Kiobel Insta-Symposium: An Extraterritorial Cause of Action

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

I’ll start with a few brief points about why I believe Justice Breyer’s opinion provides a sounder approach and is more legally accurate than the Court’s opinion.

Then I will critique the Court’s opinion and, in particular, its extension of a presumption against extraterritoriality to causes of action (as opposed to conduct regulating rules).

First, I must say I’m sorry to see Justice Breyer’s view that “just as we have looked to established international substantive norms to help determine the statute’s substantive reach, so we should look to international jurisdictional norms to help determine the statute’s jurisdictional scope” did not command a majority. This is more or less the argument I laid out in an article in the Virginia Law Review in 2011, where I argued “when Congress enacts a statute silent on geographic scope designed to implement international substantive law, courts should construe that statute in line with international jurisdictional law, including attendant principles of extraterritorial jurisdiction.”

History and precedent support this view as to the ATS. As Breyer’s opinion points out, piracy took place on other nations’ ships, and those vessels were clearly considered foreign territory in early Supreme Court case law. Moreover, as Tony D’Amato and I pointed out in our amicus brief in Kiobel, the way Congress overturned application of a judicially imposed presumption against extraterritoriality to U.S. law outlawing piracy was to revise the definition to confer jurisdiction over piracy, “as defined by the law of nations.” That is, Congress explicitly invoked the law of nations—and its jurisdictional principles—to grant universal jurisdiction over, and to reject a judicially imposed presumption against extraterritoriality to, piracy on foreign ships (which, again, were considered the territories of foreign nations). The ATS contains this same invocation of “the law of nations,” which comprises both substantive and jurisdictional components. That ought to be enough to dispose of the presumption given this precedent.

It is also worth mentioning that the Kiobel Court’s assurances that Congress would have included a “clear indication of extraterritoriality” had it wanted the ATS to apply to causes of action arising abroad simply makes no sense in light of the fact that the statute was enacted in 1789, and the earliest manifestation of a judicially invented presumption against extraterritoriality came about in 1818—and in a piracy case no less!—United States v. Palmer.

Next, I want to critique what seems to me a strange move in extending the presumption against extraterritoriality to causes of action. The Court begins by noting that the presumption typically applies to conduct regulating rules, then acknowledges that the ATS “does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law.” But the Court then extends the presumption to “constrain courts considering causes of action that may be brought under the ATS.” This is weird.

To begin with, as the Court acknowledges, the presumption has traditionally applied to U.S. prescriptive jurisdiction, or jurisdiction to prescribe rules of conduct. But that rationale can’t apply to the ATS, since the conduct regulating rule is international law, and whether that conduct regulating rule is deemed the direct or indirect application of international law via common law doesn’t matter. All that matters from a prescriptive jurisdiction perspective is that the rule applied accurately reflects substantive international law, including as to liability. If it does, there is no concern about extraterritoriality, as the Court seems to accept: “The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law.”

Thus the Court seizes upon the cause of action as the relevant creature of U.S. law to which the presumption applies. The problem is that under longstanding principles of private international law—which is, and has been since the founding, part of “the law of nations”—causes of action are creatures of forum law, or the lex fori. A presumption against extraterritoriality doesn’t apply to causes of action because, simply put, they aren’t extraterritorial. This is the whole basis for the traditional approach to conflict of laws under which the forum crafts causes of action to allow foreigners to sue under foreign laws. It may be true that, generally speaking, the forum will not create a cause of action if there is no cause of action under the law of the place of the tort. And here the Court in Kiobel cites Justice Holmes’ opinion in Cuba R. Co. v. Crosby. But at the very least, this would require some evaluation of whether the lex loci delicti provides a cause of action for, among other things, extrajudicial killing, crimes against humanity, torture, and arbitrary arrest and detention. At most, we might even take Holmes’ opinion in Crosby at its word. There, the Court explained that when dealing with torts that “are likely to impose an obligation in all civilized countries . . . [U.S.] courts would assume a liability to exist if nothing to the contrary appeared.” Thus in such cases, the burden is on the defendant to show no liability under the law of the place of the harm. And if nothing else, universal jurisdiction stands for the proposition that there are some acts that “impose an obligation in all civilized countries.”

In sum, the Court’s extension of the presumption against extraterritoriality to causes of action is both conceptually mistaken and doctrinally unsupported under longstanding principles of the law of nations.