This brief symposium Essay addresses whether and in what ways the Alien Tort Statute (ATS) constitutes an exercise of prescriptive jurisdiction by the United States to regulate conduct or an exercise of adjudicative jurisdiction by U.S. courts to entertain suit, as well as the implications of that classification. The Essay begins with a central and hotly contested focal point in ATS suits — most prominently, in Kiobel v. Royal Dutch Petroleum recently decided by the Supreme Court. Namely: how to conceptualize the applicable law in ATS suits and, more specifically, whether courts apply international law directly or some form of U.S. common law that may or may not reflect international norms. The Essay explains that the Court in Kiobel basically answered this question correctly by finding that international law supplies the applicable conduct-regulating rule under the statute; and therefore, the ATS does not constitute an exercise of prescriptive jurisdiction. But, the Essay argues, the Court then misguidedly applied a novel presumption against extraterritoriality to the ATS. As the Essay contends, the Court couldn’t apply the presumption to the conduct-regulating rule authorized by the statute since, as noted, that rule comes from international law, which applies everywhere. Because the conduct-regulating rule comes from international, not national, law there is no uniquely U.S. law to which the presumption could apply. International law, on the other hand, prescribes conduct-regulating rules the world over and thus its application is never really extra-territorial since it covers the globe, particularly with respect to universal jurisdiction violations. Unable to apply a presumption against extraterritoriality to the conduct-regulating rule under the ATS, the Court in Kiobel seized upon the cause of action authorized by the ATS as the relevant creature of U.S. law to which the presumption applied. This move was not only novel, but also problematic. The presumption has traditionally applied only to exercises of U.S. jurisdiction to prescribe conduct-regulating rules over persons or things abroad. Jurisdictional statutes are not, as the Kiobel Court itself noted, conduct-regulating rules; instead, they go to a court’s jurisdiction to entertain suit. As such, these statutes relate principally to adjudicative, not prescriptive, jurisdiction. A presumption against extraterritoriality has not traditionally applied to these statutes because, simply put, they aren’t extraterritorial — and, crucially, this is so even when the activity underlying the claims authorized by the statute take place abroad. To be sure, the Supreme Court recently went out of its way to make precisely this point in another case involving the presumption against extraterritoriality: Morrison v. National Australia Bank — the very case on which Kiobel overwhelmingly relies for both its reasoning and its result. In sum, Kiobel’s extension of a presumption against extraterritoriality to the ATS is not only conceptually misguided and doctrinally unsound, it also contradicts the Court’s own most recent precedent.
Maryland Journal of International Law
Anthony J. Colangelo, Kiobel: Muddling the Distinction between Prescriptive and Adjudicative Jurisdiction, 28 Md. J. Int'l L. 65 (2013)