Remarks by Ingrid Wuerth
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) I. 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. II. 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. …
The Emerging Recognition of Universal Civil Jurisdiction
Modern international law takes as a fundamental value the condemnation and redress of certain categories of heinous conduct, such as genocide, torture, and crimes against humanity. Recognizing the need to end impunity for those crimes, international law permits a state, by the principle of universal jurisdiction, to prosecute them even when they take place outside its territory and do not involve its nationals. In virtually all domestic legal systems, an individual who engages in wrongful conduct causing personal inj ury or death will be subject not only to criminal prosecution, but to a civil action by the injured party. Yet, though the principle of universal jurisdiction is well established in the criminal sphere, it is still regarded as novel in the civil context. Recent developments—most notably the decision of the United States Supreme Court in Sosa v. Alvarez-Machain—will cause greater examination of the function and scope of universal jurisdiction as authorization for national courts to hear civil claims based on heinous conduct proscribed by international law. We here consider whether a civil dimension of universal jurisdiction has emerged, whether it should correspond to the criminal dimension, and whether its use as a basis of jurisdiction should depend on the absence of effective remedies in jurisdictions with traditional links to the proscribed conduct.
Universal Jurisdiction and Structural Reasonableness
I. INTRODUCTION Universal jurisdiction is rapidly becoming a pillar of international litigation that has been the subject of sustained attack. The notion that courts can adjudicate certain "universal" offenses that have no connection to the forum or any "reasonableness" limitations found in traditional bases of extraterritorial jurisdiction invites the judicial branch to arrogate political power and frustrate the delicate balance of power entrusted to the political branches.1 One prominent diplomat has warned that pushed to its extreme, universal jurisdiction "risk[s] substituting the tyranny of judges for that of governments."2 It has been argued that unlike in criminal proceedings, the exercise of universal jurisdiction in civil litigation over offenses that have no nexus to the forum vindicates none of the state's traditional interests.3 As one critic put it, "civil judicial relief by the courts of a political system far removed from the events that it seeks to regulate is not only a blunt tool, but is entirely inadequate for the task."4 This article offers a response to such criticism. It argues that universal jurisdiction can be legally and politically justified within the inherent structure of civil litigation. The American system provides ample political checks on the unreasonable judicial extension of domestic law to international events and obviates any threat to traditional separation of powers. Indeed, within the framework of international litigation, various affirmative defenses and procedural requirements check and balance judicial power to resolve suits for which universal jurisdiction may exist.5 These doctrines and procedural mechanisms include (1) the political question doctrine, (2) the forum non conveniens doctrine, (3) the act of state doctrine, (4) the doctrines of foreign sovereign immunity and head-of-state immunity, (5) the doctrine of international comity, (6) the presumption against extraterritorial application of domestic statutes, (7) statements of interest interposed by the United States and foreign sovereigns, and (8) substantive burdens of proof for universal jurisdiction. While these legal constructs may not all be available in each case, twenty-four years of human rights litigation evidence that at least one, and usually more, are considered by the courts and can be dispositive to the suit. In fact, these doctrines have been responsible for the dismissal of an overwhelming percentage of all civil suits brought in U.S. courts to vindicate human rights violations. Based on a review of over ninety human rights cases brought since 1980, approximately eighty percent have been dismissed based on one or more of these doctrines.6 Of the remaining twenty percent, a large number proceeded with explicit endorsement from the political branches.7 Together, these procedures and doctrines permit the interplay of interests between the political branches' constitutional grants of power to conduct foreign affairs and the federal courts' rights claims.8 Most scholarly and judicial analysis of universal jurisdiction has been within the context of criminal prosecution.9 There is less controversy in the criminal context given the structural limits on the extension of prescriptive jurisdiction for criminal liability as well as constitutional limits on congressional power to extend criminal jurisdiction extraterritorially.10 However, the Supreme Court has recently acknowledged that "universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well."" This article will demonstrate that in civil litigation, structural limits also exist that reasonably restrict the extraterritorial jurisdiction of domestic law over offenses with an attenuated connection to the United States. The limits of the extraterritorial extension of domestic jurisdictional statutes are a question of prescriptive jurisdiction.12 It is relevant to the question of the scope of the primary statutes that provide subject matter jurisdiction for human rights abuses: namely the Alien Tort Claims Act (ATCA) and the Torture Victim Protection Act (TVPA). …