Kiobel and Extraterritoriality
by William Hart
Less than a decade after Sosa, the Supreme Court has another opportunity to limit the scope of the ATS in Kiobel v. Royal Dutch Petroleum Co. The Court was initially concerned with whether a corporation could be held liable under the ATS, but at the first oral argument the questioning turned to the wisdom of allowing a federal court to hear claims brought by aliens against a foreign corporation for acts which occurred in another country. The Court ordered the parties to brief the issue of extraterritoriality and re-argument was held on this new question at the beginning of October 2012.
The Supreme Court should use Kiobel as a vehicle for limiting the ATS’s reach to events, transactions, or occurrences involving a violation of international law or a U.S. treaty that have a substantial connection to the United States. First, aside from the fact that there is a presumption against the extraterritorial application of U.S. laws (as stated in the Kiobel Respondents' Supplemental Brief, pages 13-17), there are a number of constitutional, legal, and foreign policy concerns that arise from allowing the ATS to be used in circumstances like those in Kiobel. Interpreting the ATS to apply to private torts committed by foreign nationals against other aliens in a foreign territory gives U.S. courts power to remedy violations of international law in cases which may intertwined with sensitive foreign policy issues, as the Court stated in Sosa. Justice Souter also indicated that this concern counsels against an expansive interpretation of violations of customary international law. By extension, this issue should also weigh against the application of the ATS to purely foreign cases, as the judiciary would not only be exercising power over matters with significant foreign policy consequences, but it would be doing so without any reasonable justification given the lack of U.S. involvement, as the Kiobel Respondents stated in pages 49 to 55 of their Supplemental Brief. Furthermore, applying the ATS in this way may itself be a violation of international law. The Restatement of International Law only supports the exercise of universal criminal jurisdiction and says nothing about its civil counterpart. Indeed, a number of foreign governments and tribunals have decried the assertion of the universal civil jurisdiction, suggesting that applying the ATS in this manner goes against an emerging norm of customary international law, per the Respondents in pages 40 to 41 of their Supplemental Brief.
The most compelling counterargument to the foregoing, one which was suggested at oral argument by more than one of the justices, is that there is room for a sort of compromise on ATS litigation of the sort in Kiobel by having courts request guidance from the State Department as to whether going forward with a case would jeopardize U.S. foreign policy interests. This is not an unheard-of practice, yet its merits are dubious. Not only has this practice never commanded a majority of votes in litigation involving the Act of State doctrine, it also raises serious separation of powers issues as it impermissibly politicizes the judicial process by opening the door for the Executive Branch to determine the outcome of cases. The Supreme Court should avoid falling for this meretricious compromise, which raises more issues than they resolve and simply eschew the notion that the ATS can be applied to cases whose core facts have no connection with the United States.
Suggested Citation: William Hart, Kiobel and Extraterritoriality, GEO. J. INT'L L. ONLINE: THE SUMMIT (Dec. 5, 2012, 4:16PM), http://gjilsummit.blogspot.com/2012/10/update-kiobel-and-extraterritoriality.html.
