Kiobel and Extrajurisdictionality

by John Knox

[John Knox is Professor of Law at Wake Forest Law School]

The Supreme Court’s decision to send Kiobel back for reargument on whether the Alien Tort Statute allows courts to recognize a cause of action for violations of the law of nations in foreign territory will focus attention on the presumption against extraterritoriality, as Anthony Colangelo pointed out in his recent post here. Here are a few more thoughts to add to Anthony’s interesting analysis of that possibility.

For a couple of reasons, the presumption against extraterritoriality doesn’t apply neatly to ATS claims, as the Ninth and DC Circuits said in their 2011 decisions in Sarei v Rio Tinto and Doe VIII v Exxon Mobil. The presumption is a rule of statutory construction, but Sosa made clear that ATS claims are products of federal common law — the ATS just provides a basis for jurisdiction over the claims. Moreover, everyone seems to agree that the scope of ATS claims must include piracy, which means that the reach of the law must extend beyond U.S. territory.

For the Court to use the presumption to restrict ATS claims, then, it would have to introduce a new wrinkle or two. It could say that it applies to jurisdictional statutes (or at least to this one), or it could adopt the presumption as a prudential rule suitable for common-law claims. Once it found a basis for using the presumption, it could say that the presumption is overcome for the high seas but not for foreign territory, along the lines of the Kavanaugh dissent in Doe VIII. In itself, such an outcome wouldn’t be all that surprising – the Court has often manipulated the presumption in creative (albeit inconsistent and unpredictable) ways, most recently in its 2010 decision in Morrison, which for the first time grafted a “focus” test onto the presumption.

However, the Court’s decision may turn on a different issue. In the oral argument, Chief Justice Roberts asked whether allowing ATS claims arising in foreign countries would violate international law. In principle, I’m all in favor of construing the scope of federal law in light of international limits on jurisdiction – in fact, I argued a couple of years ago in the AJIL that the Court should replace its presumption against extraterritoriality with a new and improved presumption against extrajurisdictionality.

Could the Court apply such a presumption here? In his dissent in Sarei, Judge Kleinfeld argued that the law of nations simply prohibits jurisdiction over “foreign-cubed” actions – that is, actions by foreign plaintiffs against foreign defendants arising from torts committed in other countries – even if the actions arise from violations of universally recognized human rights norms. In fact, Judge Kleinfeld’s sources don’t support that conclusion. There isn’t a flat rule against universal civil jurisdiction over certain human rights violations – but neither is there a clear endorsement of the principle. The Restatement says that international law doesn’t preclude such jurisdiction, but in a massive 2006 report on extraterritorial jurisdiction, a task force of the International Bar Association said: “Considering that the concept of universal civil jurisdiction is relatively new, that there are methodological disagreements, that state practice can be and is interpreted in different ways, that recent developments demonstrate ongoing changes and evolution in state practice, and that scholarship in this area reflects conflicting views, the committee felt that it would be most appropriate to recognize that there is a degree of uncertainty with respect to the concept.”

Generally, the Court shouldn’t treat the lack of certainty as the equivalent of a prohibitory rule, especially if the Solicitor General adopts the position of the Restatement. There is a real likelihood, though, that even in the absence of a clear rule, the Court may use the complaints of countries such as the UK and the Netherlands to justify drawing in the scope of ATS claims.

As in Empagran, the Court may say that even if the claim has a connection with the United States, the connection must be strong enough to make the exercise of jurisdiction not “unreasonable.” Or it may base its decision on comity, as Germany’s amicus brief urges it to do.

Either way, the result may be a step backwards in the implementation of human rights law.

http://opiniojuris.org/2012/03/11/kiobel-and-extrajurisdictionality/

3 Responses

  1. Response…
    Three points: (1) piracy occurs on some flag vessel of the victims (see my JURIST op ed on Kiobel), not “on” the high seas and, therefore, regarding foreign flag vessels piracy clearly occurs “in” a foreign territory; (2) universal jurisdiciton does exits and is the answer to the Court’s inquiry here; and (3) the Rest. assures that 403 (which is not int’l law) does NOT apply to 404 jurisdiction (i.e., universal jurisdiciton).

  2. In response to Jordan: (1) It’s pretty common to refer to piracy as being committed on the high seas – the Constitution does, as do the 1790 and 1819 piracy statutes – so I don’t think it would be too surprising if the Supreme Court did too; (2) In my view, universal civil jurisdiction should extend at least as far as universal criminal jurisdiction, but not everyone seems to share our enlightened views on that; (3) No, by its terms Section 403 does not apply to Section 404. My point, which I don’t think I made all that clear, was that the Court might be tempted to use the Section 403 rule of reason even if there’s a potential basis for jurisdiction other than universality – such as the existence of a U.S. defendant. Like you, I’m not a fan of Section 403, but some members of the Court are, and if they don’t think the presumption against extraterritoriality is available but they still want to rein in the ATS, I could imagine their pulling out the Empagran “construe ambiguous statutes to avoid unreasonable interference with other nations’ sovereign authority” language.

  3. Response…
    John: we are on the right side of history, in favor of human dignity and the reach of human rights law.  Yes, some Justices do not seem to share our views and will do whatever they can to obviate jurisdiciton that Congress and the President have chosen, try to overrule Missouri v. Holland, try to avoid the meaning of U.S. Const., art. VI, cl. 2 (which unavoidably requires that “all” treaties are supreme law of the land), and so forth.  Kiobel offers such persons a chance to push just part of the radical revisionist agenda.  We know that there is an ideologic battle in the background.  I think there will be discussion of a new book on Opinio Juris that might relate to such.
    But, on the specific points of discussion, universal civil jurisdiction is, contrary to a “massive” report, not ”new” and has roots in early U.S. history, including some cases under the ATS and the piracy and breach of neutrality cases, etc.  Scalia was rightly challenged in Morrison regarding one rule of statutory construction, because the Supreme Court’s Bowman decision and rationale is another (and there are some other tests in cases like Noriega and bin Laden dist. ct. ops.).
    There is also an underlying separation of powers issue because in general the courts should not obviate jurisdiction that Congress and the President have approved on the basis of a comity-factors or so-called “reasonableness” slot machine post hoc balancing of factors whose weight is unknown and subject to manipulation.  The court’s should not be in the business of engaging in such indirect legislatiing.  With respect to the ATS, the 1795 Opinion of the AG obviously affirmed expectations that the ATS is extraterritorial, applying to conduct of U.S. citizens on the coast of Africa.  Moxon and Bolchos also affirm extraterritoriality when one recognizes the fact that foreign flag vessels are the equivalent of foreign territory under international law and tha conduct on such vessels is conduct in the territory of the flag, among other early cases.  Adra was extraterritorial and the landmark Filartiga case was extraterritorial as have been so many cases post-Filartiga (especially Kadic, Presbyterian Church of the Sudan, Xuncax).   

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