Online Kiobel symposium: The Alien Tort Statute and the importance of historical evidence

The following contribution to our symposium on Kiobel v. Royal Dutch Petroleum comes from Tyler Giannini, Clinical Professor at Harvard Law School, and Susan Farbstein, Assistant Clinical Professor at Harvard Law School, who together direct the law school’s International Human Rights Clinic. They have represented plaintiffs in numerous Alien Tort Statute cases and submitted amicus curiae briefs on behalf of professors of legal history in support of the petitioners in Kiobel.  [Lyle published an introduction to the issues in Kiobel last week.]

At February’s oral argument in Kiobel v. Royal Dutch Petroleum Co., counsel for the petitioners responded to questions about extraterritoriality by citing the incident in Sierra Leone that led to the well-known 1795 opinion of Attorney General William Bradford. That exchange appears to have sparked the Supreme Court’s request for supplemental briefing on whether the Alien Tort Statute (ATS) applies to acts that arise on foreign territory. History, including the so-called Bradford Opinion, provides strong evidence that the ATS does apply to conduct occurring on foreign soil.

History has long been a critical part of ATS jurisprudence, given that the statute dates to 1789. Sosa guides that any ATS cause of action must be for violations of the law of nations as universally recognized as eighteenth-century paradigms, such as piracy. The text and purpose of the statute, the common law of the era, and the Bradford Opinion provide the relevant insight into the Justices’ current question about claims that arise in foreign lands – and indicate that there would have been no territorial limit on the ATS at the time of the statute’s enactment.

The Framers of the ATS were common-law lawyers, and the law of nations was part of the common law of the time. They would not have embraced a bright line, categorical exclusion of all claims arising on foreign territory – whether in a case between two aliens or some other combination of defendant and plaintiff. Instead, the Framers would have been familiar with fashioning remedies to realize the statute’s broad remedial purpose, providing relief in U.S. courts to aliens who suffered violations of international law. Indeed, as Justice Stephen Breyer noted at oral argument when he quoted from the 1666 English Skinner case, courts of the day were familiar with fundamental notions of justice and crafted common-law remedies for violations “odious and punishable by all laws of God and man.”

The language of the text itself reinforces that the Framers did not contemplate a territorial limit on the ATS. At the time of the statute’s passage, the word “tort” embraced well-recognized transitory tort principles providing that, in furtherance of justice, personal injury torts were triable wherever a defendant could be found. The young United States did not wish to harbor a pirate or slave trader considered the enemy of all mankind. Through the ATS, the founders willingly took up its responsibility to enforce international law through American courts. Likewise, the use of the words “law of nations” indicates that the Framers intended to provide remedies for universally condemned violations of international law. Taken together, the early piracy cases of Palmer and Smith show that when Congress used the term “law of nations” in a statute, it meant for U.S. courts to exercise jurisdiction and enforce internationally prohibited norms to their fullest extent.

Critically, eighteenth-century interpretations of the statute confirm that there was no territorial limit on its application. The Sosa Court recognized the 1795 Bradford Opinion as the most influential early application of the ATS. At oral argument (at 10:24) in February, counsel for the petitioners “suggest[ed] to the Court, [that] if the Court went back to the original documents that . . . were sent to Attorney General Bradford . . . from the British government . . . the Court would find that . . . this attack actually took place in the territory of Sierra Leone.” Archival documents, unearthed prior to oral argument, put to rest any doubt: Bradford was proposing an ATS action for incidents that arose on land in British Sierra Leone.

Bradford’s Opinion was prompted by a British complaint from George Hammond, “his Britannic Majesty’s minister plenipotentiary to the Secretary of State,” seeking redress from the United States for American participation in a raid on the British Sierra Leone colony. Included with the complaint was a Memorial from the acting Governor of the Sierra Leone Company, Zachary Macaulay, and the agent of the proprietors of Bance Island (an island several miles up the Sierra Leone River), John Tilley. The Memorial describes how, on September 28, 1794, three Americans “voluntarily join[ed] themselves to the French fleet, and . . . attack[ed] and destroy[ed] the property of British subjects” in the British territory of Freetown and Bance Island, Sierra Leone. Among other offenses, one was “active in exciting the French soldiery to the commission of excesses, and was aiding and abetting in plundering of their property[,] the Honble [sic] the Sierra Leone Company and other individuals[,] British subjects.” Another “instigated to the commission of enormities by every mean [sic] in his power, often declaring that his heart’s desire was to wring his hands in the blood of Englishmen.”

In a document accompanying the Macaulay and Tilley Memorial, Hammond protested that these acts were “contrary to all the principles of Justice and all the established rules of neutrality.” The British were particularly aggrieved because the Americans had “taken so decided and leading a part in the business” that the French “appear rather in the light of Instruments of hostility in [the American] hands than as Principals in an enterprise undertaken against the Colony of a Power with whom France only was at war.”

Bradford’s opinion concludes that the United States had a duty to provide a remedy because “committing, aiding, or abetting hostilities” like those in Sierra Leone “render[ed the perpetrators] liable to punishment under the law of nations.” Bradford expressed “no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the law of nations.”

In short, the Bradford Opinion shows that historically the ATS could be used to remedy misconduct committed in a foreign country. Some have noted that Bradford was responding specifically to complaints about American actions. But there is no indication that Bradford would have treated nationals of another neutral country who fled to the United States any differently. Given the purpose of the ATS, it beggars belief to contend as much.

Courts in the modern era have consistently and correctly understood this history. Virtually every ATS case, including Filártiga and Sosa, has concerned abuses committed abroad. Courts have found the citizenship of the defendant and the locus of the conduct to be irrelevant.

Plainly put, history answers the questions raised in the request for supplemental briefing: Archival documents, as well as the text and purpose of the statute, confirm that the ATS provides redress for torts in violation of the law of nations occurring in foreign lands.