Online Kiobel symposium: The Alien Tort Statute and the law of nations

The following contribution to our online 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 last week.]

This post addresses “whether and under what circumstances the Alien Tort Statute [ATS] . . . 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.” The ATS explicitly grants jurisdiction over torts in violation of “the law of nations.” Understanding that law is therefore necessary to understanding what the statute authorizes. The law of nations comprises both substantive and jurisdictional components, and I’ll begin by focusing on the most pertinent to Kiobel’s so-called “foreign-cubed” claims: the enigmatic principle of “universal jurisdiction,” which grants every state in the world jurisdiction over certain violations of the law of nations even absent any connection to the violation when and where it occurred. I’ll then contend that Congress affirmatively conferred universal jurisdiction in the ATS and that private international law, which is part of the law of nations, contemplates such jurisdiction in civil suits between foreigners for claims arising abroad.

Universal jurisdiction is a symbiotic blend of international substantive and jurisdictional law. Substantively, it prohibits certain law-of-nations violations everywhere; jurisdictionally, it authorizes all states to apply the law of nations to those violations whenever states gain personal jurisdiction over defendants. In this sense, universal jurisdiction is not really extraterritorial jurisdiction at all; instead, it is the decentralized application by states of an international law that covers the globe. It therefore differs from, say, extraterritorial extensions of securities or antitrust laws, which project purely U.S. laws into foreign territory.

Universal jurisdiction may seem exotic, but it has been around for centuries. Founding-era Supreme Court cases discuss universal jurisdiction and confirm that when states exercise it, they do not project national law to activity abroad but apply an international law that already governed the activity when and where it occurred. As the Court explained in United States v. Smith – an early piracy case on which the Court relied in Sosa v. Alvarez-Machain for the “historical paradigms” that inform modern-day ATS inquiries – “[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.” The international substantive prohibition is tied intimately with the jurisdictional competence of all states to enforce that prohibition. Thus, the Court in Smith observed, “the general practice of all nations” in exercising universal jurisdiction over piracy “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.” While some countries may require implementing legislation for international law to serve as a domestic rule of decision, others may not. The important point is that universal jurisdiction both proscribes certain violations of the law of nations and authorizes all states to apply that law to those violations.

The next question is whether the ATS confers such jurisdiction, including over law-of-nations violations in foreign territory. It does.

The Supreme Court’s recent decision in Morrison v. National Australia Bank reaffirmed that a presumption against extraterritoriality applies to U.S. statutes. The presumption is not a limitation on sovereignty but a canon of construction designed to effectuate legislative intent. As the Court explained in another early piracy case, United States v. Palmer, even where Congress has power to legislate, general statutory “words must be limited in some degree, and the intent of the legislature will determine the extent of this limitation. For this intent we must examine the law.” And when examining the law, the Court in Morrison points out, “[a]ssuredly context can be consulted.” Although the ATS is primarily jurisdictional, the presumption might kick in if courts tried to extend purely domestic U.S. common-law principles to foreign conduct. But to the extent courts use the law of nations as the conduct-regulating rule, early case law and congressional reaction thereto strongly suggest that the ATS confers universal jurisdiction, including over law-of-nations violations in foreign territory.

In Palmer, the Court used a species of presumption against extraterritoriality to restrictively construe the reach of a 1790 statute prohibiting piracy, defined as “robbery . . . upon the high seas” by “any person or persons” – a definition that matched up with the definition of piracy under the law of nations. The Court held that the statute did not reach such acts committed by foreigners, against foreigners, on a foreign-flag ship. Two key points about the case and its aftermath hold important implications for the scope of the ATS.

First, piracy on another nation’s ship constituted a violation of the law of nations within another sovereign’s territory. According to the early Supreme Court, “[a] vessel at sea is considered as a part of the territory to which it belongs when at home. It carries with it the local legal rights and legal jurisdiction of such locality.” Indeed, it was exactly this jurisdictional feature, and the attendant fear of foreign sovereign interference, that caused the Palmer Court to restrict the scope of the 1790 piracy act. Yet according to Congress, the Court got it wrong. In direct response to Palmer, Congress passed a new piracy statute the very next year to unmistakably grant universal jurisdiction over piracy under the law of nations.

Which leads to the second key point: Congress expressed the grant of universal jurisdiction by revising the statutory language to confer jurisdiction over “piracy, as defined by the law of nations” – language that bears strong resemblance to the ATS’s grant of jurisdiction over torts “in violation of the law of nations.” What the early case law and statutes show, in other words, is that Congress knew how to bestow universal jurisdiction and did so by explicitly incorporating into statutes “the law of nations,” which comprises both substantive and jurisdictional aspects. It would be passing strange for the Court now to find that precisely the type of language Congress used to create universal jurisdiction – and to overrule the Court’s limiting presumption once before – does not confer universal jurisdiction. Added to this clear indication of universal jurisdiction is the fact that Congress could not have known of any judicially created presumption at the time it enacted the ATS: The Court invented the presumption for the first time in Palmer – a presumption Congress immediately rejected by enacting a new statute that, like the ATS, expressly invokes “the law of nations.”

Finally, the law of nations absolutely permits jurisdiction in civil suits between foreigners for claims arising abroad. In fact, to close U.S. courts to such suits could have amounted to discrimination and denial of access to justice contrary to the law of nations. To borrow from Joseph Story’s famous Commentaries on the Conflict of Laws, not only do such suits not violate international law, they are “maintainable, and are constantly maintained, between foreigners” in England and the United States. Indeed according to Story, a nation was “justly required . . . to open its own tribunals to foreigners, in the same manner and to the same extent, as they are open to its own subjects; and to give them the same redress, as to rights and wrongs, which it deems fit to acknowledge in its own municipal code for natives and residents.”

While the law of nations supplies the conduct-regulating rule in ATS suits, longstanding private international law principles hold that forum law, or the lex fori, supplies the remedy. Story explained, “[i]t is universally admitted and established, that the forms of remedies . . . are to be regulated solely and exclusively by the laws of the place where the action is instituted; or, . . . according to the lex fori.”

To be sure, Story illustrated this “universally admitted” rule with nothing other than a foreign-cubed case from England, De la Vega v. Vianna. A Portuguese defendant objected that the remedy of which a Spanish plaintiff had availed himself under English law – —personal arrest instead of in rem possession – was unavailable under Portuguese law, where the cause of action arose. The House of Lords rejected this argument and held that as to remedies, the foreign party in England “must take the law as he finds it. . . . He is to have the same rights which all the subjects of this kingdom are entitled to.” The same should hold for ATS suits. The law of nations creates liability for universal jurisdiction violations, and the ATS supplies the form of remedy. A foreign defendant “must take the law as he finds it,” and foreign plaintiffs are “to have the same rights which all the [citizens of the United States] are entitled to.”

In sum, the Court in Sosa got it exactly right when it cited Filártiga v. Peña-Irala’s statement that under the ATS, “for purposes of civil liability, the torturer has become – like the pirate and slave trader before him – hostis humani generis – an enemy of all mankind.”