[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.