[John H. Knox is Henry C. Lauerman Professor of International Law at Wake Forest University School of Law]
As Anthony Colangelo has already noted, the fundamental difference between the majority and the Breyer concurrence in Kiobel is that the majority opinion applies a presumption against extraterritoriality, and the Breyer concurrence a presumption against extrajurisdictionality. Kiobel illustrates how stark the difference can be. The majority’s refusal to allow ATS suits for torts beyond U.S. territory is likely to result in the dismissal of most ATS litigation. The concurrence’s approach would allow the great majority of pending ATS suits to continue, as long as they did not extend beyond certain accepted bases for legislative jurisdiction under international law. (Justice Breyer specifies the two most important bases, territory and nationality, and adds a third – a substantial and adverse effect on “an important American national interest” – that would appear to include not only protective jurisdiction and some types of jurisdiction based on effects, but also, as he makes clear, universal jurisdiction for a limited set of crimes constituting the modern equivalents of piracy, such as torture and genocide.)
As Anthony says, the Breyer concurrence more or less adopts his suggestion, which is to use international principles of jurisdiction in interpreting laws “designed to implement international substantive law,” such as the ATS. I think that the Breyer concurrence ’s approach is also consistent with a more general use of the presumption against extrajurisdictionality in interpreting all federal laws, which I described three years ago in the AJIL. Kiobel again illustrates the superiority of a canon linked to international jurisdictional norms to one based on a strict presumption against extraterritoriality.
Although the presumption against extraterritoriality has become the more commonly cited canon, the presumption against extrajurisdictionality is the one with the longer history. An early offshoot of the Charming Betsy canon, it emerged in the piracy cases of the early nineteenth century (such as United States v Palmer) that are now erroneously cited as the first uses of the presumption against extraterritoriality. The presumption against extraterritoriality branched off from the earlier presumption in the twentieth century, and attained its current pride of place only after being promoted by the conservative justices on the Supreme Court in a series of decisions since the late 1980s. Over the same period, the presumption against extrajurisdictionality was reduced to lurking in the margins of Supreme Court opinions.
It deserves greater attention. Two of the Court’s principal justifications for the presumption against extraterritoriality are predictability (which it cited in Morrison in 2010) and the avoidance of foreign conflicts (cited in Kiobel). But predictability is obviously not served by overturning decades of settled jurisprudence from federal appellate courts, as the Court has now done for the second time in three years. And while foreign governments may well be uneasy about assertions of universal civil jurisdiction for all human rights violations, there is no reason to believe that the concurrence’s limited bases for jurisdiction in accordance with international law would cause the same types of problems.
Let’s be clear: the real motivation underlying the Court’s use of the presumption against extraterritoriality is the conservative justices’ dislike of the aggressive use of federal law, which the presumption gives them a convenient tool to restrict. The concurring opinion shows that there is another approach, one that I hope a future Court will follow in construing the ATS and, beyond that, other federal laws.