John Witt’s magisterial new book, Lincoln’s Code: The Laws of War in American History, appeared a few weeks ago, and Gary Bass has an enthusiastic review of it in yesterday’s New York Times Sunday Book Review.  I am only about half-way through it, but Bass’ enthusiasm is entirely justified – it is a fabulous book and one that I think merits attention world-wide.  Bass’ review-essay is also well worth the read:

Abraham Lincoln’s administration published a new fighting code for Union soldiers in 1863, which diffused far beyond American shores: to the Prussian Army in 1870, into the landmark Hague Convention in 1899, and even into the Geneva Conventions and the Nuremberg trials after World War II. Witt, a professor at Yale Law School, writes that it was Francis ­Lieber, the Lincoln team’s foremost wartime legal authority, who — trying to figure out how Union troops should treat Southern irregulars — came up with some of the defining features of soldiers that guided the Third Geneva Convention in 1949: wearing distinctive insignia identifying them as combatants; operating under a command structure; and following the laws of war.

“Lincoln’s Code” is both a celebratory chronicle of American lawmaking and a gruesome record of American wartime cruelty, from William Tecumseh Sherman’s rampage through Georgia and South Carolina to the Indian wars. In an effort to make sense of what animates the “world’s only military superpower” today, Witt looks backward: “From the Revolution forward, the United States’ long history of leadership in creating the laws of war stands cheek by jowl with a destructive style of warfare.”

Witt argues that Americans have been torn between “two powerful but competing ideals”: humanitarianism, which seeks to make war less awful through gentler rules; and justice, which demands victory in a righteous cause. Americans, he writes, have seen military law not just as an obstacle to effective fighting, but also “a tool for vindicating the destiny of the nation.”

Witt himself is a pragmatic type. While he admires much about the laws of armed conflict, he does so largely on the modest grounds that they can serve “as tools of practical moral judgment in moments of extreme pressure.” He is impatient both with skeptics who dismiss international law as rank hypocrisy, and with more aspirational legalists whose ideals are “so remote” from actual war-fighting that they make it “less likely . . . the laws of war will find traction in times of crisis.” He paraphrases Oliver Wendell Holmes Jr.: “The life of the laws of war has not been logic. It has been experience.”

Having followed the terrorism litigation against Iran for years, I was fascinated to read of the recent legislation—Section 502 of the Iran Threat Reduction and Syria Human Rights–that creates a legislative fix for victims of one particular group of terrorist victims but not thousands of others.

The law in question grants plaintiffs/judgment creditors in one and only one case—Peterson v. Iran—the right to attach Iranian assets held in the United States, notwithstanding any other provision of law, including sovereignty immunity laws and laws recognizing the separate corporate identities of Iranian government entities.

As reported by Basil Katz of Reuters here, the case involves a $2.65 billion damage award obtained by the victims of Beirut Marine Corps barracks in 1983. The U.S. Treasury discovered $1.75 billion in a Citibank account that was deposited by Clearstream, an entity that holds Iranian funds in Luxembourg potentially subject to attachment.

There are several interesting wrinkles to this case.

First, it certainly is not clear that the $1.75 billion held at Citibank are Iranian assets held in the United States. Clearstream is arguing precisely that. The statute gets around this problem by broadly defining what constitutes an Iranian asset held in the United States. According to the statute, such an asset is one that is:

“(A) held in the United States for a foreign securities intermediary doing business in the United States, (B) a blocked asset [defined as those involving Peterson v. Iran] … and (C) equal in value to a financial asset of Iran, including an asset of the central bank or monetary authority of the Government of Iran or any agency or instrumentality of that Government, that such foreign securities intermediary or a related intermediary holds abroad.”

In other words, if a third party financial institution holds Iranian assets abroad, and also holds the equivalent amount in the United States, that money is a financial asset subject to attachment by the Peterson claimants.

Second, the statute supersedes “any other provision of law, including any provision of law relating to sovereign immunity, and preempting any inconsistent provision of State law.” Thus, the normal rules under the FSIA regarding immunity from jurisdiction or enforcement simply do not apply to the Peterson claims against Iran. The same goes for the Algiers Accords, which obligate the United States to transfer all Iranian assets held in the United States.

Nor do the normal rules apply with respect to the separate corporate identities of Iranian government entities. Clearstream’s financial assets held in Luxembourg belong to Bank Markazi (a.k.a. the Central Bank of Iran). But the statute defines “Iran” as “the Government of Iran, including the central bank or monetary authority of that Government and any agency or instrumentality of that Government.”

Third, the statute appears to privilege one group of victims to the exclusion of others. As most of our readers know, U.S. courts have awarded billions of dollars in judgments to thousands of victims of Iranian terrorism. Of all the acts of Iranian terrorism—the bus bombings in Jerusalem and suicide bombings at shopping malls in Tel Aviv, the targeted assassinations of Iranian dissidents in Paris, the victims of the Khobar Towers bombings in Saudi Arabia—why does this one group of victims deserve special statutory protection while the other victims do not?

The pragmatic answer, of course, is that counsel for the Peterson family was able to secure a legislative fix that other victims could not. That hardly appears satisfactory given the stakes involved. Frankly, there is something unseemly about a statute that so clearly privileges one set of terrorist victims at the expense of others.

The Reuters report suggests that there is an agreement between the Peterson victims and the other victims to share any judgments recovered, but it provides no details. Such a contractual solution is somewhat encouraging, but I seriously doubt that the other terrorist victims/judgment creditors will stand on an equal footing as the Peterson family based on this agreement. They, after all, have no leverage other than moral suasion.

Section 502 does state that a court must determine that “no other person possesses a constitutionally protected interest in the assets described in subsection (b) under the Fifth Amendment to the Constitution of the United States.” It’s not clear whether this refers to the Takings Clause—which seems likely—or to other clauses, such as the Due Process Clause prohibiting deprivations of life, liberty or property without due process of law. Regardless, I fail to see how the other victims of Iranian terrorism could fall within that exception.

Who knows where all this is headed. Litigation of this $1.75 billion dollar question is pending in New York. I will keep you posted.

It is a draft platform, but these parts of the 2012 GOP Platform are certainly interesting. It appears to have strong language in favor of “American Exceptionalism” and American sovereignty.

Under our Constitution, treaties become the law of the land. So it is all the more important that the Congress — the senate through its ratifying power and the House through its appropriating power — shall reject agreements whose long-range impact on the American family is ominous or unclear. These include the U.N. Convention on Women’s Rights, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, and the U.N. Arms Trade Treaty as well as the various declarations from the U.N. Conference on Environment and Development. Because of our concern for American sovereignty, domestic management of our fisheries, and our country’s long-term energy needs, we have deep reservations about the regulatory, legal, and tax regimes inherent in the Law of the Sea Treaty and congratulate Senate Republicans for blocking its ratification. We strongly reject the U.N. Agenda 21 as erosive of American sovereignty, and we oppose any form of U.N. Global Tax.

Unlike Josh Keating, I don’t read this platform as “black helicopter” stuff.  I think there are reasonable policy arguments against all of the above treaties, especially UNCLOS.  I do agree, though, that this might herald an important policy shift. A majority of the GOP has previously supported US ratification of UNCLOS, but it looks like UNCLOS opposition is now going to be in the GOP mainstream.  And that means that US ratification of UNCLOS looks even more unlikely.

Since the late 1990s, thirty-nine nations have signed the OECD Anti-Bribery Convention. So far so good. But unfortunately, the treaty essentially is toothless, requiring nations to implement national laws that prohibit foreign bribery, but doing little more. Only a handful of countries are effectively enforcing their anti-bribery laws. Which ones? Well, the answer seems to be the countries where the United States has gone after their corporations.

Under the FCPA, of course, the United States has jurisdiction over foreign companies that bribe foreign officials, provided they issue shares on a U.S. stock exchange. That is a very large category of foreign corporations. The United States can also go after foreign corporations if there is some territorial nexus. The DOJ and the SEC take an expansive interpretation of territoriality, such that the payment of a bribe through a U.S. correspondent bank or the sending of an email sent through a U.S.-based email account is considered a sufficient territorial nexus to permit prosecutions of foreign companies for bribing foreign officials on foreign soil.

So precisely how does the extraterritorial application of U.S. anti-bribery laws affect the regulatory behavior of other nations? That was the question of a recent study by Sarah Kaczmarek and Abraham Newman published in International Organization. The findings are fascinating, and strongly support the idea that an FCPA prosecution will jump-start corruption enforcement in other OECD countries.

The study by Kaczmarek and Newman found “strong statistical evidence linking extraterritoriality to national policy implementation.” Thus, if the U.S. prosecuted a German or British firm under the FCPA, the enforcement behavior of the German and British authorities increased dramatically. “[T]he odds of a country enforcing its first case are twenty times greater if a country has experienced extraterritorial application of the FCPA as compared to countries that have not.”

In other words, the regulatory behavior of OECD Parties changes dramatically following an FCPA prosecution of one of its nationals. This convergence trend suggests that, as the study put it, “lead regulators from large markets may alter domestic enforcement decision making in other jurisdictions, underscoring the subtle legal authority enjoyed by bureaucracies from powerful states to influence international markets.”

American corporations have long complained of the comparative disadvantage they have vis-à-vis other corporations because of U.S. anti-bribery laws. The OECD Convention went a long way toward leveling the playing field. But if you really want a level playing field, one of the best ways to achieve it is for the United States government to go after foreign corporations under the FCPA. This will increase the likelihood that other countries will launch their first corruption case under their own domestic laws by a factor of twenty!

If our world is a global village, I guess we could say that as long as there is one sheriff in town serious about government corruption, others will join the posse.

The shoe has finally dropped. Ever since the Invictus Memo was released to the public we knew that the Ecuadorian Plaintiffs were considering twenty-seven different countries to enforce the $18.2 Ecuadorian judgment against Chevron. With Chevron’s far-flung assets, it was plausible that the Plaintiffs would choose to enforce the judgment in countries with close ties to Ecuador and a questionable commitment to the rule of law. The good news is that the Plaintiffs have chosen, at least for now, a highly reputable forum–the Ontario Superior Court in Canada–for adjudicating the recognition and enforcement of the judgment. Here’s a key excerpt:

11. The Judgment of the [Ecuadorian] Appellate Division is a final Judgment in Ecuador and is exigible against the assets of Chevron in whatever jurisdiction any may be found, including Canada.

12. All the facts, findings and conclusions of law stated in the Judgments and Clarifications in Ecuador are res judicata as between the parties.

13. As a consequence of the Decision of the Supreme Court of Canada in Beals v. Saldanha and subsequent jurisprudence, Chevron is estopped from challenging any fact, finding or determination of law in the Ecuadorian Decisions on the merits. Further, Chevron is restricted from challenging the Ecuadorian Decisions on the basis of fraud unless it can demonstrate that the allegations are new, not the subject or prior adjudication and were not discoverable by the exercise of due diligence.

Significantly, the plaintiffs are trying to attach the assets of Chevron Canada Ltd and Chevron Canada Financial Ltd, two wholly-owned subsidiaries of Chevron. Given that Chevron itself has few assets in Canada, the choice is somewhat curious. We know from the Invictus Memo that the Plaintiffs are seeking a jurisdiction that is “flexible” on veil-piercing, including what they call the “rare” case of “reverse veil-peircing”, holding the subsidiary liable for the parent’s judgment debt. (see p. 23). I do not know whether Canada would fall into the category of a flexible jurisdiction on reverse veil piercing.

The other key question, of course, is how Canadian law treats fraud as a defense to the enforcement of foreign judgments. As reported here, according to one Canadian scholar, Canadian courts “tend to take a somewhat narrower view of what might constitute fraud than some courts would.” I would be curious if others in the know agree or disagree.

It would appear that the Plaintiffs are confident enough in the merits of their position to avoid the mistake of filing in a court of dubious distinction, but not sufficiently confident enough to subject themselves to the jurisdiction of U.S. courts and the resulting counterclaims that would inevitably follow. As Chevron put it in a statement today, “If the plaintiffs’ lawyers believed in the integrity of their judgment, they would be seeking enforcement in the United States – where Chevron Corporation resides. In the U.S., however, the plaintiffs’ lawyers would be confronted by the fact that seven federal courts have already made findings under the crime/fraud doctrine about this scheme.”

The Statement of Claim makes no mention of the investment arbitration, nor the injunction against Ecuador to take action to prevent enforcement proceedings anywhere in the world.

A copy of the Statement of Claim is available here.

Like thousands of other high school kids, today is AP Comparative Government exam day in the Alford household. According to the AP College Board, “The course aims to illustrate the rich diversity of political life, to show available institutional alternatives, to explain differences in processes and policy outcomes, and to communicate to students the importance of global political and economic changes.” But in order to move the discussion from the abstract to the concrete, AP Comp. Gov. students are required to study six–and only six–representative countries. Can you guess the six countries chosen as suitable for comparison? And could you answer the short- or long-essay questions these high school whiz kids are required to answer? Details after the jump:
(more…)

The Liberty Forum has just posted a debate on sovereignty in the age of globalization between John Yoo, John Cerone, and yours truly. Here’s a taste of the exchange, which I encourage you to read in its entirety.

From John Yoo’s post:

Globalization has led to (1) the explosive growth in international trade; (2) the swift creation of international markets in goods and services; (3) the easy movement of capital and labor across national borders; (4) the rise of major transnational networks, such as international drug cartels, international crime-fighting regimes, and international terrorism; and (5) the global effects of industrialization on the environment and global commons.

These profound changes present challenges to the American constitutional order because they give rise to international law and institutions that demand the transfer of sovereignty in response. To limit carbon emissions, proposed follow-ons to the Kyoto accords seek to regulate energy use throughout the world. To allow for the smooth movement of capital, nations must coordinate their regulatory controls on the financial industry. These multilateral treaty regimes seek to regulate private activity under the control of independent sovereign nations. They ask states to delegate lawmaking, law enforcement, or adjudication authority to bureaucracies, such as the United Nations, the International Court of Justice, or the World Trade Organization, that operate along undemocratic lines and remain unaccountable to any nation.

These efforts at global governance create tension with American constitutional controls on state power…. Many scholars of international law argue that globalization’s demands justify abnormal powers for the federal government. Treaties on global warming or the environment, for example, should have a reach beyond the Constitution’s normal limits on the powers of Congress. International institutions like the WTO or the ICJ should enjoy the power to issue direct orders in the U.S. legal system, overcoming contrary policies at the state or even federal levels. States should have no voice in responding to globalization. Courts, as the least democratic branch, should play a primary role in incorporating global governance at home without the intervention of the elected branches of government.

These efforts aim at nothing less than the erosion of American national sovereignty….

While relatively young, the new forms and orders of global governance should sound a familiar note to students of the American administrative state. Just as innovative international regimes seek more pervasive regulation of garden-variety conduct, so too did the New Deal seek national control over private economic decisions that had once rested within the control of the states. The Kyoto accords had their counterpart in the federal government’s efforts to control the production of every bushel of wheat on every American farm in Wickard v. Filburn. The new international courts and entities have their counterparts in the New Deal’s commissions and independent bodies, created to remove politics from administration in favor of technical expertise. These international bodies, to remain neutral, must have officials who are free from the control of any individual nation. Similarly, the New Deal witnessed the creation of a slew of alphabet agencies whose officials could not be removed by the President. The New Deal’s stretching of constitutional doctrine sparked a confrontation between FDR and the Supreme Court, which kept to a narrower and less flexible vision of federal power and the role of administrative agencies during FDR’s first term. Similarly, in the absence of a theory that allows for an accommodation of international policy demands with the U.S. constitutional system, these new forms of international cooperation may well produce an analogous collision with constitutional law.

Like nationalization, globalization will inevitably call on us to reconsider the same fundamental questions: the proper scope of the federal government’s regulatory power; the balance of authority between the President and Congress; and the appropriate role of the courts. We may only belatedly realize the consequences of economic and social transformation on constitutional doctrine. The inability of international organizations to provide legitimacy commensurate with the scope of their delegated authority—when combined with the serious strains that their delegations place on the federal government’s own legitimacy—weigh strongly in favor of enforcing the Constitution’s formal processes for exercising public power. A formalist approach would confer the greatest possible level of political and popular acceptance because any consent to international law and institutions would then occur with the full extent of the Constitution’s legitimating force. Such an approach might require rejecting some delegations, but it would at least ensure the full measure of domestic political legitimacy to support those that survive.

From John Cerone’s post:

State sovereignty is the fundamental building block of the international legal system. International Law, much like the US Constitution, is at once an expression of, and self-imposed limitation upon, sovereignty. At the same time, international law is much less of a limitation on US sovereignty than is the US Constitution, and rightly so.

Today’s international legal system is a strongly positivist, consent-based system. In general, states are not bound by any rules of international law that they have not themselves created or otherwise consented to. While states have chosen to greatly expand the scope and substance of international law, most of its rules remain in the form of broadly formulated obligations that leave the manner of their implementation in the broad discretion of states.

The US has been a proponent of the development of international law since the founding of the country, and this is reflected in its constitutional order. The Constitution of the United States was not created in a vacuum. It was well understood by the framers that they were drafting the Constitution against the backdrop of international law. They consciously chose to buy into the international legal system because it was clearly advantageous to do so. They wanted recognition as a sovereign equal, and all of the rights and protections that international law provided to states.

The international legal system of that time was a system largely oriented toward co-existence, and was one of relatively few rules. Since that time, there has been a dramatic expansion in international law, driven largely by the need for international cooperation in tackling the world’s ills and in harnessing its opportunities. The United States has played a central and powerful role in this evolution. Successive US governments have consented to be bound by literally thousands of treaties, and have supported the creation of dozens of international institutions. The US also frequently engages in treaty negotiations even in situations where it is clear that the US will not become a party to the treaty being negotiated. The robust engagement of the US in this process results from the recognition that international law and international institutions are useful in serving US interests.

From Roger Alford’s post:

While there are legitimate concerns about a nascent global administrative state, one should recognize that treaties are rarely a threat to national sovereignty. Indeed, treaties should be seen as an expression of sovereign will to protect and advance our national interests.

Treaties are optional commitments, freely entered into by political actors in order to achieve mutually-beneficial results. Like contracts, the first principle of treaties is party autonomy.

Sovereign nations negotiate the terms of a treaty and ultimately decide whether or not to join a treaty. The United States, for example, was intimately involved in the drafting of the treaty establishing the International Criminal Court, but ultimately decided not to become a member because the final text included unacceptable terms. The same could be said of dozens of other treaties….

Even after signing a treaty, sovereign nations attach reservations, understandings, and declarations (RUDs) that condition, interpret, and limit the impact of a treaty. The United States quite often will include a RUD stating that the treaty is not self-executing, or stating that the terms of a treaty are coterminous with our constitutional obligations.

When a nation does sign a treaty, its obligations are rarely permanent. Treaties frequently allow for member states to withdraw from a treaty, and almost always permit suspension of treaty obligations in the face of a breach by another member state.

All of these tools are designed to preserve sovereigns’ prerogative to protect the national interest. But it is not simply the formation and termination of treaties that are designed to protect sovereignty. The performance obligations of treaties also are drafted to protect national sovereignty.

Most human rights treaties, for example, include Optional Protocols that require a nation to affirmatively opt-in to international adjudication of domestic behavior. The same is true of the compulsory jurisdiction of the International Court of Justice. The WTO and many bilateral investment treaties have incorporated self-judging national security exceptions, essentially rendering key questions of national sovereignty non-justiciable political questions beyond the purview of international courts. The WTO also designed the dispute settlement process in a manner that anticipates the possibility that member states will rationally decide to engage in an efficient breach of their obligations….

In conclusion, we have little to fear from treaties. Treaties are hardwired to protect national sovereignty. The process of formation, performance and termination of treaties was designed to advance sovereign interests. Occasionally there are unanticipated consequences that flow from adherence to treaties, but these risks to sovereignty are manageable. Widespread adherence to treaties reflects a political calculus that the benefits of membership outweigh the costs.

In honor of Ozzie Guillen, the manager of the Miami Marlins, who was forced to apologize today to Miami’s Cuban-American community for saying that he admired Fidel Castro’s ability to avoid being assassinated by the U.S. for five decades, who said the following?

I believe that there is no country in the world including any and all the countries under colonial domination, where economic colonization, humiliation and exploitation were worse than in Cuba, in part owing to my country’s policies during the Batista regime. I approved the proclamation which Fidel Castro made in the Sierra Maestra, when he justifiably called for justice and especially yearned to rid Cuba of corruption. I will even go further: to some extent it is as though Batista was the incarnation of a number of sins on the part of the United States. Now we shall have to pay for those sins. In the matter of the Batista regime, I am in agreement with the first Cuban revolutionaries. That is perfectly clear.

Click through for the answer.

Here are some choice quotes from the ASIL annual meeting, all taken out of context for maximum effect:

The real problem with cyber-security is that Viagra is too expensive.

~ Christopher Soghoian

International arbitration is like a Jackson Pollock painting. There is order, but it takes an expert in fractal geometry to see it.

~ Stephan Schill

These missiles are incredibly cheap, only $60,000 a piece, which is why I have recommended to ASIL that they buy some with your annual dues.

~ Rosa Brooks

My favorite investment arbitration case was the one brought by a man who had his wallet stolen in a Mexican jail and demanded justice before the U.S.-Mexican Claims Commission.

~ Jennifer Thornton

For all of you in the audience who are directly involved in the Chevron-Ecuador case, please don’t attach my house.

~ Ralph Steinhardt

If I can leave you with one message it would be this: Never, ever cite geographic coordinates without a reference datum.

~ Martin Pratt

The problem with war is that it is never humane. It always involves real people. Even soldiers are people.

~ Louise Doswald-Beck

[Anthony J. Colangelo is an Assistant Professor of Law at SMU Dedman School of Law]

I summarized in a previous post my arguments that the presumption against extraterritoriality should not apply to the ATS to the extent courts use international law incorporated into U.S. common law as the rule of decision. The presumption was raised explicitly by the brief of the UK and Dutch Governments in Kiobel and will likely be raised again.

This post addresses three discrete but related issues that may arise going forward:

1. Whether the ATS’s jurisdictional character alters the application of the presumption against extraterritoriality;
2. Whether “universal civil jurisdiction” is sufficiently recognized under international law—an issue that seemed to get attention at oral argument based on Chevron’s amicus brief; and
3. Choice of law, including as to corporate liability.

I’ll address each issue in turn, though I’ll say at the outset that I will also try to tie them together to open up what might be a new route for corporate liability grounded in an old legal discipline historically included as part of “the law of nations”; namely, private international law. Some of these preliminary thoughts will be elaborated and bolstered by other arguments in an amicus brief Anthony D’Amato and I intend to file in support of neither side. (more…)

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The extraterritoriality analysis starts with piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy was not any old international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 Northwestern University Law Review 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.” (more…)

[Eugene Kontorovich is a Professor of Law at Northwestern School of Law]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him-hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.