My remarks will focus on the extraterritorial application of the Alien Tort Statute (ATS). This aspect of the statute is especially controversial as a policy matter, and it is the issue on which the Court ordered additional briefing when it re-listed Kiobel v. Royal Dutch Petroleum Company for next term. Although they are not generally described this way, the legal arguments about the extraterritorial application of the ATS fall into four general groupings. First, does the general presumption employed by U.S. courts against the extraterritorial application of statutes apply to the ATS? Second, as originally understood when it was enacted, would the ATS have applied to violations of the law of nations that take place in another country? Third, does international law prevent the extraterritorial application of the ATS, and should this inform the courts' interpretation of the statute under the Charming Bets), canon? Fourth, are there constitutional limitations under Article I on Congress's power to legislate extraterritorially? The last argument, which I do not address further, has been the least significant to date, in part because the courts have shown little interest in potential constitutional limits on Congress's power to regulate conduct outside the United States. (1)
It is a "longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States."' (2) The Court recently applied a muscular version of this presumption against extraterritoriality in Morrison v. National Australia Bank Ltd. (3)
The government argued in Sosa v. Alvarez-Machain and other ATS cases during the Bush administration that the presumption applies in ATS cases, (4) but the current administration has not done so (at least not yet) in Kiobel. Respondent Royal Dutch Petroleum has advanced it in the Kiobel briefing, arguing that the statute does not reach the alleged conduct in Nigeria. (5)
There are several problems with applying the presumption here, however. The subject matter of the statute, which permits aliens to sue for violations of the law of nations (customary international law), suggests that Congress was not legislating solely with domestic problems or conduct in mind. Consistent with this observation, the Sosa opinion read the ATS to include piracy, which is conduct that takes place outside the territorial jurisdiction of the United States. (6) The presumption does not generally apply to jurisdictional statutes, and the ATS is jurisdictional. Finally, applying the presumption might invalidate a great deal of ATS litigation, inconsistent with the Court's general approach in Sosa, and with Filartiga, a case that the Sosa opinion seemed to preserve.
In the ATS context, the presumption is often mentioned along with the concern about creating friction with other countries. But dismissing cases that might cause friction with other governments is different from applying the presumption, which would apply to noncontroversial cases (such as those in which foreign governments do not oppose application of the ATS or those brought against U.S. defendants who act abroad). Note, as well, the difficulties associated with any kind of "friction with foreign countries" test. The South African government, for example, has changed its position on whether it supports or opposes ATS cases for apartheid-related conduct.
The better approach is not to presume that the statute does not apply extraterritorially, but instead to ask whether it should be interpreted to apply to conduct that takes place abroad.
Perhaps the ATS applies only to certain kinds of offenses, which may limit its applicability to conduct that takes place outside the United States. Some have argued, for example, that the ATS was intended to compensate aliens for torts committed by U.S. citizens. (7) This is consistent with a general concern in the 1780s and 1790s with keeping the United States from violating international law and out of war. …