Does the Presumption against Extraterritoriality Apply to the ATS or the Underlying Federal Common Law Claims?

by Roger Alford

I just completed a draft essay on Kiobel for the Notre Dame Law Review (the symposium will include luminaries such as A.J. Bellia, Doug Cassel, William Castro, Bradford Clark, Bill Dodge, Eugene Kontorovich, Thomas Lee, Michael Ramsey, Ralph Steinhardt, Beth Stephens, and Carlos M. Vázquez). To my surprise after careful reflection there remains an important question that I have not seen discussed anywhere thus far: Does the presumption against extraterritoriality apply to the statute only or also to the underlying federal common law claims recognized in Sosa? If it only applies to the ATS, then does it follow that the underlying federal common law claims can be pursued elsewhere, such as in federal courts exercising diversity jurisdiction or in state courts exercising general jurisdiction?

To test the hypothesis, let’s assume that following Kiobel Congress immediately amended the ATS to make it clear that the statute applied extraterritorially. The amendment made no mention of the underlying common law claims one way or another. What impact would that amendment have on the extraterritorial application of the federal common law claims? If the jurisdictional statute suddenly applied extraterritorially by congressional mandate, would the underlying federal common law claims be cognizable for extraterritorial conduct and injury?

If the answer to that question is yes, then does it also follow that the only extraterritorial limitation that Kiobel recognized was with respect to the statute, not the underlying federal common law claims? Reading Kiobel in light of Sosa presents the following possible syllogism: if (1) there is a limited category of federal common law claims actionable for violations of the law of nations; and (2) the statutory canon limits the extraterritorial reach of the ATS, not the underlying common law claims; then (3) the common law claims may be pursued in federal courts exercising diversity jurisdiction or state courts exercising general jurisdiction.

The first uncontroversial premise is that the ATS does not create a cause of action for violations of the law of nations, the common law does. In Sosa the Court held that the ATS, although only a jurisdictional statute, was “enacted on the understanding that that the common law would provide a cause of action for the modest number of international law violations with a potential for personal liability….” It then held that “no development in the two centuries from the enactment of § 1350 … has categorically precluded federal courts from recognizing a claim under the law of nations as an element of common law. Congress has not in any relevant way amended § 1350 or limited civil common law power by another statute.” For such a common law claim to be actionable, however, it must be “based on the present-day law of nations” and “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms we have recognized.” The Court in Kiobel reinforced this understanding of a “modest number” of “federal common law claims” actionable for violations of the law of nations. In other words, both Sosa and Kiobel confirm that the ATS is not the source or the limit for common law claims involving international law violations.

The second more controversial premise is that the ATS is a jurisdictional statute and that the presumption against extraterritoriality applies only to the statute, not to the underlying federal common law claims. In Kiobel the Court declared that “the presumption against extraterritoriality constrains courts exercising power under the ATS.” That presumption, the Court said, is “a canon of statutory interpretation” that assumes “when a statute has no clear indication of an extraterritorial application, it has none.” The purpose of the canon is to avoid unintended clashes between our laws and those of other nations by requiring Congress to manifest a clear intent to regulate conduct abroad. Although the ATS “does not directly regulate conduct or afford relief” the Court concluded that “we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.” The Court then looked to the text, history and purpose of the ATS to determine whether Congress intended for the ATS to apply abroad, and found “nothing in the statute to rebut the presumption.” Had there been such evidence, the jurisdictional statute would apply extraterritorially without altering the content or reach of the underlying common law claims. Likewise, as noted above, should Congress amend the ATS so that it applies extraterritorially, this too would not alter the content or reach of the underlying common law claims. Thus, the presumption against extraterritoriality applies to limit Congress’ grant of jurisdictional authority to adjudicate federal common law claims for violations of the law of nations.

The surprising conclusion one draws from these two premises is that federal common law claims actionable for violations of the law of nations still may be pursued in federal courts exercising foreign diversity jurisdiction or state courts exercising general jurisdiction. As for the former, foreign diversity jurisdiction pursuant to 28 U.S.C. § 1332 requires a $75,000 amount in controversy and the inclusion of a U.S. citizen either as a plaintiff or defendant. The typical “foreign-cubed” facts pursued in ATS claims would be foreclosed under this grant of jurisdiction. However, where a U.S. citizen is involved in a diversity action, the federal common law claims recognized in Sosa may survive Kiobel’s presumption against extraterritoriality. The presumption against extraterritoriality will apply to the diversity jurisdiction statute as well, but as Anthony Bellia and Bradford Clark argue in their forthcoming essay “[i]t is uncontroversial that federal courts may exercise foreign diversity jurisdiction over tort claims by aliens against U.S. citizens for acts occurring outside the United States.”

This conclusion also means that state courts sitting as courts of general jurisdiction may resolve the federal common law claims recognized in Sosa. Unless one interprets the presumption against extraterritoriality articulated in Kiobel as limiting the underlying common law claims rather than the jurisdictional statute, the international law claims that heretofore were pursued in federal court under the ATS still could be pursued in state court as federal common law claims. There is nothing unusual in suggesting that federal common law claims may be adjudicated in state courts. State courts routinely apply and make federal common law, including claims involving admiralty and implicating the rights and obligations of the United States.

But let’s assume that this syllogism is wrong. If the Court’s application of the presumption against extraterritoriality applies both to the ATS and the underlying federal common law claims, there remains the possibility that state courts could fashion state common law claims based on the criteria established in Sosa. State law routinely mirrors comparable federal law. There is nothing in Sosa or Kiobel that prevents a state court from recognizing a state cause of action for violations of “a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms,” such as piracy, violations of safe conducts, or offenses against ambassadors. Courts applying the common law already have established gradations of torts that embrace negligence, gross negligence, intentional torts and strict liability. There is no logical reason that an international law violation could not be a state common law cause of action, or at a minimum a critical factor in the determination of liability or damages under state law.

To suggest that the statutory presumption against extraterritoriality does not apply to federal common law claims (or similar state common law claims) is not to suggest the absence of territorial limits. As with the extraterritorial application of state laws, the constitutional limits of the Due Process Clause set forth in Allstate Ins. Co. v. Hague prevent state courts from applying common law claims in the absence of any “significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.” Nor is there any reason to think courts resolving common law claims for international law violations would go so far as to violate international limits of prescriptive jurisdiction. Both constitutional and international law impose obligations of a territorial nexus separate and apart from the statutory presumption against extraterritoriality. The territorial limits of common law claims for international law violations are derived from constitutional and international law, not canons of statutory interpretation.

I’m not convinced that all of this reasoning is correct, and even less convinced that lower courts will buy these arguments. But I thought it was important enough to flag for our readers.

http://opiniojuris.org/2014/01/24/presumption-extraterritoriality-apply-ats-federal-common-law-claims/

6 Responses

  1. the presumption was created by the judiciary AFTER the ATS (or ATCA) had been enacted and has applied to statutes as such.  Further, customary international law is NOT mere “common law,” and there can be no “common law” claims incorporated by reference in the ATS (only CIL and treaties are incorporated by reference).  Filartiga recognized that you do not need a federal statute for judicial use of customary international law, citing several Supreme Court cases in response to defendant’s extravagant claim.
    Also, at least three district court decisions have used 28 USC 1331 as a statutory  basis for use of international law. Filartiga and Kadic chose  not to rule on the possibility.
    Regarding extraterritoriality, the Charming Betsy rule, etc., please see http://ssrn.com/abstract=2173474
    and for the history of the ATS and early cases, please see http://ssrn.com/abstract=1497122
    My article Human Rights Through the ATS After Kiobel: Partial Extraterritoriality, Misconceptions, adn Elusive and Problematice Judicially-Created Criteria will be published in a Duke journal later this semester — it identifies sevveral errors in Kiobel, etc.

  2. Great post, Roger. I also ran into these issues and addressed them as follows in my forthcoming piece in the Cornell Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2363695
    “I argue that after trying to clarify that the extraterritorial scope of statutes is a matter of prescriptive jurisdiction in Morrison, the Court in Kiobel contradicted and basically tied itself in knots trying to elide whether the scope of the statute at issue in that case—the Alien Tort Statute, or ATS—posed issues of prescriptive or adjudicative jurisdiction. The Court’s contortions were chiefly a result of the ATS’s acknowledged nature as “strictly jurisdictional” and Morrison’s explicit finding that the statutory presumption against extraterritoriality did not apply to the jurisdictional statute in that case but only to conduct-regulating rules—which, as Kiobel recognized, the ATS does not contain since conduct-regulating rules under the ATS come from international law. In trying to finagle the presumption’s application in Kiobel, the Court ended up inventing a brand new presumption and attached it to common law claims allowed under the ATS. Yet even this weird move ultimately couldn’t save the Court from contradicting itself in Morrison because the Court eventually found itself construing the ATS.”
    And later:
    “it seemed the Court really wanted to apply a presumption against extraterritoriality in Kiobel, irrespective of what its prior decisions said. The challenge was how? Of course, the traditional candidate for the presumption would have been the statute’s conduct-regulating rules. But here the ATS posed a bit of a puzzle. The statute’s conduct-regulating rules came not from U.S. law but from international law or “the law of nations.” Again, as the Court in Kiobel explained, the ATS “does not directly regulate conduct . . . [i]t instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law;” accordingly, the relevant question “is whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the cause of action comes from U.S. law and the conduct-regulating norm comes from international law.
     
     
    This bifurcation presented a puzzle because applying a presumption against extraterritoriality to international conduct-regulating norms doesn’t make sense.  International norms against—to use some of the norms at issue in Kiobel—torture and crimes against humanity already apply everywhere in the world; that’s the whole point of international law. Perhaps recognizing that it could not sensibly apply the presumption in its traditional role, the Court had to locate some other creature of U.S. law to which the presumption could attach. The Court seized upon the only thing left: the cause of action allowed by the ATS. I’ve critiqued this move elsewhere on the basis that under longstanding principles of U.S. and international law, forum law traditionally provides the cause of action for suits arising abroad—even where the conduct-regulating rule derives from foreign law. In other words, causes of action have never been deemed an importation of foreign law; rather, courts craft causes of action out of forum law to permit recovery under conduct-regulating rules of foreign law for harms abroad. In this respect, Kiobel’s attempt to circumvent one area of established law (relating to the presumption against extraterritoriality) succeeded only in clashing with another area of established law (relating to which law provides causes of action).
     
     
    But the doctrinal contortions don’t end there. It is worth reiterating that the presumption against extraterritoriality is a canon of statutory construction. We’ve already seen that applying it directly to the ATS itself would be awkward, since the ATS, like § 78aa of the Exchange Act, is a jurisdictional statute. And in fact, the Court didn’t quite do that. Instead, it tried to stretch the presumption around, or perhaps through, the ATS proper in order to reach the common law cause of action the statute implicitly authorized. Needless to say, such a tortured (no pun intended) use of the presumption is odd. It is also not very convincing. For no matter what type of leapfrogging around the Court had in mind for the presumption, it was invariably mired in the text and context of the ATS. Thus although the Court strained to cabin the presumption’s work “to claims under the ATS,” it invariably had to ask about the statute itself, concluding that “nothing in the [ATS] rebuts that presumption.” And once that inevitable statutory inquiry is made, it becomes pellucid that no principled distinction exists between gauging the presumption’s applicability to the ATS on the one hand, and its applicability to § 78aa on the other, and that Kiobel renders the law incoherent.”       

     
     
     
    As to the ability of state law to incorporate international law and reach causes of action arising abroad, I’m with you. I’m just starting working on a piece for the ASIL annual conference on the topic, and tentatively intend to make three points in this regard:
    “First, there is nothing wrong as a general matter with state law incorporating international law. Second, federal foreign affairs preemption is nonetheless in tension with the idea of state law having broader extraterritorial reach than federal law. And third, this tension basically disappears when the state law incorporating international law presents a “false conflict” of laws among the relevant jurisdictions’ laws. Here the fields of private international law and conflict of laws gain salience and supply a doctrinally and historically grounded mechanism for entertaining claims arising abroad in U.S. domestic courts. More concretely, if state law incorporating international law is fundamentally the same law as that operative in the foreign jurisdiction, there is no conflict of laws and the sole applicable law applies.”
    I look forward to reading the Notre Dame pieces!
    Best wishes,
    Anthony
     

  3. Jordan,
    I’m using the common law language expressed in Kiobel and Sosa.  Do a word search in both cases on “common law” and you will see what I mean.  Whether you agree with Sosa and/or Kiobel, I’m working from their reasoning to try and figure out the reach of these federal common law claims.
    Roger 

  4. Great post, Roger. I also ran into these issues and addressed them as follows in my forthcoming piece in the Cornell Law Review: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2363695
    “I argue that after trying to clarify that the extraterritorial scope of statutes is a matter of prescriptive jurisdiction in Morrison, the Court in Kiobel contradicted and basically tied itself in knots trying to elide whether the scope of the statute at issue in that case—the Alien Tort Statute, or ATS—posed issues of prescriptive or adjudicative jurisdiction. The Court’s contortions were chiefly a result of the ATS’s acknowledged nature as “strictly jurisdictional” and Morrison’s explicit finding that the statutory presumption against extraterritoriality did not apply to the jurisdictional statute in that case but only to conduct-regulating rules—which, as Kiobel recognized, the ATS does not contain since conduct-regulating rules under the ATS come from international law. In trying to finagle the presumption’s application in Kiobel, the Court ended up inventing a brand new presumption and attached it to common law claims allowed under the ATS. Yet even this weird move ultimately couldn’t save the Court from contradicting itself in Morrison because the Court eventually found itself construing the ATS.”
    And later:
    “it seemed the Court really wanted to apply a presumption against extraterritoriality in Kiobel, irrespective of what its prior decisions said. The challenge was how? Of course, the traditional candidate for the presumption would have been the statute’s conduct-regulating rules. But here the ATS posed a bit of a puzzle. The statute’s conduct-regulating rules came not from U.S. law but from international law or “the law of nations.” Again, as the Court in Kiobel explained, the ATS “does not directly regulate conduct . . . [i]t instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law;” accordingly, the relevant question “is whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.” In short, the cause of action comes from U.S. law and the conduct-regulating norm comes from international law.
    This bifurcation presented a puzzle because applying a presumption against extraterritoriality to international conduct-regulating norms doesn’t make sense.  International norms against—to use some of the norms at issue in Kiobel—torture and crimes against humanity already apply everywhere in the world; that’s the whole point of international law. Perhaps recognizing that it could not sensibly apply the presumption in its traditional role, the Court had to locate some other creature of U.S. law to which the presumption could attach. The Court seized upon the only thing left: the cause of action allowed by the ATS. I’ve critiqued this move elsewhere on the basis that under longstanding principles of U.S. and international law, forum law traditionally provides the cause of action for suits arising abroad—even where the conduct-regulating rule derives from foreign law. In other words, causes of action have never been deemed an importation of foreign law; rather, courts craft causes of action out of forum law to permit recovery under conduct-regulating rules of foreign law for harms abroad. In this respect, Kiobel’s attempt to circumvent one area of established law (relating to the presumption against extraterritoriality) succeeded only in clashing with another area of established law (relating to which law provides causes of action).
     
    But the doctrinal contortions don’t end there. It is worth reiterating that the presumption against extraterritoriality is a canon of statutory construction. We’ve already seen that applying it directly to the ATS itself would be awkward, since the ATS, like § 78aa of the Exchange Act, is a jurisdictional statute. And in fact, the Court didn’t quite do that. Instead, it tried to stretch the presumption around, or perhaps through, the ATS proper in order to reach the common law cause of action the statute implicitly authorized. Needless to say, such a tortured (no pun intended) use of the presumption is odd. It is also not very convincing. For no matter what type of leapfrogging around the Court had in mind for the presumption, it was invariably mired in the text and context of the ATS. Thus although the Court strained to cabin the presumption’s work “to claims under the ATS,” it invariably had to ask about the statute itself, concluding that “nothing in the [ATS] rebuts that presumption.” And once that inevitable statutory inquiry is made, it becomes pellucid that no principled distinction exists between gauging the presumption’s applicability to the ATS on the one hand, and its applicability to § 78aa on the other, and that Kiobel renders the law incoherent.”      

    As to the ability of state law to incorporate international law and reach causes of action arising abroad, I’m with you. I’m just starting working on a piece for the ASIL annual conference on the topic, and tentatively intend to make three points in this regard:
    “First, there is nothing wrong as a general matter with state law incorporating international law. Second, federal foreign affairs preemption is nonetheless in tension with the idea of state law having broader extraterritorial reach than federal law. And third, this tension basically disappears when the state law incorporating international law presents a “false conflict” of laws among the relevant jurisdictions’ laws. Here the fields of private international law and conflict of laws gain salience and supply a doctrinally and historically grounded mechanism for entertaining claims arising abroad in U.S. domestic courts. More concretely, if state law incorporating international law is fundamentally the same law as that operative in the foreign jurisdiction, there is no conflict of laws and the sole applicable law applies.”

    I look forward to reading the Notre Dame pieces!
    Best wishes,
    Anthony

  5. Roger: a scholar cannot accept nonsense posed by a S.Ct. Justice who demonstrates ignorance of the nature of customary international law as a matter of international law and regarding predominant usage by the federal  judicary from the late 1700s.  Sosa involved a complete misunderstanding or intentional error regarding the law addressed by the S.Ct. in The Paqueste Habana (it was the “law of war,” “international law”); all of the various early subjects of the law of nations identifiable in early judicial opinions and textwriters, ops. of Att’y Gens., etc. (there were dozens and certainly not three mentioned here and there in the majority opinion which even ignored a few of the others lised in that very opinion; etc.  Kiobel completely miseads or intentially mistates what La Jeune involved, focused on, held, etc. — jsut one example of outrageous error or intential mistatement!  At least the dissent pointed out how the majority completely misunderstood (or intentionally mistated) the early ATS cases as well as piracy.
    Shocking, incompetent, and perhaps result-oriented judicial out-of-control activism!

  6. Professor Alford, I seem to recall that this topic was discussed vigorously in the comments to the OJ Insta-Symposium.  One of the thoughts that came up at that time was a distinction between two ways an international norm becomes part of common law.  One is the traditional English view that customary international law is part of the common law.  In a jurisdiction that accepts this proposition, any court with subject matter and personal jurisdiction can hear a claim arising out of CIL.  The other way that an international norm becomes part of common law is by specific adoption by a court in the jurisdiction.  The Supreme Court in Sosa instructed federal courts to fashion federal common law claims for the purpose of preventing the ATS from being a stillborn.  What you are raising is essentially an interpretive question as to the scope of the Supreme Court’s instruction in Sosa.  Given the clear limitation of the purpose of these federal common law causes of action, I think that the better understanding of Sosa is that it instructed federal courts to fashion common law claims that would be exclusively enforceable by means of the ATS.  As we all know, federal rights are not always enforceable in state court where an exclusive federal remedy exists. 

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