Kiobel Roundtable: The Alien Tort Statute, Kiobel, and Extraterritoriality

Kiobel Roundtable: The Alien Tort Statute, Kiobel, and Extraterritoriality

[Curtis Bradley is the William Van Alstyne Professor of Law at Duke University.]

The Alien Tort Statute (ATS) is one-sentence long, was enacted more than 200 years ago, has essentially no drafting history, and was relatively unknown before the Second Circuit’s seminal Filartiga decision in 1980.  As a result, although it is obvious that the ATS was meant to provide the federal courts with jurisdiction over certain suits brought by aliens concerning torts in violation of international law, it is difficult to discern precisely what sort of suits Congress had in mind.  Determining how such a statute should apply to modern conditions, in the light of fundamental changes in international law and in the nature of U.S. common law since the statute’s enactment, is even more challenging, to say the least.

We do know that the ATS was enacted at a time when the authority of nations to regulate conduct was thought to be highly territorial, especially with respect to the conduct of foreign citizens.  We also know that the most prominent mention of the ATS in the early years after it was enacted—in Attorney General Bradford’s 1795 opinion concerning the involvement of U.S. citizens in an attack on the British colony in Sierra Leone—involved a situation in which the United States was alleged to have international responsibility for the torts (as I discussed here).  In addition, we know that the United States would not then—and still does not—have international responsibility for torts committed by foreign citizens (or corporations) on foreign soil.  These and related considerations have led a number of scholars to conclude that the ATS was not designed for a case like Kiobel, where the United States has no responsibility for the alleged tort, and where applying the statute raises extraterritoriality concerns.

Supporters of broad ATS litigation have responded that this line of argumentation is “purposive” and improperly neglects the ATS’s plain language.  One problem with this critique is that the plain language of the ATS provides no support for any federal cause of action, let alone an extraterritorial one.  As a result, supporters of broad ATS litigation do not, in fact, rely simply on the text of the ATS.  They argue, as did the majority of the Supreme Court in Sosa v. Alvarez-Machain, that the ATS was implicitly designed to allow certain tort claims to be brought without a separate statutory cause of action, and they cite various historical materials and events in support of this hypothesis.  To address the requirement in modern doctrine of a positive law source for the cause of action, they also contend, as did the Court in Sosa, that the ATS should be construed as authorizing federal common law claims for certain torts that violate international law.  The Court in Sosa explained that it was adopting this construction in order to give effect to the “ambient law of the era” in which the ATS was enacted.  Whatever one may think about this approach to statutory construction, it is not based solely on plain language.

In any event, there is nothing improperly purposivist about applying a limiting presumption such as the presumption against extraterritoriality (which was applied in Morrison v. National Australia Bank (2010)), or the softer presumption against extraterritorial applications that would involve an “unreasonable interference with the sovereign authority of other nations” (applied in F. Hoffman-La Roche v. Empagran (2004)).  Among other things, such a presumption can prompt Congress to provide additional policy guidance.  The ATS would seem to be a prime candidate for such prompting.  After all, Congress’s intent in the ATS is obscure, and, as noted, the text does not even mention causes of action, let alone define their proper scope.  Moreover, extraterritorial application of this statute, by focusing on alleged tortious conduct by foreign governments and their supporters abroad, has a high potential for creating foreign relations friction. A number of the briefs filed in Kiobel emphasize this concern, including the latest brief filed by the Executive Branch, a brief filed by the United Kingdom and The Netherlands, and a brief filed by former State Department Legal Advisers.

It has been argued that an extraterritorial limiting presumption should not apply to the ATS because the ATS is strictly a jurisdictional rather than substantive statute, and because ATS cases do not involve the application of U.S. domestic law.  In fact, as noted above, the ATS was construed in Sosa as authorizing the judicial development of federal common law causes of action.  Without that holding, it is not clear what basis the plaintiffs in these cases would have for seeking a domestic remedy.  The corporate ATS cases have especially highlighted the domestic law aspects of ATS litigation, since there is no direct support in international law for corporate human rights liability, something emphasized by the Second Circuit in Kiobel.  If extraterritorial application is disfavored for statutes without a clear indication of congressional authorization, as the Supreme Court has made clear in recent years, one would think that such extraterritorial application would also be disfavored for federal common law being applied based on the implicit purposes of a statute.

Supporters of broad ATS litigation contend that the Congress that enacted the ATS would have thought it proper to assert extraterritorial jurisdiction over piracy committed outside the United States, and that this shows that the ATS was not meant to be strictly territorial.  This argument is highly speculative, given that there is no hint of a connection to piracy in the text of the ATS, there have been no ATS piracy cases in the history of the United States, and Congress’s first legislative effort directed specifically at piracy was enacted a year after the ATS and was limited to criminal prosecution.  More importantly, piracy at its core concerns conduct on the high seas, and potentially also in other waters not under any sovereign’s jurisdiction, whereas ATS cases like Kiobel concern conduct in the territory of another sovereign.  As a result, the modern ATS cases are extraterritorial in ways that piracy cases would not have been.

Nevertheless, and here I depart from the position of the respondents in Kiobel, I do not think the strong presumption against extraterritoriality—which was applied, for example, to the securities fraud statute in Morrison—is a perfect fit here.  When the ATS was enacted, it was conceivable that the United States would have been responsible for providing opportunities for redress for certain extraterritorial conduct by U.S. citizens, as illustrated by the Sierra Leone incident noted above.  Moreover, when the Supreme Court addressed the scope of the ATS in Sosa, it did not suggest that the statute was strictly limited to conduct occurring within the United States, and it cited favorably to Filartiga, which involved extraterritorial conduct.  It is also worth noting that, although the presumption against extraterritoriality applies today even to conduct by U.S. citizens abroad, this was not as clear in early cases applying the presumption (i.e., in cases closer in time to the ATS’s enactment).

The presumption that would be a better fit for this context, I would suggest, is the somewhat softer presumption against “unreasonable interference with the sovereign authority of other nations” applied by the Supreme Court in Empagran.  This sort of presumption might suggest (for example) disallowing cases like Kiobel that involve conduct by foreign corporations abroad (on the ground that the U.S. interest in them is small as compared with the danger they pose to U.S. foreign relations), while leaving open other potential applications of the ATS, such as to U.S. citizens and corporations (for which the United States may have some responsibility) and to foreign citizens residing in the United States (on the ground that the United States has an interest in not being a haven to human rights abusers).  Although it is hazardous to make any predictions from oral argument, a number of the Justices during the reargument in Kiobel appeared to be searching for an intermediate approach along these lines.

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Benjamin Davis
Benjamin Davis

But of course, the effect of the softer presumption is to essentially say that ATS cases will not go forward when the conduct is in big powerful other countries in the world that might complicate the life of some foreign state leadership which is going to say what we are doing is unreasonable and not to apply it when it is some smaller weaker foreign state.  This rule would have let lie an ATS claim by a German Jew against someone in the Hitler regime for the torture of their parents (I understand from Scotusblog this type of scenario was part of the oral argument) for example as Germany was a powerful state at the time and lots of threatening could have come from Germany toward the US in say 1938. As Jordan has noted, piracy may be done on the high seas but the ships that are attacked are, of course, carrying the flag of a sovereign and are therefore the territory of the sovereign similar to North Carolina.  So, I doubt, this rode flies either. I think the limiting principle may be coming from the act of state of doctine rather than in the ATS.  The problem is that Filartiga… Read more »

Benjamin Davis
Benjamin Davis

Let us maybe flip this another way.  Take Al-Kidd, an American citizen now living in Saudi Arabia, whose case against John Ashcroft was dismissed here on qualified immunity grounds but whose second case was just allowed to go forward where governmental lawlessness in getting the warrant for his being held on a material witness ground was found to have been based on flat out lies and misstatements to the judge by the US government.  Say Al-Kidd seeks to vindicate his claim for his bad treatment in a foreign court.  One would expect that the United States – as it has done with each attempt to raise issues about US torture – would furiously throw its weight around whatever the Administration to try to shut down the foreign case.  The limiting principle you suggest here, if applied in the foreign court, would most likely lead to a dismissal of this kind of case due to “inconveniencing the superpower”  even when the superpower has done shocking things.  It is one more recipe for impunity.

Martin Flaherty

Professor Bradley provides a typically rigorous and nuanced analysis of the ATS, Kiobel, and extraterritoriality.  In the end, however, he shows too much solicitude for abstract notions of sovereignty and legal formalism and too little for victims of human rights abuses especially those, as here, who have sought refuge in the United States — who would have no other forum other than the Federal courts. First, to be sure the text and context of the ATS are Delphic.  Yet one source of statutory meaning that Bradley overlooks is precedent.  Since Filartiga, the Federal courts as well as the Supreme Court have upheld suits by aliens, against aliens, for violations of international law occurring on foreign soil.  Surely this must carry some weight, and indeed appeared to in yesterday’s oral argument. Second, Bradley acknowledges, but does not sufficiently refute, the argument that a cause of action based upon international law presents a different case from one based purely on domestic law for the purposes of extraterritoriality analysis.   Though Federal common law, the substance of any ATS suit is by definition of international law.  To the extent it is typically customary international law, it is a norm that has met the bar… Read more »