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.