Kiobel Insta-Symposium: When Can the Presumption Against Extraterritoriality Be Rebutted?

by Thomas Lee

[Thomas H. Lee is the Leitner Family Professor of Law at Fordham Law School and a Visiting Professor of Law at Harvard Law School in 2012-13.]

Based on my quick read through the opinions, it seems that it’s a win for corporations and a loss for international human rights groups seeking to use the US federal district courts to vindicate claims of customary international law violations outside of the United States, in other foreign sovereign territories.  The principal rationale was that there was not enough here to rebut the presumption against extraterritoriality, most recently articulated in Morrison v. National Australia Bank.

The big question going forward will be the circumstances in which the presumption might be rebutted. One possibility clued in by the majority’s discussion of the 1794 Bradford opinion (page 12) is where there is a treaty provision in play which the US has ratified, even though that treaty might not be viewed as “self executing.”  For instance, torture under the Torture Convention brought by an alien, as opposed to a US citizen under the TVPA.

Another might be an instance where there is US sovereign complicity in the violation outside of the territorial United States, for instance, where a US or alien subcontractor, acting under U.S. governmental authority or authorization, has violated specific, universal, and obligatory customary international law norms (e.g., Common Article III) by enhanced interrogation techniques employed against an alien plaintiff in a foreign sovereign territory.

Finally, perhaps, as with piracy on the high seas, ATS claims may be possible in terra nullius circumstances, such as where acts have occurred in failed states.

2 Responses

  1. I agree that a big question going forward will be the circumstances in which the presumption might be rebutted—especially because the presumption is unlike the presumption in Morrison.
    As the Court concedes in Part II of its Kiobel opinion, its application of the presumption against extraterritoriality to ATS claims is novel.  In previous cases, it applied the presumption “to discern whether an Act of Congress regulating conduct applies abroad” (p. 5).  In Kiobel, it has extended the application of the presumption—or at least “the principles underlying” the presumption, as Chief Justice Roberts puts it (p. 5)—to “constrain courts considering causes of action that may be brought under the ATS.”  Perhaps unsurprisingly, this new presumption gives rise to some problems, one of which is reflected in the analytical tension between Part III and Part IV of Chief Justice Roberts’ opinion.  The extraterritoriality analysis in Part III focuses (like Morrison) on the text and context of the ATS itself to determine whether the presumption against extraterritoriality is overcome.  In contrast—and very differently, it seems—Part IV suggests that something else could also overcome the presumption in particular ATS cases: “claims that touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritoriality.”
    The Court’s new presumption—which is, in effect, a “presumption against recognition of extraterritorial causes of action under the ATS”—thus appears to be different from the standard Morrison-style presumption against extraterritoriality in at least three ways: (1) the presumption’s coverage (the new presumption applies narrowly to recognition of extraterritorial causes of action by federal courts under the ATS, whereas the standard presumption applies to the extraterritorial application of conduct-regulating federal statutes); (2) how the presumption can be overcome (the new presumption can, it appears, be overcome using arguments beyond the textual and contextual arguments available for overcoming the standard presumption); and (3) the level of analysis (the new presumption appears to focus on “claims” as the level of analysis and whether they “touch and concern the territory of the U.S. . . . with sufficient force to displace the presumption against extraterritorial application,” whereas the standard presumption focuses on legislation as the level of analysis and whether there is a “clear indication” that Congress intended to regulate extraterritorially).  The extent and significance of these differences remains to be worked out.

Trackbacks and Pingbacks

  1. […] getting creative in their efforts to define potential claims under the new, post-Kiobel ATS. Over at Opinio Juris, Thomas Lee […]