An unabridged version of this article originally appeared in the April 5, 2011 issue of The United States Law Week (Vol. 79, No. 7) under the title "Limitations on the Jurisdiction and Reach of the Alien Tort Statute." Reprinted with permission. Copyright © 2011 by The Bureau of National Affairs, Inc.
The Alien Tort Statute (ATS) provides "that district courts shall have original jurisdiction of any civil action by any alien for a tort only, committed in violation of the law of nations or a treaty of the United States."1 A strict interpretation of the ATS would mean that a French company could find itself in a U.S. district court defending a tort claim for alleged acts committed in a third country, not involving any United States citizens and otherwise unconnected to and with no impact on the United States. By way of example, a French company might be sued under the ATS by workers employed in Asia, even if the plaintiffs or alleged offenses had no other connection to the United States. Such a French company may ask the obvious question: When Congress passed the ATS as part of the Judiciary Act of 1789, did it truly intend to give federal courts universal civil jurisdiction for a violation of the law of nations committed anywhere in the world regardless of whether there was any nexus to the United States?
A. International Law and the Principles of Jurisdiction
It is an established principle of international law that a nation has the power to make laws proscribing acts occurring within its territory, producing a detrimental effect within the state,2 impairing the security of the state, undertaken by its own nationals,3 or victimizing its nationals outside its territory,4 subject to the limitations of a rule of reason.5 These categories are typically referred to as the territorial, nationality, protective and passive personality principles of national jurisdiction. Generally, the exercise of jurisdiction over a person or matter is considered reasonable if: (1) the person or thing at issue is present in the state; (2) a natural person is domiciled, resident, or a national of the state; (3) a juridical person is organized under the state’s laws; (4) a natural or juridical person consents to jurisdiction, regularly carries on business in the state, or formerly carried on activity in the state, but only with respect to such activity; (5) a natural or juridical person carried on activity outside the state having a substantial, direct, and foreseeable effect within the state, but only with respect to such activity; or (6) the subject of adjudication is owned, possessed, or used in the state.6
By contrast, an assertion of universal jurisdiction by a nation embraces no such limitations and contemplates a nation seeking to define, adjudicate, and punish conduct under its domestic law regardless of whether the offense took place in the nation, and without regard to where either the offender or the victim is located.7 Unlike other forms of jurisdiction, universal jurisdiction is not cabined by any reasonableness restriction.8 In an international context, assertion of universal jurisdiction by a nation is an exercise of pure sovereign power.
B. The Supreme Court’s Sosa Ruling and Universal ATS Jurisdiction
Although the U.S. Supreme Court has not yet had occasion to rule on whether the ATS conveys universal civil jurisdiction, its decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), demonstrates the Court’s view that substantive limiting principles on the reach of the ATS for violations of the law of nations are required. According to Justice David H. Souter’s majority opinion, the ATS was intended by Congress to furnish jurisdiction only over a limited number of actions alleging violations of the law of nations, which can be characterized as specific, universal and obligatory norms. Any other result, Justice Souter noted, would permit an ATS claim for any violation, anywhere in the world, unauthorized by the law of the jurisdiction in which it took place.9
Indeed, the historical context of the ATS demonstrates that it was never intended to be an exercise of universal civil jurisdiction without any nexus to the United States. The Marbois Affair of May 1784, which was a catalyst for the passage of the ATS, involved an assault upon the secretary of the French Legation by Mr. Marbois, a Frenchman,10 in Philadelphia.11 The French minister to the United States lodged a protest and threatened to leave Pennsylvania if "full satisfaction" were not accorded.12 The Marbois Affair was commented upon during the Constitutional Convention by Secretary John Jay, who complained that the government did not have "any judicial Powers" to address the matter since the tort involved foreign citizens, which threatened the new nation’s conduct of foreign affairs.13
A review of other cases in the period of the enactment of the ATS also supports the proposition that the ATS was never intended to be wholly extraterritorial. Moxon v. The Fanny, 17 Cas. 942 (No. 9,895) (Pa. 1793), involved an ATS case in which the owners of a British ship sought damages for its seizure by a French privateer. Though the action was denied since it was found not to be a suit in "tort only," the British ship at issue had been seized in U.S. waters. In Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607) (S.C. 1795), the court assumed ATS jurisdiction in a suit brought by a French privateer against the mortgagee of a British slave ship found in U.S. waters. Finally, a 1795 opinion of the attorney general addressed the availability of the ATS, where American citizens had taken part in the French plunder of a British slave colony in Sierra Leone. These precedents, reviewed by the Supreme Court in Sosa, do not support the proposition that the ATS either reaches or is intended to confer subject matter jurisdiction over wholly extraterritorial torts, but require some nexus with the United States.
The Supreme Court’s citation in Sosa to Filartiga v. Pena-Irala, 630 F. 2d 876 (2d Cir. 1980), the Second Circuit decision that originated the modern rediscovery of the ATS, was not an open invitation to the lower federal courts to permit an exercise of universal civil jurisdiction under the ATS. Indeed, Justice Souter’s citation to Filartiga comes in the context of his remarks that "there are good reasons for a restrained conception of the discretion a federal court should exercise" in considering when and whether a cause of action lies under ATS.14 The Second Circuit has itself recently signaled that it seems to be backing away from a broad reading of its own 30-year-old opinion in Filartiga. In Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010) (as amended Dec. 21, 2010), reh’g en banc denied, 2011 U.S. App. LEXIS 2200, 79 U.S.L.W. 2125 (Feb. 4, 2011), the Second Circuit announced a new limiting principle on ATS cases and ruled that corporations may not be sued under ATS for violations of the law of nations.
C. The Text of the ATS and Universal ATS Jurisdiction
Universal ATS jurisdiction is also not supported by the ATS itself. When, as with the ATS, "a statute gives no clear indication of an extraterritorial application, it has none."15 Additionally, under the very terms of the ATS, the ATS reaches only claims in which the plaintiff is an "alien." While the statute does not define "alien," the term is defined in Black’s Law Dictionary (7th Ed. 1999) as a "person who resides within the borders of a country but is not a citizen or subject of that country." Under this definition, only those who are citizens of other countries, but resident in the United States, may bring claims under the ATS.
Before an extraterritorial ATS cause of action is available to a litigant, a court must first consider whether under international law it is reasonable to exercise jurisdiction in the case; that is, the court must determine whether the plaintiff has exhausted remedies in the domestic legal system where the events occurred.16 In Sosa, the Supreme Court explicitly reserved the issue of whether a prudential exhaustion requirement in extraterritorial ATS cases should apply. Noting that the European Commission in Sosa had argued as amicus curiae that principles of international law require a foreign claimant for a foreign tort to exhaust remedies in a domestic court, or in fora such as international claims tribunals, the Supreme Court said that "[w]e would certainly consider this requirement in an appropriate case."17 Permitting universal civil ATS jurisdiction without such an exhaustion rule thrusts federal courts into matters of foreign policy, including foreign wars, foreign civil unrest, foreign political disputes, and even foreign race discrimination, which is squarely at odds with the ATS’s lineage of opening the federal courts to claims in order to prevent disruption in relations between nations. As Judge Kleinfeld noted in his dissenting opinion in Sarei v. Rio Tinto PLC, 625 F.3d 561, 564, 79 U.S.L.W. 1573 (9th Cir. 2010), "the point of the ATS was to keep us out of international disputes, not to inject us into them."18
Notwithstanding the growing number of ATS claims, there is evidence of growing concern about the current reach of the ATS. Companies presented with the threat of an ATS claim may be able to assert a number of defenses, including that (i) an ATS cause of action does not exist in the absence of any nexus to the United States, (ii) corporations may not be sued under the ATS and (iii) the plaintiffs had not exhausted their domestic remedies. The D.C. Circuit will hopefully seize the opportunity presented by the ATS claim in the pending case of John Doe VIII, et al. v. Exxon Mobil to clarify and define the limits on the reach of ATS and ATS universal jurisdiction, but regardless of the result in that case, we expect that these matters will reach the Supreme Court sooner rather than later.