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.