Extraterritorial Reach of Claims

Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co. in 2013 (Continuation)

United States views on international law [1] in relation to Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co.: III Petitioners contend that even if the presumption applies, the text, history, and purposes of the ATS rebut it for causes of action brought under that statute. It is true that Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad. See, e.g., 18 U.S.C. § 1091(e) (2006 ed., Supp. V) (providing jurisdiction over the offense of genocide “regardless of where the offense is committed” if the alleged offender is, among other things, “present in the United States”). But to rebut the presumption, the ATS would need to evince a “clear indication of extraterritoriality.” Morrison, 561 U.S., at ––––, 130 S.Ct., at 2883. It does not. To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad; it is well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality. See, e.g., id., at ––––, 130 S.Ct., at 2881–2882; Small v. United States, 544 U.S. 385, 388, 125 S.Ct. 1752, 161 L.Ed.2d 651 (2005); Aramco, 499 U.S., at 248–250, 111 S.Ct. 1227; Foley Bros., Inc. v. Filardo, 336 U.S. 281, 287, 69 S.Ct. 575, 93 L.Ed. 680 (1949).

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Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for “torts” in violation of the law of nations. They claim that in using that word, the First Congress “necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise on foreign soil.” Supp. Brief for Petitioners 18. For support, they cite the common-law doctrine that allowed courts to assume jurisdiction over such “transitory torts,” including actions for personal injury, arising abroad. See Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep. 1021, 1030 (1774) (Mansfield, L.) (“[A]ll actions of a transitory nature that arise abroad may be laid as happening in an English county”); Dennick v. Railroad Co., 103 U.S. 11, 18, 26 L.Ed. 439 (1881) (“Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties”).

Development

Under the transitory torts doctrine, however, “the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place.” Cuba R. Co. v. Crosby, 222 U.S. 473, 479, 32 S.Ct. 132, 56 L.Ed. 274 (1912) (majority opinion of Holmes, J.). The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U.S. law to enforce a norm of international law. The reference to “tort” does not demonstrate that the First Congress “necessarily meant” for those causes of action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality. Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. See Morrison, in this world legal Encyclopedia, at ––––, 130 S.Ct., at 2883 (noting that “[a]ssuredly context can be consulted” in determining whether a cause of action applies abroad). We explained in Sosa that when Congress passed the ATS, “three principal offenses against the law of nations” had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 542 U.S., at 723, 724, 124 S.Ct. 2739; see 4 W. Blackstone, Commentaries on the Laws of England 68 (1769). The first two offenses have no necessary extraterritorial application. Indeed, Blackstone—in describing them—did so in terms of conduct occurring within the forum nation. See ibid. (describing the right of safe conducts for those “who are here”); 1 id., at 251 (1765) (explaining that safe conducts grant a member of one society “a right to intrude into another”); id., at 245–248 (recognizing the king's power to “receiv[e] ambassadors at home” and detailing their rights in the state “wherein they are appointed to reside”); see also E. De Vattel, Law of Nations 465 (J. Chitty et al. transl. and ed. 1883) (“[O]n his entering the country to which he is sent, and making himself known, [the ambassador] is under the protection of the law of nations …”).

Details

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois—the Secretary of the French Legion—in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longchamps, 1 Dall. 111, 1 L.Ed. 59 (O.T.Phila.1784); Sosa, in this world legal Encyclopedia, at 716–717, and n. 11, 124 S.Ct. 2739. And in 1787, a New York constable entered the Dutch Ambassador's house and arrested one of his domestic servants. See Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L.Rev. 467, 494 (1986). At the request of Secretary of Foreign Affairs John Jay, the Mayor of New York City arrested the constable in turn, but cautioned that because “'neither Congress nor our [State] Legislature have yet passed any act respecting a breach of the privileges of Ambassadors,'” the extent of any available relief would depend on the common law. See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int'l L. 587, 641–642 (2002) (quoting 3 Dept. of State, The Diplomatic Correspondence of the United States of America 447 (1837)). The two cases in which the ATS was invoked shortly after its passage also concerned conduct within the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial waters). was invoked shortly after its passage also concerned conduct within the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial waters). These prominent contemporary examples—immediately before and after passage of the ATS—provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

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The third example of a violation of the law of nations familiar to the Congress that enacted the ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country. See 4 Blackstone, in this world legal Encyclopedia, at 72 (“The offence of piracy, by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there”). This Court has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application. See, e.g., Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 173–174, 113 S.Ct. 2549, 125 L.Ed.2d 128 (1993) (declining to apply a provision of the Immigration and Nationality Act to conduct occurring on the high seas); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989) (declining to apply a provision of the Foreign Sovereign Immunities Act of 1976 to the high seas). Petitioners contend that because Congress surely intended the ATS to provide jurisdiction for actions against pirates, it necessarily anticipated the statute would apply to conduct occurring abroad. Applying U.S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. See 4 Blackstone, in this world legal Encyclopedia, at 71. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves. See Morrison, 561 U.S., at ––––, 130 S.Ct., at 2883 (“[W]hen a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms”); see also Microsoft Corp., 550 U.S., at 455–456, 127 S.Ct. 1746.

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Notes

1. Extraterritorial Reach of Ats: Kiobel v. Royal Dutch Petroleum Co. in Digest of United States Practice in International Law