Kiobel (III): Universality as a Constitutional Question

by Eugene Kontorovich

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 Northwestern University Law Review __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are again reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

7 Responses

  1. I think it is important not to ignore the critical distinction between criminal and civil law here, particularly so because proponents of expansive
    ATS jurisdiction claim that it merely allows jurisdiction to enforce private rights between private litigants.  The Define and Punish power case law is instructive on the point of what Congress intended the scope of the ATS to be, but I am not sure we can say it is controlling given that ATS jurisdiction extends to torts only.  Some have claimed that “punishment” in that clause could include civil remedies.  While that may be true, I am not sure it is necessarily relevant to claims between private entities (as opposed to, say, civil fines payable to the U.S. government).  Punishement, as seems to be implied in the case law, involves affirmative sovereign disapprobation of conduct, not merely permitting a private remedy.

    I do find this case law relevant to the ATS for a slightly different reason.  As I have explained here at OJ before, the ATS is not purely or solely a jurisdictional statute, but rather a public law aimed at vindicating unique U.S. public interests.  This likens it to a criminal law, such as piracy, for which there is ordinarily a presumption against extraterritorial application.  This appears to have been articulated as an absolute constitutional limit on the Define and Punish power in the case law Eugene cites.  It is only by eliding the distinction between civil and criminal (or public and private) law that one can so easily conflate these two forms of jurisdiction, forms distinct in both domestic and international law.  This public nature of the law also seems to be evident from the other violations of the law of nations that Sosa found to be clearly within the scope of the ATS, neither of which (if memory serves) were subject to UJ. 

    UJ over piracy was necessary to permit a state to vindicate the public rights and interests of the international community for acts occurring on or between foreign flagged vessels on the high seas.  Those interests had and still have only a coincidental relationship to the underlying private rights of the victims of piracy.  Thus, in the modern context, the existence of UJ to criminally punish genocide, certain war crimes and crimes against humanity has little to say about the extent to which the U.S. may (consistently with international law) and has (in the ATS) opened its federal courts to private claims between private litigants for law of nations violations.

    If the Define and Punish power is not directly in play, then the applicable  constitutional limitation on the ATS is only Article III.  Congress cannot extend the federal judicial power to cases over which Article III does not (see Marbury v. Madison).  Thus, Rio Tinto‘s interesting Article III Dance.  According to the Rio Tinto majority, the ATS allows creation of a federal cause of action, thereby supporting “arising under” jurisdiction even in foreign cubed cases (because without it, no other Article III basis of jurisdiction exists).  However, the conduct regulating norms are international in nature and subject to universal jurisdiction, thereby permitting extraterritorial extension of this federal civil remedy.  The failure to recognize that UJ supports criminal rather than civil jurisdiction is a problem, as is the attempt to anchor the ATS in the Define and Punish power rather than recognize it as an effort to implement Article III federal jurisdiction in cases uniquely touching upon national interests and concerns.

  2. Response…
    Restatement Section 404, comment b. And the courts do not “define,” they recognize, interpret, and clarify. The constitutionality of incorporation by reference has long been recognized by our courts.

  3. Jordan, While I agree with your position when it comes to the substantive law, at a minimum, the courts must “define” the remedy in an ATS case, no?  Congress delegated power to provide a common law civil remedy, which the courts will determine.  Otherwise, the courts “recognize” or “take notice” of relevant international law.

  4. Prof. Dehn,
    Looking at your comments today and your past post on Rio Tinto and the Charming Betsy canon, which of the many recent judicial decisions (i.e., within the past year and a half) have the ATS’s jurisdictional reach correct?

  5. Jordan, The constitutionality of incorporation has been recognized with respect to piracy (US v Smith) specifically because it was such a cut-and-dried offense. The implication, made explicit in the concurrence, was other offenses would require congressional definition. Anyway, what does “Define” mean if not recognize, interpret and clarify. Surely it can’t mean invent, as that would mean Congress can invent the law of nations, which Wilson at the convention said was ridiculous.

  6. Turning to Prof. Dehn’s insightful comments, I agree the ATS is not obviously an exercise of the Offenses power, but courts and commentators have invariably shoehorned it in there, as I describe in my forthcoming article in the Northwestern law review.

    It is hard to think where else the federal government gets power to deal with foreign-cubed cases. Even federal common law is not a Margritte castle hanging in the air; federal courts do not have common law powers in areas beyond Art. I powers. (Even to the point that we infer “Art I” powers from Art. III common law authority, as in Admiralty.”)

    I agree that the assumption that civil and criminal jurisdiction in such cases are coextensive needs justification. But if they are not, it is also not obvious that civil would be broader.

  7. Prof. Kontorovich,
    Looking at your recent postings and talks/podcasts you’ve given on Kiobel the past couple of months, I should ask you the same question.  In your opinion, which of the many recent judicial decisions (i.e., within the past year and a half) have gotten the ATS’s jurisdictional reach correct?

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