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.
Avian infectious bronchitis.
Avian infectious bronchitis (IB) is caused by the gammacoronavirus infectious bronchitis virus (IBV). The virus causes infections mainly in chickens and is a significant pathogen of commercial meat and egg type birds. IB is an acute, contagious disease characterised primarily by respiratory signs in growing chickens. In hens, decreased egg production and quality are often observed. Some strains of the virus are nephropathogenic and produce interstitial nephritis and mortality. The severity of IBV-induced respiratory disease is enhanced by the presence of other pathogens, including bacteria, leading to chronic complicated airsacculitis. Diagnosis of IB requires virus isolation or demonstration of viral nucleic acid from diseased flocks. Demonstration of a rising serum antibody response may also be useful. The widespread use of live and inactivated vaccines may complicate both the interpretation of virus isolation and serology findings. The occurrence of antigenic variant strains may overcome immunity induced by vaccination.