VIRGINIA JOURNAL
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INTERNATIONAL LAW
DIGEST
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Volume 53 — Page 18
RGI NI A
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Essay
Kiobel, Corporate Liability,
and the Extraterritorial
Reach of the ATS
Jordan J. Paust
© 2012 by the Virginia Journal of International Law Association. For
reprint permissions, see http://www.vjil.org.
ESSAY
Kiobel, Corporate Liability, and the
Extraterritorial Reach of the ATS
JORDAN J. PAUST
Introduction .......................................................................................................... 18
I.
Universal Jurisdiction Exists for ATS Lawsuits.. ....................... 20
II.
Varied Principles of Statutory Construction Uphold ATS
Universal Jurisdiction ........................................................ 29
Conclusion............................................................................................................ 35
INTRODUCTION
On March 5th, after oral arguments had taken place on February 28th,
the United States Supreme Court surprisingly directed the parties in Kiobel.
v. Royal Dutch Petroleum Co.1 to address “whether and under what
circumstances the Alien Tort Statute [ATS], 28 U.S.C. § 1350, allows
courts to recognize a cause of action for violations of the law of nations
occurring within the territory of a sovereign other than the United
States.”2 Previously, the main issue before the Court had been whether
corporations can be liable for violations of international law under the
ATS,3 a question that should not lead to controversy among members of
the Court. However, given the Court’s new question, Kiobel promises to
1. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), cert.
granted, 79 U.S.L.W. 3728 (U.S. Oct. 17, 2011) (No.10-1491).
2. Kiobel v. Royal Dutch Petroleum Co., 132 S. Ct. 1738 (per curiam), 80
U.S.L.W. 3506 (U.S. Mar. 5, 2012) (No. 10-1491).
3. See, e.g., Transcript of Oral Argument at 3, Kiobel v. Royal Dutch Petroleum
Co., 132 S. Ct 1738 (2012) (No. 10-1491) (“The principal issue before this Court is the
narrow issue of whether a corporation can ever be held liable for violating
fundamental human rights norms under the Alien Tort Statute.”); id. at 13 (“Sosa
accepted that Filartiga would be a viable action under the tort claims act. So, . . . the
question was is it only individual defendants or are corporate defendants also liable?”)
(Ginsburg, J.).
2012]
KIOBEL AND THE ATS
19
become a landmark Supreme Court case with respect to corporate liability
for violations of international law occurring abroad that are reachable
under the ATS.
What was not mentioned during oral arguments is the significant and
indisputable fact that twenty U.S. Supreme Court cases decided over a
period of several decades have already recognized that corporations and
companies can have duties and rights under a variety of customary and
treaty-based international laws.4 One would expect, therefore, that Kiobel
will reaffirm the Court’s continual recognition of the fact of corporate
liability under international law and then address other relevant issues that
might divide the Justices. As demonstrated in this essay, the first part of
the Court’s new question, whether the ATS can reach violations of
international law that occur in another country, should not be among the
issues that divide the Justices. Since the earliest days after the enactment of
the ATS, violations under international law in a foreign country and the
equivalent of its territory have often been addressed. Moreover, a salient
circumstance that necessarily supports the extraterritorial reach of the ATS
is the universal jurisdiction of all states over violations of international law.
More particularly, this essay addresses the fact: (1) that universal
jurisdiction pertains with respect to violations of international law covered
by the ATS; and (2) that varied principles of statutory construction, in
addition to overwhelming trends in judicial decisions and relevant
Executive and congressional recognitions, uphold universal jurisdiction
underlying the ATS and its extraterritorial reach. The ATS (or ATCA) was
first enacted in 1789 and presently reads: “The district courts shall have
original jurisdiction of any civil action by an alien for a tort only,
committed in violation of the law of nations or a treaty of the United
States.”5 Like a limited number of other extraordinary federal statutes, the
4. See, e.g., Jordan J. Paust, Nonstate Actor Participation in International Law and the
Pretense of Exclusion, 51 VA. J. INT’L L. 977, 978 n.2, 986–89 (2011) [hereinafter Paust,
Nonstate Actors]. The article also documents the fact that several other private and
non-natural entities and actors have had duties under international law, including
vessels regarding the slave trade, piracy, and non-neutral conduct during war in
violation of the laws of neutrality and war. Id. at 990–91 nn.42–44. Moreover, there is
no immunity under international law for private corporations, companies, or vessels
that violate international law. “Such a result should hardly be surprising. A
corporation is a juridical person and has no per se immunity under U.S. domestic or
international law.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F.
Supp.2d 289, 319 (S.D.N.Y. 2003). See also Doe v. Exxon Mobil Corp., 654 F.3d 11,
48 (D.C. Cir. 2011) (“Neither does the law of nations support corporate immunity”).
5. 28 U.S.C. § 1350 (1948). The 1789 version of the statute used the equally
expansive phrase “all causes where an alien sues for a tort only.” An Act to establish
the Judicial Courts of the United States, ch. 20, § 9, 1 Stat. 73, 77 (1789). Attorney
General Bradford read the 1789 statute to reach “all cases where an alien sues” for a
tort only. 1 Op. Att’y Gen. 57, 58–59 (1795) (Bradford, Att’y Gen.). Therefore, the
reach has been to “all causes,” “all cases,” and “any civil action.”
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ATS expressly incorporates international law by reference, which the
Supreme Court has long recognized is the constitutional prerogative of
Congress.6 As the ATS manifestly requires, the substantive law that is
incorporated and that must be violated in order to produce an actionable
wrong is international law, both customary and treaty-based.7 Importantly,
the international law that is expressly incorporated and regulates relevant
conduct has no boundaries and, therefore, necessarily includes an
extraterritorial dimension that is also incorporated into the statute and
enhances its extraterritorial reach. The statutory phrase “any civil action”
in tort in violation of international law necessarily includes any of those
arising in the United States or abroad.
I. UNIVERSAL JURISDICTION EXISTS FOR ATS LAWSUITS
As international law is the substantive law that is expressly incorporated,
universal jurisdiction exists for ATS lawsuits and has provided the primary
basis for the extraterritorial reach of the ATS in cases since the 1790s.8
6. See, e.g., In re Yamashita, 327 U.S. 1, 7–8 (1946); Ex parte Quirin, 317 U.S. 1,
27–30 (1942); United States v. Smith, 18 U.S. (5 Wheat.) 153, 158–62 (1820); JORDAN
J. PAUST ET AL., INTERNATIONAL LAW AND LITIGATION IN THE U.S. 155–64 (West
3d ed. 2009). Because the ATS incorporates customary international law for suits by
alien plaintiffs, it is not directly relevant whether such law is also directly incorporable
without a federal statute. Nonetheless, direct incorporation of customary international
law has also occurred since the Founding. See, e.g., id. at 132–47; Filartiga v. Pena-Irala,
630 F.2d 878, 886–87 (2d. Cir. 1980); see infra note 10.
7. See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d 736, 746 (9th Cir. 2011) (“The
norms being applied under the ATS are international”); Sarei, 671 F.3d at 782
(McKeown, J., concurring) (“[T]he ATS targeted violations of the law of nations at
home and abroad and did so by providing the law of nations . . . as the source of the
cause of action”); Doe v. Exxon Mobil Corp., 654 F.3d 11, 29 (D.C. Cir. 2011)
(“Congress thus directed that the courts derive the rule of law from the law of
nations, and that law extends responsibility for conduct violating its norms to aiders
and abettors”); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996) (“violation of
international law,” “courts may fashion common law remedies to give effect to
violations of customary international law”), cert. denied, 519 U.S. 830 (1996); Kadic v.
Karadzic, 70 F.3d 232, 238 (2d Cir. 1995) (“violations of international law”), cert.
denied, 518 U.S. 1005 (1996); In re S. African Apartheid Litig., 617 F. Supp.2d 228, 246–47 (S.D.N.Y. 2009); Bowoto v. Chevron Corp., 557 F. Supp.2d 1080, 1099 (N.D.
Cal. 2008); Presbyterian Church of Sudan, 244 F. Supp.2d at 320–21; Filartiga v. PenaIrala, 577 F. Supp. 860, 863 (E.D.N.Y. 1984) (“the substantive principles to be
applied” are those of “international law” and the word tort means a wrong); JORDAN
J. PAUST, INTERNATIONAL LAW AS LAW OF THE UNITED STATES 10, 14 (2d ed. 2003).
The substantive law that is expressly incorporated is decidedly not common law or
some domestic law prescribed merely by the United States and none of the early ATS
cases or opinions of the Attorneys General referred to “common law” as the
substantive law. See also id. at 9, 39–41 n.50; infra notes 10, 19, 37–44.
8. See, e.g., PAUST ET AL, supra note 6, at 23, 657–58, and cases cited. See also Sosa
v. Alvarez-Machain, 542 U.S. 692, 762 (2004) (Breyer, J., concurring) (noting aptly
“the jurisdictional principle that any nation that found a pirate could prosecute him,”
2012]
KIOBEL AND THE ATS
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Universal jurisdiction is a well-known and venerable competence under
customary international law over violations of international law, and
customary international law has been part of the “laws of the United
States” since the Founding, as famously recognized by Chief Justice Jay in
Henfield’s Case,9 by Duponceau in connection with that case, and by other
Founders and Framers.10 During our constitutional history, others have
also recognized that the phrase “laws of the United States” provides two
constitutional bases for use of customary international law in Articles III,
§2 and VI, cl. 2 of the Constitution.11 Universal jurisdiction pertains with
respect to any violation of customary international law by a state or nonstate actor even if there are no contacts with the forum.12
As recognized by Justice Iredell in a Supreme Court opinion in 1795,
“all . . . trespasses committed against the general law of nations, are
enquirable, and may be proceeded against, in any nation where no special
exemption can be maintained, either by the general law of nations, or by
some treaty which forbids or restrains it.”13 Chief Justice Marshall quoted
Justice Iredell’s apt recognition of the universal and extraterritorial
competence of every nation over violations of international law in another
Supreme Court case in 1819.14 In 1820, two Supreme Court cases
recognized that piracy “is against all, and punished by all . . . within this
universal jurisdiction,”15 and that it “is an offense against all. It is
punishable in the Courts of all . . . [and our courts] are . . . bound to
punish.”16 In 1799, counsel had argued in a lower federal court that “the
offence . . . was against the law of nations, . . . and over whom all nations
“universal jurisdiction exists,” and “universal tort jurisdiction” is appropriate); Sarei,
671 F.3d at 746 (“[T]he ATS provides a domestic forum for claims based on conduct
that is illegal everywhere” under international law); see infra notes 24, 28, 31, 45, 49.
9. Henfield’s Case, 11 F. Cas. 1099, 1102, 1107 (C.C.D. Pa. 1793) (No. 6,360)
(Jay, C.J.).
10. See, e.g., Jordan J. Paust, In Their Own Words: Affirmations of the Founders,
Framers, and Early Judiciary Concerning the Binding Nature of the Customary Law of Nations,
14 U.C. DAVIS J. INT’L L. & POL’Y 205, 212–14, 231–39 (2008) The article also notes
that customary international law is not mere “common law.” Id. at 219 n.42. See also
PAUST, supra note 7, at 7–10 (regarding such constitutional bases, direct incorporation
of customary international law, and the fact that such law is not simplistically mere
common law); cases quoted infra notes 19, 24.
11. See, e.g., RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE
UNITED STATES § 111, cmnts. d–e, nn. 2, 4; id. at § 702, cmnt. 2 (1987); PAUST, supra
note 7, at 9–11; Paust, supra note 10, at 213, 232–39.
12. See, e.g., RESTATEMENT, supra note 11, § 404; PAUST ET AL., supra note 6, at
23, 119–20 (addressing Israeli jurisdiction over Eichmann); id. at 438, 642–58
(addressing a substantial number of U.S. cases); PAUST, supra note 7, at 420–23.
13. Talbot v. Janson, 3 U.S. (3 Dall.) 133, 159–60 (1795) (Iredell, J.).
14. The Divina Pastora, 17 U.S. (4 Wheat.) 52, 65–66 (1819) (Marshall, C.J.).
15. United States v. Furlong, 18 U.S. (5 Wheat.) 184, 197 (1820). See also supra
note 8.
16. United States v. Klintock, 18 U.S. (5 Wheat.) 144, 147–48 (1820).
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claim a criminal jurisdiction equally, and over whom the United States
have a concurrent jurisdiction.”17 In that case, Judge Bee recognized that
“[t]here is no doubt that the circuit courts of the United States have a
concurrent jurisdiction, and this arises under the general law of nations.”18
There were actually several early crimes that implicated universal
jurisdiction, including: piracy; assaults on foreign officials; poisoners,
assassins and incendiaries by profession; brigandry; slave trading; breaches
of neutrality; and war crimes.19 With respect to slave trading and violations
of human rights by private perpetrators, President Thomas Jefferson
during his Sixth Annual Message to Congress in 1806 emphasized his
approval of the withdrawal of private U.S. citizens from “violations of
human rights” of the “unoffending inhabitants of Africa.”20 President
17. United States v. Robins, 27 F. Cas. 825, 829 (D.S.C. 1799) (No. 16,175)
(argument of counsel, Col. Moultrie).
18. Id. at 832.
19. See, e.g., PAUST ET AL., supra note 6, at 643–44; PAUST, supra note 7, at 12,
421, 434 nn.53–54, 435 nn.61–66. Curiously, the Court in Sosa apparently was not
fully aware of the many subjects of customary international law recognized early in
our history, especially including denials of justice to aliens and human rights. Compare
Sosa v. Alvarez-Machain, 542 U.S. at 715–21 with PAUST, supra note 7, at 12; Jordan J.
Paust, The Reality of Private Rights, Duties, and Participation in the International Legal Process,
25 MICH. J. INT’L L. 1229, 1237–39, 1241 (2004); supra note 9; infra notes 20–22. It
should be noted that war crimes had been prosecuted since the Founding directly as
violations of the international laws of war and that the first federal statute to
incorporate laws of war by reference was not enacted until 1916. See, e.g., Ex parte
Quirin, 317 U.S. at 27–30 (“From the very beginning of its history this Court has
recognized and applied the law of war as including that part of the law of nations
which prescribes, for the conduct of war, the status, rights and duties of enemy
nations as well as of enemy individuals.”); PAUST ET AL., supra note 6, at 155–64.
Although not critical to its decision, the majority in Sosa completely mischaracterized
the customary international law that was identified, clarified, and applied against the
Executive and its view of international law in The Paquete Habana, 175 U.S. 677 (1900).
In Sosa, the majority thought that the law of nations addressed in Paquete was a type of
“law merchant” or even common law. Sosa, 542 U.S. at 715. However, the phrase
“law merchant” was never used, the phrase “common law” was quoted and in no
relevant sense, see id. at 692, and the Court expressly focused on the “law of war” as
the customary international law that is binding on the Executive branch and must be
identified and applied by the judiciary. Paquete, 175 U.S. at 698 (“law of war”); id. at
700 (“International law is part of our law, and must be ascertained and administered
by the courts of justice of appropriate jurisdiction, as often as questions of right
depending upon it are duly presented for their determination”); id. at 708
(“international law,” “law of nations”); id. at 711–12 (“[One must] conduct the war in
accordance with the principles of international law”); Jordan J. Paust, Paquete and the
President: Rediscovering the Brief for the United States, 34 VA. J. INT’L L. 981 (1994). By
1900, it was well known that the President and every member of the Executive branch
are bound by the laws of war. See, e.g., Paust, In Their Own Words, supra note 10, at 240–
44 (identifying uniform judicial holding and dicta).
20. 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS
1789-1897 408 (James D. Richardson ed., Authority of Congress 1899) (referencing
President Thomas Jefferson’s Sixth Annual Message to Congress Dec. 2, 1806).
2012]
KIOBEL AND THE ATS
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Jefferson’s recognition of private perpetrator “violations of human rights”
while participating in the slave trade was embraced by Justice Campbell
while on circuit in 1860.21 As Chief Justice Marshall recognized more
generally in 1810, our federal courts “are established . . . to decide on
human rights.”22
More recently, the relatively famous Second Circuit opinion in Kadic v.
Karadzic23 in 1995 rightly stressed the fact that universal jurisdiction
pertains with respect to civil claims under the ATS regarding direct
perpetrator and accomplice liability for war crimes, genocide, other crimes
against humanity, torture, and summary executions.24 As the Restatement
recognizes, under international law there is absolutely no need for links
with the forum when universal jurisdiction exists and universal jurisdiction
is an appropriate basis for criminal and civil sanctions, “for example, by
providing a remedy in tort or restitution for victims of piracy.”25
Moreover, § 403 of the Restatement (which offers a comity-factors theory to
limit the exercise of some forms of jurisdiction) expressly does not apply
when § 404 and universal jurisdiction are applicable, and § 403 does not
reflect international law and generally is not followed by the judiciary to
obviate jurisdiction that Congress has approved.26 As the Supreme Court
has long recognized when international law is the substantive law being
applied, “we administer the public law of nations, and are not at liberty to
inquire what is for the particular advantage or disadvantage of our own or
another country.”27
21. United States v. Haun, 26 F. Cas. 227, 231 (C.C.S.D. Ala. 1860) (No.
15,329).
22. Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 133 (1810) (Marshall, C.J.). Human
rights had been of significant interest to the Founders and Framers, have identifiable
constitutional bases, and have been used numerous times by federal courts since the
Founding. See, e.g., PAUST, supra note 7, at 193–223.
23. Kadic v. Karadzic, 70 F.3d 232 (2d. Cir. 1995), cert. denied, 518 U.S. 1005
(1996).
24. Kadic, 70 F.3d at 239–43; id. at 249 (noting that international law is
“constitutionally committed” to the judiciary); see also supra notes 10–11.
25. RESTATEMENT, supra note 11, § 404, cmt. b. See also Sosa, 542 U.S. at 763
(Breyer, J.) (“necessarily contemplates a significant degree of civil tort recovery as
well”); PAUST, supra note 7, at 227, 298 n.505 (stating that civil and criminal sanctions
have generally been interchangeable).
26. See, e.g., PAUST ET AL., supra note 6, at 636–40 (noting separation of powers
concerns if courts attempt to add limits that Congress has not chosen and that
predominant trends in judicial decision ignore § 403 when the U.S. has nationality or
protective jurisdiction under international law). See also Sosa, 542 U.S. at 762
(“universal jurisdiction . . . is consistent with principles of international comity,” and
“universal tort jurisdiction would be no more threatening”).
27. The Peterhoff, 72 U.S. (5 Wall.) 28, 57 (1866). See also Sarei v. Rio Tinto,
PLC, 671 F.3d at 746 (“foreign relations difficulties and intrusions into the
sovereignty of other nations” are not relevant with respect to “conduct that is illegal
everywhere” under international law); In re S. African Apartheid Litig., 617 F. Supp.2d
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228, 247 (S.D.N.Y. 2009) (“[ATS] applies universal norms that forbid conduct
regardless of territorial demarcations or sovereign prerogatives”); Daliberti v.
Republic of Iraq, 97 F. Supp.2d 38, 52–54 (D.D.C. 2000) (“states are on notice that
state sponsorship of terrorism is condemned by the international community” and
“nations that operate in a manner inconsistent with international norms should not
expect to be granted the privilege of immunity from suit” and have “adequate warning
of possible U.S. sanctions, including lawsuits in U.S. courts”); Filartiga v. Pena-Irala,
577 F. Supp. at 862 (stating that no “justifiable offense” to a foreign state can occur
when universal jurisdiction is exercised over violations of international law); 9 Op.
Att’y Gen. 356, 357 (1859) (“A sovereign who tramples upon the public law of the
world cannot excuse himself by pointing to a provision of his own municipal code”).
In fact, no state has authority to authorize violations of international law. Violations
by a state within its borders are not lawful “sovereign,” “public,” or “official” acts and
are not in any sense merely the internal affairs of a particular state. See, e.g., Opinion
and Judgment, International Military Tribunal at Nuremberg (1946) (“the doctrine of
sovereignty of the State . . . cannot be applied to acts which are condemned as
criminal by international law. . . . He who violates the laws of war cannot obtain
immunity while acting in pursuance of the authority of the State if the State in
authorizing action moves outside its competence under international law”); United
States v. Von Leeb (The High Command Case), in 11 TRIALS OF WAR CRIMINALS
BEFORE THE NUERNBERG MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW
NO. 10, at 462, 489 (1950) (“International law operates as a restriction and limitation
on the sovereignty of nations”); Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1210 (9th Cir.
2007) (“acts of racial discrimination cannot constitute official sovereign acts,” also
quoting Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir.
1992) (“[i]nternational law does not recognize an act that violates jus cogens as a
sovereign act”)); Enahoro v. Abubakar, 408 F.3d 877, 893 (7th Cir. 2005) (Cudahy, J.,
dissenting) (“officials receive no immunity for acts that violate international jus cogens
human rights norms (which by definition are not legally authorized acts.)”); Doe I v.
Unocal Corp., 395 F.3d 932, 958-59 (9th Cir. 2002); Altmann v. Republic of Austria,
317 F.3d 954, 967 (9th Cir. 2002), quoting West v. Multibanco Comermex, S.A., 807
F.2d 820, 826 (9th Cir. 1987) (“violations of international law are not ‘sovereign’
acts”); Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996) (stating that war
crimes do not raise political question concerns), cert. denied, 519 U.S. 830 (1996); In re
Estate of Ferdinand Marcos, Human Rights Litig. Hilao v. Estate of Ferdinand
Marcos, 25 F.3d 1467, 1471 (9th Cir. 1994) (stating that human rights violations,
including torture, are not lawful public acts of state), cert. denied, 513 U.S. 1126 (1995);
Liu v. Republic of China, 892 F.2d 1419, 1432–33 (9th Cir. 1989) (stating that the act
of state doctrine is not applied to assassination, which is not in the “public interest,”
and a strong international consensus exists that it is illegal), cert. dismissed, 497 U.S.
1058 (1990); Bowoto v. Chevron Corp., 2007 WL 2349345 (N.D. Cal. 2007) (quoting
Siderman, quoted above in Sarei); Presbyterian Church of Sudan v. Talisman Energy,
Inc., 244 F. Supp.2d at 344–35 (stating that adjudication of genocide, war crimes,
enslavement, and torture is not barred by the act of state doctrine); Cabiri v. AssasieGyimah, 921 F. Supp. 1189, 1198 (S.D.N.Y. 1996) (stating that the defendant could
not argue that torture fell within the scope of his authority); Xuncax v. Gramajo, 886
F. Supp 162, 176 (D. Mass. 1995) (“these actions exceed anything that might be
considered to have been lawfully within the scope of Gramajo’s official authority,”
and quoting Letelier v. Republic of Chile, 488 F. Supp. 665, 673 (D.D.C. 1980) (
“[Assassination is] clearly contrary to precepts of humanity as recognized in both
national and international law” and “there is no discretion to commit, or to have one’s
officers or agents commit, an illegal act;” therefore, assassination cannot be part of
official’s “discretionary” authority), cert. denied, 471 U.S. 1125 (1985)); Paul v. Avril,
812 F. Supp. 207, 212 (S.D. Fla. 1993) (“[Defendant’s argument regarding] the act of
2012]
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Important recognitions of corporate liability for human rights violations
and other violations of international law, as well as the fact that universal
jurisdiction is appropriate in connection with ATS lawsuits, are also
addressed in an extensive and well-informed district court opinion in
Presbyterian Church of the Sudan v. Talisman Energy, Inc.28 Like other private
non-state actors, corporations can have direct perpetrator and accomplice
liability for violations of international law that are enquirable in any nation
because universal jurisdiction pertains. As noted, twenty U.S. Supreme
Court cases decided over a period of many decades have already
recognized that corporations and companies can have duties and rights
under customary and treaty-based international law.29 Wheaton’s 1846 and
1855 editions of Elements of International Law had also recognized that
“[p]rivate individuals, or public and private corporations” can have rights
under international law.30 Other articles have also addressed foreign cases
that have recognized human rights responsibilities of corporations and the
fact that a significant number of lawsuits under the ATS since the 1790s
have involved conduct of defendants abroad in violation of customary
international law and treaties of the United States and were often
permissible under international law through the exercise of universal
jurisdiction.31 Universal jurisdiction and the two types of responsibility
state and political question doctrines is completely devoid of merit. The acts . . . [of
torture, cruel, inhuman and degrading treatment, and arbitrary detention in violation
of customary international law] hardly qualify as official public acts” and regarding the
political question doctrine, the claims present “clearly justiciable legal issues”); Forti v.
Suarez-Mason, 672 F. Supp. 1531, 1546 (N.D. Cal. 1987) (stating that torture,
arbitrary detention, and summary execution “are not public official acts”); Nationality
Decrees in Tunis and Morocco, Advisory Opinion,1923 P.C.I.J. (ser. B) No. 4, at 24–
32 (Feb. 7); THOMAS BUERGENTHAL, DINAH SHELTON & DAVID STEWART,
INTERNATIONAL HUMAN RIGHTS 3–7 (3d ed. 2002); LUNG-CHU CHEN, AN
INTRODUCTION TO CONTEMPORARY INTERNATIONAL LAW 314–17 (2d ed. 2000);
RICHARD B. LILLICH & HURST HANNUM, INTERNATIONAL HUMAN RIGHTS 613–14
(3d ed. 1995); MYRES S. MCDOUGAL, HAROLD D. LASSWELL & LUNG-CHU CHEN,
HUMAN RIGHTS AND WORLD PUBLIC ORDER 181–82, 208–15, 238–42, 670 (1980);
PAUST, ET AL., supra note 6, at 472, 771–72, 823–24. Nonimmunity of the state and a
head of state for violations of international law was recognized early by the U.S.
Supreme Court. See, e.g., The Santissima Trinidad, 20 U.S. (7 Wheat.) 283, 350–55
(1822) (noting that if a foreign Prince “comes personally within out limits, although
he generally enjoy a personal immunity, he may be liable to judicial process in the
same way, and under the same circumstances, as the public ships of the nation,”
which were then not immune for violations of international law). Santissima was
affirmed in Berg v. British and African Steam Navigation Co. (The Prize Ship
“Appam”), 243 U.S. 124, 153–56 (1917).
28. Presbyterian Church of Sudan, 244 F. Supp.2d at 303–28, 333.
29. See, e.g., Paust, Nonstate Actors, supra note 4, at 986–89.
30. HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 54–55 §4 (3d ed.
1846); HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW 28 (6th ed. 1855).
31. See, e.g., Paust, Nonstate Actors, supra note 4, at 988–89 n.38; supra note 8; infra
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under international law noted above continue to be important, for
example, with respect to arrest, extradition, and prosecution of
international terrorists and coordinated economic sanctions against
corporations and companies that aid and abet international terrorism and
other international crimes.32 In 1970, the International Court of Justice
affirmed that the corporate form has been recognized among general
principles of law.33
What might happen to corporate rights if someone unmindful of the
twenty Supreme Court cases and other U.S. and foreign cases that have
recognized the existence of corporate and company duties and rights
under international law would declare, incorrectly, that corporations do
not have duties under international law? If such a statement could ever
somehow prevail, it would follow logically that corporations could not
have rights under international law — rights that are of great importance
to corporations. Some of these rights include: (1) those relating to
confiscation of corporate properties abroad in violation of customary and
treaty-based international law (and, as “rights in property taken in violation
of international law,” they are protected in part in § 1605(a)(3) of the
Foreign Sovereign Immunities Act (FSIA)34); (2) expropriation of
properties abroad without fair compensation as required by international
law (also protected under the FSIA35); (3) protection of corporate human
rights to property, including intellectual property rights, under Articles
17(2) and 27(2) of the 1948 Universal Declaration of Human Rights,36
various global and regional human rights, other treaties, and any customary
international law reflected therein; (4) access to markets abroad as required
under Friendship, Commerce, and Navigation (FCN) treaties; (5) freedom
from national origin discrimination and rights to equality under FCN and
human rights treaties; (6) protection of investments abroad under
international treaties; and (7) protections from onerous taxation in tax
treaties.
In a 1795 opinion, the Attorney General of the United States
recognized the undoubted extraterritorial reach of the ATS when declaring
note 49.
32. See, e.g., Almog v. Arab Bank, PLC, 471 F. Supp.2d 257 (E.D.N.Y. 2007). See
also supra note 27.
33. Barcelona Traction, Light and Power Co., Ltd. (Belg. v. Spain), 1970 I.C.J. 3,
34–35, 38 (Feb. 5).
34. 28 U.S.C. §§ 1130, 1602 et seq.
35. Id. § 1605(a)(3). See Altmann, 317 F.3d at 969 (regarding individual claims for
confiscation or expropriation of property by a state or state entity). See also Republic
of Iraq v. First National City Bank, 353 F.2d 47, 50–52 (2d Cir. 1965) (regarding
confiscation of property in violation of international law prior to creation of the
FSIA).
36. G.A. Res. 217A, U.N. GAOR, 3d Sess., U.N. Doc. A/810, at 71 (Dec. 12,
1948).
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that “there can be no doubt that the company . . . injured by these acts of
hostility [engaged in “and abetted” abroad on the west coast of Africa in
the territory of Sierra Leone by private U.S. citizens in violation of the
customary law of nations and treaties] have a remedy by a civil suit in the
courts of the United States; jurisdiction being expressly given to these
courts [by the ATS] in all cases where an alien sues for a tort only, in
violation of the law of nations, or a treaty of the United States.”37 The
extraterritorial reach of the ATS recognized in the 1795 opinion was also
noticeable in early cases regarding violations of international law within the
equivalent of foreign state territory, such as Moxon v. The Fanny,38 which
recognized that federal courts are “particularly by law vested with authority
where an alien sues for a tort only in violation of the laws of nations.”39 In
Moxon, French persons engaged in acts that originated from a French
vessel and carried onto an English vessel during its capture in U.S. waters40
and, as noted below, acts on a foreign flag vessel are acts within foreign
state territory. In Bolchos v. Darrel,41 “the original cause arose at sea” on a
Spanish vessel and the ATS allowed the court “to take cognizance of the
cause” between two aliens, a Spanish claimant and an agent on behalf of a
37. 1 Op. Att’y Gen. 57, 58–59 (1795) (Bradford, Att’y Gen.). The Bradford
opinion addressed the April 22, 1793 Presidential Proclamation concerning breaches
of neutrality by perpetrating or aiding and abetting such conduct. Id. This same
Proclamation had been recognized earlier by Chief Justice Jay as being “exactly
consistent with and declaratory of the conduct enjoined by the law of nations.”
Henfield’s Case, 11 F. Cas. at 1102. In 1907, the Attorney General affirmed that a
private Texas dredging company had acted “in direct violation” of a treaty and that
Mexican nationals injured in Mexico have a right to a remedy and a forum under the
ATS. 26 Op. Att’y Gen. 250, 251–54 (1907). See also Paust, Nonstate Actors, supra note
4, at 986. When providing guidance to the Second Circuit in Filartiga, the Executive
assured that torture committed entirely within Paraguay was a violation of customary
human rights law and was actionable by Paraguayan plaintiffs under the ATS. See
Memorandum for the United States as Amicus Curiae (1980), in Filartiga v. PenaIrala, 630 F.2d 876 (2d Cir. 1980), reprinted in 19 I.L.M. 585 (1980); id. at 3, 19 I.L.M.
at 587 (“Section 1350 encompasses international law as it has evolved . . . an
obligation under international law.”) The Executive has continued to recognize the
extraterritorial reach of the ATS. See, e.g., Initial Report of the United States of
America, CAT/C/28/Add.5, at para. 277 (Feb. 9, 2000) (“U.S. law provides statutory
rights of action for civil damages for acts of torture occurring outside the United
Sates. One statutory basis for such suits” is the ATS). Recently, the Supplemental
Brief for the United States as Amicus Curiae in Partial Support for Affirmance in
Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (June 2012), stated: “there are
circumstances in which it would be appropriate for a court to recognize a cause of
action based on the ATS for violations of international law occurring outside the
United States.” Id. at 6. It is evident, therefore, that the political branches accept the
extraterritorial reach of the ATS that has pertained since 1789. For congressional
acceptance, see infra notes 62, 65.
38. 17 F. Cas. 942 (D.C.D. Pa. 1793) (No. 9,895).
39. Id. at 943.
40. Id. at 942.
41. 3 F. Cas. 810, 810 (D.S.C. 1795) (No. 1,607).
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British national.42 Interesting dictum also appeared in some early
extraterritorial cases.43 A pre-Filartiga case in 1961 was also extraterritorial;
involving recognized violations of international law within Lebanon and
between alien disputants.44 In 1980, Filartiga continued these trends in
decision, affirming that an official who was the perpetrator of torture
within a foreign country is “like the pirate and slave trader. . . , an enemy
of all mankind” and one subject to sanctions under the ATS “whenever an
alleged torturer is found”45 — an affirmation of the extraterritorial reach
of the ATS consistent with and necessarily implying recognition of
universal jurisdiction over violators wherever they are found.
Piracy not only implicated universal jurisdiction, but was also
extraterritorial in another respect. When pirates engaged in piracy in
violation of customary international law, they did so on the vessel of some
country as they traversed from their pirate vessel to the flag vessel of the
victims. This was a necessary element of piracy.46 As well-recognized in
U.S. cases and abroad, foreign flag vessels are the equivalent of foreign
state territory and provide foreign territorial jurisdiction under
international law, and acts on such vessels are on foreign territory and are
not “on” the high seas outside the jurisdiction of states.47 The 1795
Opinion of Attorney General Bradford noted above did not address piracy
in connection with the ATS, but another crime implicating universal
42. Id. There would have been a breach of neutrality under the law of nations
concerning the capture of neutral property, but a treaty changed that result. Id. at 810–
11.
43. See, e.g., Jansen v. The Vrow Christina Magdalena, 13 F. Cas. 356, 358
(D.S.C. 1794) (No. 7,216) (stating in dictum that “the powers of the district courts are
expressed . . . as to civil causes . . . where an alien sues for a tort only,” in a case
involving seizure of a Dutch vessel abroad); M’Grath v. Candalero, 16 F. Cas. 128
(D.S.C. 1794) (No. 6,810) (stating in dictum that where a vessel was seized abroad by
a foreign vessel, “[i]f an alien sue[s] here for a tort under the law of nations or a treaty
. . . the suit will be sustained”); Jordan J. Paust, The History, Nature, and Reach of the
Alien Tort Claims Act, 16 FLA. J. INT’L L. 249, 250–51 n.3 (2004) [hereinafter Paust,
History of the Act].
44. Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961).
45. Filartiga v. Pena-Irala, 630 F.2d at 878, 890 (quoted in Sosa, 542 U.S. at 732).
Importantly, Congress endorsed the reach of Filartiga and subsequent cases. See infra
notes 62, 65, and accompanying text.
46. See, e.g., United States v. Palmer, 16 U.S. (3 Wheat.) 610, 635, 642–43 (1818).
47. See, e.g., Lauritzen v. Larsen, 345 U.S. 571 (1952); United States v. Flores,
289 U.S. 137, 155–59 (1933); Wilson v. McNamee, 102 U.S. 572, 574 (1880); United
States v. Crews, 605 F. Supp. 730, 736 (S.D. Fla. 1985); United States v. Cooper, 25 F.
Cas. 631 (C.C.D. Pa. 1800) (No. 14,865); Wilson, 102 U.S. at 574 (1880) (“vessel . . . is
considered as a part of the territory” of the flag or state of registry); S.S. Lotus (Fr.
Turk) (1927) P.C.I.J. (Ser. A) No. 10 (describing a Turkish vessel that was assimilated
to Turkish territory); Regina v. Anderson, 11 Cox Crim. Cas. 198 (U.K. Ct. of Crim.
Apps. 1868); Case of Hirsi Jamaa and Others v. Italy, Eur. Ct. H.R. (Grand Chamber
No. 27765/09, Feb. 23, 2012); PAUST ET AL., supra note 6, at 596-97, n.2 (noting U.S.
Supreme Court and other U.S. cases since 1800).
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29
jurisdiction known as a breach of neutrality. This crime, in violation of the
customary law of nations and treaties of the United States, had been
addressed in part by Chief Justice Jay and Justices Iredell and Wilson and
Judge Peters in Henfield’s Case in 1793.48 Importantly, and in partial answer
to the Supreme Court’s recent question, the extraterritorial reach of the
ATS has also been decidedly reaffirmed in numerous cases ever since the
1790s and, under international law, the extraterritorial reach of the ATS
has often rested upon universal jurisdiction that has had a venerable use in
U.S. courts since their creation.49
II. VARIED PRINCIPLES OF STATUTORY CONSTRUCTION UPHOLD ATS
UNIVERSAL JURISDICTION
The judicially-created principle of construction that legislation is
presumed to apply merely within the United States50 was unknown to the
Founders and Framers, did not exist when the ATS was created,51 has not
been without controversy, and has not been applied with respect to every
form of legislation and every underlying jurisdictional basis and type of
constitutionally-based power. Moreover, a different principle of statutory
construction was recognized near the time of formation of the ATS and
with respect to the same substantive law that is expressly incorporated by
reference in the ATS; the Charming Betsy rule. The rule requires: “An Act of
Congress ought never to be construed to violate the law of nations if any
other possible construction remains, and, consequently, can never be
construed to violate . . . rights . . . further than is warranted by the law of
nations. . . .”52
48. See supra note 9. See also 1 Op. Att’y Gen. 68, 69 (1797) (Lee, Att’y Gen.) (“a
violation of territorial rights, it being an offence against the law of nations” that
implicates “the duty of every government to punish,” i.e., universal jurisdiction and
responsibility).
49. See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d at 743–46, 758–60, 763–65; Sarei,
671 F.3d at 772, 776–79 (Pregerson, J., concurring) (“universal customary
international law”); Sarei, 671 F.3d at 780–83 (McKeown, J., concurring); Doe v.
Exxon Mobil Corp., 654 F.3d at 20–22; Presbyterian Church of Sudan v. Talisman
Energy, Inc., 244 F. Supp. at 306; Xuncax v. Gramajo, 886 F. Supp. at 183 n.25, 193;
Paust, Nonstate Actors, supra note 4, at 987–88 n.38 (cases and articles cited); Paust, The
History of the Act, supra note 43, at 250–51 n.3; Jennifer Green & Sahadev Gowda,
International Accountability and the Alien Tort Statute, JURIST (Mar. 22, 2012), available at
http://jurist.org/forum/2012/03/green-gowda-kiobel.php; supra notes 8, 24, 28, 45.
50. See, e.g., Morrison v. Nat’l Austl. Bank, Ltd., 130 S.Ct. 2869, 2877 (2010)
(Scalia, J.). But see id. at 289192 (Stevens, J., concurring) (noting that the presumption
is merely a “flexible rule of thumb” and that it does not require that clear intent of
extraterritoriality exist within a statute); infra note 67.
51. See, e.g., Sarei, 671 F.3d at 745 (“There is no indication . . . that a
‘presumption against extraterritoriality’ existed or could have been invoked by
Congress in 1789”).
52. Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117–18 (1804)
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The Charming Betsy rule, which had earlier foundations, has been
continuously retained by the Supreme Court.53 The very subject matter
expressly covered by the Act rests in substantial part on universal
jurisdiction as well as United States obligations to not deny justice to aliens
injured in the United States or abroad and to provide access to our courts.
The customary prohibition of “denial of justice” applicable at the time of
formation of the Act has been expanded today under customary and
treaty-based human rights law that also requires access to courts and an
effective remedy for human rights violations.54 The Charming Betsy rule
(Marshall, C.J.).
53. See, e.g., PAUST ET AL., supra note 6, at 153–54.
54. See, e.g., RESTATEMENT, supra note 11, § 711, cmts. a–c and RN 2; PAUST ET
AL., supra note 6, at 83–84, 191, 267, 411–13 (addressing General Comments of the
Human Rights Committee of the ICCPR Nos. 7, 13, 15, and 20 (affirming that under
the ICCPR human rights victims “must themselves have effective remedies” whether
violators are public officials “or private persons . . . or in a private capacity”)); PAUST,
supra note 7, at 224–28, 362–66 (noting that an attempted declaration of partial nonself-execution is void ab initio as a matter of law and that, in any event, Article 50
mandates that all articles be applied in the United States); Paust, History of the Act, supra
note 43, at 250–52 n.3, 255 n.13; International Covenant on Civil and Political Rights
(ICCPR), arts. 2(3), 14(1), 50 (mandating in self-executing language that all of “[t]he
provisions . . . shall extend to all parts of federated states without any limitations or
exceptions”), 999 U.N.T.S. 171 (Dec. 9, 1966); Human Rights Comm., General
Comment No. 24, ¶¶ 11–12 (Nov. 2, 1994), U.N. Doc. CCPR/C/21/Rev.1/Add.6
(1994); Universal Declaration of Human Rights, supra note 36, art. 8; Dubai Petroleum
Co., et al. v. Kazi, 12 S.W.3d 71, 82 (Tex. 2000) (“Article 14(1) [of the ICCPR]
requires all signatory countries to confer the right of equality before the courts to
citizens of all other signatories. . . . The Covenant not only guarantees foreign citizens
equal treatment in the signatorie’s courts, but also guarantees them equal access to
these courts”), also citing General Comment No. 13 (1984)); Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, U.N. G.A. Res. 63/166, ¶
18 (18 Dec. 2008), U.N. Doc. A/RES/63/166 (19 Feb. 2009); U.N. G.A. Res.
62/148, ¶. 13 (18 Dec. 2007), U.N. Doc. A/RES/62/148 (4 Mar. 2008); U.N. G.A.
Res. 61/153, prmbl. (19 Dec. 2006), U.N. Doc. A/RES/61/153 (14 Feb. 2007); U.N.
G.A. Res. 60/148 (16 Dec. 2005), U.N. Doc. A/RES/60/148 (21 Feb. 2006); Basic
Principles and Guidelines on the Right to a Remedy and Reparation for Victims of
Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law, U.N. G.A. Res. 60/147 (16 Dec. 2005), U.N. Doc.
A/RES/60/147 (21 Mar. 2006). See also Bolchos v. Darrel, 3 F. Cas. at 810 (“failure of
justice”); 1 Op. Att’y Gen. 68, 69 (1797); 1 Op. Att’y Gen. 30, 32 (1793). Our courts
are not free to deny access to courts and rights to remedies required by customary and
treaty-based international law. See also Paust, supra note 10, at 231–38 (stating that
courts must ascertain and apply customary international law in cases otherwise
properly before them).
The Government’s Supplemental Brief in Kiobel misstates the “the legislative
purpose” of the ATS when arguing that a remedy should exist “for law-of-nations
violations for which the aggrieved foreign nation could hold the United States
accountable.” Supplemental Brief for the United States, supra note 37, at 3. One clear
intent was to avoid denials of justice to aliens as such, since the United States is
obligated under international law to not deny justice to aliens, and the obligation of
the United States today also encompasses obligations under customary and treatybased international law noted above to provide access to courts and rights to a
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31
requires that the ATS not be interpreted restrictively to deny universal
jurisdiction and rights under the law of nations noted above and,
moreover, “can never be construed to violate . . . rights.”55 Additionally, the
overwhelming recognition of the extraterritorial reach of the ATS in cases
since the 1790s and in Attorney General Bradford’s 1795 Opinion noted
in Part I provide the appropriate gloss in view of the subject matter of the
ATS, its all-inclusive and borderless nature, its express reach in 1789 to “all
causes” and today to “any civil action” in tort in violation of international
law, and underlying universal jurisdiction with respect to and inherent in
violations of customary international law.
The ATS was revised in 1878,56 191157 and 1948.58 Importantly,
Congress has never deviated from the reach of the ATS to violations of
the law of nations and treaties of the United States that implicate universal
jurisdiction and Congress never chose to set limits to what had been
recognized in federal cases and Opinions of the Attorneys General prior to
1911 as its extraterritorial reach to conduct of U.S. and foreign individual59
and company60 defendants. In fact, when Congress enacted the Torture
Victim Protection Act (TVPA)61 in 1992, “Congress endorsed the Filartiga
line of cases,” which clearly had been based in part on universal
jurisdiction and had involved conduct of foreign and U.S. individual and
remedy. The focus on sanctions against the United States for failing to comply is
misplaced. For example, considering the circumstances surrounding Filartiga, it would
not make sense to require that Paraguay “could hold the United States accountable” if
justice would be denied to Paraguayan nationals who brought a lawsuit against a
Paraguayan official for torture occurring in Paraguay. In any event, because of the
customary law of “denial of justice” and customary and treaty-based human rights
law, the United States could be “accountable” for its violations of international law.
The human rights obligations of the United States are also based in the United
Nations Charter. See U.N. Charter, arts. 55(c) (“universal respect for, and observance
of, human rights”); id. at art. 56 (implying that the United States must take “joint and
separate action” to comply with Article 55(c)’s mandate and, therefore, must not deny
or violate human rights law). Filartiga recognized the relevance of U.N. Charter-based
human rights duties in connection with an ATS lawsuit. See Filartiga v. Pena-Irala, 630
F.2d at 881–82. See also Memorandum for the United States as Amicus Curiae in
Filartiga, supra note 37, at 8, 10 n.17, 17 n.36 (regarding UN Charter-based human
rights and duties).
55. Charming Betsy, 6 U.S. (2 Cranch) at 117–18 (emphasis added).
56. See JENNIFER K. ELSEA, CONG. RESEARCH SERV., RL 32118, THE ALIEN
TORT STATUTE: LEGISLATIVE HISTORY AND EXECUTIVE BRANCH VIEWS 5 (2003).
57. Ch. 231, Pub. L. No. 61-475, § 24, para. 17, 36 Stat. 1087, 1091, 1093
(codified as R.S. § 563, para. 16, later as 28 U.S.C. § 41, para. 17) (Mar. 3, 1911).
58. Title 28, ch. 646, Pub. L. No. 80-773, § 1350, 62 Stat. 869, 934 (June 25,
1911).
59. See supra notes 37–43.
60. See supra note 37. Concerning recognition of rights of a company under
international law and the ATS, see supra note 37 and accompanying text.
61. Torture Victim Prevention Act Pub. Law 102-256; 106 Stat. 73 (1992).
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corporate defendants outside the United States.62 The 1991 House and
Senate Reports regarding the TVPA, like the preamble to the statute,
affirmed the intent “to carry out obligations of the United States under the
United Nations Charter and other international agreements pertaining to
the protection of human rights.”63 U.N. Charter obligations of the United
States include the duty to take joint and separate action to achieve
“universal respect for, and observance of, human rights.”64 The House and
Senate Reports focused on the fact that “universal principles” were
incorporated; that “many of the world’s governments” abroad engage in
violations in their own territory and against their own citizens; that Filartiga
had recognized that “the universal prohibition of torture had ripened into
a rule of customary international law, thereby bringing torture squarely
within the language of the statute;” that the ATS “should remain intact;”
and that the TVPA “would . . . enhance the remedy already available”
under the ATS for alien plaintiffs and “extend a civil remedy also to U.S.
citizens who may have been tortured abroad.”65 Quite clearly, Congress in
1991 intended that both the ATS and the TVPA will be extraterritorial in
their reach with respect to violations of customary international law that
implicate universal jurisdiction and responsibility. Furthermore, it would
be inappropriate for courts to add limits to the ATS that do not exist in
the text of the statute and that Congress has never chosen.
One notable exception to the ordinary presumption against
extraterritoriality of ordinary federal statutes is the Bowman exception. In
United States v. Bowman,66 the Supreme Court noted that our courts can
infer an extraterritorial reach “from the nature of the offense” described in
a statute and that the “locus, when not specially defined, depends upon the
purpose of Congress as evinced by the description and nature of the crime
and upon the . . . limitations upon the power and jurisdiction of a
62. Abebe-Jira v. Negewo, 72 F.3d 844, 848 (11th Cir. 1996), cert. denied, 519
U.S. 830 (1996); Paust, The History of the Act, supra note 43, at 256 n.19. See also Sarei v.
Rio Tinto, PLC, 671 F.3d at 745 (“Congress . . . implicitly ratified such lawsuits”);
Sarei v. Rio Tinto PLC, 487 F.3d 1193, 1217 (9th Cir. 2007); Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 105 n.10 (2d Cir. 2000) (“The text of the [ATS] seems to
reach claims for international human rights abuses occurring abroad. We reached the
conclusion that such claims are properly brought under the Act in Filartiga; Congress
ratified our conclusion by passing the” TVPA); Kadic, 70 F.3d at 241 (“The scope of
the Alien Tort Act remains undiminished”); Hilao v. Estate of Marcos (In re Estate of
Marcos, Human Rights Litig.), 25 F.3d 1467, 1475–76 (9th Cir. 1994), cert. denied, 513
U.S. 1126 (1995); Sarei v. Rio Tinto PLC, 221 F. Supp.2d 1116, 1133 n.96 (C.D. Cal.
2002).
63. H.R. REP. NO. 102-367, pt. I, at 1, 4 (1991); S. REP. NO. 102-249, at 3–4
(1991) (same).
64. U.N. Charter, arts. 55(c), 56 (emphasis added); Filartiga, 630 F.2d at 881–82.
65. H.R. REP. NO. 102-367, at 85-86; S. REP. NO. 102-249, at 3-4.
66. 260 U.S. at 94 (1922).
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government to punish crime under the law of nations.”67 Clearly, the
description and nature of the substantive law addressed and jurisdictional
competence under the law of nations can limit the relevance of the
ordinary presumption.68 In Bowman, the Court added that the ordinary
“rule of interpretation should not be applied to . . . statutes which are . . .
not logically dependent on their locality for the government’s jurisdiction”
and that “to limit” the locus of some statutes “to the strictly territorial
jurisdiction would be greatly to curtail the scope and usefulness of the
statute and to leave open a large immunity” with respect to conduct “on
the high seas and in foreign countries” that should pertain.69
With respect to the ATS, using the Bowman rationale, the description
and nature of the substantive law incorporated, which is customary and
treaty-based international law, and the universal jurisdictional competence
that pertains, as well as the relevant duties that exist under international
law to provide sanctions, necessarily permit courts to infer the
extraterritorial reach of the ATS.70 Moreover, to restrict the ATS to
conduct on U.S. territory would be contrary to underlying universal
jurisdictional competence over violations of international law that facially
forms the very substantive law incorporated in the statute and to U.S.
67. Id. at 97–98. Cases decided after Morrison have noted that Morrison did not
overrule Bowman or that Bowman still provides an exception to the ordinary
presumption when universal, protective, or nationality jurisdiction under customary
international law exists and supports the extraterritorial reach of the ATS or a relevant
criminal statute. See, e.g., Sarei, 671 F.3d at 743–46, 758–60, 763–65 (stating that
extraterritoriality of the ATS is appropriate where universal jurisdiction obtains over
violations of international law of a universal nature and concern and the text shows
no geographical limitation); Sarei, 671 F.3d at 772, 776–79 (Pregerson, J., concurring)
(stating that extraterritoriality is supported by the existence of “universal customary
international law”); Sarei, 671 F.3d at 780-83 (McKeown, J., concurring) (stating that
the statutory focus on violations of the law of nations, the nature of the harm, and the
historical context support extraterritoriality of the ATS); Doe v. Exxon Mobil Corp.,
654 F.3d at 20–22 (stating that the ATS has an “obvious extraterritorial reach,”
“universal jurisdiction” pertains, and Morrison does not control); United States v.
Campbell, 798 F. Supp.2d 293, 305, 308–09 (D.D.C. 2011) (statute applies
extraterritorially where protective jurisdiction exists and Bowman rationale applies
instead of Morrison); United States v. Ayesh, 762 F. Supp.2d 832, 839-41 (E.D. Va.
2011) (same); United States v. Finch, No. 10-333, 2010 WL 3938176, at *3–4 (D.
Haw. 2010) (same); United States v. Hijazi, 845 F. Supp.2d 874, 900, 902, 907-08
(C.D. Ill. 2011) (same). See also United States v. Belfast, 611 F.3d 783, 811, 813–14
(11th Cir. 2010) (applying Bowman despite Morrison); United States v. Frank, 599 F.3d
1221, 1230, 1233 (11th Cir. 2010) (using nationality jurisdiction under international
law and Bowman to support extraterritoriality); United States v. Galvis-Pena, 2011 WL
7268437, at *5 (N.D. Ga. 2011) (applying “Bowman exception” and emphasizing “the
inherently international scope of drug trafficking or smuggling”).
68. See supra note 67; infra note 77.
69. United States v. Bowman, 260 U.S. at 98.
70. See Sarei, 671 F.3d at 743–46, 758-60, 763-65; Doe v. Exxon Mobil Corp.,
654 F.3d at 20–22; supra note 67.
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duties under international law to permit relevant sanctions. This would
leave open a large immunity in American law with respect to conduct on
the high seas and in foreign countries, an outcome that Congress would
not have preferred in view of U.S. duties to not deny justice to aliens and,
today, to provide access to courts and effective remedies for human rights
violations.71 Applying another recognition in Bowman, it is clear that
violations of international law that implicate a universal jurisdictional
competence are not logically dependent on their locality, nor is a statute
that addresses such violations while expressly embracing “any civil action”
for a wrong “committed in violation of the law of nations or a treaty of the
United States.”72
As noted in United States v. bin Laden,73 the decision in Bowman had been
based on two factors: (1) a right of the United States under international
law to protect itself; and (2) the presumption that Congress would not
both (a) enact a statute to serve such an interest; and (b) undermine the
interest by limiting the statute’s application to U.S. territory.74 In this case,
in view of the substantive law expressly incorporated, the existence of a
universal jurisdictional competence, and the duties of the United States to
not deny justice to aliens and, under human rights law, to provide access to
courts and an effective remedy for human rights violations, the ATS
should not be interpreted so as to undermine universal jurisdiction and the
duties of the United States under customary and treaty-based international
law.
Other exceptions to the ordinary presumption regarding
extraterritoriality have been recognized when provisions of legislation “are
on their face all-inclusive and do not suggest parochial application” and
when “‘the Act itself indicates no . . . territorial limitation.’”75 Quite clearly,
the ATS expressly covers “any” and all76 torts in violation of the
customary law of nations and treaties of the United States and is,
therefore, on its face all-inclusive and does not suggest parochial
application. Moreover, the Act itself indicates no territorial limitation in
any other respect.77
71. See supra note 54.
72. 28 U.S.C. § 1350 (1948) (emphasis added). The 1789 version had expressly
embraced “all causes” and, therefore, not merely those that do not arise in foreign
territory.
73. 92 F. Supp.2d at 189 (S.D.N.Y. 2000).
74. Id. at 194.
75. United States v. Noriega, 946 F. Supp. 1506, 1516, 1518 (S.D. Fla. 1990),
aff’d, 117 F.3d 1206 (11th Cir. 1997).
76. See supra note 5.
77. See, e.g., Sarei v. Rio Tinto, PLC, 671 F.3d at 745 (“‘we are constrained by
what § 1350 shows on its face: no limitations as to . . . the locus of the injury,’”
quoting In re Estate of Ferdinand Marcos, Human Rights Litigation, 978 F.2d 493, 500
(9th Cir. 1992)); id. at 745–46 (“There is more than one ‘clear indication’ of
2012]
KIOBEL AND THE ATS
35
CONCLUSION
In view of the above, one would expect the Supreme Court to reaffirm
its many decisions that corporations can have duties under customary and
treaty-based international law, affirm that the Alien Tort Statute is
extraterritorial in its reach, and affirm that violations of international law
resting on universal jurisdiction and customary or treaty-based
international law are actionable under the statute in federal courts.
extraterritorial applicability in both the ATS’s text and its context. . . . The statute’s
explicit reference to the law of nations indicates that we must look beyond the law of
the United States to international law. . . . These are all indications of extraterritorial
applicability”); Sarei, 671 F.3d at 781 (“At the time of its enactment, the ATS was
intended to encompass conduct both within and beyond the United States. . . .”); id. at
782–83 (“Because the ATS targeted violations of the law of nations. . . , both the
international focus and the nature of the harm . . . signal” extraterritoriality and
“[t]aken together, the language of the statute, the historical context, and the nature of
the harm encompassed by ‘the law of nations,’ supply the necessary ‘clear indication’
that the ATS’s jurisdictional grant . . . includes within its ambit at least some conduct
occurring outside of the United States”) (McKeown, J., concurring); Wiwa v. Royal
Dutch Petroleum Co., 226 F.3d 88, at 105 n.10 (2d Cir. 2000) (“the text . . . seems to
reach claims for international human rights abuses occurring abroad”); In re S. African
Apartheid Litig., 617 F. Supp.2d 228, at 247 (S.D.N.Y. 2009) (ATS “applies universal
norms that forbid conduct regardless of territorial demarcations or sovereign
prerogatives” and the text and nature of the law violated support “inapplicability of
the presumption,” also noting that the ordinary presumption is not applicable in the
Second and Ninth Circuits regarding ATS litigation); Paust, History of the Act, supra
note 43, at 251 n.3. See also Doe v. Exxon Mobil Corp., 654 F.2d at 20–26; supra Part I
(noting the overwhelming trends in judicial decision since 1790).