The following contribution to our symposium on Kiobel v. Royal Dutch Petroleum is written by Michael D. Ramsey, Professor of Law and Director of International and Comparative Law Programs at the University of San Diego Law School. He is the author of The Constitution’s Text in Foreign Affairs (Harvard University Press 2007) and co-editor of International Law in the U.S. Supreme Court: Continuity and Change (Cambridge University Press 2011). Professor Ramsey has served as a consultant to defendants in past and pending ATS litigation. [Lyle published an introduction to the issues in Kiobel last week.]
Over 35 years ago Judge Henry Friendly famously called the Alien Tort Statute (ATS) “a kind of legal Lohengrin … no one seems to know whence it came.” Whether that was true then, it’s not true now: there is wide scholarly consensus that its purpose was to provide a remedy for international wrongs for which the United States would be held responsible by foreign nations. Examples included assaults on and interference with foreign diplomats within the United States, and attacks by U.S. citizens on ships and property of nations with which the United States was not at war. Kiobel-type claims, involving the actions of non-U.S. citizens in foreign countries with no connection to the United States, are far from (and indeed contradict) the purposes for which the ATS was adopted.
Eighteenth-century international law (then called the “law of nations”) made a nation responsible for certain wrongful acts when those acts were committed by its citizens or occurred in its territory. Nations had an international responsibility to prevent these wrongs and to remedy them if they occurred. These international wrongs plagued U.S.foreign relations under the Articles of Confederation. The best known was the 1784 assault on the French diplomat Francois Barbe-Marbois in Philadelphia. There were others, including seizures of English and Spanish ships by U.S. citizens. The United States was fortunate that nothing too terrible had resulted from these incidents, but the danger was high in its leaders’ minds. James Madison’s influential 1787 essay “Vices of the Political System of Government in the United States” highlighted the Confederation’s inability to enforce treaties and the law of nations. Later that year,Virginia governor Edmund Randolph opened the Philadelphia Convention by listing the Articles’ problems; a leading one was that the nation could not “cause infractions of treaties or the law of nations, to be punished.” And shortly after ratification of the new Constitution, fears of disastrous repercussions from law-of-nations violations were almost realized. In the renewed conflict between Britain and France in 1793, U.S. citizens joined French military efforts, and these violations of U.S.neutrality – which the British called infringements of the law of nations – threatened to bring the United States into war with Britain.
The key is that although these wrongs were committed by private persons, they triggered international responsibilities to other nations on the part of the United States. Thus when Charles de Longchamps (a Frenchman) assaulted Marbois in Philadelphia, France complained that this was a violation of international law for which the United States was responsible and which the United States had a duty to remedy. (This was a serious problem for the Confederation government, which lacked power to do anything to de Longchamps.) Similarly, when U.S.citizens attacked British and Spanish ships during peacetime, or when U.S.citizens joined France’s fight against Britain in the 1790s, these acts placed the United States under an international duty to remedy them, and foreign nations whose citizens had been injured aggressively asserted their rights against the United States.
The threats posed to the United States in this system were substantial. The nation in 1789 had no navy and a tiny army tied down by rising hostility along the western frontier. State militias had proved disorganized and unreliable even in minor operations. The United States faced powerful potential adversaries, three of which (Britain,France and Spain) had bases in North America and the ability to project force around the globe. Britain retained a string of forts within U.S.territory along the northern frontier which it had promised to give up but then refused to do so (and the United States was too weak to force the issue). More fundamentally, the United States occupied a precarious position in the eighteenth-century political world. There was no guarantee that the powerful European monarchies would treat it as a co-equal sovereign entitled to the rights of international law and diplomacy, rather than as a rebellious and anarchic region available for conquest and annexation. Worse, eighteenth-century international relations were preoccupied with national rights and national honor, and were characterized by quick resort to force, pillage, and conquest. International rights were not just a subject of diplomatic protest; they were enforced by warships and armies.
In sum, the United States in 1789 was not worried about violations of the law of nations in the abstract. It was worried about the very real threat that individuals for whom it was responsible would bring down the diplomatic and military wrath of powerful nations by infringing those nations’ international rights.
With this background, it is fairly obvious what the ATS was supposed to do and what it was not supposed to do. The ATS – along with laws such as the 1790 Crimes Act, criminalizing assaults on ambassadors within the United States, and the 1794 Neutrality Act, criminalizing violations of neutrality by U.S.citizens – was a defensive measure, designed to stem the sort of international offense that had occurred under the Articles. If an alien was injured by a U.S. citizen or in U.S. territory, in a situation where the United States would be held responsible by foreign nations, the United States could point to the ATS as providing a remedy (and thus satisfying the U.S. obligation to redress the violation).
This design is demonstrated by the most significant ATS-related episode in the decade after its enactment. In 1794,U.S.citizens joined a French naval attack on the British colony of Sierra Leone. In keeping with the eighteenth-century practice of international law sketched above, Britain protested to the U.S. government and demanded a remedy: Britain and the United States were at peace, so the U.S. citizens’ actions violated the international law of neutrality (as well as the 1783 Treaty of Peace), and Britain held the U.S. government responsible. To deflect the British complaint, U.S. Secretary of State Randolph sought to show that the United States would provide a remedy for the violation. At his request, Attorney General William Bradford in 1795 wrote an opinion saying, among other things, that the ATS allowed British citizens to sue in U.S.courts for injuries caused by the breach of neutrality in Sierra Leone.
Bradford’s opinion and the general context of the ATS show that eighteenth-century Americans understood the ATS to have some extraterritorial effect. Infringements of the international rights of foreign nations for which the United States would be held responsible were as likely to occur abroad as in U.S.territory. And the international law of the time accepted the United States’s authority (and indeed its obligation) to regulate its citizens in foreign territory.
But it is highly improbable, given this context, that the ATS’s drafters envisioned the ATS extending to the non-U.S. activities of non-U.S. entities, as contemplated in Kiobel. First, the United States would have no international responsibility for activities lacking any connection with its citizens or territory, nor would foreign nations expect or demand the United States to provide a remedy for them. Second, for the United States to claim authority over the activities of non-U.S. entities in foreign sovereign territory would tend to exacerbate, not mitigate, international tensions. Foreign nations would regard this as an affront to their sovereign rights to control their citizens and territory. The purpose of the ATS (to shield the United States from potentially hostile international reactions) is directly contradicted by such an application of it.
Despite this, the ATS uses general language without express textual limits upon its scope. To what extent should courts limit it to stay consistent with its purpose?
One suggestion has been to use the presumption against extraterritoriality reaffirmed two years ago in Morrison v. National Australia Bank. But that seems wrong, for reasons indicated above: applying the presumption would not promote the ATS’s purpose. As the Sierra Leone incident shows, the United States would be held responsible for the acts of its citizens abroad, and the ATS was understood (rightly so) as an appropriate remedy.
There are, however, several limiting approaches available. I’ll sketch one here. It is highly unlikely that the ATS’s drafters thought there was Article III jurisdiction over Kiobel-type alien-against-alien international law claims. While some alien-against-alien claims would fall within ambassadorial or admiralty jurisdiction, for Kiobel-type claims the only possibility is that they “aris[e] under … the Laws of the United States.” Even if some parts of international law – as applied in U.S. territory or to U.S. officers and agents, for example – were considered “Laws of the United States” in 1789, it is most improbable that anyone in the Founding era thought that the international laws governing non-U.S. entities in foreign sovereign territory were “Laws of the United States.” Accordingly, despite the statute’s general language, it would not have been understood to convey jurisdiction over such non-Article III claims – a limit wholly consistent with its purpose.