The Alien Tort Statute and the law of nations in Kiobel and beyond.

Author:Colangelo, Anthony J.
  1. INTRODUCTION II. THE ATS AFFIRMATIVELY CONFERS UNIVERSAL JURISDICTION A. Universal Jurisdiction Authorizes All States to Apply the Law of Nations B. The ATS Embodies Universal Jurisdiction III. THE LAW OF NATIONS CONTEMPLATES UNIVERSAL JURISDICTION IN CIVIL SUITS A. The Law of Nations Authorizes Universal Adjudicative Jurisdiction B. The Law of Nations Authorizes Universal Prescriptive Jurisdiction to Apply International Law and Remedies Under the Lex Fori IV. CONCLUSION I. INTRODUCTION

    Over the last thirty years or so, the Alien Tort Statute (ATS) has generated its own cottage industry of judicial opinions and scholarly articles. The 1789 statute, which grants U.S. district courts "original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations" (1) has launched waves of court decisions and academic commentary ranging from the particulars about both historical and current relationships between U.S. and international law as well as the existence and scope of corporate liability under international law, to broader debates about the place of international human rights litigation in U.S. courts. (2)

    In Kiobel v. Royal Dutch Petroleum, the United States Supreme Court recently posed a couple of questions that promise to affect, if not altogether determine, the viability of ATS claims for the foreseeable future; specifically, the Court asked "[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C. [section] 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." (3) Causes of action arising in foreign territory have comprised both the vast majority and the most contentious ATS claims over the past three decades. (4) Thus Kiobel effectively determines whether the ATS survives as a vehicle for human rights claims arising abroad in U.S. courts or, instead, is "placed on the shelf" (5) until Congress amends the statute to the satisfaction of the Court.

    Kiobel applied a presumption against extraterritoriality to claims arising under the ATS and held that the claims at issue in the case were not actionable because they were brought by foreigners against foreigners for conduct abroad. (6) The presumption is a canon of statutory construction intended to capture Congress's intent that statutes ordinarily do not apply outside U.S. territory unless Congress affirmatively indicates extraterritorial application. (7) I have elsewhere described the problem with using the presumption to construe a jurisdictional statute like the ATS and the causes of action it authorizes. (8) In this Article I want to engage the Court's decision on its own terms. Even assuming a presumption against extraterritoriality properly extends to the ATS and causes of action authorized thereunder, I argue that the Court in Kiobel got it wrong. Specifically, the ATS does affirmatively indicate extraterritorial application by expressly invoking "the law of nations." (9) That law comprises both substantive and jurisdictional principles, and Congress intended the ATS to comprise these principles as well.

    Because the ATS invokes the law of nations, the better canon for construing the statute is the Charming Betsy canon, which instructs courts to construe statutes in conformity with international law if possible. (10) According to this canon, claims involving extraterritorial activity and, in particular, claims involving what are called "universal jurisdiction" violations of the law of nations, should be actionable under the ATS. Once it is understood that the law of nations or international law supplies the applicable conduct-regulating rule under the ATS and that the law of nations also provides that procedures and the form of remedy come from the domestic law of the forum, or the lex fori, the better construction emerges that the ATS confers geographically unlimited jurisdiction over universal jurisdiction violations of the law of nations.

    The Article concludes by observing that although Kiobel did not reach this result, it did adopt the correct choice-of-law framework: namely, that international law supplies the conduct-regulating rules under the ATS and forum law provides procedures and remedies. Moreover, it is still feasible under Kiobel for courts to entertain claims with foreign elements. To figure out when such claims are actionable, I suggest courts look to other principles of extraterritorial jurisdiction under international law for guidance.


    According to the Supreme Court, a statute applies outside U.S. territory if it contains a "clear indication of extraterritorial application." (11) The ATS contains such an indication: it clearly indicates universal jurisdiction to cover claims arising everywhere by expressly incorporating the law of nations, which comprises both substantive and jurisdictional components. (12) Accordingly, no presumption against extraterritoriality should have applied to the ATS.

    A much-cited case from 1818 generally regarded as the Supreme Court's first invention of a presumption against extraterritoriality, United States v. Palmer, applied a limiting presumption to block U.S. jurisdiction over the universal offense of piracy on a foreign-flag vessel because the vessel was considered the legal equivalent of foreign sovereign territory. (13) Congress immediately rejected that construction and enacted a new statute the very next year granting universal jurisdiction. Crucially, Congress rewrote the statute to affirmatively confer universal jurisdiction by expressly granting jurisdiction over "piracy, as defined by the law of nations." (14) By invoking "the law of nations," Congress purposefully authorized the application of both an international substantive rule and an international jurisdictional principle so as to confer upon U.S. courts universal jurisdiction to apply the international substantive rule. (15) The ATS similarly expressly confers jurisdiction over torts "in violation of the law of nations," (16) and similarly should be understood to authorize application of international substantive and jurisdictional components of that law.

    In brief, Congress knew how to bestow universal jurisdiction over law-of-nations violations in what was clearly considered foreign territory, and did so by explicitly incorporating into statutes "the law of nations," which includes both substantive and jurisdictional components. It was inappropriate for the Supreme Court to read that "affirmative indication" of jurisdiction out of the ATS in Kiobel (17)--indeed, it was especially inappropriate because Congress could not have known of any judicially created presumption at the time it enacted the ATS and used precisely the "law of nations" language to repudiate a presumption against extraterritoriality once before.

    1. Universal Jurisdiction Authorizes All States to Apply the Law of Nations

      To understand how the ATS confers universal jurisdiction under the law of nations it is necessary to understand universal jurisdiction. The international legal principle existed at the time Congress enacted the ATS, (18) it exists under the "present-day law of nations," (19) and it was recognized by the Court's decision in Sosa v. Alvarez-Machain. (20) Universal jurisdiction grants every state in the world jurisdiction to apply international law to certain violations of the law of nations, even if the state had no connection to the violation when and where it occurred. (21) To be sure, this is one of the principle's defining characteristics: when states exercise universal jurisdiction, they do not apply solely national law to conduct beyond their borders but an international law that already applied to the conduct when and where it occurred.

      The Supreme Court made this point unambiguously in United States v. Smith with regard to the original universal jurisdiction offense of piracy:

      [t]he common law ... recognises and punishes piracy as an offence, not against its own municipal code, but as an offence against the law of nations, (which is part of the common law), as an offence against the universal law of society, a pirate being deemed an enemy of the human race. (22) The substantive prohibition on universal violations of the law of nations is tied intimately with a jurisdictional principle that all states may enforce that prohibition:

      And the general practice of all nations, in punishing all persons, whether natives or foreigners, who have committed this offence against any persons whatsoever, with whom they are in amity, is a conclusive proof that the offence is supposed to depend, not upon the particular provisions of any municipal code, but upon the law of nations, both for its definition and punishment. (23) Similarly, Blackstone declared piracy "an offence against the universal law of society; a pirate being ... hostis humani generis." (24)

      As these authorities make clear, universal jurisdiction grants all states jurisdiction to enforce international law. When a state exercises universal jurisdiction, it does not extend solely national law extraterritorially to foreign conduct but rather acts as a decentralized enforcer of the law of nations already applicable to the conduct when and where it occurred.

      Universal jurisdiction works the same way today (25) and should give rise to ATS liability under Sosa's methodology. For example, Sosa cited United States v. Smith--the criminal piracy case quoted at length above--to demonstrate the "historical paradigms" that inform ATS inquiries under "the present-day law of nations." (26) As discussed, Smith's definition of piracy under the law of nations included both a substantive and a jurisdictional component: substantively, piracy comprised robbery on the high seas...

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