Kiobel, extraterritoriality and the ATCA

March 7, 2013

By Francisco J. ZAMORA CABOT, Professor of Private International Law at the University Jaume I, Castellon, Spain.

The issue of extraterritoriality is currently envisaged as one of the keys to the resolution of the well-known and crucial Kiobel case, before the Supreme Court of the United States, which we are expecting any time now. However, the Alien Tort Claims Act (ATCA) has nothing to do with extraterritoriality. That legislative text and its judicial practice must be maintained in the field of international torts on human rights, they are special illegal acts that have to be solved through the interplay of the Conflicts of Laws and Public international law. In no way, that legal text and its practice portray an imperialistic position on the part of the United States in front of other States, or an excess of jurisdiction vis-a-vis the Law of Nations. Quite simply, the attempt to place ATCA out of its scope should be rejected, and has to be considered as mischievous and/or arbitrary.

There is a clear distinction between this practice and the prior extraterritorial practice of the US with regards, for example, to economic sanctions policy, and its legal heritage. This last category includes Section 301 et seq. of the Trade Act of 1974 and its implementation regarding the issue of Siberian Pipeline and the so called Cuban Embargo and the rules that shape it, among them the notorious Helms-Burton Act. A close look at those instruments serves to distinguish them without the faintest possibility of mistake from the ATCA and its practice, in essence, a clear abandonment by the United States of its conspicuous exceptionalism as far as human rights are concerned on behalf of the search of leadership over them, following a universalist position.

Comparing the aforesaid practice of the United States related with the ATCA and the exercise of the various types of jurisdiction of that Country, with the mandates of the Law of Nations, it can be assumed that there is no inconsistency with the performance of the United States, making it unnecessary to position such a practice in the dark realms of the conflicts of extraterritoriality, where the opponents of ATCA try to place it. Moreover, the acts covered by the ATCA should be classified as special torts, as sustained by the Court of Appeals for the Second Federal Circuit in the famous Filártiga case, and that can be solved by the usual ways of the Conflicts of Laws, with some help, as special they are, indeed, of Public international law.

To conclude, irrespective of the result of Kiobel case, it is necessary to continue the struggle that has been so bravely developed before the United States federal courts in favour of human rights and the victims of gross violations, in any forum available. A fight in which the United States, after opening its courts to such victims, outstands as  a guiding light to the international community.

The author’s article “Kiobel and the Question of Extraterritoriality” is available here.

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4 Responses to “Kiobel, extraterritoriality and the ATCA”

  1. Joshua Says:

    With respect, the question is whether a statute enacted in 1789 was meant to apply to cases that have no nexus whatsoever to the United States. You admitted that the path undertaken by the Second Circuit in Filartiga is the exception, wouldn’t that prove that this universalist approach was NOT customary international law in the eighteenth century? Wouldn’t this mean that the statute somehow expanded its meaning over two centuries to become something that could not have been envisioned by American legislators in 1789? At its core, THAT’s what the extraterritoriality argument is about in Kiobel–NOT whether an expansionist reading of the statute would be permissible under customary international law today for universal human rights violations, but whether that approach was what the First American Congress intended when they wrote it down and voted it into law.

    • Francisco Javier ZAMORA CABOT Says:

      With all due respect, I would like to state that the cases are indeed connected to the United States, since there exists at least a relevant nexus with the defendants that allows the federal courts to exercise their jurisdiction to adjudicate. From that point on, we find many other cases in which the Conflict of Laws plays a main role: the international torts litigations. And that is what the United States Court of Appeals for the Second Circuit maintained in its resolution of the Filártiga case. So, the same solution has been reached and developed in many other subsequent cases about the ATCA In the federal courts. May the ATCA be activated to confront cases about gross violations of the Law of Nations, or may the rules of this Law be taken into consideration through the federal common law to decide a case, it only reflects the special features of the aforesaid litigations. That is my point of view and how the application of the ATCA in these cases is a unique example for the world. If the United States wants to keep playing the center stage in this extremely important question for the defence of Human Rights or if it decides to remain silent, it is its decision and entire responsibility. Certainly, the historical arguments may lead us back to the moment in which Moses went to the Mount Sinai and brought us the Ten Commandments, or even when the Hammurabi Code was written. However, victims of human rights violations must be redressed and this is not a question of the past, unfortunately, it is a current and very urgent need. I hope that the United States keeps sharing this idea, now by the USSC’s incoming decision.

  2. Joshua Says:

    This is wrong. Personal jurisdiction may be necessary, but it is not sufficient to satisfy “the nexus rule” under international law.

    I completely share your position that the United States SHOULD lead the world in supporting human rights, but don’t believe that re-imagining an eighteenth century law is the right way to do that in a democracy. That’s simply an abuse of what the rule of law is supposed to mean. The Congress enacted a law as recently as 1992 to ratify Filártiga with the Torture Victims Protection Act. It still possesses the power to enact a similar law as you would have the ATS to mean–that is, one explicitly embracing universal civil jurisdiction–as many other American laws have been written.

    • Francisco Javier ZAMORA CABOT Says:

      We use different approaches. For me, ATCA torts are special ones, which can be dealt with by means of Conflict of Laws and Public International Law. If personal jurisdiction can be assumed internationally, as it has been the case and all other procedural conditions are met, there are not, in my view, any more problems to be taken into account. From the time of Jacob Baldwin, the glossator, a distinction is made between jurisdiction and process and the merits of the case. In addition to the fact that ATCA is a jurisdictional norm, mainly a jurisdiction reservation in favour of federal courts, the fact that United States law is applied through federal common law is not banned by the Law of Nations and cannot be banned, because such common law, in these cases, assumes the mandates of the Law of Nations in matters of capital importance, like the defense of human rights vis à vis gross violations against them all over the world. A great manifestation, if I may say so, of the Rule of Law. On the other hand, to fossilize the ATCA at the time it was passed, does not correspond with the question made by the USSC in this case, nor with the importance of such case law, ever since the Filartiga case, nor with the statutory interpretation that must be done in a legal system as advanced as that of the United States. Obviously, the legislator can step in, but it can also allow judges to adapt statutory texts to the reality of the moment in which they do justice. This is foreseen, for instance, in art. 3(1) of the Spanish Civil Code.

      I am very grateful for the attention you have given me and I wish, like you, that the US continue to support the defense of human rights all over the world, because I feel a great respect for that Country, as a result, inter alia, of decades of study of its legal system. Here, concerning the ATCA, of course, they are already doing it as it fits a true leader. Thanks again and, as far as I am concerned, I leave this conversation here.


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