The Presumption Against Extraterritoriality vs. the U.S.’s Jurisdiction Over Invasions of its Neutral Rights: Can Chiquita and Balintulo Be Reconciled with the 18th Century Case Law on Extraterritorial Jurisdiction?

In a 2-1 decision issued last month, the Eleventh Circuit granted Chiquita’s motion to dismiss Cardona v. Chiquita Brands Int’l, Inc., a longstanding ATS case brought by four thousand Colombians alleging that, as part of its business operations in Colombia, Chiquita supervised and supplied a campaign of torture and murder conducted by Colombian terrorist organizations. In doing so, the Eleventh Circuit promptly broke the recent trend I sketched out in my previous post, by correctly applying the presumption against extraterritoriality to conclude that the ATS does not confer jurisdiction over “torture [that] occurred outside the territorial jurisdiction of the United States.”

The majority opinion also explicitly rejected the nascent “international rights and obligations” test that the Fourth Circuit applied in Al Shimari. Judge Martin’s dissenting opinion just as explicitly adopted that test, and would have found jurisdiction over Chiquita on the grounds that “the United States would fail to meet the expectations of the international community were we to allow U.S. citizens to travel to foreign shores and commit violations of the laws of nations with impunity.” But writing for the majority, Judge Sentelle (of the D.C. Circuit, sitting by designation) summarily dismissed Judge Martin’s argument as a statement of policy rather than an applicable principle of law, finding that “[e]ven assuming the correctness of the assumption that the present complaint states violations of the law of nations, the dissent’s observation is not relevant to our determination in this case.” In other words: the presumption against extraterritoriality has no relationship with the U.S.’s foreign policy interests in complying with international obligations.

Chiquita is therefore the first firm rejection of the specialized (and misnamed) version of the presumption against extraterritoriality (a.k.a, the PAE-for-ATS) that the lower courts have distilled from Kiobel’s intentionally ambiguous holding. Although the Second Circuit has previously declined to find jurisdiction in a post-Kiobel ATS case on similar grounds, that case, Balintulo v. Daimler, is unlike Chiquita in that the Second Circuit would have reached the same result regardless of whether it applied the PAE or the PAE-for-ATS. In Chiquita, by contrast, application of the PAE-for-ATS should have resulted in a finding of jurisdiction. But the Eleventh Circuit instead took the Supreme Court at its word, and applied the “traditional” PAE.

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Post-Kiobel, the Lower Courts Are Only Pretending to Apply the Presumption Against Extraterritoriality in Alien Tort Statute Cases

In its recently released decision in Al Shimari v. CACI International (4th Cir. 2014), the Fourth Circuit followed a recent trend that has emerged in alien tort statute (“ATS”) cases, post-Kiobel. Like other courts grappling with questions of subject matter jurisdiction under the ATS, the Fourth Circuit purported to apply the presumption against extraterritoriality (“PAE”) in assessing whether it had jurisdiction over the plaintiff’s ATS claims. Also like other courts, however, the Fourth Circuit’s invocation of the PAE was pretense; it instead applied an entirely different doctrine which has, at best, only a passing connection to the PAE, or at least the PAE as it existed pre-Kiobel.

The plaintiffs in Al Shimari are four Iraqi citizens who allege that CACI, a U.S. government contractor providing “interrogation services” to the Department of the Interior, violated international law by torturing and mistreating prisoners at Abu Ghraib. Following the Supreme Court’s decision in Kiobel, however, the district court dismissed their claims under the alien tort statute (“ATS”), concluding that, under Kiobel’s newly issued guidance, there was no subject matter jurisdiction to hear the case, as the alleged torts all took place extraterritorially in Iraq. The plaintiffs appealed.

Constrained by Kiobel’s dictates, the Fourth Circuit analyzed its jurisdiction to hear the suit by applying a test that it called the PAE. After reviewing CACI’s “ties to the territory of the United States,” the court concluded that the plaintiffs’ ATS claims “touch[ed] and concern[ed] the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.”

But the judicial doctrine that the Fourth Circuit applied was the PAE in name only. The analysis it performed was a lengthy balancing test, and, absent a single, perfunctory reference to congressional intent in enacting the TVPA, contains nothing that could be described as statutory construction (slip op., at 31).

This is hard to reconcile with the court’s claim that it was applying the PAE. The PAE is a longstanding canon of construction, with a well-developed pedigree, in which courts presume that a stature regulates domestic conduct unless otherwise specified. In Kiobel, however, the Supreme Court announced that, in interpreting the jurisdictional scope of the ATS, the PAE required the Court to construe the statute in a manner that precluded jurisdiction over a foreign plaintiff’s claim against a foreign defendant for foreign conduct. The First Congress had not intended for the ATS to regulate non-domestic conduct (or so SCOTUS claimed – as I’ve discussed in prior posts, this claim is not necessarily supported by history), and, as a result, when a plaintiff brings a case in which “all the relevant conduct took place outside of the United States,” the ATS does not provide the federal courts with jurisdiction to hear it.

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Edmund Randolph Also Disagrees With the Supreme Court’s Decision in Kiobel

Oliver Ellsworth, as the primary drafter of the Judiciary Act of 1789, tends to get the lion’s share of the credit for the enactment of the Alien Tort Statute. Often overlooked in the history of the ATS, however, is the role played by Edmund Randolph, the first Attorney General for the United States.

Randolph was part of the congressional committee that drafted the original “recommendation to the states to enact laws for punishing infractions of the laws of nations,” in November 1781, which is frequently cited as a precursor to the ATS.
That resolution also contained a nascent version of the ATS’ grant of civil jurisdiction, providing “[t]hat it be farther recommended to authorise suits to be instituted for damages by the party injured” in the event of such a breach. During the Constitutional Convention, Randolph’s contributions demonstrated his continuing interest in the purposes served by the ATS. Randolph repeatedly criticized the failure of the Articles of Confederation to restrain states from engaging in “acts against a foreign power contrary to the laws of nations,” and argued that the federal government should have the power to redress violations of neutrality that might drag the U.S. into war. He also kicked off Article III’s inclusion of the Constitution, helped introduce the “to define … offences against the laws of nations” language in Article II, and advocated for the federal judiciary’s power over “questions which involve the national peace and harmony.”

He also tried to re-write the Judiciary Act of 1789, although he failed at that. But Washington appointed him as the United States’ first Attorney General, and in that capacity, he affirmed the extraterritorial effect of the ATS. In a memorandum provided to Thomas Jefferson regarding the slave abductions in Florida and St. Domingo, Randolph confirmed that although no criminal jurisdiction would extend to those acts, civil jurisdiction was plainly to be had in federal courts, where an alien brought a suit seeking damages for the Georgians’ violation of international law:

Neither of the two cases is cognizable in the U.S. criminaliter; because they arose within the local jurisdiction of Florida and St. Domingo. Generally speaking, Incendiaries, poisoners, and other very high offenders may be demanded by the sovereign from whose territory they fled; and ought to be delivered up, according to the law of nations. But no such power exists in the U.S., by which such a surrender can be made.

Civiliter, however, damages may be recovered in the courts of the U.S. under the jurisdiction established by the judicial law if an alien be a party; and the state courts, if both [plaintiff] and [defenant] be citizens.

The federal judiciary has also cognizance of offences against the law of nations, because that law is attached to the U.S. from the nature of the subject, without explicit adoption of it; and because offences cognizable under the authority of the U.S. are clearly subjected by the judicial law to the circuit court. This Mr. J[efferson] seems to doubt, and is therefore referred to the 11th section [of the Judiciary Act of 1789].

It is presumed that congress ought not specially to provide, (considering the circumstances of our country) for the surrender of the malefactors sheltered in the U.S. Nor can their definition be necessary; unless it be to define affirmatively those acts which perhaps may not be absolutely offences against the laws of nations yet are injurious to our harmony with foreign nations, if any such there be.

December 5, 1792

Randolph’s memorandum does no more than to restate the then-existing understanding of extraterritorial jurisdiction. There was a firm divide between the extraterritorial reach of criminal jurisdiction — which goes only to citizens on the high seas — and the extraterritorial reach of civil jurisdiction — which knew no such limitation. Although a U.S. citizen could not sue a U.S. citizen in federal court for an extraterritorial violation of international law, that was due to the lack of diversity jurisdiction, not because of a lack of extraterritorial effect. And, even if there was no federal jurisdiction, a U.S. citizen could still bring his suit in a state court, so long as process could be had on the defendant. But where an alien sued for damages, as in a civil suit, the ATS provided for that case to be brought in a federal court — and, to Randolph, and to Jefferson, the extraterritorial reach of that cause of action was as obvious as it was uncontroversial.

In 1792, the United States lacked the ability to proscribe crimes committed by its citizens within the territories of foreign sovereigns, and that was a source of some contention at the time. The Crimes Act of 1790 did proscribe some offences against international law, but only when committed within the jurisdiction of the United States. But to the founding fathers, the limits of a nation’s prescriptive jurisdiction with regard to criminal offences had little or no relation to a nation’s ability to provide for a cause of action, civiliter, for an extraterritorial tort. And, in light of the United States’ inability to provide a criminal remedy for extraterritorial violations of international, its ability to provide for a civil remedy was made all the more important.


The Extraterritorial Effect of Respublica v. De Longchamps

The Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum held that the presumption against extraterritoriality applies to common law causes of action under the ATS, and that there is no evidence the First Congress had intended the ATS to confer jurisdiction over extraterritorial torts. The Court’s conclusion was based, in part, on its claim that the ATS had been specifically enacted in response to two “domestic” breaches of international law: the Marbois-Longchamps Affair and the arrest of a servant in Ambassador Van Berckel’s household:

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois — the Secretary of the French Legion — in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longschamps [sic], 1 Dall. 111 (O. T. Phila. 1784).

The Court held that, because there are two known domestic incidents that contributed to the ATS’s enactment, when the First Congress drafted the ATS it must have only had in mind domestic causes of action:

These prominent contemporary examples — immediately before and after passage of the ATS — provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

The Court’s claim that the First Congress was concerned primarily with these two incidents is based on assumption, not the historical record. More significantly, however, the Court’s claim that Respublica v. De Longchamps “involved conduct within the Union” is, quite simply, wrong. The Longchamps case was understood by all involved to be a case involving the extraterritorial application of the law.

Kiobel was correct that the Longchamps case involved “a French adventurer verbally and physically assaulted [Secretary] Marbois.” But the Court’s summary description of the case conflates two wholly separate charges. Longchamps, a French expat, was charged with a verbal assault and a physical assault aginst Marbois, but it was only the verbal assault that fell afoul of the laws of nation. The charge for the physical assault was not under international law, but under municipal law:

Longchamps was initially charged with two counts: (1) “unlawfully and violently threatening and menacing bodily harm and violence to the person of the honorable Francis-Barbe De Marbois, Secretary to the Legation from France, and Consul General of France to the United States of America, in the mansion-house of the Minister Plenipotentiary of France,” and (2) “for an Assault and Battery committed upon the said Secretary and Consul, in a public street in the City of Philadelphia.”

The jury had no difficulty convicting Longchamps on the second count, and the Pennsylvania Court “[t]he second offence charged in the indictment, namely the Assault and Battery, needs no observations.”

But the first count was more problematic. One of the reasons that the Marbois Affair caused so much diplomatic unease is that Longchamps’ violation of the law of nations occurred not on the street, as the assault had, but in the hotel of the minister plenipotentiary of France. There was a great deal of uncertainty among both members of the Federal Congress and the government of Pennsylvania as to whether such an extraterritorial offense was even cognizable by a Pennsylvanian court.

This was a very real foreign relations concern for the United States. Marbois himself was not that important, and it wasn’t his personal indignation that was causing the Framers’ a foreign relations headache. The true party in interest was the Chevalier de la Luzerne, the French Ambassador — and the United States cared very much about maintaining his good graces.

The offense to Luzerne occurred two days prior to battery that occurred on the Philadelphia streets, when Longchamps went to the French minister plenipotentiary’s house and gotten into a verbal altercation with Marbois. Longchamps’ insults to the secretary were quite scanadalous, at least by the contemporary standards. The specific insult Longchamps was said to have made to Secretary Marbois was, “I will dishonor you, you naughty rascal!”

And it was this insult — or rather, the location where Longchamps said the insult — that was the real point of contention. Such an act was deemed a violation of the laws of nations, and French minister Luzerne wanted recompense. Believing that it had been an insult to the French nation’s honor, Luzerne — and also his friend, Van Berckel, the Dutch minister, who would later be involved in the 1787 event also cited by Kiobel — threatened to remove their respective legations from Philadelphia if the U.S. failed to take appropriate action against Longchamps under the laws of nations.

In fact, at Longchamps’ trial in July of 1784, it initially seemed that only the assault charge under municipal law would stand, as the jury originally found Longchamps to be guilty of only that offense. After a little bit of coaxing from the judges, however, the jury finally got it right, and convicted him of violating both the law of Pennsylvania and the law of nations:

The Jury, at first, found the defendant guilty of the Assault only; but, the Court desiring them to re-consider the matter, they returned with a verdict against him on both Counts.

Longchamps’ defense attorneys contested the validity of the count chargining a violation of the law of nations, arguing that only the municipal law of Pennsylvania could apply, as that was where the offense was committed. This claim was rejected by the Pennsylvania Court, which concluded that the law of nations — and not the municipal law of Pennsylvania — properly applied to Longchamps’ offense, because the offense had been committed extraterritorially, outside of the territory of Pennsylvania, where Pennsylvania law did not apply:

It must be determined on the principles of the laws of nations, which form a part of the municipal law of Pennsylvania; and, if the offences charged in the indictment have been committed, there can be no doubt, that those laws have been violated. The words used in the Minister’s house, (which is to be considered as a Foreign Domicil, where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend) may be compared to the same words applied to the Judges, in a Court of Justice, where they sit in representation of the majesty of the People, of Pennsylvania.

The Pennsylvania Supreme Court’s decision was based on then-existing conceptions of the inviolability of the premises of a foreign minister. Although the doctrine was discarded shortly thereafter, in the 18th century, at the time that Longchamps was decided, the concept of the Franchise de l’hôtel was still in effect. Under this doctrine, a foreign minister’s dwelling (or domicile) was conceived to be “extra-territorial” to the nation where it sat. The laws of the host state did not enter upon or apply to the minister’s domicile, and the host sovereign could not exercise jurisdiction — whether civil or criminal — over acts which occurred within it, because the foreign minister’s hotel was considered to be under the jurisdiction and sovereignty of his home state.

Unsurprisingly, this doctrine lead to a great deal of abuse by ambassadors, who used their extraterritorial status to their own financial benefit, by shielding criminals and smugglers of all types. In fact, in the 16th and 17th centuries, prior to the more limited Franchise de l’hôtel, the law of nations recognized the more expansive Franchise du quartier — the right of the ambassador to claim privileged status over his entire city quarter. Under the Franchise du quartier, Ambassadors could, from their residences, grant asylum, enter into contracts, or try and execute servants for criminal violations, all under the law of the sovereign nation to which the embassy belonged.

By the late 18th century, the extent of a foreign minister’s exterritoriality had diminished from its earlier peak. The modern view — which is that foreign embassies are entitled to an extensive list of privileges and immunities, but are nevertheless within the territorial sovereignty of the nation in which they are located — was not yet fully established, however. And at the time of Longchamps’ trial, the Pennsylvanian authorities, the French legation, and the Federal government were all very much of the belief that Longchamps’ crime against the French legation had been committed on French soil, not U.S. soil. In requesting advice from Congress on how to proceed against Longchamps, the Supreme Executive Counsel of Pennsylvania specified that the offense had occurred “in the hotel of the Minister of France,” finding the location of the infraction to be of great signficance. Luzerne also made much of the location of the insul; his position was that France was entitled to exercise jurisdiction over the offense, because it had been extraterritorial to the United States, and he therefore requested that Longchamps be repatriated to France so that he could be prosecuted there.fn2

Although France’s extradition request was denied, Chief Justice McKean ultimately agreed with Pennsylvania’s Attorney General, William Bradford. Bradford argued, on behalf of the prosecution, that Longchamps’ insults were an offense against the law of nations, and that Pennsylvania’s law did not apply, because it had occurred “where the Minister resides in full representation of his sovereign, and where the laws of the State do not extend.” Under Pennsylvania law, use of insulting language was not a crime, and he could not be convicted for calling Marbois a dirty rascal. Under international law, however, such an act was an offense. The Supreme Court of Pennsylvania agreed with Bradford that the offense had been extraterritorial, and Longchamps’ conduct was therefore a criminal offense. The Pennsylvania Court also found that, even though the offense was under international law and not Pennsylvanian law, Longchamps could still be convicted of the offense by a Pennsylvania state court. As Bradford had argued, “the law of nations, which makes part of the common law of all nations, requires no particular forms of legal proceedings, but always adopts those of the municipal laws of the different countries of where it is in force.” The Pennsylvania Court accordingly found that the Law of Nations provided the substantive law which made Longchamps’ conduct a criminal offense, and that Pennsylvania provided the forum and procedural law under which Longchamps could be charged and convicted.

Bradford, as the Attorney General for the United States, would also later reaffirm the view that a  foreign minister’s dwelling-house was extraterritorial to the jurisdiction of the state where it was located. In his Opinion of June 24, 1794, at 1 Op. 47, Bradford noted that, unlike an ambassador’s dwelling, a foreign warship in the United States’ territorial waters was subject to that state’s jurisdiction: “[t]he commander of a foreign ship-of-war . . . cannot claim that extraterritoriality which is annexed to a foreign minister and to his domicil; but is conceived to be fully within the reach of, and amenable to, the usual jurisdiction of the State where he happens to be.” This decision echoes the language used in Respublica v. Longchamps, and does not support the Supreme Court’s conclusion in Kiobel that Longchamps “involved conduct within the Union.”


fn1. As a legal matter, the offence of assault and battery on a public street was unquestionably a crime under the municipal law, and not the source of any legal uncertainty. It is of interest to note, however, that there is reason to be skeptical of the factual basis of the charge, and there is evidence that Marbois, not Longchamps, was the initial aggressor.

fn2. Luzerne’s demand for Longchamps to be extradited caused its own political difficulties. Longchamps was not without supporters in the U.S., and his extradition would have been domestically unpopular. This is part of why the case became such a flashpoint; the U.S. officials could not extradite Longchamps without causing a domestic scandal, and could not fail to convict him for a breach of international law without causing a foreign relations disaster.

Thomas Jefferson Disagrees with the Supreme Court’s Decision in Kiobel

In 1792, Thomas Jefferson, as the first Secretary of State, made note of complaints that had been lodged against the U.S. by both Spain and France. In different incidents, citizens of Georgia had breached international law by trespassing into Florida (then a part of Spain) and into the territorial waters of Santo Domingo for the purpose of recapturing and kidnapping slaves. In examining the remedies that might be available to the United States to prevent this situation from reoccurring in the future, Jefferson affirmed the Alien Tort Statute’s extraterritorial reach, taking it as obvious that the statute conferred jurisdiction over acts that took place in a foreign sovereign’s territory:

XXX. — Opinion relative to a case of recapture, by citizens of the United States, of slaves escaped into Florida, and of an American captain enticing French slaves from St. Domingo.

December 3, 1792.

Complaint has been made by the Representatives of Spain that certain individuals of Georgia entered the State of Florida, and without any application to the Government, seized and carried into Georgia, certain persons, whom they claimed to be their slaves. This aggression was thought the more of, as there exists a convention between that government and the United States against receiving fugitive slaves. The minister of France has complained that the master of an American vessel, while lying within a harbor of St. Domingo, having enticed some negroes on board his vessel, under pretext of employment, bought them off, and sold them in Georgia as slaves.

1. Has the general government cognizance of these offences? 2. If it has, is any law already provided for trying and punishing them?

1. The Constitution says .. that Congress shall have power to “define and punish piracies and felonies committed on the high seas, and offences against the law of nations.” These offences were not committed on the high seas, and consequently not within that branch of the clause. Are they against the law of nations, taken as it may be in its whole extent, as founded, 1st, in nature; 2d, usage; 3d, convention? So much may be said in the affirmative, that the legislators ought to send the case before the judiciary for discussion; and the rather, when it is considered that unless the offenders can be punished under this clause, there is no other which goes directly to their case, and consequently our peace with foreign nations will be constantly at the discretion of individuals.

2. Have the legislators sent this question before the Courts by any law already provided? The act of 1789, chapter 20, section 9, says the district courts shall have cognizance concur rent with the courts of the several States, or the circuit courts, of all causes, where an alien sues for a tort only, in violation of the law of nations: but what if there be no alien whose interest is such as to support an action for the tort? — which is precisely the case of the aggression on Florida. If the act in describing the jurisdiction of the Courts, had given them cognizance of proceedings by way of indictment or information against offenders under the law of nations, for the public wrong, and on the public behalf, as well as to an individual for the special tort, it would have been the thing desired.

The same act, section 13, says, the “Supreme Court shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently, with the law of nations.” — Still this is not the case, no ambassador, &c., being concerned here. I find nothing else in the law applicable to this question, and therefore presume the case is still to be provided for, and that this may be done by enlarging the jurisdiction of the courts, so that they may sustain indictments and informations on the public behalf, for offences against the law of nations.

[A note added by Mr. Jefferson at a later period. ]

On further examination it does appear that the 11th section of the judiciary act above cited gives to the circuit courts exclusively, cognizance of all crimes and offences cognizable under the authority of the United States, and not otherwise provided for. This removes the difficulty, however, but one step further; — for questions then arise, 1st. What is the peculiar character of the offence in question; to wit, treason, felony, misdemeanor, or trespass? 2d. What is its specific punishment — capital or what? 3d. Whence is the venue to come?

As these offenses had taken place in the territory of other sovereigns — and not upon the high seas, which is the geographical extent of Congress’ authority to prescribe “piracies and felonies” — Jefferson concluded that the Constitutional authority for acting against the Georgians’ incursions came from the “offences against the law of nations” clause. Jefferson then considered whether Congress had previously, pursuant to this authority, provided for any laws that might reach the challenged conduct and, in examining the section now known as the Alien Tort Statute, finds that Congress had. Unfortunately for Jefferson, the ATS would not protect the U.S.’s interest in this instance, leading him to  lament the apparent lack of federal jurisdiction for such a case to be heard before the federal courts: “what if there be no alien whose interest is such as to support an action for the tort?”

But Jefferson implicitly accepted that, under the ATS, an alien possessed an individual cause of action for an extraterritorial tort. The Attorney General at that time, Edmund Randolph, concurred with Jefferson that a civil claim could plainly exist over the slave abductors, even though the exercise of criminal jurisdiction under those circumstances was more questionable.

And although no plaintiff existed to have standing in the cases of the Florida and St. Domingo slave abductions — and thus no claim under the ATS was available — the permissibility of civil jurisdiction over the defendants was, to Jefferson, obvious. Constitutional authority to provide a cause of action over the offence was authorized under the “offences against the law of nations” clause; subject matter jurisdiction in the district courts was provided for by section 9 of the Judiciary Act of 1789; and personal jurisdiction was to be had over the defendants owing to both their presence in the state of Georgia and their status as U.S. citizens. No ‘presumption against extraterritoriality’ would have applied, under Jefferson’s understanding, because such a judicial construction would have directly undermined the congressional purpose underlying the ATS.


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.


The Trojan Horse in Kiobel: Royal Dutch Shell’s Conflation of Prescriptive and Adjudicative Jurisdiction

When the Supreme Court decided to rehear arguments in Kiobel, it instructed the parties to address the following question:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

In its Supplemental Brief addressing this question, Respondents came up with two arguments for why the answer to this question is “never.” First, Respondents argue, that the presumption against extraterritoriality prevents the ATS from applying in cases with an international component. And second, international law prohibits a state from using its prescriptive jurisdiction to recognize the claims presented by plaintiffs in Kiobel.

Both of these arguments are underwhelming. It is Respondents’ argument concerning an alleged lack of prescriptive jurisdiction, however, that is problematic. Respondents’ first argument is misguided, but primarily due to its overemphasis on the importance of the presumption against extraterritorial application, and a corresponding failure to address the broader context of the question posed by the Supreme Court in its order for rehearing. Respondents’ second argument, in contrast, is not an argument addressed at Kiobel’s merits; it is instead a Hail Mary pass, aimed at promoting certain policy objectives extending well beyond Respondents’ short-term interests in the Kiobel litigation. Respondents’ purpose in making this second argument was to attempt to influence the development of international law in a way that is favorable to Respondents’ corporate interests. It is Respondents’ hope that, through its deliberate conflation of prescriptive and adjudicative jurisdiction, Respondents will be able to bait the U.S. Supreme Court into enshrining, as precedent, a previously-unrecognized restriction in international law limiting states’ ability to regulate corporate behavior.

Respondents’ primary argument for why Kiobel should be dismissed is that the Supreme Court must read into the Alien Tort Statute a prohibition on any cause of action arising from events that took place abroad. But Respondents have ignored the fact that this canon, known as the presumption against the extraterritorial application of U.S. law, is but a minor component of a comprehensive jurisdictional scheme regulating the jurisdictional reach of U.S. courts. The United States, in its Supplemental Amici Brief in Kiobel, thoroughly catalogued many of the other components of this jurisdictional infrastructure, and described the role they play in regulating the jurisdiction of U.S. courts in hearing cases under the Alien Tort Statute. These components include:

  • Exhaustion of remedies;
  • Forum non conviens;
  • Personal jurisdiction/due process;
  • Act of State;
  • International comity;
  • Political question; and
  • Case-specific judicial deference.

Although the presumption against extraterritoriality can be a factor in considering whether the exercise of jurisdiction over an ATS claim is appropriate, Respondents have elevated the importance of this single rule of statutory interpretation to an absurd degree. The question posed by the Supreme Court, in its request for reargument, is addressed at the limits imposed by the U.S.’s jurisdictional scheme as a whole — not the constraints imposed by any individual element of it.

Nevertheless, the majority of Respondents’ Supplemental Brief is spent addressing, in exhaustive detail, the limitations imposed by the presumption against extraterritoriality. Although there are lots of reasons to think that Respondents have turned a molehill into a mountain with their extraterritoriality argument, and I won’t get into all of them here (not in this post, anyway), here are, briefly, two points that suggest that presumption against extraterritoriality is insufficient, standing alone, to justify a dismissal of Kiobel:

1. As is repeated in many of the amici briefs, the first Congress would have been equally concerned about a U.S. citizen attacking a diplomat in Canada and avoiding liability by hiding in the U.S., as it would have been concerned about a U.S. resident attacking a diplomat in the United States. Ultimately, the purposes behind the ATS’s enactment are not compatible with a presumption that Congress intended to create a tort scheme that would allow the U.S. to serve as a safe haven to those who violate international law abroad, while only providing an enforcement mechanism against those who violate international law while easily reachable in the U.S.

2. Respondents ignore the fact that the Supreme Court has already, albeit implicitly, affirmed the reach of the ATS to acts occurring on foreign soil. In O’Reilly de Camara v. Brooke, 209 U.S. 45 (1908), Justice Holmes dismissed a suit brought under the ATS for acts that occurred in Cuba, on the grounds that the plaintiff’s claim for damages was based on property that she had no recognizable rights to. Before dismissing on those grounds, however, Holmes’ decision briefly “mention[ed] some technical difficulties that would have to be discussed before the plaintiff could succeed[,]” and noted that plaintiff’s claim had several other defects. Notably absent, however, is any hint or suggestion that plaintiff’s claims were invalid because they concerned events that occurred in Cuba, and not in the United States.

Prescriptive Jurisdiction

Respondents’ second — and more dangerous — argument is that permitting Kiobel to be heard in a U.S. court is a violation of international law, and therefore, pursuant to the Charming Betsy canon, the ATS should not be interpreted in a manner that would authorize a U.S. court to hear a case like Kiobel. In reaching this conclusion, however, Respondents deliberately mischaracterize the nature of their argument: while Respondents repeatedly claim that “a U.S. court’s exercise of prescriptive jurisdiction under the ATS” is prohibited by international law (Respondents’ Supplemental Brief, at 47) (emphasis added), Respondents’ actual arguments in support of this claim only address limitations on a U.S. court’s exercise of adjudicative jurisdiction.

This isn’t simply an error or misunderstanding on Respondents’ part; it is an intentional conflation of two distinct concepts. Respondents want the Supreme Court to find that the United States lacks prescriptive jurisdiction to regulate foreign corporate activities, not merely that U.S. courts lack adjudicative jurisdiction to hear claims about those activities.

This is because Royal Dutch Petroleum’s corporate interests would be best served by a norm of international law that minimizes a state’s authority to regulate the foreign activities of corporations, even for corporations that are incorporated or headquartered in that state’s territory. As far as Shell is concerned, having Kiobel dismissed on, say, forums non conveniens grounds, or for reasons of international comity, would only be a partial victory for Shell at best. Even if Kiobel is dismissed from New York federal courts, Shell hasn’t won all that much as long as the plaintiffs are still able to turn around and re-file their claims in London or the Hague.

And so Respondents insist throughout their brief that their argument is concerned with prescriptive jurisdiction. Respondents even going so far as to quote the entirety of the section on prescriptive jurisdiction from the Restatement (Third) of the Foreign Relations Law of the United States — perhaps hoping that the Supreme Court will focus on analyzing how the available bases of prescriptive jurisdiction apply to the situation in Kiobel, and fail to notice the fact that prescriptive jurisdiction is irrelevant here. Examples of these efforts at mischaracterization in Respondents’ brief include the following:

“Affording a federal-common-law claim under ATS jurisdiction … would violate international law because there is no accepted basis on which the United States may prescribe its law to govern such a case. ” (Id., at 38).

“the Charming Betsy presumption is not overcome by the text or historical context of the ATS, neither of which affirmatively indicates that federal courts should assert … any prescriptive jurisdiction with respect to conduct on foreign soil.” (Id., at 47).

“A U.S. court’s exercise of prescriptive jurisdiction under the ATS and federal common law as to conduct on foreign soil typically will violate international law[.]” (Id.)

But Respondents’ actual arguments, with the sole exception of its brief aside regarding sec. 402 of the Restatement (Third), are addressed exclusively at the question of why the Court’s exercise of adjudicatory jurisdiction under the ATS, at least in Kiobel, would be in violation of international law:

“That is because adjudication of such a case in a U.S. court clearly violates the international-law norm against universal civil jurisdiction.”

Respondents provide a long list of authorities that Respondents would have the Court believe support its claims that prescriptive jurisdiction is the actual issue in Kiobel. However, Respondents’ authorities consist solely of foreign court decisions concerned with the question of adjudicative jurisdiction. It is only Respondents’ use of delicate phrasing that creates a suggestion that these sources address the topics of the prescriptive power of legislative branches, when in fact that subject is never addressed. For instance, Respondents allege the following:

To the contrary, foreign governments and tribunals view the assertion of civil—as opposed to criminal—universal jurisdiction as a violation of international law. In Jones v. Ministry of Interior for the Kingdom of Saudi Arabia, [2006] UKHL 26, the United Kingdom’s House of Lords observed that “there is no suggestion that [universal civil jurisdiction] represents current international law.”

But Jones v. Saudi Arabia was not about “foreign governments” prescribing jurisdiction. Instead, the opinions begins with the following description: “[t]he issue at the heart of these conjoined appeals is whether the English court has jurisdiction to entertain proceedings.” (Also notable is the fact that Respondents’ quote from Jones — “there is no suggestion that [universal civil jurisdiction] represents current international law” — is actually an instance in which the UK court summarizes Breyer’s concurring opinion in Sosa. That hardly counts as foreign authority on whether or not the U.S. had the ‘prescriptive jurisdiction’ to enact the ATS!)

Every single foreign source that Respondents cite to is, once reviewed, clear a case concerned with adjudicative jurisdiction:

An Australian appellate court similarly explained, in rejecting a plaintiff’s contention “that international law confers universal jurisdiction on the Australian courts to hear and determine a civil claim of torture[,] … [t]here is a considerable body of authority denying the existence of such jurisdiction, despite the recognition of the prohibition of torture as jus cogens.”

An allegation of an abuse of a “jus cogens” norm committed anywhere in the world, cannot alone justify the civil jurisdiction of the U.S. courts. Such jurisdiction, without any underpinning of a clear connection with the forum (i.e. truly “universal” jurisdiction), is only well established in the criminal context.

Moreover, Respondents’ reliance on sec. 402 of the Restatement (Third) of Foreign Relations is particularly odd — not to mention inappropriate — given the explicit textual support for the ATS that the Restatement provides just a couple short sections later, at section 404. Respondents dismiss section 404’s explicit grant of prescriptive jurisdiction to “define and [] punish” violations of international law by stating:

“this principle refers to universal criminal jurisdiction and offers no support for the assertion of universal civil jurisdiction.”

But either Respondents are willing to knowingly distort the authorities they cite to, or else Respondents simply didn’t bother to read all of section 404, because this principle absolutely provides support for an assertion of universal civil jurisdiction. See sec. 404, at comment b:

Universal jurisdiction not limited to criminal law. In general, jurisdiction on the basis of universal interests has been exercised in the form of criminal law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy.

Finally, in light of Respondents’ own exclusive reliance on case law dealing with adjudicative jurisdiction, not prescriptive jurisdiction, Respondents’ argument for why the Court should disregard the authorities cited to by Petitioner is particularly absurd:

[i]n fact, Petitioners’ authorities are inapposite … because they exercised adjudicative (rather than prescriptive) jurisdiction.

The legal strategy employed here by Respondents can best be described as the “these are not the droids you’re looking for” argument. It is an attempt to distract the Court from what Respondents are actually proposing: that the U.S. should recognize a new norm of international law which imposes expansive limitations on a sovereign’s power to regulate corporate coduct. Trussed up in language of “adjudicative jurisdiction,” this attempted intrusion on state sovereignty seems much more palatable — and, who knows, maybe some of the judicial minimalists on the bench will fall for it. But look at what Respondents are actually saying:

A U.S. court’s exercise of prescriptive jurisdiction under the ATS and federal common law as to conduct on foreign soil typically will violate international law even in cases where the defendant is a U.S. individual or corporation. … In the typical “foreign-squared” ATS case, the exercise of prescriptive jurisdiction will be unreasonable because, while the U.S. has a connection with the defendant, the activity being regulated neither takes place in the United States nor has direct effects here[.]

This is — technically speaking — insane. No one can seriously doubt that the U.S. has the power to regulate the foreign activities of its domestic corporations. And yet Respondents go one step father, and claim that doing so would actually be a violation of international law. Respondents are not arguing that it is only the United States that lacks the authority to prohibit Royal Dutch Petroleum from committing human rights abuses in Nigeria — Respondents are arguing that the United Kingdom and the Netherlands don’t have that authority either.

With that in mind, I would like to review how Royal Dutch Petroleum describes, in its Supplemental Brief, the international norm that it is proposing should be adopted by the Supreme Court in Kiobel:

In the typical “foreign-squared” ATS case, the exercise of prescriptive jurisdiction will be unreasonable because, while the U.S. has a connection with the defendant, the activity being regulated neither takes place in the United States nor has direct effects here; the plaintiffs have no connection with the United States; the foreign state has a strong interest in regulating the alleged conduct; and U.S. attempts to regulate may conflict with that foreign state’s law.

Keeping the factual situation alleged by the Kiobel plaintiffs in mind, here is an attempted translation of what Respondents actually mean to say in the above paragraph:

Even if Royal Dutch Shell was a U.S. company, it would be unreasonable, and therefore a violation of international law, for the U.S. to prescribe a domestic law prohibiting Royal Dutch Shell from committing human rights abuses in Nigeria. U.S. law regulating Royal Dutch Shell’s joint ventures with foreign sovereigns would be unreasonable because, although Royal Dutch Shell is incorporated in the U.S., all of the human rights abuses are being committed in Nigeria, and these human rights abuses don’t actually cause any harm on U.S. territory. The victims of these human rights abuses have no connection to the U.S. (aside from being subject to human rights abuses committed by a U.S. company). Nigeria has a strong sovereign interest in how foreign corporations conduct their business in Nigeria, and whether or not those corporations respect human rights. Attempts by the U.S. to prohibit Royal Dutch Shell from engaging in foreign human rights abuses would necessarily conflict with Nigerian law, which specifically permits and condones Royal Dutch Shell’s actions there.

This translation is slightly tongue in cheek, but the scheme proposed by Respondents is specifically advocating against the existence of prescriptive jurisdiction to regulate foreign human rights abuses. Respondents’ argument goes too far to be taken seriously.

In short, Respondents would have the Court believe that it would be a violation of international law for the United States to institute a civil cause of action against U.S. nationals who, acting under a grant of government authority, violate international law while abroad. In fact, under international law, the United States would itself be liable for breaching international law in those circumstances. See Draft Articles on State Responsibility, Art. 5 (“The conduct of … a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”). And yet, under Respondents’ bait-and-switch theory of ‘prescriptive jurisdiction,’ international law actually prohibits the U.S. from making civil reparations available in that situation.

The Charming Betsy argument contained in Respondents’ Supplemental Brief is nothing more than at attempt at judicial misdirection. Although Respondents do make the (valid) argument that the U.S. lacks of adjudicatory jurisdiction to hear ATS claims regarding purely foreign conduct — an argument they would be idiots to avoid making, since its the strongest argument in favor of Kiobel’s dismissal — Respondents attempt to sell this argument as a much broader limitation on state’s sovereignty.

Simply put, it is not sufficient for Royal Dutch Petroleum’s purposes to have Kiobel dismissed solely for a lack of adjudicatory jurisdiction. What Respondents wants — and Respondents are hoping the U.S. Supreme Court will provide a global precedent for — is a finding that states not only lack the jurisdiction to adjudicate claims regarding a corporation’s foreign human rights abuses, but that states lack the authority to prohibit such human rights abuses in the first place, even when those abuses are committed by a state’s own nationals.