The ATS and Extraterritoriality
[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.