In fact, the Second Circuit case law that Morrison overturned was essentially subjective and objective territoriality under Charming Betsy, i.e., the “conduct” and “effects” tests.

    Finally, and fascinatingly, if EMC is right there is obviously a lot more to talk about. I’m happy to acknowledge that LON=CIL is not settled definitively, but ATS cases traditionally have relied on (at least what I typically think of as) sources of customary international law to find the applicable rule of decision under the law of nations. If the ATS incorporates general principles of international law, there is more potential, for example, for corporate liability, the argument being that a general principle of legal systems around the world is corporations can be liable. Yet even here, there still may be the potential for conflicts between U.S. and foreign law triggering the presumption. I will think about this more, but if that’s the route the Court takes what would make me most comfortable would be resort to conflict-of-laws techniques for a little dépeçage: customary international law creates the prohibition and liability generally, and when it runs out the law of the place of the conduct and harm provides the liability specifically as to the entity. Another way of putting this would be that custom supplies the “conduct regulating” rule while the foreign law of the parties’ common domicile (in most cases) supplies the “loss-allocating” rule, a division endorsed by many prevailing conflict-of-laws methodologies. On that scission of the claim, we can be relatively sure there’s still no conflict of laws.

    I have enjoyed this and would be happy to continue the discussion via email even after comments close down.

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