Kiobel’s Bowman Problem: Where the Legislature Has Enacted Laws to Defend the U.S. Government’s Interests, the Presumption Against Extraterritoriality Does Not Apply

Last week, in Kiobel v. Royal Dutch Petroleum, et al., the Supreme Court deviated from its prior two decisions under the ATS, and held that the ATS does not confer jurisdiction over violations of the law of nations that occur within a foreign territory. The ATS, the Court can concluded, can be presumed to apply to activity on the high seas, but nevertheless cannot be presumed to apply to activity that occurs outside of both U.S. territory and the high seas:

the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. ‘[T]here is no clear indication of extraterritoriality here,’ and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.

Although I fully agree with the Court’s conclusion that jurisdiction did not exist over the claims being asserted by the Kiobel plaintiffs, the majority’s reliance on the presumption against extraterritoriality to reach this holding is ill-placed. The Court’s claim that the ATS was not intended to apply abroad is ahistorical, as the legislature is not required to specifically define a locus for statutes enacted to defend the U.S.’s security interests. The nature of the statute is itself proof that it was intended to apply outside of U.S. territory.

Kiobel acknowledges that the First Congress’ intent in including the ATS in the Judiciary Act of 1789 was, at least in major part, in order to “avoid[] diplomatic strife” by ensuring there would be a federal forum in which the citizens of foreign states could be provided relief for violations of the laws of nations. If such relief was not made available, and an alien’s injuries were not remedied, then the United States could itself be liable for a breach of international law. Because a private individual’s violation of international law could endanger the United States’ national interest, and require the United States to offer restitution for the offense, an ATS suit was a matter of public, and not private, concern.

Given that background, it seems incongruous to hold that the ATS does not evidence an intent to apply extraterritorially. In fact, the Court’s own case law has already reached that same conclusion, finding that the presumption against extraterritoriality does not apply to laws which “are enacted because of the right of the Government to defend itself” — the precise purpose for which the ATS has been enacted. United States v. Bowman, 260 U.S. 94 (1922).

Bowman found that the presumption against extraterritoriality did not apply to a federal statute prohibiting “conspir[ing] to defraud a corporation in which the United States was and is a stockholder,” even though no extraterritorial locus specified in the statute’s text. Nevertheless, the Supreme Court reversed the district court’s holding that it lacked jurisdiction over the offense — which had taken place on ships in the high seas and in the territory of Brazil — because the crime had been “committed without the jurisdiction of the United States or of any State thereof and on the high seas or within the jurisdiction of [a foreign state].” Therefore, the Court concluded,

We have in this case a question of statutory construction. The necessary locus, when not specially defined, depends upon the purpose of Congress as evinced by the description and nature of the crime and upon the territorial limitations upon the power and jurisdiction of a government to punish crime under the law of nations. Crimes against private individuals or their property, like assaults, murder, burglary, larceny, robbery, arson, embezzlement and frauds of all kinds, which affect the peace and good order of the community, must of course be committed within the territorial jurisdiction of the government where it may properly exercise it. If punishment of them is to be extended to include those committed outside of the strict territorial jurisdiction, it is natural for Congress to say so in the statute, and failure to do so will negative the purpose of Congress in this regard.

But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the Government’s jurisdiction, but are enacted because of the right of the Government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the Government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense.

Although Bowman concerned a criminal statute, and not a civil act, the Court’s reasoning in that case applies to the ATS with equal force. It was not necessary for Congress to make specific provision for the ATS’s jurisdictional reach, because the ATS could be presumed to reach any act which might endanger the U.S.’s national interests, so long as such jurisdiction could be exercised in conformity of international law. (And if the U.S. was prohibited under international law from exercising jurisdiction over a particular offense, then the ATS’s purpose would not be implicated anyway, because in such a case the U.S. would not be at risk of breaching international law by failing to provide a forum or remedy.)

Bowman also refutes Kiobel’s holding that the ATS could be implied to cover piracy even in the absence of a specific provision noting that Congress intended the statute to apply to the high seas. Although the majority conceded that the ATS extended to acts that took place outside the U.S. — which is precisely the sort of statutory construction that the presumption against extraterritoriality prohibits — the Court was unconcerned by this inconsistency. The majority swept this issue aside by stating, “We do not think that the existence of a cause of action against [pirates] is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign[.]” But as Michael noted in a previous post, this distinction between ‘high seas’ and ‘foreign territory’ is a wholly new creation, unsupported by prior case law. This decision is also inconsistent with Bowman, in which the Court noted that, for statutes to which the presumption against extraterritoriality has been held to apply, it applies equally to acts committed on the high seas as to acts committed on foreign territories. Prior to Kiobel, when a statute failed to specify a locus, there was no basis by which a statute could be held to differentiate between the high seas and foreign territories — either both were out or both were in, absent a specific Congressional directive that such a distinction be made.