Kiobel and Extrajurisdictionality

[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.