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02/27/2012

The Original Meaning of the Alien Tort Statute (Corrected)
Michael Ramsey

On Tuesday, February 28, the Supreme Court will consider a very old federal statute: a provision of the Judiciary Act of 1789 now commonly called the Alien Tort Statute (ATS), codified at 28 U.S.C. 1350 but not material changed in language since its enactment.  The ATS provides:

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.

In Kiobel v. Royal Dutch Petroleum Co., to be argued on the 28th, the question is whether this statute allows suit against Royal Dutch Petroleum for indirect involvement in human rights abuses by the Nigerian government.  Kiobel is being closely watched by business groups and human rights groups, because it is only one of a host of cases pending against multinational corporations for abuses committed by governments of nations in which they operate.  (SCOTUSBlog's analysis by Lyle Deniston is here).

Much of the Kiobel argument is likely to be about questions of corporate liability under international law – the immediate question presented is whether corporations (as opposed to individuals or nations) have international responsibility for these abuses.  But a more immediate question – and unfortunately one presented only indirectly at best – is what this suit is doing in U.S. court.  Kiobel is a suit by Nigerian plaintiffs against a Dutch corporation based on the actions of that corporation’s Nigerian subsidiary in Nigeria.  Is it plausible that the First Congress, in enacting the ATS, intended to legislate with respect to parties and conduct so remote from U.S. interests?

I don't think so.  An amicus brief written by Professor Samuel Estreicher (NYU Law School) [and Meir Feder; see correction below], which I and a number of other professors of foreign relations law joined, puts it this way:

The ATS … had the intensely practical goal of addressing a narrow category of tortious wrongs against aliens ... that if left  unredressed, threatened the security and international relations of the United States. Specifically, the ATS was designed to address only private violations of the law of nations for which the U.S. had a duty to provide redress and which—if not redressed—would constitute affronts to other nations that could result in diplomatic conflict or war. … 

The type of claim that Petitioners allege in this case [Kiobel] — an action against private corporations for allegedly aiding and abetting a foreign government’s violations of the rights of its own citizens and residents within its own territory—involves no international obligation of the United States and thus implicates none of the purposes of the ATS.  Indeed, for U.S. courts to presume to adjudicate the legality of the domestic conduct of a foreign sovereign would invite, rather than avert, the international conflict the ATS was enacted to prevent.

The scholarship behind this description of the ATS is, I think, overwhelming.  The most recent and comprehensive is this article by Anthony Bellia and Bradford Clark in the University of Chicago Law Review; there’s also this earlier article by Thomas Lee in the Columbia Law Review.  And Bellia and Clark have this follow-up essay, specifically addressing the Kiobel case.  The short of it is that under the Articles of Confederation the U.S. had gotten into trouble internationally because it wasn’t able to redress injuries to the citizens and interests of other nations which other nations expected it to redress.  (The U.S. was expected to redress them because they were wrongs committed by U.S. citizens or in U.S. territory).  The Constitution and early statutes took various steps to correct that problem, and the ATS is obviously one of those steps.  This purpose has nothing to do with Dutch misconduct in Nigeria.  As the brief points out, the likely result of the U.S. trying to regulate that conduct is to annoy the Dutch, the exact opposite of what Congress was trying to do with the ATS.

There is, though, a textual difficulty which I think both the amicus brief and Bellia and Clark's scholarship gloss over.  While the specific intent behind the statute may be clear enough, the ATS's text doesn’t support any such limitation: it is comprehensive as to any claim by an alien for torts that violate the law of nations; there's no textual hook to limit it to claims that implicate U.S. international responsibilities.  So, can the intent modify the plain text?

That is a difficult question; generally I think I would say no.  But here there’s a way to reconcile the two.  A longstanding canon of statutory construction says that generally worded statutes aren’t construed to violate international law.  This rule is associated with the case Murray v. The Charming Betsy in 1804 (thus it’s sometimes called the “Charming Betsy canon”).  But it reaches back even earlier, at least to the 1784 New York case Rutgers v. Waddington, which Alexander Hamilton won on that basis.  [See correction below: this discussion wrongly suggests that Professors Clark and Bellia don't mention the Charming Betsy canon.]

As I've argued elsewhere, the U.S. would violate the international law of prescriptive jurisdiction if it applied its tort law to conduct having so little connection with the United States.  Generally international law allows nations to regulate actions occurring in or affecting their territory, or committed by their citizens abroad.  There are a few other bases for regulation, but none seems relevant here.  (For a modern application of a version of the Charming Betsy canon, limiting the overseas reach of the U.S. antitrust laws to conduct having some connection to the U.S, see the Court's 2004 Empagran decision).  International law does allow "universal jurisdiction" (meaning any nation may regulate) for especially heinous crimes such as piracy, genocide and perhaps a few others.  But there’s no international practice of universal jurisdiction over indirect involvement in human rights abuses as alleged in Kiobel

(For a longer academic version of this argument, see here; a similar position is argued in an amicus brief by the United Kingdom and the Netherlands in Kiobel (parts III and IV of the brief)).

Unfortunately, because of the way the case was decided in the lower court, the foremost issue in Kiobel appears to be the broader and more difficult question whether any corporations can be sued under the ATS.  That question needs to be approached very differently if a U.S. corporation is involved.  But if the Court can think of Kiobel as a suit lacking any material connection to the U.S. (and thus lacking any connection to the purpose of the ATS) it might find a way to start returning the ATS to its original meaning without taking on the broader question of international corporate liability.

CORRECTIONS:  Two corrections are needed to the above post (thanks to readers for pointing these out).  First, the professors’ brief mentioned in the initial post was co-written by NYU Professor Samuel Estreicher and Jones Day attorney Meir Feder (who appears as co-counsel on the cover), not by Professor Estreicher alone.  Apologies to Mr. Feder, an outstanding attorney whom I’ve know for many years – I did not mean to slight his participation.

Second, Professor Clark writes to point out that his article with Professor Bellia in the University of Chicago Law Review, which the post mentions, did rely in part on the “Charming Betsy” canon to construe the Alien Tort Statute.  (The original post indicated otherwise).  He's correct, and I apologize for overlooking that discussion.  Although the article’s principal contentions are that the ATS was intended to reach alien-against-alien suits and that construing the ATS otherwise would violate Article III of the Constitution, Professors Bellia and Clark also say this about Charming Betsy (pp. 529-30):

[A]djudicating tort claims between aliens for acts arising abroad would have risked violating the territorial sovereignty of the nation in which the acts occurred. Had the ATS been at all unclear in this regard, separation of powers concerns almost certainly would have led courts to construe it to avoid infringing the territorial sovereignty of other nations.  In the first few decades after ratification, the Supreme Court was careful not to take the lead over the political branches in infringing the rights of foreign nations under the law of nations.  Violations of such rights could give other nations just cause for war against the United States. When acts of Congress did not clearly violate the sovereign rights of other nations, the Court construed them to respect those rights. In this way, the Court avoided generating conflicts that Congress had not clearly authorized and ensured that the Court did not usurp Congress’s exclusive power to determine matters of war and peace. 

The most famous case in which the Court construed an act of Congress so as not to violate the law of nations was Murray v Schooner Charming Betsy. Congress enacted the Non-Intercourse Act of 1800 during the undeclared hostilities with France. The Act prohibited commercial intercourse between residents of the United States and residents of any French territory.  In Charming Betsy, the Court held that this Act did not authorize the seizure of an American built vessel that an American captain sold at a Dutch island to an American-born Danish burgher, who proceeded to carry the vessel for trade to a French island. Writing for the Court, Chief Justice Marshall explained that a federal statute “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 neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.”  The Non-Intercourse Act, he concluded, did not clearly authorize such violations: “If it was intended that any American vessel sold to a neutral should, in the possession of that neutral, be liable to the commercial disabilities imposed on her while she belonged to citizens of the United States, such extraordinary intent ought to have been plainly expressed.”  By applying this canon of construction, Marshall ensured that Congress, rather than the Court, would determine whether the United States should risk foreign conflict.  Neutral rights were perfect rights, and interference with such rights gave the injured sovereign just cause for war. 

Under this canon of construction, unless the ATS clearly authorized federal district courts to hear cases that rested within another nation’s exclusive territorial sovereignty, federal courts would have declined to hear them. At the time, separation of powers concerns led the Court to read acts of Congress to avoid law of nations violations. Given that the goal of the ATS was to avoid US responsibility for such violations, it is unlikely that courts would have read the statute to authorize jurisdiction that even arguably violated the territorial sovereignty of other nations under the law of nations.

This discussion seems right to me.  I would add that a suit in the U.S. based on conduct in another nation did not, in the eighteenth-century understanding, necessarily violate that nation’s sovereignty.  First, it did not do so if the suit had sufficient connection with the United States (principally, if the defendant was a U.S. citizen – as Bellia and Clark say earlier).  Second, it did not do so if the U.S. court applied foreign law to the dispute, so that the U.S. was not prescribing rules of decision for the foreign territory, but only applying rules of decision prescribed by the foreign sovereign.  The key principle is the right to prescribe (as the earlier post emphasizes).