Response: Adjudicative versus prescriptive jurisdiction, translating historical intent, and a brief universal jurisdiction rejoinder

The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Anthony J. Colangelo, Assistant Professor of Law at SMU Dedman School of Law. His articles have been cited and quoted by numerous courts addressing extraterritorial jurisdiction under U.S. and international law. He is the coauthor with Anthony D’Amato of the Law of Nations Scholars amicus brief submitted in support of neither party in Kiobel v. Royal Dutch Petroleum. [Lyle published an introduction to the issues in the case at the start of the symposium.]

I’d like to explore a few issues raised in other posts that to some degree either connect up or disagree with the universal jurisdiction principle I wrote about in my initial post: (a) conceptualizing the law courts apply in ATS cases and whether such application constitutes an exercise of adjudicative or prescriptive jurisdiction, (b) translating the ATS’s purported historical purpose to the statute’s current application, and (c) a brief defense of universal jurisdiction in light of Professor Ramsey’s criticisms.

(a) On conceptualizing the law courts apply in ATS suits – that is, whether courts apply international law directly or some form of U.S. common law that may or may not reflect international norms – it is important to appreciate the doctrinal stakes.

Petitioners want the law to be conceptualized as international law so they can claim that all the ATS does is authorize what’s called “adjudicative jurisdiction” for U.S. courts sitting in U.S. territory; respondents want it to be conceptualized as U.S. common law so that the ATS constitutes an exercise of what’s called “prescriptive jurisdiction” by the United States inside foreign territory. For readers unfamiliar with these terms, “adjudicative jurisdiction” is generally regarded as the authority of courts to entertain suits; “prescriptive jurisdiction,” on the other hand, is the authority to make and apply law to persons or things.

The importance of this conceptual distinction should start to become apparent: If the applicable law is international law, the ATS can be said to create only adjudicative jurisdiction for U.S. courts to entertain suits involving foreign elements, and simply doesn’t involve extraterritorial application of U.S. law (or prescriptive jurisdiction). What courts do under the ATS is thus directly analogous to – indeed it is conceivably the same as – what U.S. courts do when they apply the foreign law of, say, the place where a harm occurred, which U.S. courts have been doing since the founding, including in so-called “foreign cubed” cases. In fact, there’s an entire course in law school devoted largely to the subject, called Conflict of Laws.

On the other hand, if the applicable law under the ATS is some variety of U.S. common law, then the United States is engaged in the extraterritorial application of its laws to persons or things abroad – i.e., prescriptive jurisdiction. And if that’s right, then the presumption against extraterritoriality kicks in along with its motivating rationales like avoiding clashes between U.S. and foreign laws, as well as the Charming Betsy canon of construction, which requires that ambiguous statutes be construed not to violate international law.  (And it would violate international law to extend purely U.S. laws inside foreign territory to regulate conduct with no U.S. connection.)

I’m inclined to think that the heuristic value of the “adjudicative” and “prescriptive” jurisdiction categories has run out in this context. It doesn’t really matter on the extraterritorial jurisdiction question how we conceptualize the law courts apply in ATS suits – whether it is international law or some form of U.S. common law reflecting international law. The key question instead is whether that law, however it is conceptualized, indeed accurately reflects extant rules of international law, including as to liability. (As an aside, this last requirement also can guide whether to recognize a private right of action under the statute: Sosa repeatedly explained that a cause of action lies not for any international law violation, but instead only “for the modest number of international law violations with a potential for personal liability” – that is, “rules binding individuals for the benefit of other individuals . . . [under] the law of nations, admitting of a judicial remedy.” And there is no doubt that “the current state of international law” imposes personal liability for some (very limited) violations but not for most others.)

It should be reiterated that international law itself largely doesn’t care about how it is conceptualized within any given domestic legal system, so Charming Betsy is silent on this question. As my initial post noted, some nations may require implementing legislation to apply international law as a domestic rule of decision, others may not — but that’s a matter for a nation’s internal law, not international law.

Perhaps more importantly, implementing international law into U.S. domestic law does not somehow strip that international law of its universal jurisdiction powers to apply the world over: All of our U.S. criminal laws implementing universal jurisdiction under international law are legislatively enacted statutes — whether of the sort like the 1819 piracy act discussed in the first post, which simply invokes the definition of the offense under “the law of nations,” or more recent laws like federal statutes against torture and terrorism, which replicate the elements of the offenses laid out in widely ratified international treaties or just incorporate the treaties by reference.

All of this is to say that as to extraterritorial jurisdiction generally and universal jurisdiction in particular, whether the substantive law in ATS suits is conceptualized as the direct application of international law or international law incorporated into U.S. common law does not really matter. What matters is whether the conduct-regulating rule faithfully and accurately reflects extant international law, including as to liability. Only if it does can the exercise of jurisdiction over entirely foreign activity stand under prevailing canons of statutory construction (and perhaps the Constitution). Last Friday, the U.S. District Court for the District of Columbia referenced my most-noted formulation of this principle in a foreign-cubed piracy case, United States v. Ali, and I’ll end my point with it here since the principle applies equally to ATS suits: “If national courts prosecute on grounds of universal jurisdiction, they must use the international legal definitions—contained in customary international law—of the universal crimes they adjudicate; otherwise, their exercise of universal jurisdiction contradicts the very international law upon which it purports to rely.”

(b) Next, a word on translating historical intent. I tend to agree with Professor Wuerth’s recent response on this question. But even if we were to assume for the sake of argument that historically the ATS was exclusively intended only to authorize jurisdiction where the United States as a whole could be held responsible for the tort in violation of the law of nations, the extent to which that intent necessarily controls modern-day ATS jurisdiction is, to my mind anyway, far from clear. The particular doctrinal motivation in the eighteenth-century law of nations cited for this proposition is basically extinct under modern international law, yet Congress obviously has left the ATS on the books. The intent argument accordingly reduces to some variation on the theme that a legally obsolete historical intent, translated to the present, ought to discourage entertaining human rights claims arising abroad. On the other hand, the drafters of the ATS also certainly conceived of the law of nations as an evolving set of norms that changes with state practice, and those norms now unequivocally prohibit gross human rights violations everywhere. Other contributors have, and likely will, address these arguments – arguments that, it is important to recognize, depend heavily if not entirely on judicial speculation about translating legislative intent two hundred years divorced from the present.

The text of the ATS, however, is plain and enduring in authorizing jurisdiction for torts “in violation of the law of nations.” And “the present-day law of nations” that Sosa directs courts to use clearly encompasses both substantive prohibitions on universal jurisdiction violations like torture and certain acts of terrorism, and authorizes all states to apply the law of nations (whether directly or through domestic implementing law) to those violations whenever states gain personal jurisdiction over defendants.

(c) Finally, I want to respond briefly to Professor Ramsey’s criticisms of what he calls the “core argument” for universal jurisdiction. Professor Ramsey does not dispute the existence of universal jurisdiction in the law of nations, but he feels that for universal jurisdiction to be viable under the ATS there must be consensus on the definition of the offense, the application of that definition, and the form of remedy (and perhaps the form of procedures).

Let me begin by saying that I agree that universal jurisdiction is best viewed as a last-resort option. In addition, while universal jurisdiction is established and has been for centuries, it is also true that it is infrequently exercised compared with other bases of jurisdiction, though its exercise has been steadily increasing over the past few decades and has not been limited to non-citizen residents. I also agree – indeed in my own theories of universal jurisdiction first spelled out in an article titled, incidentally, “The Legal Limits of Universal Jurisdiction” – that courts exercising universal jurisdiction must faithfully and accurately apply only clearly established and articulated definitions of universal offenses under international law; otherwise, the exercise of jurisdiction violates international law.

But as to those definitions, there is widespread consensus: they are clearly spelled out in widely ratified, customary-law generating multilateral treaties, virtually all of which the United States is party to and has implemented in U.S. law. The treaties moreover provide for universal jurisdiction based on the presence of the offender, even if such presence is transient, and sometimes even if it is obtained by force. In fact, the treaties impose an obligation to exercise universal jurisdiction in some circumstances. It is perhaps worth noting the Supreme Court’s early lament in United States v. Smith that “[o]ffences . . . against the law of nations, cannot, with any accuracy, be said to be completely ascertained and defined in any public code recognised by the common consent of nations.”(The Court relied on writings of twenty-five publicists or scholars to ascertain the settled definition and scope of piracy under the law of nations.) Today such a code largely exists in the form of widely ratified multilateral treaties. And they unambiguously provide jurisdiction where a state gains personal jurisdiction over the perpetrator of certain universal violations of the present-day law of nations – even if that state had no connection to the violation when it occurred.

As to application, that different courts may apply the law somewhat differently is an inevitable feature of any system in which law is administered by more than one court. In the international (not to mention the national) arena, different courts have been applying the same law differently forever. Yet I again agree (and have argued) that U.S. courts, or any courts for that matter, exercising universal jurisdiction must apply international law in a restrictive rather than an expansive manner, so as not to violate another nation’s sovereignty or the defendant’s right to fair notice of the law through an exorbitant interpretation.

Finally, as to remedies and procedures, these have always been a matter of forum law or the lex fori under international law, and there has always been variation among states. Thus claims arising abroad brought in U.S. courts, including foreign-cubed claims governed by foreign law, are resolved using U.S. procedures and remedies. This is nothing new under the law of nations; to require international consensus on remedies and procedures would be contrary to that law, impossible since such consensus doesn’t exist, and tantamount to inventing a brand-new requirement that effectively guts universal jurisdiction.

I suspect that Professor Ramsey and I are not that far apart on how universal jurisdiction, properly exercised, limits the types of entirely foreign cases that may be brought under the ATS. But Professor Ramsey’s objections to universal jurisdiction itself appear to boil down to disagreements with existing international law. The Supreme Court may decide that it would be unwise for the ATS to encompass universal jurisdiction, but as a legal matter it is clearly part of “the law of nations” the statute invokes.