Extraterritorial Application of Claims
Application of Claims and Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co. in 2013
United States views on international law [1] in relation to Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co.: (As reviewed in this legal encyclopedia in relation to international law issues in the year 2012), the United States submitted a supplemental brief in the U.S. Supreme Court in Kiobel v. Royal Dutch Petroleum Co. in 2012 on the question of whether the ATS allows a cause of action for violations occurring outside the territory of the United States. The Supreme Court issued its opinion on that issue on April 17, 2013. 133 S. Ct. 1659 (2013).
Some Aspects of Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co.
The Court was unanimous in holding that the claims in this particular case should be dismissed, but there were three separate opinions concurring in the Court's judgment. The majority of the Court reasoned that the principles underlying the presumption against extraterritoriality apply to claims under the ATS, and 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.” Justice Kennedy wrote a separate concurring opinion emphasizing that the majority opinion properly leaves “open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.” Justice Alito's concurrence, in which Justice Thomas joined, advocates a broader application of the presumption against extraterritoriality than the Court's formulation such that “a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred –unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa's requirements of definiteness and acceptance among civilized nations.” Justice Breyer's concurrence, in which Justices Ginsburg, Sotomayor, and Kagan joined, agrees “with the Court's conclusion” that there was no jurisdiction in this particular case, but “not with its reasoning.” Specifically, Justice Breyer wrote:
…I would not invoke the presumption against extraterritoriality. Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.
Excerpts from the majority opinion follow.
Developments
The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” Morrison v. National Australia Bank Ltd., 561 U.S. ––––, ––––, 130 S.Ct. 2869, 2878, 177 L.Ed.2d 535 (2010), and reflects the “presumption that United States law governs domestically but does not rule the world,” Microsoft Corp. v. AT & T Corp., 550 U.S. 437, 454, 127 S.Ct. 1746, 167 L.Ed.2d 737 (2007).
Details
This presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” EEOC v. Arabian American Oil Co., 499 U.S. 244, 248, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991) (Aramco ). As this Court has explained:
“For us to run interference in … a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.” Benz v. Compania Naviera Hidalgo, S.A., 353 U.S. 138, 147 [77 S.Ct. 699, 1 L.Ed.2d 709] (1957). The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U.S. law that carries foreign policy consequences not clearly intended by the political branches.
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We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad. See, e.g., Aramco, in this world legal Encyclopedia, at 246, 111 S.Ct. 1227 (“These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad”); Morrison, in this world legal Encyclopedia, at ––––, 130 S.Ct., at 2876–2877 (noting that the question of extraterritorial application was a “merits question,” not a question of jurisdiction). The ATS, on the other hand, is “strictly jurisdictional.” Sosa, 542 U.S., at 713, 124 S.Ct. 2739. It does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS. Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do. This Court in Sosa repeatedly stressed the need for judicial caution in considering which claims could be brought under the ATS, in light of foreign policy concerns. As the Court explained, “the potential [foreign policy] implications … of recognizing…. causes [under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Id., at 727, 124 S.Ct. 2739; see also id., at 727–728, 124 S.Ct. 2739 (“Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution”); id., at 727, 124 S.Ct. 2739 (“[T]he possible collateral consequences of making international rules privately actionable argue for judicial caution”). These concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.
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These concerns are not diminished by the fact that Sosa limited federal courts to recognizing causes of action only for alleged violations of international law norms that are “'specific, universal, and obligatory.'” Id., at 732, 124 S.Ct. 2739 (quoting In re Estate of Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (C.A.9 1994)). As demonstrated by Congress's enactment of the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U.S.C. § 1350, identifying such a norm is only the beginning of defining a cause of action. See id., § 3 (providing detailed definitions for extrajudicial killing and torture); id., § 2 (specifying who may be liable, creating a rule of exhaustion, and establishing a statute of limitations). Each of these decisions carries with it significant foreign policy implications. The principles underlying the presumption against extraterritoriality thus constrain courts exercising their power under the ATS.
Resources
Notes
- Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co. in the Digest of United States Practice in International Law