For those interested in federal courts or U.S. foreign relations law, the Supreme Court just issued an important decision in Kiobel v. Royal Dutch Petroleum Co. The basic issue concerned the extent to which the Alien Tort Statute (“ATS”) confers jurisdiction upon district courts to recognize a federal cause of action for violations of customary international law. Here’s what happened: Nigerian nationals sued Royal Dutch Petroleum in federal court for aiding and abetting atrocities allegedly committed by the Nigerian military in the early 1990s, when the plaintiffs and many others were protesting the environmental effects of the oil company’s operations in the Niger River Delta. The district court dismissed some of the claims on the ground that the alleged conduct did not violate international law. On appeal, the Second Circuit dismissed the entire complaint on the view that the ATS does not recognize corporate liability. Many thought that the Supreme Court would affirm on similar reasoning, but the Court mostly sidestepped the issue of corporate liability to focus instead on whether the ATS confers jurisdiction over claims alleging violations of international law when the unlawful acts occurred within the territory of a foreign sovereign.
The answer was negative: the Court held that the ATS does not confer jurisdiction over claims against foreign conduct, so the rule now is that jurisdiction is possible only if the alleged violation of international law occurred within the United States or on the high seas. Five justices reached this conclusion on the view that the language of the statute fails to overcome a traditional presumption against the extraterritorial application of U.S. law. The Justices who adopted this reasoning expressed a concern that the exercise of jurisdiction over claims involving extraterritorial conduct would embroil U.S. courts in delicate foreign policy matters that are better left to Congress and the President. Justice Breyer proposed a more permissive alternative that would permit jurisdiction where “(1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest,” but his concurrence garnered only three supporting votes.
A couple thoughts on this decision: First, I think it signals the practical end of the ATS as a tool for human rights enforcement. How often do violations of customary international law occur within the United States? And even to the extent that they occur, how often will the defendants—presumably state and federal officials—fail to obtain some form of immunity from suit? Moreover, even if a violation occurs and immunity is not available, most violations of CIL will also constitute civil rights violations that are remediable in federal court under Section 1983 and Bivens. The ATS doesn’t bring much to the table anymore.
Second, Kiobel seems to sharpen the divide between our approaches to extraterritoriality in civil and criminal cases. While Kiobel confirms that extraterritoriality is rare for statutes concerning civil liability, U.S. officials have relied upon criminal statutes to make extremely broad assertions of extraterritorial jurisdiction in prosecuting the war on terrorism. Just a few months ago, for example, U.S. agents in East Africa arrested members of the Somali terrorist group Al Shabab for participating in weapons and explosives training in violation of 18 U.S.C. § 2339B, which criminalizes “material support for terrorism.” There is no allegation that the individuals are U.S. citizens, have ever been here, or had U.S. targets in mind, but they are now awaiting trial in the Eastern District of New York. I think it’s worth contemplating the justification for this difference of approach. One common explanation is that U.S. courts should be more willing to apply criminal statutes extraterritorially because greater national interests are at stake. But insofar as the conduct that violates CIL also violates U.S. criminal statutes, the difference can’t reflect variations in the seriousness of the offense. Another possible explanation is that broad extraterritorial applications of criminal statutes are permissible because the enforcement decision is in that context left to the executive—the same branch that exercises primary responsibility over the conduct of U.S. foreign policy, and that is best equipped to decide whether prosecution makes sense from a foreign policy perspective. While there is no guarantee that a civil suit by a private party will comport with executive policy, a federal prosecution presupposes some level of inter-agency coordination on whether prosecution makes good policy sense, and suggests an executive judgment that judicial involvement will further rather than undermine that policy.