II- The need for curbing the undesirables’ effects of the Statute

  1. Striking the right balance between redressing atrocious crimes & comity principles

American Courts’ jurisdiction under the ATS may bring about risks of interference with other Sovereigns. By asserting jurisdiction over overseas’ violations of human rights whose perpetrators settled in America, U.S Courts run the risk of disrupting foreign relation vis-a-vis the country wherein the proscribed conduct occurred. How therefore to strike the right balance between the U.S refusal to become a shelter for perpetrators of Human rights’ violations and comity principles under international law?

For instance, if the U.S were to assert jurisdiction for alleged human rights violations committed on Russian or China’s soil, how would their respective governments react? The U.S department of justice, and the U.S foreign secretary of State would likely ask the federal court to dismiss the claim on foreign policy grounds, but it would, in turn, raise a tough question of separation of powers. Indeed, the U.S Constitution vests foreign policy powers in the President.

Article II section II of the U.S Constitution provides: “ He –the President- shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for’.

In expanding the ATS’ reach to cover overseas’ violations of the law of nations, the judiciary might end up impinging upon the executive power. Such a risk of disruption in the balance of powers should not go underestimated. In addition, issues of adverse foreign policy consequences are not theoretical. Many countries have expressed concerns about the ATS’ extraterritorial reach and its possible disruptive consequences on foreign relations. For instance, in Doe v. Exxon[6] Germany, U.K, Canada and Switzerland have all filed briefs requesting dismissal of the ATS lawsuit.

2. The first limitation of the ATS’ scope in Sosa

In a Sosa[7] case, the U.S Supreme Court was due to interpret the scope of the ATS. The issue in Sosa was twofold:

  • Whether the Alien Tort Statute permits private individuals to bring suit against foreign citizens for crimes committed in other countries in violation of the law of nations? 

The Court held that those lawsuits were permitted under the ATS but added that a tort committed in violation of the law of nation was to be defined by reference to the violation of “international law”. In a word, such extraterritorial reach of the ATS was possible on the condition that the overseas’ crime rose to the level of a narrow set of violations of the law of nations (…) with definite content and acceptance among civilized nations. The notion of law of nations had to be construed narrowly. The Court recognized private rights of action to aliens with the utmost caution so as not to bring about “risks of adverse foreign policy consequences[8]. ”

At first, justices set out the competing interests to be balanced. The majority indicated that the ATS encompassed “a narrow set of violations of the law of nations, admitting of a judicial remedy[9].” In deciding the case, the Supreme Court had to address two concerns. First, it should be careful not to threaten the conduct of international affairs. A too broad assertiveness of jurisdiction under the ATS, might result in adverse foreign policy consequences. Second, it had to be cautious not to disrupt the separation of powers enshrined in the Constitution. It recalled, “Courts should be wary of impinging on the discretion of the legislative and executive branch in managing foreign affairs.

The method for solving this complex legal issue consisted in applying the presumption against extraterritorial application[10] of a U.S Statute, which provides that only when Congress has clearly stated its intent of extending the geographical reach of the Statute, will the presumption against extraterritoriality be rebutted. Accordingly, the Supreme Court pointed out that “there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms[11]’

In a word, absent clear intent to the contrary, the ATS cannot cover overseas’ conduct. Only when conduct amounts to a narrow set of violations of the law of nations- (…) with definite content and acceptance among civilized nations by reference to international law is Congress deemed to have expressed its will to put aside comity principles.

  • Whether an individual may bring suit under the ATS for an arbitrary arrest that was planned in the United States but carried out in a foreign country?

The Court explained that the very notion of the violation of the law of nations had to present the following requisites: ‘definite content and acceptance among civilized nations[12].” It however pointed out that a general consensus regarding acts of torture, war crimes, genocide and crimes against humanity as substantive violation of the law of nations existed.

Although not ratified by the U.S, the penal statute of the ICC may have proven helpful in reaching that consensus. The ICC subject-matter jurisdiction -that extends to crimes of genocide, crimes against humanity and war crimes- parallels the general consensus existing as to the substantive violations of the law of nations. The crime of torture falls within the scope of the ATS subject-matter jurisdiction while torture per se is insufficient to entail subject-matter jurisdiction under the ICC’ Rome Statute. However, one should keep in mind that torture is a means of achieving the three most egregious crimes over which the ICC exert subject-matter jurisdiction.

After providing those guidelines, the justices had to determine the case at hand. The Supreme Court rejected that abduction across international boarder could give rise to liability under the ATS. Well aware of the risks of an overbroad construction, justices stroke a new balance: Petitioners could not obtain relief under the ATS although arbitrary detention would trigger liability under domestic law on grounds of false imprisonment. Hence, the standard of a violation of the law of nations under the ATS’ claim is far more difficult to meet than that of a mere violation of domestic law.

While this recognition of the extraterritorial reach of the ATS in extraordinary circumstances represents a progress for the protection of human rights, it is has been made at the expense of International law’s principles, which tend to restrict the extraterritorial application of the law of a Sovereign. How therefore to balance the need for preventing America to become a safe-heaven for criminals with comity principles restricting the extraterritorial reach of a domestic law? Has the right balance been stricken? 

Sosa represents both of an assertion of the possibility of an extraterritorial reach of the ATS and a narrow construction of the requisites that could entail rebuttal of the presumption. It, however, did not provide, a clear-cut framework for spotting under which conditions could the presumption be rebutted. A new case was required for the Supreme Court to craft a clearer framework. 

3. Kiobel’s legal framework: balancing jurisdiction under ATS with comity principle 

3.1. Kiobel’s takeaways

Petitioners filed a complaint in a U.S federal court, contending that a subsidiary of Shell Company had aided and abetted killings, rapes, beating, burning down of dwelling houses. In a word, plaintiffs contended that the corporation in doing so had violated the law of nations, for which the ATS grants relief. They claimed that under customary international law, corporations could be held liable for aiding and abetting a violation of the law of nations.

The Supreme Court agreed to hear Kiobel in 2011. In the process, however, it added to the original question - whether a Dutch corporation operating in Kenya could be held liable for aiding and abetting a violation of the law of nations - another one: “whether and under what circumstances the ATS could recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the US? Logically, the issue raised by the Supreme Court had to be addressed first since that answer would in turn shape the answer to the more specific question. 

3.1.1 The question raised by the Court: “whether and under what circumstances the ATS could recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the US? ”

In Sosa, the Supreme Court stressed both the principle and importance of the presumption against extraterritorial application of the law. Such a presumption provides that “when a statute gives no clear indication of an extraterritorial application, it has none[13]”. Its rationale is “to protect against unintended clashes between our laws and those of other nations which could result in international discord[14] ”

Consistent with accepted methods for interpreting the law, it looked first to the intention of the drafters; the history of the Statute; admitted instances of violations of the law of nations when the Statute was voted. The Supreme Court held that “there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms’.

To reach an outcome, the Supreme Court had to take into account both diplomatic and economic interests. In this respect, many countries had filed briefs in the U.S Supreme Court warning about adverse consequences on international relations, were the ATS to be applied too broadly, thereby expressing their attachment to the presumption against extraterritorial application of the law.

The question therefore morphed into a more specific one, namely: is it possible to rebut the presumption against extraterritoriality and if so, under which circumstances?

It ruled that a violation of the law of nations committed outside the United States could give rise to a claim under the ATS in two exceptional cases:

  • if the defendant is a U.S citizen. 
  • the claim touches and concerns the territory of the US with sufficient force. 

Only when either of those was met, could the presumption against the exterritorial application of the law be displaced. Among the majority, four justices were more specific, suggesting three instances in which the presumption could be rebutted.

  • When the violation of the law of nations occurred within the forum State.          
  • When the defendant is a U.S citizen.
  • When the conduct impairs an important national interest of the State. 

Some argued that the need to ensure that the U.S does not become a safe-harbor for perpetrators of the most atrocious violations falls within the scope of a national interest. 

3.1.2 Petitioner’s’ question: Does jurisdiction under the ATS apply where the alleged conduct in violation of the law of nations occurred overseas by a foreign corporation, whose presence in the US consist of a mere office?

Applying this legal framework to the case, the majority concluded that under the circumstances, ties to the U.S were too indirect and remote to justify a distinct American interest in preventing the U.S from providing a safe harbor to atrocious criminals. Applying this “touch and concern the territory of the U.S with sufficient force” criterion will lead courts to implement a balancing test.

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While Kiobel represents a noteworthy clarification, the Supreme Court has not provided a framework for assessing with greater accuracy which circumstances will make the balance lean one way or another. At this stage, many unresolved questions remain. Each needs to be addressed.