17 Apr Kiobel Insta-Symposium: When Can the Presumption Against Extraterritoriality Be Rebutted?
[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.