The Volokh Conspiracy

I wrote yesterday about the French Court of Appeals decision holding that French train companies did not violate international law (and particularly the Fourth Geneva Convention) by building a light rail system in Jerusalem, including areas occupied by Jordan before 1967.

The case, PLO v. Alstom, is a perfect foreign coda to the Supreme Court’s decision in Kiobel, as it also deals with suits for extraterritorial conduct of multinational corporations (though without the universal jurisdiction twist of Kiobel). It illustrates how the efforts of some American courts to implement international law norms through civil damages remedies is in fact a rather parochial exercise detached from international practice.

1) Most significantly, the Court found that international law does not create liability for corporations. This accords with the view of the Second Circuit in Kiobel – corporate liability was the issue on which cert in Kiobel had been granted, though the case was ultimately decided on extraterritorially grounds. Many who favored corporate liability argued that on this issue, courts should apply not international law, but rather federal common law. In future ATS litigation against companies with some U.S. nexus, the PLO v. Alstom decision will not make plaintiffs’ work easier.

2) The Versailles court also seemed to take a narrow view of aiding-and-abetting liability. The issue is hard to separate from the corporate liability issue, but the Court basically found that even if Israel’s conduct violated international law, the corporation does not incur liability for its involvement.

3) Ironically, the best examples of corporate liability under international law came from ATS cases (where courts had upheld such liability after having been assured of its existence outside ATS cases). Yet the French court brushed off precedents under the ATS by noting that they were merely applications of a “domestic statute” and thus not really international law. There goes global judicial dialogue – or perhaps they heard that the ATS was just federal common law!

4) The Court was pretty dismissive of “soft law” – international guidelines, best practices statements, and so forth, in creating or defining customary norms.

5) I argued recently that the U.S. is particularly attractive to human rights plaintiffs for the same reasons it is attractive to all other plaintiffs, and this cases illustrates this well. Because Alstom was the prevailing party, the Court required Palestinian plaintiffs to cover 60,000 Euros of the defendants’ costs. You don’t get that in a dismissed ATS case.

Alongside the Health Care Act decision, Kiobel is an example of the professoriate failing to predict the issues that would be taken seriously by the Court both on substance and style. When the Second and Ninth Circuit began questioning “foreign cubed” suits a few years ago, the great majority of scholars dismissed such claims as entirely spurious. The conventional wisdom was very much on the side of universal jurisdiction over corporate human rights abuses. Indeed, such cases had been around for a few decades without much controversy over the universal jurisdiction aspect per se.

Most surprising about Kiobel is the Court’s unanimity. Everyone, including myself, predicted a decision closely divided on ideological lines. Yet ll nine justices seem entirely on board with ending multinational corporate suits. (While Justice Breyer’s concurrence would leave room for Filartiga-style suits where the defendant resides in the U.S., such cases against individuals have largely fallen out of favor with plaintiffs’ lawyers.) The misapprehension of the vote of course relates back to the merits. Many scholars thought the foreign cubed issue a conservative invention to roll back human rights litigation. That position is now hard to maintain.

A district court recently ruled that Congress’s power to “Define and Punish... Felonies on the High Seas” extends beyond the high seas, to conduct entirely within a foreign country (on dry land), with no U.S. nexus. The case is U.S. v. Carvajal, 2013 WL 619890 (Feb. 20, 2013).

The Maritime Drug Law Enforcement Act (MDLEA) allows for the projection of U.S. narcotics law to foreign vessels on the high seas. Routinely the law is applied to the crews of vessels captured on the high seas near Latin American countries with no evidence they were headed our shores. I have argued in a series of papers that such universal jurisdiction over drug trafficking exceeds Congress’s powers under the Felonies power, which presumes a U.S. nexus. While the 11th Circuit has not been swayed from its longstanding prior precedent by these views, other federal judges have increasingly endorsed them.

Yet last November, the 11th Circuit in U.S. v. Bellaizac-Hurtado limited its prior cases by ruling that the Felonies Clause would not apply to conduct in foreign territorial waters, which are not part of the “high seas.”

Caravajal involved a defendant even further from international waters than those in Bellaizac-Hurtado: all of his activity took place in Columbia. But he was charged with conspiracy for a long-standing business of sending vessels through international waters.

The District Court acknowledged the novelty of applying the Felonies Clause to activities in foreign territory. But it concluded that the Felonies Clause reached such activity because the defendant’s co-conspirators committed acts on the high seas. Thus the defendant, who never entered the high seas, could be charged as if he had. (I do agree with the district judge that as far as the vessel goes, it is enough that it entered the high seas on the particular voyage, and it need not be arrested there.)

The Court’s reasoning simply restates the substantive theory of conspiracy liability. It does not explain why conspiracy principles can be used to expand the jurisdictional bounds of a constitutional provision. That is, what gives Congress the power to project federal conspiracy law past the high seas and into the foreign territory to conduct without a U.S. nexus.

Federal criminal law’s broad notion of conspiracy cannot necessarily be read back into the Constitution. This is particularly true when the constitutional provision has a specific jurisdictional provision – “the high seas.” The Framers surely understood that a piratical or felonious act on the high seas could be planned abroad, but chose to define jurisdiction by the locus of the defendant’s conduct.

Put differently, Congress’s ability to “Define” felonies is limited to those on the “high seas.” If Congress can define felonies on land as being connected to the high seas by conspiracy principles, it can presumably go even further – since conspiracy has no special constitutional status. Thus could it define conduct in a foreign country, with no U.S. nexus, that has some effect on the high seas (perhaps affects shipping) as a crime under the clause?

The Carvajal opinion does address my work on the Define and Punish Clause, which it declines to follow because while it “reflects extensive research, it ultimately simply reflects an “opinion of what the law ought to be, not what it is.” Given that my analytic approach the Clause is primarily originalist, I am not sure what this means. Certainly the 11th Circuit has not followed the broader implications of the understanding I develop, though it did accept the narrower ones regarding territorial waters. But the 11th Circuit already had a lot of water under the bow on application of the MDLEA to vessels on the high seas, which it could not easily disregard. Carvajal, however, is a case of first impression, and not in the 11th Circuit.

Indeed, Carvajal is in serious tension with another recent case in the D.C. District, U.S. v. Ali, 885 F.Supp.2d 17 (July 13, 2012), where another judge reached the opposite conclusion recently as to whether land-based conspiracy could be prosecuted as a high seas piracy. That case turned principally on the definition of piracy in international law, but also explicitly invoked constitutional avoidance principles, suggesting that federal conspiracy principles do not get read into the “Piracy on the High Seas” power. The Court in Ali also relied heavily on the Charming Betsy cannon, finding that it would violate international law to apply U.S. law to such conduct. It would equally violate international law principles of jurisdiction to apply U.S. law to a drug conspiracy in a foreign country – but the MDLEA explicitly rules out international law as a defense.

It is a neat coincidence that such cases of first impression concerning conspiracy and the High Seas crimes would arise within a few months of each other. And of course, all these extraterritorial issues are being decided in the shadow of Kiobel, where the distinction between the high seas and foreign territory has been argued quite sharply.

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from piracy, or after the meaning of piracy is ruled to be indeterminate.

Second, piracy is the poster-crime for well-defined, universally agreed on crimes. U.S. v. Smith treated it as the paradigmatic crime that international law defines well enough to allow for domestic punishment, and Sosa similarly treated it as a clear, universally agreed on crime of the kind that makes ATS liability unproblematic. But if the one of the central elements of the crime is essentially undefined, that blows the central assumption of Smith and Sosa out of the water. Indeed, it gives credence to the district court in U.S. v. Hasan, a prosecution of Somali pirates where the District Court in 2010 concluded that piracy is no longer well-defined enough to be punishable without a legislative definition. I criticized that decision extensively (and the Fourth Circuit reversed), assuring the world that piracy is indeed well-settled. Maybe I was wrong!

Finally, just to show I have no whale in this fight, let me suggest a way for Sea Shepherd to wriggle off the hook on remand. If I were them, I would say that while piracy is the paradigmatic ATS crime, “political” piracy is not universally accepted enough to be a basis of ATS liability. This is different from arguing that it is not covered by LOST Art. 101; rather, it argues that the ATS imposes a higher standard than just violating international law. It requires actual judicial precedents demonstrating the universal accord about the crime.

The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

The strongest refutation of the district court’s reasoning are opinions finding that attacks by rebel or guerilla groups that had not become recognized belligerents (i.e., de facto state actors) constitute mere piracy. See The Ambrose Light, 25 F. 408
(D.C. N.Y. 1885). Indeed, Confederate privateers would have been treated as pirates had it not been for a political (i.e., executive) decision not to do so. Obviously no such decision has been made in favor of Sea Shepard, which is essentially waging “private war” – or rather, “private Whale Wars.”

Indeed, Judge Story in The Marianna Flora (1822) made it clear there not be any intent for pecuniary gain:

[N]or do I conceive that it is indispensable to constitute piracy, that there should be an intent of private gain, for if a piratical burning or sinking of a ship or murder of her crew should take place by freebooters on the sea, it would be as genuine piracy as if the primary object were immediate plunder. The act would exhibit a piratical and felonious intent, an intent to despoil the owner of his property.

The necessity for this rule is clear. Motives are often mixed and not transparent. The Irish pirates of prior centuries attacked British ships for gain, but also for politics. Similarly, British pirates against the Spanish in the early 1700s stole – and had political motives. Today’s Somali pirates are said to be motivated in part by foreign overfishing in Somali waters; some pirate bands have manifestly political names (National Volunteer Coast Guard of Somalia). (Ironically, Greenpeace argues that the foreign fishing fleets are the real “pirates,” who have caused the problem in Somalia.) Yet in not one of the dozens of Somali pirate trials around the world has this been even considered as even potentially defeating liability.

Indeed, even saving the whales is not clearly political: it could be selfish, in the sense that some people, like the defendants, are happier knowing there are whales in the world, some people are no. Indeed, redistribution from the rich is itself a political agenda, and such a political motive would make all pirates mere Robin Hoods.

Some may chafe at the notion that Sea Shepherd, which they see as a wonderful group devoted to a noble purpose, should be deemed pirates. But there is a valuable lesson here: one should not mistake the rules of international law with those of morality or decency or environmentalism; sometimes they coincide, sometimes they don’t. If one does not like the result, it means one thinks the international rule is bad. I do not know if this is a good rule in a grander sense, but it is certainly the best one that nations could have actually agreed on.

For thoughts on what this means for ATS litigation overall, see my previous post.

The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected with piracy practice and caselaw. In this post, I’ll discuss the relevance of the decision to Alien Tort Statute issues, and in a subsequent one, I’ll examine the merits.

The Japanese whalers brought suit under the ATS, and the case is notable in two other ways relevant to the Supreme Court’s upcoming decision in Kiobel. First, it shows that the ATS can have both liberal and conservative uses, as I’ve noted before. It is true that there have been few conservative uses, but there weren’t any uses of any kind for 200 years, until Filartiga inspired a wave of human rights litigation. Thus a ruling narrowing the ATS in Kiobel cannot be simply interpreted as “conservative” decision.

Second, it shows that even the narrowest possible ruling in Kiobel – finding the statute to not apply on foreign territory or create corporate liability – cannot be said to close the door to all ATS litigation, or read the statute so narrowly as to make it a dead letter. This case, for example, would clearly survive the narrowest possible post-Sosa view of the ATS.

I am less sure that the ATS applies to piracy at all, though the Ninth Circuit was safe to assume this, as it was assumed by both parties and the Supreme Court in Sosa. I have criticized that that assumption:

It is not clear that Sosa was right about Congress’s belief that the ATS would be a vehicle for piracy suits. Although piracy was one of the three offenses incorporated into common law, it stood on very different remedial footing than the other two. Civil remedies against pirates were almost exclusively in rem. While damages actions were possible, it is hard to find any evidence of such suits, and they would likely have been far too marginal to command Congress’s solicitude. (pg. 107)

Today’s ruling was just on a preliminary injunction. Hopefully on remand, the defendants will take the opportunity to inquire why anyone would thing Congress would have added a supplemental damages remedy to the standard in rem recovery against pirates – to say nothing of an equitable remedy!

The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international law.

Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.

The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:

The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court also suggested that Congress could not define international “conduct beyond the scope of the [international legal] definition” of offenses, as I argued in this forthcoming paper.

The standard for determining law of nations violations. Because Congress did not define attempts as part of the piracy prohibition, the Court looked to international law. The Law of the Sea Treaty – just as the Senate began to debate it again this week – was an important starting point, because it provides an easy-to-refer-to definition of piracy. By its terms, the Law of the Sea definition seems to include attempts. But the Fourth Circuit did not stop there, but continued to examine how courts in prior cases in other countries had ruled, including a famous Privy Council decision from the 1930s, and rulings of the Kenyan courts that have taken a leading role in prosecuting Somali pirates today, and an U.S. case.

Thus there has been actual state judicial practice establishing “attempts” as part of piracy; the Court didn’t just read this off a treaty that had never been applied in any case. Indeed, the decision could have gone the other way if the court was asked to be the first to “apply” such a theoretical norm: the opinion noted the “necessity of looking to… case law from other countries” to find that a putative norm exists. Slip op. at 19.

This has immediate relevance for the ATS, and Kiobel. (Indeed, the court borrowed freely from ATS decisions.) The existence of relevant judicial precedents is of course what is missing in several kinds of ATS claims, and especially for corporate liability.

Perhaps later I’ll say some more about how I think the decision may have been a bit too broad, or cavalier about Congress’s failure to “define.”

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS suits with rather opposite political valences, none of which involve corporate liability or foreign-cubed situations:

• Japanese whalers are suing Sea Shepherd Conservation Society in federal court for acts of piracy, violations of the SUA Treaty other navigational safety charters. The case raises interesting issues about the availability of injunctions under the ATS, as well as the meaning of “private ends” in the definition of piracy. (H/T: Other Eugene.)

• In recent weeks the Center for Constitutional Rights, which pioneered ATS litigation in Filartiga and many subsequent cases, filed suit against a U.S. preacher for encouraging the Ugandan government to criminalize homosexuality.

An interesting question this case raises is whether the Noerr-Pennington doctrine applies to the ATS generally, and whether it applies extraterritorially. One would think that those who argue corporate liability in ATS cases should be governed by federal common law would find Noerr-Pennington, based as it is on First Amendment considerations, fully applicable in this context. Noerr-Pennington has been extended to a variety of torts and to RICO actions, why not ATS?

One answer could be that antitrust violations are simply not violations when done by governments: indeed, much of what progressive economic policies entail is cartelizing workers and industries. Human rights violations, however, specifically are human rights violations when done by governments. But this just brings us back to the crossroads: do U.S. common law or international norms govern secondary legal issues in ATS cases?

Passover approaches, and with it the end of my rotation here. It has been a pleasure, and thanks to Eugene for having me here.

One aspect of the ACA litigation that has not received due attention is the effect of the Court’s ruling on the scope Foreign Commerce Clause. An expansive, limitless definition of the scope of “Commerce” would presumably apply to Foreign Commerce as well. If there is no limiting principle for the former, it would be hard to have a limiting principle for the latter.

Under the logic of the government’s approach, Congress could regulate or mandate transactions purely between foreigners with no direct U.S. nexus. This is because these foreigners could have – should have! – engaged in transactions with the U.S instead. Purely foreign transactions affect the price of things in the U.S. If insurance would be cheaper if more people bought it, the same could be said about American cars. It makes no difference if the recalcitrant non-purchaser is foreign or domestic. Can the Japanese be required to buy U.S. cars? Certainly such a law would be closely related a major economic sector, as defenders of the ACA like to put it. (I am of course holding aside issues of enforceability to focus on the Commerce power.)

Or consider a rationale closer to the ACA case. If the mandate falls within Interstate Commerce, why not Foreign Commerce as well? Just as health people may get sick while uninsured, foreigners might come to the U.S. uninsured. At the time they come, no doubt Congress could require purchasing insurance as part of its Immigration powers. But by then it could be too late, they could be sick not insurable. So could Congress require foreigners to buy insurance or broccoli prior to coming to America on the theory that they might at some point come to America? Foreigners from countries where a sizable percentage visit the U.S.? Foreigners who have visited the U.S. in the past?

It is ironic that the liberal interpretation of the Commerce power would allow American exceptionalism and give Congress regulatory powers in excess of what would be allowed by international law. On the other hand, it is hard to doctrinally cabin disrespect for the domestic division of sovereignty from disrespect for the international division of sovereignty.

In Kiobel, the ATS case I have been blogging about, the Supreme Court has shown some skepticism about broad extraterritorial assertions of U.S. law (based proximately on statutory, not constitutional concerns, though in my forthcoming paper, I argue the Offenses Clause of the constitution and foreign commerce clause underpins the statutory issue. The justices might want to consider that a ruling for the government in the ACA case would open a whole world of extraterritorial legislation.

In Schecter Poultry, Justice Cardozo famously wrote:

Here is a view of causation that would obliterate the distinction between what is national and what is local in the activities of commerce. Motion at the outer rim is communicated perceptibly, though minutely, to recording instruments at the center.

The point here is the “periphery” is not just internal; the periphery is also the world. That which obliterates the distinction between the local and national also tends to obliterate the distinction between global and national.

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.

UPDATE: This just gets better. I was just reminded (courtesty of twitter, see @EVKontorovich) that the Dutch strongly opposed the exercise of UJ in ATS cases, filing an amicus brief in Kiobel that said:

[T]he lower courts appear to have gone further than the established jurisprudence allows. .. the lower courts have both asserted jurisdiction with regard to a wider category of such violations, and in relation to facts in which a “sufficiently close connection” to the U.S. is entirely absent.

I would think the Dutch ruling would greatly weaken the usefulness of the Dutch/British amicus briefs to the Kiobel defendants. It is particularly embarrassing that the defendant is Royal Dutch Shell – apparently Holland knows “can dish it out, but ...can’t take it no more,” to quote Edward G. Robinson’s Rico character. This all underscores a broader point about UJ – there are several cases of nations exercising UJ, but very few of them submitting to it uncomplainingly.

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The “Define and Punish” Clause and the Limits of Universal Jurisdiction, 103 NORTHWESTERN UNIVERSITY LAW REVIEW 149 (2009)). There is evidence for this not just in the structure of the clause, but in grand jury instructions of Wilson and Story, the pronouncements of Marshall, and important judicial and Congressional precedents from the early Republic. For example, in U.S. v. Furlong, the Supreme Court in 1820 found that a statute that purported to punish “murder” by “any person” on the high seas does not apply universally because it is not a UJ crime.

Because murder was not universally cognizable, such “an offense committed by a foreign upon a foreign ship” is a matter in which “Congress ha[s] nor right to interfere.” The Court suggested this limitation was Constitutional, noting such universal regulation would exceed “the punishing powers of the body the enacted it,” i.e. go beyond the Define and Punish clause. Or as Marshall put it in 1800: “[T]he people of the United States have no jurisdiction over offenses committed on board a foreign ship against a foreign nation. Of consequence, in framing a Government for themselves, they cannot have passed this jurisdiction to that Government.”

Congress’s failure to Define
Courts in ATS cases have usually skipped the UJ question entirely. As I show in my forthcoming paper, Discretion, Delegation and Defining in the Constitution’s Offenses Clause, 106 NORTHWESTERN UNIVERSITY LAW REVIEW __ (2012), when Congress exercises its power to “Define” an offence, it gets some degree of deference about the content of the offense, as well as its UJ status. Congress did not “Define” in the ATS, but rather broadly delegated to the courts. Courts do not enjoy any special discretion to “Define.” In the absence of congressional definition, courts must stick closely to well-established international precedent on universal cognizability, an effort they have not even attempted. This is not just because Sosa’s requirements; rather, the Offenses Clause requires it. Indeed, the plurality in Hamdan case rejected conspiracy to commit war crimes because there were no precisely on-point international precedents, a demanding standard equally applicable to the universal cognizability of ATS offenses. Ironically, conservatives favored a loose approach to finding international norms in Hamdan and liberals a highly restrained one; the roles here are gain reversed.

Furthermore, a statute’s mere reference to international law in the ATS does not automatically trigger UJ. Indeed, in U.S. v. Palmer, Chief Justice Marshall read a statute criminalizing “piracy” by “any person” as requiring a U.S. nexus, even though it was clear that Congress could constitutionally apply it universally. The fact that Congress quickly acted to override this construction does not disprove the existence of the presumption as applied to international law offenses: one point of presumptions is to put the burden of clarity on Congress, and this is even more so in foreign relations issues.

[Cross-posted on OpinioJuris]

[Cross-posted on OpinioJuris]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign-cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply presumptions of extraterritoriality to statutes dealing with international law violations, even universal ones. Some have argued that the Supreme Court implicitly OK’d ATS extraterritoriality in Sosa v. Alvarez-Machain, its previous major encounter with the statute. Sosa itself involved conduct in Mexico –but it was the abduction from that country by the D.E.A. and its local contractors of a man involved in torturing a federal agent to death, so that he could stand trial in the U.S. Foreign-cubed that is not: few cases could have a tighter nexus with America.

In the oral arguments on corporate liability, Justice Ginsburg suggested that Sosa OK’d extraterritoriality by citing favorably Filartiga, the break-out 1980 Second Circuit case that turned to the ATS into a tool for human rights litigation. Sosa quoted Filartiga’s famous analogy between modern human rights UJ and its precursors: “the torturer has become-like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind [a phrase that was law of nations shorthand for piracy’s universal cognizability].” Never mind that piracy serves as poor model for modern UJ; Sosa’s quote from Filartiga is hardly decisive. The issue was not before the Court, and secondly, it could be that the ATS allows for UJ for a few norms like torture, but perhaps not for others like extrajudicial killing.

Today the Supreme Court takes on the scope of the Commerce Clause in the historic healthcare cases. The case raises the question of whether there are any substantive limits to the federal government’s domestic regulatory power. But another case soon to be (re)argued before the Court, Kiobel v. Royal Dutch Shell, manages to raise an even broader question: Are there any substantive limits to the federal government’s power to regulate matters occurring outside and having nothing do with the United States? Surprisingly, the latter question has not been generally regarded as a constitutional one.

The Supreme Court has expanded the issues under consideration in Kiobel, originally about corporate liability under the Alien Tort Statute, to include the extraterritorial application of the law. Like corporate liability, extraterritoriality had for decades just been assumed by the lower courts hearing ATS cases: now it will be fully explored.

This series of posts, also cross-posted on OpinioJuris, will focus on the constitutional/federal courts issues involved, and of course explore the early piracy precedents of the Supreme Court to get traction on the issues. In short: before thinking about the ATS, one must consider the constitutional basis for universal jurisdiction – which is quite narrow. Furthermore, there a some good reasons derived both from the constitution and precedent for interpreting the ATS narrowly, as not exercising whatever UJ power the federal government does have.

Before turning to the merits, it is amusing to note the strange bedfellows ATS doctrine makes. The litigation and accompanying academic debate over the meaning and scope of the Alien Tort Statute has been a marvel of surprising ideological transpositions, and more reversals of traditional roles than All’s Well That Ends Well. On the issue of corporate liability, liberals (crudely speaking) urge the Court look to parochial U.S. law, and conservatives (still crudely speaking) favor the adoption of a rule from international law and practice. Then the Court asks for new arguments on extraterritoriality. Now the conservatives point to U.S. law – the judge-made presumption against extraterritoriality – and liberals point to the international status of the offenses. It is like a game of Twister.

Neither position is fully correct. There may be a place for extraterritoriality in ATS cases, but in a much narrower class of cases then where it is currently applied. The next few posts draw on much of my prior work, and I hope the reader forgives me not recapitulating the entire argument of those articles in these posts.