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David Golove on the Supreme Court and the Original Understanding of the Alien Tort Statute
Michael Ramsey

At Just Security, David Golove: The Alien Tort Statute and the Law of Nations: New Historical Evidence of Founding-Era Understandings (part of an ongoing symposium on two consolidated cases currently pending at the Supreme Court, Nestle USA v. Doe and Cargill v. Doe).  From the introduction: 

The [Alien Tort Statute (ATS)] is now once again before the Court.  The most recent case, Doe v. Nestle, which focuses on allegations that the defendants’ facilitated child slave labor practices in the Ivory Coast, threatens to finish off whatever of Filartiga is still standing.  The critical difference between Doe, on the one hand, and Kiobel and Jesner, on the other, is that the corporate defendants are U.S., not foreign, corporations.  There are two principal issues, first, whether Kiobel’s presumption against extraterritoriality applies even when the defendants are U.S. nationals and, second, whether the Jesner Court’s rejection of corporate liability applies to U.S. as well as foreign corporations.  I address the first issue here.  It is the discovery of hitherto unknown and highly probative early historical precedents about the meaning and purposes of the ATS that prompts this essay.

Preliminarily, it is important to appreciate what is at stake in Doe.  The desirability of the U.S. courts’ being available as judicial forums for the enforcement of human rights standards globally is at least debatable.  For example, should ATS litigation be viewed as a laudable effort to improve human rights practices around the world, or is it another example of U.S. imperialism, in this instance being implemented through the judiciary?  Given the problematic nature of U.S. human rights practices, is it unduly hypocritical for the U.S. courts to assume the role of judging foreign governments and their officials for their human rights defaults?

Whatever answers one might give to these questions, the issue in Doe is importantly different.  The fundamental question before the Court is not whether U.S. courts will hold foreign human rights abusers accountable but whether they will hold U.S. human rights abusers accountable for what they do in other countries.  The answer the Court gives to that question will go far in defining how the nation conceives of its fundamental moral commitments as a member of the international community of nations.

And from the core of the argument (footnotes omitted):

The ATS was thus only one of a number of legal mechanisms and rules designed [during the founding era] to ensure that the U.S. government would not be held responsible for the violations of the law of nations committed by its citizens.  It is in light of this understanding of the purpose of the ATS that the presumption against extraterritoriality, recognized in Kiobel, should be interpreted and applied.  In Kiobel, the defendants were foreign corporations with limited contacts in the United States – they had “mere corporate presence” in the United States – and the actions for which they were sued had little or no connection to this nation.  There was thus no ground on which the United States could be charged with responsibility for the violations of the law of nations the defendants had allegedly committed.  For this reason, the Court’s ruling that the presumption precluded jurisdiction under the ATS was consistent with the core purpose of the ATS as the Court had interpreted it.

The Doe case is strikingly different, because the corporate defendants are U.S. entities.  In contrast to Kiobel, therefore, the tortious breaches of the law of nations alleged in the plaintiffs’ complaint, unless properly disavowed, could be attributed to the United States and cause the nation diplomatic embarrassment or worse.  The case therefore fits squarely within the core of the ATS, which was to ensure that the United States would not be charged with complicity in violations committed by its nationals.

In a case of this kind, the presumption against extraterritoriality is properly “displaced,” and nothing in Kiobel suggests the contrary. Indeed, in applying the presumption, the Court was keen both to review the context in which the statute was adopted, and the early understandings as to its scope, to ensure that application of the presumption was consonant with the Act’s purposes.  “[T]he historical background against which the ATS was enacted,” the Court reasoned, was plainly relevant in determining whether the presumption was applicable, and, as the Court in Morrison had observed, “‘[a]ssuredly context can be consulted’ in determining whether a cause of action applies abroad.”  The Kiobel Court then devoted the bulk of its opinion to considering the relevant early history.

Nothing in the Act’s language, nor its purpose, suggests that, when the tortfeasor was a U.S. national for whose actions the United States might be charged with responsibility, Congress was concerned about where the actions took place.  It was irrelevant whether the wrongful act was committed in U.S. territory, on the high seas, or in the territory of a foreign nation.  For example, circa 1789, whether a U.S. citizen committed an offense against the law of nations in the United States, or only after crossing the border into East Florida, then Spanish territory, would have made no difference.  If the United States failed to disavow the conduct by prosecuting the wrongdoer or providing a judicial forum in which civil liability could be imposed, it would have generated the same potential for diplomatic controversy.

Agreed.  I see no reason to think federal jurisdiction under the ATS should be limited to claims arising in U.S. territory.  The ATS's text grants jurisdiction in general terms.  No one thinks the federal diversity jurisdiction statute, which similarly grants federal jurisdiction in general terms, is limited to claims arising in U.S. territory. And as Professor Golove says, there's no reason to think the enacting Congress distinguished between claims arising in the U.S. and claims arising abroad.

But the plaintiffs (and I think Professor Golove) want a lot more than that.  They want U.S. courts to find an implied federal cause of action under the ATS to apply U.S. law to claims arising abroad.  That's much more problematic.  I hope to have more to say on this shortly.