Things we do with presumptions: reflections on Kiobel v. Royal Dutch Petroleum.

AuthorVazquez, Carlos M.

INTRODUCTION

The Court in Kiobel v. Royal Dutch Petroleum Co. relied on the presumption against extraterritoriality in declining to recognize a federal cause of action for the defendants' alleged breaches of customary international law. (1) The bulk of Chief Justice Roberts's opinion for the Court defended the applicability of the presumption to the claims brought under the Alien Tort Statute (ATS). (2) As Justice Alito's concurring opinion noted, however, the Chief Justice's opinion adopted a "narrow approach" that "[left] much unanswered." (3) Similarly, Justice Kennedy's concurrence observed that the Chief Justice's opinion properly "[left] open a number of significant questions." (4) In determining what exactly the Court decided in Kiobel and what it left undecided, it is useful to distinguish several things that might be done with a presumption such as that against extraterritoriality.

Most straightforwardly, the courts apply the presumption in interpreting federal statutes. Specifically, they use the presumption in determining the applicability of the statute to claims based partially or wholly on conduct that occurred outside United States territory. On the assumption that Congress legislates with domestic conditions in mind, a court applying the presumption interprets a statute not to apply "extraterritorially" unless Congress has expressed a contrary intent.

A threshold question when a court is asked to apply the presumption against extraterritoriality is whether the presumption is applicable to the type of statute in question. With respect to certain types of statutes, application of the presumption against extraterritoriality would not advance the purposes of the presumption. I argue in Part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. I argue further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court's opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.

Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute's text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. (5) But, in Morrison v. National Australia Bank Ltd., the Court recognized that "context" can be taken into account as well. (6) And, in Kiobel, the Court recognized that a statute's "historical background" might also "overcome" the presumption. (7) These methods of rebutting or overcoming the presumption are discussed in Part II.

When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. (8) Applying the presumption in such a case, the Court explained, requires identification of "the 'focus' of congressional concern" under the relevant statute. (9) If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute's applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. How to satisfy the presumption is discussed in Part III.

The Court in Kiobel may have recognized a fourth thing that might be done with the presumption against extraterritoriality: the presumption might in certain circumstances be displaced. The majority used this term in the final paragraph of its opinion, a paragraph that has generated much debate about what sorts of questions the Court left open in Kiobel. The Court wrote that "even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application." (10) The Court may have been using the term to refer to the issue I have refer to as the "satisfying" of the presumption. There is also some basis, however, for understanding the Court to have left open the possibility that the presumption might be inapplicable or rebutted with respect to some claims brought under the ATS for violations of customary international law. What the Court meant by "displacing" the presumption is the subject of Part IV.

  1. DETERMINING WHETHER THE PRESUMPTION IS APPLICABLE

    The presumption against extraterritoriality is a technique for interpreting statutes. It reflects the Court's assumption that Congress, when it legislates, is concerned with domestic conditions and does not mean to " 'rule the world.'" (11) The presumption also seeks to "protect against unintended clashes between our laws and those of other nations which could result in international discord." (12) Because Congress "'alone has the facilities necessary to make fairly such an important policy decision,'" the courts will interpret the statute not to apply extraterritorially in the absence of "'the affirmative intention of the Congress clearly expressed.'" (13)

    A threshold question concerning the presumption against extraterritoriality will frequently be whether the statute in question is one to which the presumption should apply. Certain categories of statutes do not implicate the concerns that underlie the presumption. For example, the assumption that Congress legislates with only domestic conditions in mind is not valid for certain types of statutes. Consider a statute enacted to implement a treaty. Because treaties, by their nature, address matters of international concern, it is difficult to say that a statute implementing a treaty was enacted with only domestic situations in mind. To be sure, it is possible that a given treaty imposes obligations on parties only with respect to conduct occurring within their borders. For example, the United States has taken the position that the International Covenant on Civil and Political Rights does not impose extraterritorial obligations. (14) Its interpretation conflicts with that of other nations and some international bodies, and the State Department's Legal Adviser recently urged reconsideration of this position. (15) Whether the United States' position is correct or not, it is clear that the question is a matter of treaty interpretation, to be decided in accordance with international law principles of treaty interpretation. (16) The presumption against extraterritoriality has no relevance in determining the extraterritorial scope of treaties. The presumption therefore should have no bearing on the extraterritorial scope of a statute implementing a treaty.

    Another type of statute that does not implicate the concerns that underlie the presumption against extraterritoriality is one that limits the authority of executive officials. As noted, the purpose of the presumption against extraterritoriality is to guard against unintended clashes with the laws of other nations and, more generally, to avoid international friction. If a statute limiting the authority of executive officials were interpreted to apply only to conduct within U.S. territory, however, the result would be an expansion of the authority of the relevant officials to act overseas. Interpreting such a statute not to apply extraterritorially thus increases the power of such officials to cause international friction. Applying the presumption against extraterritoriality to this type of statute would not advance the goal of avoiding clashes with other nations. There may be other reasons to interpret such a statute narrowly, but the avowed purpose of the presumption against extraterritoriality--avoiding international friction--is not one of them.

    For both of the foregoing reasons, the presumption against extraterritoriality should have been deemed inapplicable to the statute in question in Sale v. Haitian Centers Council, Inc,,17 which involved the extraterritorial applicability of a statute forbidding the return of refugees to countries where they would be persecuted on various specified grounds. The Court applied the presumption against extraterritoriality and concluded that the statute prohibited officials from returning refugees to their persecutors if they reached our shores but did not prohibit officials from interdicting such refugees on the high seas and returning them to their persecutors. (18) In apparent recognition of the argument made above that applying the presumption against extraterritoriality to this statute would not help avoid international friction, the Court in Morrison cited Sale for the proposition that the presumption "applies regardless of whether there is a risk of conflict between the American statute and a foreign law." (19) Presumably it applies in such a context because of the assumption that Congress legislates with domestic conditions in mind. The validity of the latter assumption with respect to the statute involved in Sale is questionable, however, as the statute was enacted to implement a treaty--the United Nations Protocol Relating to the Status of Refugees. (20)

    The concerns underlying the presumption against extraterritoriality are also...

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