Kiobel Insta-Symposium: A Tale of Two Presumptions

[Dr. Alex Mills is a Lecturer in the Faculty of Laws at University College London.]

Although the Kiobel Court finds unanimously for the respondents, it is nevertheless predictably split (between the opinion of the Court, written by Chief Justice Roberts, and the concurrence led by Justice Breyer) when it comes to the reasons underlying that decision. One way of characterising this split is as a competition between two presumptions (as also noted previously by Anthony Colangelo and John H Knox in this ‘Insta-Symposium’).

The first, the apparent foundation of the opinion of the Court in Kiobel, is the application to the Alien Tort Statute of the ‘presumption against extraterritoriality’, most recently articulated by the Supreme Court in its 2010 Morrison decision. The opinion of the Court finds that the presumption “applies to claims under the ATS, and that nothing in the statute rebuts that presumption” (p.13). On this basis the ATS is determined (as discussed further below) not to apply to the facts of Kiobel, in which “all the relevant conduct took place outside the United States” (p.14), and the only connection with the United States was the “mere corporate presence” (p.14) of the respondents.

The second, which finds a more implicit support in the Breyer concurrence, is the presumption against breach of international law – often known as the ‘Charming Betsy’ doctrine after the 1804 Supreme Court decision. One particular application of this presumption is that statutes should be interpreted not to violate international law’s jurisdictional rules (this has thus been called the ‘presumption against extra-jurisdictionality’) – that is, that statutes should be presumed only to assert prescriptive jurisdiction where that assertion would be acceptable under international law. These include not only assertions of jurisdiction over conduct within a State’s own territory, but also over conduct of its nationals wherever occurring, in protection of its nationals wherever located, and in protection of a State’s essential national interests. As discussed further below, these criteria are readily (if slightly roughly) recognisable as the limitations which Justice Breyer et al would apply to the ATS – under their approach the ATS is thus interpreted as constrained by these recognised jurisdictional grounds under international law.

So why should one of these presumptions be adopted over the other? If the concern is avoidance of “unintended clashes between our laws and those of other nations which could result in international discord” (Roberts opinion, p.4, quoting EEOC v. Arabian American Oil Co), then clearly the presumption against extraterritoriality is the more cautious option. It is simply true that US law is less likely to conflict with the law of foreign States if it does not purport to regulate events outside US territory. But there is a self-denialism in such restraint, curiously difficult to reconcile with the US history of expansive interpretation of international law’s extraterritorial jurisdictional rules (most notably through the effects doctrine). Many States exercise jurisdiction on the basis of the nationality or protective principles, including over conduct occurring in the United States, and US restraint in exercising such jurisdiction hardly seems likely to persuade other States not to exercise their rights. The fact that these jurisdictional grounds are accepted in international law also means that States have implicitly accepted a limited possibility of regulatory conflict – making a collective policy decision that the potential for conflict in overlapping regulation is outweighed by its benefits. A broadly-applied presumption against extraterritoriality presumes (in the absence of indications to the contrary) that Congress does not wish to exercise regulatory power which it is widely agreed that Congress can exercise as a matter of US and international law. This is a highly debatable presumption – indeed, if one overriding policy concern here is “the danger of unwarranted judicial interference in the conduct of foreign policy” (p.5), this seems ironically like the Supreme Court attributing (or even dictating) a foreign policy conservatism to Congress.

But there is a perhaps even more significant issue with the Roberts approach, which is what it leaves undecided – as noted particularly in Justice Kennedy’s pivotal concurrence, as well as the Breyer opinion. While Part III of the Roberts opinion appears to argue that the ATS must conclusively be interpreted as not applying extraterritorially, Part IV appears to take a critical step ‘backward’ in concluding that it is only the facts of this case which are not subject to the ATS, providing only that where other claims “touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application” (p.14). Despite initial appearances, the ATS has thus not definitively been interpreted to have no extraterritorial effect, but rather, it has only been interpreted as not extending extraterritorially in the circumstances of Kiobel – that is, to purely extraterritorial ‘foreign cubed’ cases. This is not a presumption against any extraterritoriality, but only a presumption against total extraterritoriality. As the Breyer opinion notes, the Roberts opinion’s reliance on the presumption against extraterritoriality “offers only limited help” (p.5) in interpreting the ATS, and “leaves for another day” (p.6) the question of when the ATS might nevertheless have some extraterritorial effect, and subject to what limits.

One possible source for these guidelines remains, of course, the Charming Betsy doctrine, and its presumption of compliance with international law’s jurisdictional limitations. Thus, the ATS might still properly be interpreted as applying not only to events in US territory, but also to the conduct of US ‘nationals’ (which may extend not only to US companies but also possibly companies with sufficient presence to be subject to US general jurisdiction – but see p.14 of the Breyer opinion perhaps suggesting otherwise), conduct against US nationals (a basis of jurisdiction which has been relied on legislatively by the United States, although is curiously omitted from discussion in the Breyer opinion), and other cases in which the United States has an important national interest to protect. One particular national interest, as articulated in the Breyer opinion, might be ensuring that the United States is not “a safe harbor for violators of the most fundamental international norms” (p.7), thus exercising extraterritorial jurisdiction on the sole condition that the offender is subsequently present in US territory – effectively, a form of conditional universal jurisdiction similar to that found in some international treaties (like those requiring States to extradite or prosecute defined manifestations of terrorism). Each of these possible extensions of the ATS involves a territorial ‘hook’ which might be relied on “to displace the presumption against extraterritorial application” of the ATS. The opinion of the Court offers nothing on these questions – and indeed it could not given the narrowness of its approach.

While the Roberts opinion may initially appear a triumph for the presumption against extraterritoriality and a cautious and conservative approach to the ATS, a strong argument might therefore be made that the real debate is indeed left for another day, to take place in the ‘territory’ of the Breyer opinion. It may well be that opinion and its implicit presumption against extra-jurisdictionality which will carry greater influence in the shaping of the ATS and US law in the future.