“Or a Treaty of the United States”: Treaties and the Alien Tort Statute After Kiobel
The decision in Kiobel v. Royal Dutch Petroleum Co. left open a number of questions about the scope of the Alien Tort Statute (ATS). One such question is the extent to which Kiobel ‘s holding on extraterritoriality applies to the oft-neglected final words of the ATS: “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.”What if one such treaty obliged the United States to provide a civil forum for litigation ofhumanrights violations that occurred abroad and did not involve piracy?
CONTEMPORARY PRACTICE OF THE UNITED STATES RELATING TO INTERNATIONAL LAW: United States Signs One-Hundredth Article 98 Agreement
In June 2010, the U.S. Supreme Court held unanimously that key provisions of the U.S. securities laws do not apply to a private suit involving a so-called “foreign cubed” securities case, where a foreign purchaser purchased foreign securities from a foreign seller in a foreign securities market. In an opinion by Justice Scalia in Morrison v. National Australia Bank, the Court emphasized the presumption that U.S. statutes should be read not to have extraterritorial effect, absent contrary congressional intent. Eight justices concurred in the result. Justice Sotomayor did not participate; Justices Breyer and Stevens wrote separate opinions. The Australian plaintiffs in the case bought shares of National Australia Bank (National) on the Australian Securities Exchange. National subsequently had to write down the value of its U.S. subsidiary HomeSide Lending, a mortgage-servicing company headquartered in Florida. The plaintiffs alleged that HomeSide and its officers concocted fraudulent financial results inflating the company’s value, and that National knew of this scheme. Plaintiffs sued in U.S. District Court for the Southern District of New York, alleging violations of sections 10(b) and 20(a) of the Securities and Exchange Act of 1934 and Securities and Exchange Commission Rule 10b–5. The district court dismissed the case for lack of jurisdiction. The U.S. Court of Appeals for the Second Circuit affirmed, applying a body of case law that it had developed regarding the extraterritorial reach of the U.S. securities laws. In brief, these earlier cases assumed that Congress had not considered the question of extraterritorial reach when the securities laws were adopted. Accordingly, a court should attempt to discern what Congress would have done had it addressed the issue. Starting from this premise, the lower courts (particularly the Second Circuit) developed tests to determine whether particular foreign conduct would fall under the U.S. securities laws. In a strongly worded opinion by Justice Scalia, the Supreme Court decided that the case should, indeed, be dismissed, but not for lack of jurisdiction. Instead, the Court viewed the territorial reach of the U.S. securities laws as a merits issue and concluded that they did not reach the transaction at issue. The Court stressed in this context that unless Congress indicates a contrary intent, its enactments apply only within the territorial jurisdiction of the United States.
The 2004 Judicial Activity of the International Court of Justice
During 2004 the International Court of Justice decided three important matters. In March the Court found that the United States had violated the Vienna Convention on Consular Relations with respect to a number of Mexican nationals sentenced to death in U.S. state court proceedings. In a much-noted advisory opinion, the Court concluded in July that Israel's construction of a security wall or fence in occupied Palestinian territory violated international law. And in December it found that it did not have jurisdiction over Serbia and Montenegro's claims against eight NATO countries regarding NATO's 1999 bombing campaign aimed at halting the conflict in Kosovo. In other developments, the Court heard and had under deliberation Germany's preliminary objections to Liechtenstein's suit regarding certain property of Crown Prince Adam. Finally, Judge Gilbert Guillaume, a member of the Court since 1987 and its former president, announced that he would resign in February 2005.