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.]
Before responding to particular participants, I should introduce an important intervening precedent – United States v. Ali (D.D.C. July 13, 2012), a real-live universal jurisdiction piracy case in federal courts, the first such case in nearly two hundred years.
Much has been said in this symposium about piracy, without much actual reference to piracy cases, let alone piracy cases for money damages. The Supreme Court in Palmer clearly applied a presumption against extraterritoriality/universality to the nation’s principal piracy law. (This holding counts for much more than dicta in Sosa, which had no piracy in it at all, and was not a universal jurisdiction case.) Thus the presumption would seem to apply a fortiori to the ATS, passed at the same time as the piracy law on Palmer, and which, as Meir Feder points out, has little about it to suggest it was actually concerned with piracy.
Some of what the court in Ali held has implications for the ATS. It would be quite problematic for courts using piracy as a construct in ATS cases to interpret it differently from courts actually prosecuting real pirates.
First, the district court held that universal jurisdiction over piracy does not extend to conspiracy to commit the offense. Because of the exceptional nature of UJ, federal courts can only use it when the precise conduct in question has clearly been made universally cognizable. For the purposes of the ATS, this holding supports the notion that one looks to international law, not federal law, for secondary issues like corporate liability, aiding and abetting, and conspiracy.
Second, the Court held that universal jurisdiction over piracy only applies on the high seas and not in foreign countries. Even though UNCLOS defines aiding and abetting piracy as “piracy” itself, this only applies to aiding and abetting that itself takes place on the high seas. Thus with piracy there is a clear distinction between territory not within anyone’s jurisdiction (the high seas), and the territory foreign countries. This strongly suggests that one analogize from universal jurisdiction over piracy on the high seas to jurisdiction over offenses in foreign territory.
Turning to the symposium participants, Prof. Hathaway suggests that the numerous other countries have laws allowing universal civil jurisdiction. The existence of universal jurisdiction “on paper” is not the issue; its actual use is. Prof. Hathaway only identifies two other uses of universal civil jurisdiction (in Holland and Italy), one of which was subsequently quashed by the ICJ on sovereign immunity grounds. In any case, the Italian case had a strong Italian nexus (it involved Italian victims), and the Dutch case is a trial court decision a few months old, hardly much to rest a theory on. To put it another way, there are more ATS suits decided in any one year than there have been in the entire rest of the world so far.
Still, the availability of civil UJ in other forums cuts both ways for the ATS. On the one hand, it suggests such suits are not entirely anomalous. Yet it also weakens the imperative for U.S. jurisdiction: if other courts are open, why are the plaintiffs coming here? It is not the case that U.S. courts are the plaintiff’s one hope for justice. And isn’t Holland a more logical place, with all its international lawyers?
Prof. Stephens and others argue from inertia. There have been numerous universal and corporate suits since the ATS was revived, and courts did not seem to mind. Yet the questions were not raised by the litigants in those cases, and since it does not go the subject matter jurisdiction of the court (contra the Second Circuit in Kiobel), there would be no reason to mention it. One can flip this argument: since for 190 years no litigants claimed the ATS could be used to litigate foreign human rights cases, it is a bit late in the day to do so now. Similarly, to infer acquiescence from congressional silence turns the presumption against extraterritoriality on its head.
Prof. Stephens notes that the statute is jurisdictional, that it is a kind of “diversity” statute designed to give federal courts jurisdiction over common law cases that would otherwise be heard by state courts. The standard reasons for such federal jurisdiction are avoidance of local bias and ensuring uniform law. Uniformity does not make sense: if the substantive law is the law of nations, the federal courts can’t make that uniform. (Indeed, ATS supporters argue that there is no concern about conflict with foreign laws that is applied; then why would there be cross-state conflict?) On the other hand, if the motivation is to avoid local bias against the plaintiff, this only makes sense if one assumes that defendant is a U.S. national or resident: in foreign-cubed suits, local bias doesn’t factor in.
I mentioned in my previous post that Congress has doled out universal jurisdiction explicitly and cautiously, even for genocide. Prof. Cleveland points out that the current genocide law applies to alien defendants present in the U.S., even if their crimes had no U.S. nexus. However, the original Genocide Act, passed in 1988 to implement the Genocide Convention, only extended jurisdiction when “the offense is committed within the United States” or where “the alleged offender is a national of the United States.” The current version was a self-conscious expansion of the law in 2007. Thus even for the crime of crimes (as with piracy), jurisdiction was first limited to offenses with a U.S. nexus. Universal jurisdiction was a separate, subsequent decision, clearly articulated. One might also suggest that if Congress thought that genocide automatically carried with it universal jurisdiction, they could simply have dropped the U.S. nexus requirement from the revised statute, rather than explicitly permit jurisdiction without nexus.