The following response in our symposium on Kiobel v. Royal Dutch Petroleum comes from Eugene Kontorovich, a professor at Northwestern University School of Law, where he teaches courses in constitutional law, federal courts, and international law. This year he is a fellow at the Institute for Advanced Study and the recipient of the Federalist Society’s Bator Award. He has written extensively about the ATS, extraterritorial jurisdiction, and related constitutional issues, including the forthcoming Discretion, Delegation, and Defining in the Constitution’s Law of Nations Clause, and Implementing Sosa v. Alvarez-Machain: What Piracy Teaches About the Limits of the Alien Tort Statute. [Lyle published an introduction to the issues in the case at the start of the symposium.]
Several of the commentators have repeatedly stated that the ATS extended universal jurisdiction (and corporate liability) to piracy. They impute to the statute the intent to go the maximum extent allowed by the law of nations. Historically, aside from presumptions against extraterritoriality, there has been a strong presumption against universality: an assumption that Congress legislates selfishly, to vindicate parochial American interests, rather than for the sake of cosmopolitan justice.
This approach is well illustrated by directives (reprinted in American State Papers: 2 Naval Affairs 211-12) issued by Secretary of the Navy Smith Thompson in 1823, to a naval squadron sent to the Caribbean to suppress what turned out to be the last great wave of international piracy in the Age of Sail:
From the generality of [the statute] it would seem to embrace those of every nation or country upon which any piratical aggressions may have been committed. Admitting the act might be extended this far, it does not appear to have been the general object of the law; and it is thought by the President most advisable, at present, not to give it a like indiscriminate practical construction as to all vessels. The great object [of the statute]… was to protect the merchant vessels of the United States and their crews from piratical aggressions. …
If, however, you shall discover depredations against other vessels, committed under such gross and aggravated circumstances, as to leave little doubt of the piratical character, it will be your duty to capture and bring in the aggressors. … No authority is given to retake the vessels of any foreign nation.
It is crucial to recall that these instructions refer to the piracy statute after Congress had amended it to allow for universal jurisdiction, in response to the Supreme Court’s Palmer decision. Yet the executive effectively rules out universal jurisdiction. The instructions suggest several important points for the ATS:
1) Universal jurisdiction, even for piracy, was regarded as extraordinary, and those interpreting the statute continued to apply as a narrowing construction the basic principle that U.S. laws are primarily concerned with U.S. interests. Obviously one can quibble about the interpretive weight to be put on naval orders. But these were self-conscious executive interpretations of a statute, authored by a cabinet secretary (and subsequently a Justice on the Supreme Court), Smith Thompson. The case for extraterritorial application of the ATS places extraordinary weight on a single sentence in a memorandum by an Attorney General. Together, the two executive branch interpretations point the same way – a requirement of some U.S. nexus.
2) Under “aggravated circumstances,” universal jurisdiction could be exercised for crimes that undoubtedly had that status under international law, though the instructions are somewhat ambiguous on this point. Indeed there were a few criminal cases in the early nineteenth century. But if piracy is the model, it certainly does not support universal jurisdiction for all comers.
3) The executive played a crucial gatekeeping role in admitting universal jurisdiction. Because even civil remedies against pirates were in rem, they could only be enjoyed in the rare cases where the executive had authorized a capture, and decided to bring the vessel in for adjudication. (For reasons of convenience, they were often burned at sea or turned over to local authorities.)
4) There was no notion that the victims of piracy could enjoy full civil recovery. The instructions specifically distinguished between stopping and arresting pirates in middle of an attack, and recapturing foreign vessels already taken by pirates. Without the latter, victims could have no redress, except some limited recovery in libel against the attacking vessel. The instructions could also be read to forbid the capture of pirates attacking foreign ships from non-U.S. vessels, which would rule out all universal jurisdiction.
5) These instructions seriously undermine Sosa’s unsupported dictum that the ATS was “meant” to provide a universal remedy for piracy. It is hard to understand where anyone could have thought such cases would come from. Even in the case of piracy, where all understood such jurisdiction to be authorized by international law, its incorporation into U.S. practice was a rather peripheral issue. The notion that the ATS was designed to demonstrate America’s “membership among the international community of nations” (as Prof. Cleveland puts it) seems to project backwards a contemporary cosmopolitan notion of what such membership entails. The U.S. (and other nations as well) felt comfortable with a largely parochial approach to piracy.