Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

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No. 10-1491 -

U.S.

JUN 1 2 262

wt. THE CLERK

laa IN THE

oN Supreme Court of the United

ESTHER KIOBEL, INDIVIDUALLY AND

ON BEHALF OF HER LATE HUSBAND,

DR. BARINEM KIOBEL, et al.,

Petitioners,

ROYAL DUTCH PETROLEUM CO., et al.,

Respondents.

On Writ oF CERTIORARI TO THE

UNITED StaTEs Court oF APPEALS FOR THE SECOND CIRCUIT

BRIEF OF THE EUROPEAN COMMISSION

ON BEHALF OF THE EUROPEAN UNION

AS AMICUS CURIAE IN SUPPORT

OF NEITHER PARTY

STEVEN ALAN REIss

Counsel of Record

GREGORY SILBERT

Karin S. PorTLOCK

WEIL, GOTSHAL &

Mances LLP

767 Fifth Avenue

New York, NY 10153

(212) 310-8000

steven.reiss@weil.com

Counsel for Amicus Curiae

- a

“~“4ar “ora ceH

- , Hasreress

June 13, 2012 a . awl Tey

TABLE OF CONTENTS

TABLE OF AUTHORITIESG..................cccsecssesesseeeees ili

STATEMENT OF INTEREST ................ccccsesseeeseeeeees 1

SUMMARY OF ARGUMENT .....00.........cccccsccesseeeeeeees 3

IT ‘detsinnnnusninicainiancaiiniiatinniaemsennenateninninis 5

1. The Jurisdictional Limits of the Alien

Tort Statute Should Be Defined by

Reference to International Law...................... 5

A. United States Courts Apply

International Law When

Determining the Extraterritorial

nn senisasibicsninesede 5

B. International Law Authorizes the

Extraterritorial Application of

the ATS When Confined to

Internationally-Recognized Bases

ee atc cidstnindssntiisaneuninmien 8

1. Prescriptive Jurisdiction

Based on Nationality or

the Protective Principle Is

Consistent with

International Law .................... 11

2. Limited Universa! Civil

Jurisdiction Is Consistent

with International Law............ 13

a. Universal Criminal

Jurisdiction Is Well-

Established Under

International Law. ......... 14

b. Universal Civil

Jurisdiction for ATS

Claims Comports

with the

Justifications for

Universality Under

International Law ......... 17

c. Relevant European

Union Law and

ii aie etiiaiaieasial 23

Il. The United States’ Exercise of

Universal Civil Jurisdiction Must Be

Constrained by Substantive and

Procedural Limitations Imposed by

ESE ST oa 26

A. When Universal Civil

Jurisdiction Arises Under the

Alien Tort Statute, International

Law Must Define the Narrow

Category of Cognizable Claims .......... 27

B. International Law Contemplates

Mandatory Exhaustion of Claims

Giving Rise to Universal Civil

5 EERIE New ROR CL TO 30

EIT tsietditenticninisnniviinintiadvinihbubinnbinviendemnionnenien 36

TABLE OF AUTHORITIES

Page(s)

CASES

ARC Ecology v. U.S. Dep't of Air Force,

411 F.3d 1092 (Oth Cir. 20085) ...................ccccccssssseeee 7

Baloco ex rel. Tapia v. Drummon.? Co., Inc.,

640 F.3d 1338 (11th Cir. 2011)...............ccccceeeeees 4

Chavez v. Carranza,

559 F.3d 486 (6th Cir. 2009)....0... 0000... ceecceeeee eee 4

Doe v. Exxon Mobil Corp.,

ps FE fa )) en 3

Enahoro v. Abubakar,

408 F.3d 877 (7th Cir. 2005).............ccccceeeeee seen 35

F. Hoffman-La Roche Ltd. v. Empagran, S.A.,

TE, BE i ccccssessnicsurssinniintaninninaiieiliciaialen 6, 8

Filartiga v. Pena-Irala,

630 F.2d 876 (2d Cir. 1980) .........000....... 3, 13, 22

Flomo v. Firestone Nat. Rubber Co., LLC,

643 F.3d 1013 (7th Cir. 2011)... 3, 29

Goodyear Dunlop Tires Operations, S.A. v.

Brown,

SE TD. Ge, I I eievecictenceeenanal 22

Hartford Fire Insurance Co. v. California,

gk EL. re 5, 7, 8

In re Estate of Marcos Human Rights Lit.,

25 F.3d 1467 (9th Cir. 1994) .00.........ccceeeeeeceeee es 29

In re Hijazi,

589 F.3d 401 (7th Cir. 2009)...............ccccceceeeeeeees 7

Int'l Shoe Co. v. State of Wash., Office of

Unemployment Comp. & Placement,

en 22

Kadic v. Karadzic,

I, BED ccc cccccccccvccccsvovesecoscoses 13

Kiobel v. Royal Dutch Petroleum Co.,

BE ee BEE GOR Ge, BORG .ccccceccccccccccccssccceess 29

Litecubes, LLC v. N. Light Products, Inc.,

523 F.3d 1353 (Fed. Cir. 2008) ...........00.......c.s00ee 7

McCulloch v. Sociedad Nacional de Marineros

de Honduras,

EE 6

Morrison v. National Australia Bank Ltd.,

Se, Ge, GE GIN... .. .ccccnsceccccvcconcncesosoocees 6, 7

Murray v. Schooner Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) .......0.......000.. 4,5, 6,7

Sarei v. Rio Tinto,

671 F.3d 736 (9th Cir. 2011).........0...000.. 3, 23, 32

Sarei v. Rio Tinto, PLC,

550 F.3d 822 (9th Cir. 2008)................. 13, 34, 35

Societe Nationale Industrielle Aeropatiale v.

U.S. District Ct. for the S. Dist. of Iowa,

iii iii eed: 31

Sosa v. Alvarez-Machain,

Se ne iiiiitencapennnininecciinimetessaiiini passim

Spector v. Norwegian Cruise Line Ltd.,

i: Be iiinainincicalienebinnineitiiinnlindubasids ~

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984)... cece eee eeee eens 29

United States v. Clark,

435 F.3d 1100 (9th Cir. 2006).........000.00cccc cece eee 6

United States v. Corey,

232 F.3d 1166 (9th Cir. 2000).......000...0.c cece eee e ee 10

United States v. Diekelman,

Se I i csteitettairipnennpnrnnebiaimeneemeniin 32

United States v. Hill,

279 F.3d 731 (9th Cir. 2002).......... ccc ccc cece eeeeeeee 10

United States v. MacAllister,

160 F.3d 1304 (11th Cir. 1998) .....0...... cee 10

United States v. Nippon Paper Inds. Co., Ltd.,

| f 5 o_O 7

United States v. Vasquez- Velasco,

15 F.3d 833 (9th Cir. 1994)...............ccccccccccsseseees 6

United States v. Weingarten,

re ee te ED eeccerrcctencntccnnsnnnnesitinns 12

United States v. Yousef,

327 F.3d 56 (2d Cir. 20038) ..................csesessesorees 10

Yousef v. Samantar,

562 F.3d 371 (4th Cir. 2008).............:s.ccccccroreseees 4

FEDERAL STATUTES

Alien Tort Statute, 28 U.S.C. § 1350 ............. passim

Torture Victim Protection Act of 1991,

Pub.L. No. 102-256, 106 Stat. 73 (Mar.

ARR eel en lee neaen nana meenre” passim

NON-UNITED STATES CASES

Accordance with Int’ Law of the Unilateral

Declaration of Independence in Respect of

Kosovo, Advisory Opinion, 2010, I.C.J. 1,

a ata ieiibld 9

Arrest Warrant of 11 April 2000 (Democratic

Republic of the Congo v. Belgium), 2002

fF | See eee 9, 21

Case C-412/98, Group Josi Reinsurance Co. v.

Universal General Ins. Co., 2000 E.C.R. I-

Cour d’Assises [Cour. ass.] [Court of Assizes]

Brussels, July 5, 2007, THE CASE OF THE

RRR EES EARS cs SSO 25

Ould Dah v. France,

Decision on Admissibility, App. No.

13113/03 (Eur. Ct. H.R. Mar. 17, 2009) ........... 15

Rechtbank’s Gravenhage, 21 maart 2012, No.

400882/HA ZA 11-2252 (El-Hojouj/Derbal

I a

S.S. Lotus (France v. Turkey), 1927 P.C.1.J.

(ser. A) No. 10, at 19 (Sept. 7). .................ceeeees

SECONDARY LITERATURE

1 OPPENHEIM’S INTERNATIONAL LAW § 136 (Sir

R. Jennings and Sir A. Watts, eds., 9th ed.

RATS SANE Se RTE Re at Seen ool ONE oe na er Re

K. Lee Boyd, Universal Jurisdiction and

Structural Reasonableness, 40 TEX. INTL

ee Oe ee iniaasncitdaeaiiscscncanenicenintannieniatgtntiaionsive

Curtis A. Bradley, Universal Jurisdiction and

U.S. Law, 2001 U. CHI. LEGAL F. 323

Anthony J. Colangelo, A Unified Approach to

Extraterritoriality,

97 VA. L. REV. 1019 (2011) oo... ..eeeeeeeeeeeeeeeeeee

Developments in the Law—Extraterritoriality,

124 HARV. L. REV. 1226 (2011) ©0000... eee

Donald Francis Donovan and Anthea Roberts,

The Emerging Recognition of Universal

Civil Jurisdiction, 100 AM. J. INT'L 142

. 25

YVES DONZALLAZ, LA CONVENTION DE LUGANO

DU 16 SEPTEMBRE 1998 CONCERNANT LA

COMPETENCE JUDICIAIRE ET L’EXECUTION

DES DECISIONS EN MATIERE CIVILE ET

COMMERCIALE 94 5203-72 (Stampfli 1998) ....

Christopher Keith Hall, The Duty of States

Parties to the Convention Against Torture

to Provide Procedures Permitting Victims

to Recover Reparations for Torture

Committed Abroad,

18 Eur. J. INTL L. 921 (2007) .....00.....eeeeeeeee

John H. Knox, A Presumption Against

Extrajurisdictionality, 104 AM. J. INT'L L.

TT RTS RSET AL Neer Pa Atalanta ame

Kathryn Metcalf, Reparations for Displaced

Torture Victims, 19 CARDOZO J. INT’L &

I a OO il

Arnaud Nuyts, Study on Residual Jurisdiction

(Review of the Member States’ Rules con-

cerning the “Residual Jurisdiction” of their

courts in Civil and Commercial Matters

pursuant to the Brussels I and II Regula-

tions), GENERAL REPORT (final version dat-

ed Sept. 3, 2007), ch. 16, 21 .........ccccceceeeeseceee eee

PRINCETON UNIV. PROGRAM IN LAW & PUB.

AFFAIRS, THE PRINCETON PRINCIPLES ON

UNIVERSAL JURISDICTION (2001) ................06+-

Luc REYDAMS, UNIVERSAL JURISDICTION: INT’L

& MUNICIPAL LEGAL PERSPECTIVES 5 (Ox-

ford University Press 2004)..............ccccccecccceees

CEDRIC RYNGAERT, JURISDICTION IN

INTERNATIONAL LAW 9, Oxford University

Cedric Ryngaert, Universal Tort Jurisdiction

Over Gross Human Rights Violations, 38

NETHERLANDS YEARBOOK OF INT’L LAW 25-

Ba ee eceiiihensescaltiicienlcenccnteinitabinbiniiitioneiinncsinien

Leila Nadya Sadat, Exi/e, Amnesty and

International Law, 81 NOTRE DAME L. REV.

Ne ncicniininsinensinnmnanicinunsnnmiassiiactinemianeetnn

Thomas Schultz, Carving Up the Internet: Ju-

risdiction, Legal Orders, & the Pri-

vate/Public International Law Interface, 19

Eur. J. INTL L. 799 (2008)...........cceceeeeeeeeeeees

Dan E. Stigall, Jnternational Law and Limita-

tions on the Exercise of Extraterritorial Ju-

risdiction in U.S. Domestic Law, 35

HASTINGS INT'L Comp. L. REV. 323 (2012).......

Ingrid Wuerth, The Alien Tort Statute and

Federal Common Law, 85 NOTRE DAME L.

MISCELLANEOUS

Africa Legal Aid, The Cairo-Arusha Principles

of Universal Jurisdiction in Respect of

Gross Human Rights (2002) ................s00000000+s

Amnesty International, Universal

Jurisdiction: The Scope of Universal

Jurisdiction, 5, Al Index: IOR 53/008/2007

IIIT sisi iahninitdinidiieisidhbahnceicanisibdiiiiiabedabien 18, 19

AU-EU Report, Technical Ad Hoc Expert

Group on the Principle of Universal Juris-

diction, AU-EU Expert Report on the Prin-

ciple of Universal Jurisdiction, 8672/1/09

REV1 (Apr. 2009) ............ccccccecesceeeseeesees 14, 15, 16

Brief of Amicus Curiae the European Commis-

sion in Support of Neither Party, Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004), Nos.

Be es I cecccnccsusecncesncesetnasctennsncenncensees passim

Brief of Amicus Curtae Navi Pillay, the United

Nations High Commissioner for Human

Rights in Support of Petitioners, Kiobel v.

Royal Dutch Petroleum Co., No. 10-1491

I iain cicriasie claret 20

Brief of Amicus Curiae the Federal Republic of

Germany in Support of Respondents, A7-

Obel v. Royal Dutch Petroleum Co., No. 10-

SSO ene ne 32

COMMITTEE ON INT’L HUMAN RIGHTS LAW &

PRACTICE, INTL LAW Ass’N, FINAL REPORT

ON THE EXERCISE OF UNIVERSAL

JURISDICTION IN RESPECT OF GROSS HUMAN

RIGHTS OFFENCES 4-9 (2000) ...............c0000eeecees 14

Council Regulation 44/01 on Jurisdiction and

the Recognition and Enforcement of Judg-

ments in Civil and Commercial Matters,

2001 O.J3. CL. 12) 1-17 CEC)............ccccsssssseeees 24, 25

Consolidated Version of the Treaty on Europe-

an Union & Consolidated Version of the

Treaty on the Functioning of the European

Union, Mar. 30, 2010, 2010 O.J. (C 83) 13,

PP citdndensaseiunaninbeiencnebbanmaspiiiaiiampieniaaaniess 1,2

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or Pun-

ishment, art. 5, sec. 2, Dec. 10, 1984, 1465

eae 15, 19

Convention on the Safety of United Nations

and Associated Personnel, art. 10, sec. 4,

Dec. 9, 1994, 2051 U.N.T.S. 363....................... 15

Dutch Code of Civil Procedure, art. 9(c) ............... 26

Geneva Convention (First),

75 U.N.TS. 31, August 12, 1949 .........0.00.-. 15, 27

Geneva Convention (Second),

75 U.N.T.S. 85, August 12, 1949................ 15, 27

Geneva Convention (Third),

75 U.N.T.S. 135, August 12, 1949.............. 16, 27

Geneva Convention (Fourth),

75 U.N.T.S. 287, August 12, 1949.............. 16, 27

a a, Te ci eesmeenes 13,17

xii

Int'l L. Comm’n, 58th Sess., May 1-June 9, Ju-

ly 3-Aug. 11, 2006, Draft Articles on Dip-

lomatic Protection, U.N. Doc. A/61/10,

GAOR 61st Sess., art. 14 (2007) ............00000000. 31

Internationa] Convention for the Protection of

All Persons from Enforced Disappearance,

art. 9, sec. 2, G.A. Res. A/61/177, U.N. Doc.

A/RES/61/177 (Dec. 20, 2006). ..............ceecceeeees 15

International Convention on the Elimination

of All Forms of Racial Discrimination, art.

6, Sept. 28, 1966, 660 U.N.T.S. 195.................. 20

Lugano Convention on Jurisdiction and the

Enforcement of Judgments in Civil and

Commercial Matters, Oct. 30, 2007, 2007

I 2, 24, 25

Nuremberg Charter of the International Mili-

tary Tribunal, Aug. 8, 1945,

I, CT iniciecsscsccesisiinitiitiatiigiitiaiinitniiaiininbiineinninnate 27

Rep. of the Int’] Law Comm’n, 53rd Sess.,

Apr. 23-June 1, Jul. 2-Aug. 10, 2001,

Draft Articles on Responsibility of States

for Internationally Wrongful Acts,

U.N. Doc. A/56/10, GAOR, 56th Sess.,

Supp. No. 10, art. 44 (2001).................cccccsesseees 31

RESTATEMENT (THIRD) OF FOREIGN RELATIONS

LAW OF THE UNITED STATES § 401 (1987) .. passim

Rome Statute of the International Criminal

Court, July 17, 1998, 2187 U.N.T-.S. 90...19, 27, 31

United Nations Convention on the Law of the

Sea, art. 101, Dec. 10, 1982, 1833 U.N.T-.S.

U.N. General Assembly, Report of the Secre-

tary- General, The Scope and Application

of the Principle of Universal Jurisdiction,

U.N. Doc. A/66/93 (June 20, 2011) ..................

STATEMENT OF INTEREST?

The European Commission is the executive body

of the European Union, successor to the European

Community as of December 1, 2009. The European

Union is presently composed of twenty-seven Mem-

ber States. It is a treaty-based international organ-

ization® with the competence to develop and enforce

Union-wide legislation in specified areas of policy,

conferred upon the Union by its Member States.

1 In accordance with Supreme Court Rule 37.6, amicus

curiae states that this brief was not authored, in whole or

in part, by counsel to a party, and that no monetary con-

tribution to the preparation or submission of this brief

was made by any person or entity other than the amicus

curiae or its counsel.

? These Member States are Austria, Belgium, Bulgaria,

Cyprus, the Czech Republic, Denmark, Estonia, Finland,

France, Germany, Greece, Hungary, Ireland, Italy, Lat-

via, Lithuania, Luxembourg, Malta, the Netherlands, Po-

land, Portugal, Romania, Slovakia, Slovenia, Spain, Swe-

den, and the United Kingdom. Croatia is expected to join

the European Union on July 1, 2013.

3 The European Union (EU) is currently based on two

treaties setting out its primary law: the Treaty on the

European Union (TEU) and the Treaty on the Function-

ing of the European Union (TFEU). Consolidated ver-

sions of the TEU and TFEU are published in the Officia/

Journal of the European Union, which was named Official

Journal of the European Communities until February 1,

2003. See Consolidated Version of the Treaty on Europe-

an Union & Consolidated Version of the Treaty on the

Functioning of the European Union, Mar. 30, 2010, 2010

OFFICIAL J. OF THE EUR. UNION [hereinafter O.J.] (C 83)

13, 47 (EU).

In the exercise of this competence, the European

Union has adopted rules on allocation of jurisdiction

regarding transnational claims for civil matters in-

cluding torts, delicts and quasi-delicts.*

The Treaty on European Union includes an ex-

plicit commitment that its external action be guided

by the rule of law, as well as the universality and in-

divisibility of human rights and fundamental free-

doms, and that it shall work to achieve a high degree

of cooperation in all fields of international relations

to consolidate and support the rule of law, human

rights, and the principles of international law.°®

To preserve harmonious international relations,

States and international organizations such as the

European Union must respect the substantive and

procedural limits imposed by international law on

the authority of any individual State to apply its

laws beyond its own territory.

The European Union also has a concrete interest

in ensuring that EU- based natural and legal persons

are not at risk of being subjected to the laws of other

* The terms “tort, delict, and quasi-delict” refer to all civil

matters not arising in contract. The same EU rules on

allocation of jurisdiction and recognition and enforcement

of judgments in civil and commercial matters also apply

pursuant to international treaties to three additional non-

EU States (Iceland, Norway, and Switzerland). See Lu-

gano Convention on Jurisdiction and the Enforcement of

Judgments in Civil and Commercial Matters, Oct. 30,

2007, 2007 O.J. (L 339) 3 [hereinafter Lugano Conven-

tion]; infra Part I.B.2.c.

5 See Consolidated Version of the Treaty on European Un-

ion, supra note 3, art. 21, paras. 1, 2(b), at C 83/28-29.

States where extraterritorial application of laws does

not respect the limits imposed by international law.

The European Union must ensure that its coopera-

tion with and provision of economic, financial, and

technical assistance to non-EU nations does not ex-

pose the European Union to impermissible exercises

of extraterritorial jurisdiction by another State in

contravention of international law.

SUMMARY OF ARGUMENT

The European Commission submits this brief on

behalf of the European Union as amicus curiae in

support of neither party.

As the European Commission has previously

submitted to the Court, the Alien Tort Statute (ATS)

should be interpreted by reference not only to the

substantive but also to the jurisdictional] limits set

forth by the law of nations. United States courts

have consistently applied the ATS to extraterritorial

conduct since the “birth of the modern line of cases”

in FilJartiga.’?’ For extraterritorial application of the

8 See Brief of Amicus Curiae the European Commission in

Support of Neither Party at 3, Sosa v. Alvarez-Machain,

542 U.S. 692 (2004), Nos. 03-339, 03-485, 2004 WL

177036 [hereinafter Sosa Br.].

7 Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004);

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980); see

also Flomo v. Firestone Natural Rubber Co., LLC, 643

F.3d 1013, 1025 (7th Cir. 2011) (“Courts have been apply-

ing the [ATS] extraterritorially (and not just to violations

at sea) since the beginning; no court to our knowledge has

ever held that it doesn’t apply extraterritorially ... .”);

Doe v. Exxon Mobil Corp., 654 F.3d 11, 26 (D.C. Cir.

2011); Sarei v. Rio Tinto, 671 F.3d 736, 745 (9th Cir.

ATS to comport with the law of nations and the

Charming Betsy doctrine,’ it must be confined to the

limited bases for extraterritorial jurisdiction recog-

nized by international law.

These bases include the exercise of prescriptive

jurisdiction over claims involving extraterritorial

conduct where the defendant has United States na-

tionality or where the conduct threatens United

States’ fundamental security interests. They also

include the exercise of universal jurisdiction to reach

conduct and parties with no nexus to the United

States—but only when the conduct at issue could al-

sO give rise to universal crimzna/ jurisdiction.

This universal jurisdiction is limited to the nar-

row category of claims involving the most grave vio-

lations of the law of nations, such as genocide or tor-

ture, or conduct committed outside any nation’s ter-

ritorial borders, such as piracy. Moreover, claimants

must exhaust domestic and internaticnal remedies

(or demonstrate that their pursuit would be futile)

before United States courts may entertain ATS cases

on the basis of universal jurisdiction. These limits

ensure that universal jurisdiction is appropriately

exercised and that such jurisdiction comports with

international law principles of comity and equality of

sovereignty. The United States’ exercise of universal

jurisdiction under the ATS is consistent with inter-

2011); Baloco ex rel. Tapia v. Drummond Co., Inc., 640

F.3d 1338, 1345 (11th Cir. 2011); Chavez v. Carranza, 559

F.3d 486, 491-92 (6th Cir. 2009); Yousef v. Samantar, 552

F.3d 371, 373 (4th Cir. 2009).

8 Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch)

64, 118 (1804).

national law in accordance with these well-

established constraints.

ARGUMENT

I. THE JURISDICTIONAL LIMITS OF THE ALIEN TORT

STATUTE SHOULD BE DEFINED BY REFERENCE TO

INTERNATIONAL LAW

Under international law, the application of a

State’s laws must fall within its “jurisdiction to pre-

scribe,” which “refers to the authority of a state to

make its law applicable to persons or activities.”?

The law of nations recognizes a State’s prescriptive

jurisdiction to apply its laws to conduct that occurs

beyond its territorial borders only in limited circum-

stances. These same limitations should constrain

extraterritorial application of the ATS.

Three recognized bases for extraterritorial juris-

diction may be implicated by an action brought un-

der the ATS: nationality, the protective principle,

and universal jurisdiction. If any of these circum-

stances is present, the assertion of extraterritorial

jurisdiction will comply with international law.

A. United States Courts Apply International

Law When Determining the Extraterrito-

rial Reach of a Statute

For over two centuries, this Court has upheld the

now-familiar Charming Betsy doctrine that “an act of

[(Clongress ought never to be construed to violate the

law of nations, if any other possible construction re-

® Hartford Fire Ins. Co. v. California, 509 U.S. 764, 813

(1993) (Scalia, J., dissenting in part).

mains.”1° This principle assists the courts in

“avoidling] unreasonable interference with the sov-

ereign authority of other nations” when applying

United States law to cases implicating foreign con-

cerns.'! The Charming Betsy doctrine requires

courts to “assume” that “Congress ordinarily seeks to

follow” “principles of customary international law.”}2

The doctrine is most frequently implicated

where, as here, the extraterritorial application of a

statute is in question.!3 In many such cases, the doc-

trine works hand in hand with the presumption

against extraterritoriality,!4 which requires courts to

presume that a statute is “meant to apply only with-

in the territorial jurisdiction of the United States”

unless “a conirary intent appears.”15

10 Charming Betsy, 6 U.S. at 118.

1) FE. Hoffman-La Roche Ltd. v. Empagran, S.A., 542 U.S.

155, 164 (2004).

12 Id.

13 See United States v. Clark, 435 F.3d 1100, 1106 (9th

Cir. 2006) (quoting United States v. Vasquez—Velasco, 15

F.3d 833, 839 (9th Cir. 1994) (“In determining whether a

statute applies extraterritorially, we also presume that

Congress does not intend to violate principles of interna-

tional law.”)).

14 Morrison v. Nat] Austil. Bank Ltd., 130 S. Ct. 2869,

2883-84 (2010).

18 Jd. at 2877 (citation omitted); see also F. Hoffman-La

Roche, 542 U.S. at 164-65 (Sherman Act does not apply to

independent foreign effects of foreign price-fixing con-

duct); McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 21 (1963) (National Labor Rela-

tions Act does not apply to maritime operations of foreign

The presumption against extraterritoriality,

however, is no “limit upon Congress’s power to legis-

late” with respect to “foreign matters” should it in-

tend to do so.!6 If the presumption against a stat-

ute’s extraterritorial application is overcome, the

Charming Betsy doctrine operates to avoid conflict

with the law of nations. Under international law, an

extraterritorial statute can reach no further than the

regulating State’s prescriptive jurisdiction would

permit. Thus, when a statute is given extraterritori-

al effect, the Charming Betsy doctrine becomes “rele-

vant to determining the substantive reach of the

statute because ‘the law of nations,’ or customary in-

ternational law, includes limitations on a nation’s

exercise of its jurisdiction to prescribe.” *"

flagships employing alien seamen under articles of a for-

eign sovereign).

16 Morrison, 130 S. Ct. at 2877.

11 Hartford Fire, 509 U.S. at 815 (Scalia, J., dissenting in

part) (emphasis added). The majority in Hartford Fire

did not consider prescriptive jurisdiction because the par-

ties did not contest it. See id. at 796 n.22. However, Jus-

tice Scalia’s opinion dissenting in part, joined by three

other Justices, explained Charming Betsy’s implications

for an extraterritorial statute and the State’s jurisdiction

to prescribe, and has been relied on by the Courts of Ap-

peals when addressing these issues. See Jn re Hijazi, 589

F.3d 401, 408-09 (7th Cir. 2009); Litecubes, LLC v. N.

Light Prods., Inc., 523 F.3d 1353, 1363-64 (Fed. Cir.

2008); ARC Ecology v. U.S. Dep’t of Air Force, 411 F.3d

1092, 1103 (9th Cir. 2005); United States v. Nippon Paper

Inds. Co., Ltd., 109 F.3d 1, 11 (1st Cir. 1997). Justice

Scalia’s opinion has also been relied on by this Court for

the broader principle that interpretation of federal stat-

Accordingly, international law governs not only

the “substantive principle” that conduct is “univer-

sally wrong” but also the “jurisdictional principle”

that a nation may “prosecute” the alleged perpetra-

tor..6 To comply with the law of nations, the ATS

must derive both its substantive claims and its juris-

dictional limits from customary international law.!9

B. International Law Authorizes the Extra-

territorial Application of the ATS When

Confined to Internationally-Recognized

Bases for Jurisdiction

Under international law, a State’s authority to

“make its law applicable” to activities, relations, and

persons must comport with certain generally recog-

nized bases for jurisdiction.2° Under customary in-

ternational law, bases for jurisdiction are merely

permissive: a State is not obligated to exercise juris-

diction to the full extent available under interna-

utes is constrained by international law. See F. Hoffman-

La Roche, 542 U.S. at 164; Spector v. Norwegian Cruise

Line Ltd., 545 U.S. 119, 143 (2005) (Ginsburg, J., concur-

ring) (quoting Justice Scalia’s Hartford Fire dissent in

part for the principle that “statutes ‘should not be inter-

preted to regulate foreign persons or conduct if that regu-

lation would conflict with principles of international law”)

(quoting 509 U.S. at 815 (Scalia, J., dissenting in part)).

18 Sosa, 542 U.S. at 762 (Breyer, J., concurring).

19 See Sosa Br. at 4-5.

20 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF

THE UNITED STATES § 401 (1987) hereinafter

RESTATEMENT].

tional law.2! Thus, international law tolerates “a

wide measure of discretion” by a State to “adopt the

principles which it regards as best and most suita-

ble” within prescribed limitations.2?

Under the Lotus principle regularly invoked by

the International Court of Justice (“ICJ”),23 the rec-

ognized bases for jurisdiction sometimes permit

States to apply their laws to “persons, property and

21 1 OPPENHEIM’S INTERNATIONAL LAW § 136 (Sir Robert

Jennings & Sir Arthur Watts eds., 9th ed. 1992); Arrest

Warrant of 11 April 2000 (Democratic Republic of the

Congo v. Belgium), 2002 1.C.J. 63, 76, | 45 (Feb. 14) (Hig-

gins, Kooijmans & Buergenthal, JJ., Joint Separate Opin-

ion) (“But a State is not required to legislate up to the full

scope of the jurisdiction allowed by international law .. .

22 §.S. Lotus (France v. Turkey), 1927 P.C.1.J. (ser. A) No.

10, at 19 (Sept. 7).

23 See CEDRIC RYNGAERT, JURISDICTION IN

INTERNATIONAL LAW 9 (Oxford University Press 2008);

Dan E. Stigall, International Law and Limitations on the

Exercise of Extraterritorial Jurisdiction in U.S. Domestic

Law, 35 HASTINGS INT'L & COMP. L. REV. 323, 331 (2012)

(“The International Court of Justice has reaffirmed the

enduring force of this rule as recently as 2010, noting that

the rule articulated in Lotus remains a cornerstone of the

international law of jurisdiction.”); Accordance with Int7

Law of the Unilateral Declaration of Independence in Re-

spect of Kosovo, Advisory Opinion, 2010 I.C.J. 1, 21, 9 56

(July 22) (noting that the answer to the question “whether

the declaration of independence was ‘in accordance with’

international law,” “turns on whether or not the applica-

ble international law prohibited the declaration of inde-

pendence”).

acts outside their territory.”24 However, a State’s ex-

traterritorial application of its laws violates interna-

tional law if it extends “jurisdiction beyond a legal

basis for it” or contravenes “a specific legal limit” on

jurisdiction.?5

There are five internationally recognized bases

for prescriptive jurisdiction over “transnational” con-

duct: territoriality, nationality, passive personality,

the protective principle, and universal jurisdiction.”®

All but the last require some nexus between the con-

duct to be regulated and the regulating State.

Of these five traditional bases for jurisdiction,

one will generally be inapplicable to the ATS. Pas-

sive personality, which supplies jurisdiction where

the victim is a national of the forum State, will not

apply to the ATS, which provides a cause of action

solely to aliens.?” A second basis, territoriality, does

*4 SS. Lotus, 1927 P.C.1.J. at 19.

25 John H. Knox, A Presumption Against Extrajurisdic-

tionality, 104 AM. J. INT'L L. 351, 355-56 (2010).

26 RESTATEMENT § 402 & cmts. c-g, § 404. Federal Courts

of Appeals consistently apply these five principles to con-

strain the United States’ exercise of jurisdiction in cases

implicating the interests of foreign sovereigns. See Unit-

ed States v. Hill, 279 F.3d 731, 739 (9th Cir. 2002) (“In-

ternational law permits extraterritorial jurisdiction under

five theories: territorial, national, protective, universali-

ty, and passive personality.”); see also United States v.

Yousef, 327 F.3d 56, 91 n.24 (2d Cir. 2003); United States

v. Corey, 232 F.3d 1166, 1179 (9th Cir. 2000); United

—_ v. MacAllister, 160 F.3d 1304, 1308 n.9 (11th Cir.

1998).

27 See 28 U.S.C. § 1350; RESTATEMENT § 402 cmt. g.

provide a ground for jurisdiction under the ATS, but

only for “conduct that wholly or in substantial part,

takes place within [the] territory” of the United

States, so it is not relevant to the question presented

here.28

Accordingly, the ATS may be applied extraterri-

torially only when the requirements of nationality,

the protective principle, or universal jurisdiction are

met.

1. Prescriptive Jurisdiction Based on Na-

tionality or the Protective Principle Is

Consistent with International Law

Under the nationality principle, international

law permits a State to regulate “the activities,

interests, status or relations of its nationals outside

as well as within its territory.”29 The United States

may therefore exercise jurisdiction over ATS claims

involving conduct committed by its own nationals

within the territory of another sovereign, consistent

with international law. This uncontroversial basis

for jurisdiction under international law is regularly

28 RESTATEMENT § 402(1)(a). Although the territorial

principle has been extended by some forums to include

extraterritorial activity “having or intended to have sub-

stantial effect within the state’s territory,” id. at § 402

cmt. d, the validity of this so-called effects doctrine as a

matter of international law is subject to substantial con-

troversy. See, e.g., Thomas Schultz, Carving Up the In-

ternet- Jurisdiction, Legal Orders, & the Private/Public

International Law Interface, 19 EUR. J. INTL L. 799,

812 (2008) (the “admissibility” of “the effects doctrine”

“under international law is controversial”).

29 RESTATEMENT § 402(2).

applied by United States courts as a ground for

extraterritorial application of laws.*°

Although far less likely to arise under the ATS,

the protective principle may also provide a basis for

jurisdiction in limited circumstances. Under the pro-

tective principle, a State may exercise jurisdiction

over “acts abroad that threaten ‘the security of the

state or other offenses threatening the integrity of

governmental functions ... .”3! Because the acts

giving rise to ATS liability are limited to a narrow

set of conduct violating norms “accepted by the civi-

lized world,”32 the oft-identified threats to national

security under the protective principle, such as espi-

onage and counterfeiting, would be insufficient to

give rise to an ATS claim. Conceivably, however,

universally condemned behavior that occurs abroad,

such as State-sanctioned torture of an alien, could

endanger the security of the United States.*5 Juris-

3% See, e.g., United States v. Weingarten, 632 F.3d 60, 67

(2d Cir. 2011) (relying on “[t]he nationality principle” as

“among the most firmly established bases for jurisdiction

recognized by international law”). The application of the

nationality principle was also contemplated in Justice

Breyer’s concurring opinion in Sosa. See 542 U.S. at 761

(noting that “comity concerns normally do not arise (or at

least are mitigated) if the conduct in question . . . involves

that country’s own national”).

31 Anthony J. Colangelo, A Unified Approach to Extrater-

ritoriality, 97 VA. L. REV. 1019, 1078 (2011) (quoting

RESTATEMENT § 402(3) cmt. g).

32 Sosa, 542 U.S. at 725.

33 Although this Court has not yet identified any specific

norm that may give rise to an ATS claim, the recognition

that official torture is universally prohibited under cus-

diction over such conduct would be permitted under

the protective principle.

2. Limited Universal Civil Jurisdiction Is

Consistent with International Law

The universality principle permits a State to ex-

ercise jurisdiction over an offense even where there

is no nexus between that State and the nationality of

the alleged perpetrator or victim, or the place of the

offense.*4 Universal jurisdiction is instead founded

on the sheer reprehensibility of certain crimes of

“universal concern,” which international law permits

States to “punish without regard to territoriality or

the nationality of the offenders.”*5 Customary inter-

national law sanctions the application of universal

jurisdiction as a means to enforce the fundamental

norms violated by these heinous crimes—norms that,

“at the present stage of national and international

enforcement mechanisms are not at risk of overen-

tomary international law has been codified by Congress in

the Torture Victim Protection Act of 1991 (TVPA), which

provides a cause of action for official torture and extraju-

dicial killing committed abroad. Pub. L. 102-256, 106

Stat. 73 (1992); see H.R. REP. 102-367 at *85 (1991) (“Of-

ficial torture and summary execution violate standards

accepted by virtually every nation.”); Fi/artiga, 630 F.2d

at 878.

34 See RESTATEMENT § 404 cmt. a; see also LUC REYDAMS,

UNIVERSAL JURISDICTION: INTL & MUNICIPAL LEGAL

PERSPECTIVES 5 (Oxford University Press 2004).

35 Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824 (9th Cir.

2008); Kadic v. Karadzic, 70 F.3d 232, 240 (2d Cir. 1995).

forcement.”36 These internationally-recognized justi-

fications for universal jurisdiction, although typically

articulated in the criminal context, also contemplate

and support a civil component where limited, as

here, to the circumstances that could give rise to

universal criminal jurisdiction.

a. Universal Criminal Jurisdiction Is

Well-Established Under Internation-

al Law

Universal criminal jurisdiction permits a State to

prosecute universally condemned international

crimes even when committed by aliens against aliens

in the territory of another sovereign.3’? The extension

of such jurisdiction to a limited number of crimes—

torture, genocide, crimes against humanity, and war

crimes, as well as piracy—is generally accepted by

the international community, even if not widely

exercised.*® [Illustrating this general acceptance,

36 Donald Francis Donovan & Anthea Roberts, The

Emerging Recognition of Universal Civil Jurisdiction, 100

AM. J. INT’L L. 142, 156 (2006).

87 See AU-EU Report, Technical Ad Hoc Expert Group on

the Principle of Universal Jurisdiction, AU-EU Expert

Report on the Principle of Universal Jurisdiction, 4 8,

8672/1/09 REV1 (Apr. 2009) [hereinafter AU-EU Report}.

38 See id. at | 9; RESTATEMENT § 404; COMMITTEE ON

INTL HUMAN RIGHTS LAW & PRACTICE, INTL LAW ASS’N,

FINAL REPORT ON THE EXERCISE OF UNIVERSAL

JURISDICTION IN RESPECT OF GROSS HUMAN RIGHTS

OFFENCES 4-9 (2000) (discussing genocide, war crimes,

crimes against humanity, and torture as the “four catego-

ries of offences” to which universal jurisdiction extends);

U.N. General Assembly, Report of the Secretary- General,

The Scope and Application of the Principle of Universal

several treaties require States to extend universal

jurisdiction over defined crimes where the alleged

perpetrator is present within their territory.*9

Jurisdiction, U.N. Doc. A/66/93 (June 20, 2011) (surveying

codification of universal jurisdiction by several States). In

2009, the European Court of Human Rights permitted the

exercise of universal criminal jurisdiction, concluding that

it does not violate the European Convention on Human

Rights and Fundamental Freedoms, which currently

binds 47 States. See Ould Dah v. France, Decision on

Admissibility, App. No. 13113/03 (Eur. Ct. H.R. Mar. 17,

2009) (available only in French).

39 See AU-EU Report 7 9. For example, universal juris-

diction is mandatory under these circumstances, unless

the State extradites the alleged offender to another State,

for grave breaches of the 1949 Geneva Convention and

1977 Addition Protocol I, for torture under the 1984 Con-

vention Against Torture, for attacks on United Nations

personnel under the 1994 Convention on Crimes Against

UN Personnel, and for enforced disappearance as defined

in the 2006 Convention Against Enforced Disappearance.

See International Convention for the Protection of All

Persons from Enforced Disappearance, art. 9, sec. 2, G.A.

Res. A/61/177, U.N. Doc. A/RES/61/177 (Dec. 20, 2006);

Convention on the Safety of United Nations and Associat-

ed Personnel, art. 10, sec. 4, Dec. 9, 1994, 2051 U.N.T.S.

363; Convention Against Torture and Other Cruel, Inhu-

man or Degrading Treatment or Punishment, art. 5, sec.

2, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter Conven-

tion Against Torture]; see also Geneva Convention for the

Amelioration of the Condition of the Wounded and Sick in

Armed Forces in the Field, art. 49, Aug. 12, 1949, 6 U.S.T.

3114, 75 U.N.T.S. 31 [hereinafter First Geneva Conven-

tion]; Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of

Armed Forces at Sea, art. 50, Aug. 12, 1949, 6 U.S.T.

Universal jurisdiction is premised on the

rationale that the universally condemned crimes to

which it extends are so repugnant that all States

have a legitimate interest and therefore have the

authority to suppress and punish them.“ This

rationale reflects the broad consensus under

international law on the relative importance of State

sovereignty and fundamental human rights.

International acceptance of universal criminal

jurisdiction is bolstered by the fact that such

prosecutions remain rare and therefore do not upset

comity between nations.‘

When properly exercised, universal jurisdiction

affirms fundamental principles of international law.

As Congress recognized in sanctioning universal

jurisdiction under the TVPA, “[j]udicial protections

3217, 75 U.N.T.S. 85 [hereinafter Second Geneva Conven-

tion]; Geneva Convention Relative to the Treatment of

Prisoners of War, art. 129, Aug. 12, 1949, 6 U.S.T. 3316,

75 U.N.T.S. 135 {hereinafter Third Geneva Convention};

Geneva Convention Relative to the Protection of Civilian

Persons in Time of War, art. 146, Aug. 12, 1949, 6 U.S.T.

3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Con-

vention].

40 See Leila Nadya Sadat, Exi/e, Amnesty and Interna-

tional Law, 81 NOTRE DAME L. REV. 955, 975 (2006).

“1 Even aside from local forums, States that recognize

universal criminal jurisdiction rarely exercise it, increas-

ing the likelihood that heinous crimes of “universal con-

cern” will go unpunished. See, e.g., AU-EU Report 4] 19,

26 (no African State has ever exercised universal criminal

jurisdiction effectively, despite attempts, and the exercise

of universal jurisdiction by European Union Member

States remains rare).

against flagrant human rights violations are often

least effective in those countries where such abuses

are prevalent.”42 Universal jurisdiction allows a

State to overcome such “negative conflicts of

jurisdiction,” where no State is able or willing to

prosecute heinous conduct, and increases. the

likelihood that the perpetrators will be brought to

justice

While the content and scope of universal criminal

jurisdiction is subject to the evolving standards of

present-day customary international law,‘ its

existence is well-established.

b. Universal Civil Jurisdiction for ATS

Claims Comports with the Justifica-

tions for Universality Under Interna-

tional Law

The exercise of universal civi/ jurisdiction is less

established in international law than its criminal

counterpart.*4 Nonetheless, the assertion of

universal civil jurisdiction is consistent with

international law if confined by the limits in place for

universal criminal jurisdiction.*® Accordingly, an

ATS action based on universal jurisdiction should

operate solely to provide civil remedies to the victims

42 H.R. REP. 102-367, at *85.

43 See Sosa, 542 U.S. at 725 (requiring that “claim|[s)

based on the present-day law of nations” rest on norms

defined with specificity and accepted by civilized nations).

44 See Sosa Br. at 17-22.

45 Cf RESTATEMENT § 404 cmt. b (international law “does

not preclude” the exercise of universal civil jurisdiction to

provide a private tort remedy for criminal conduct).

of repugnant crimina/ acts of universal concern. It

should, in other words, extend solely to those

“certain crimes” defined by their “sheer heinousness”

and “universal condemntlation]}.”46

This application of the ATS is consistent with the

growing recognition in the international community

that an effective remedy for repugnant crimes in

violation of fundamental human rights includes, as

an essential component, civil reparations to the

victims.*7 This principle undisputedly applies to

those States, including those within the European

Union, that currently permit victims of crime to seek

monetary compensation in actions civiles within

criminal proceedings based oon _ universal

jurisdiction.*® Similarly, outside the European

Union, numerous States around the world permit

46 Donovan, supra note 36, at 143.

47 Jd. at 153.

48 See Kathryn Metcalf, Reparations for Displaced Torture

Victims, 19 CARDOZO J. INTL & COMP. L. 451, 468-70

(2011); see also Cedric Ryngaert, Universal Tort Jurisdic-

tion Over Gross Human Rights Violations, 38

NETHERLANDS YEARBOOK OF INTL LAW 25-27 (2007).

Such proceedings are available in Austria, Belgium,

Denmark, Finland, France, Germany, Greece, Italy, Lux-

embourg, the Netherlands, Poland, Portugal, Romania,

Spain, and Sweden. See Amnesty International, Univer-

sal Jurisdiction: The scope of universal civil jurisdiction,

Al Index: IOR 53/008/2007, at 5-6 (July 2007); 3 YVES

DONZALLAZ, LA CONVENTION DE LUGANO DU 16

SEPTEMBRE 1998 CONCERNANT LA COMPETENCE

JUDICIAIRE ET L’EXECUTION DES DECISIONS EN MATIERE

CIVILE ET COMMERCIALE 4] 5203-72 (Stampfli 1998).

civil claims to be brought: within § criminal

proceedings based on torts committed abroad.*®

In addition, the rules of the International

Criminal Court (ICC), which was established under

the Rome Statute to “exercise its jurisdiction over

persons for the most serious crimes of international

concern,” also confirm that universal jurisdiction

may include a civil dimension. When a person is

convicted of a serious crime of international concern,

the ICC is empowered to “make an order directly

against a convicted person specifying appropriate

reparations to, or in respect of, victims, including

restitution, compensation and rehabilitation.”5! In

fact, several international human rights treaties and

instruments now oblige member States to afford an

effective remedy, including compensatory relief, to

victims of human rights violations.5?

49 These countries include Argentina, Bolivia, China, Co-

lombia, Costa Rica, Myanmar, Panama, Senegal, and

Venezuela. See Amnesty International, supra note 48, ut

6; Christopher Keith Hall, The Duty of States Parties to

the Convention Against Torture to Provide Procedures

Permitting Victims to Recover Reparations for Torture

Committed Abroad, 18 EUR. J. INTL L. 921, 934 n. 55

(2007).

5© Rome Statute of the International Criminal Court art.

1, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome

Statutel.

51 Jd. art. 75, sec. 2.

52 See, e.g., Convention Against Torture, art. 14 (“Each

State Party shall ensure in its legal system that the vic-

tim of an act of torture obtains redress and has an en-

forceable right to fair and adequate compensation includ-

Those who would limit the universality principle

to criminal jurisdiction principally rely on the

different purposes and administration of civil and

criminal law.53 Most importantly, criminal law is

administered by the State to protect the public,

comporting with the rationale for universal

jurisdiction, which permits any State to protect the

interests of the international community against

universally sanctioned offenses.** In contrast, civil

law, and particularly tort law, is concerned with the

redress of harm to private individuals, which has

less resonance with the justifications for universal

jurisdiction.“ Against this backdrop, one three-

judge opinion in a 2002 ICJ case noted that “the

beginnings of a very broad form of extraterritorial

jurisdiction” in the United States’ application of the

ing the means for as full rehabilitation as possible.”); In-

ternational Convention on the Elimination of All Forms of

Racial Discrimination, art. 6, Sept. 28, 1966, 660 U.N.T-.S.

195 (requiring that State Parties assure, as part of “effec-

tive protection and remedies,” “the right to seek from such

tribunals just and adequate reparation or satisfaction for

any damage suffered as a result of such discrimination” in

violation of human rights and fundamental freedoms un-

der the Convention); see also Brief of Amicus Curiae Navi

Pillay, the United Nations High Commissioner for Hu-

man Rights in Support of Petitioners at 5-9, Kiobel v.

Royal Dutch Petroleum Co., No. 10-1491 (Dec. 21, 2011).

53 See, e.g., Curtis A. Bradley, Universal Jurisdiction and

U.S. Law, 2001 U. CHI. LEGAL F. 323, 346-48 (2001).

54 See id. at 346.

55 See id.

ATS had “not attracted the approbation of States

generally.”56

To the extent such apprehensions existed, they

have since been allayed in significant part by this

Court’s decision in Sosa, which restricted the facially

expansive ATS to comply with substantive norms of

international law.57 Recognition that universal civil

jurisdiction under the ATS extends only where

consistent with universal crimina/ jurisdiction would

further align the ATS’s private tort remedies with

the international interests that underlie the

universality principle. Moreover, the constraints on

prescriptive jurisdiction imposed by international

law will be supplemented by other doctrines

available to United States courts in determining

whether it is appropriate to adjudicate a particular

extraterritorial case, including, personal jurisdiction,

comity, forum non conveniens, the political question

doctrine, and sovereign immunity.

56 Arrest Warrant, 2002 I.C.J. at 77, ¥ 48 (Higgins,

Kooijmans, & Buergenthal, JJ., Joint Separate Opinion).

57 §42 U.S. at 732.

58 Several States impose similar constraints when exercis-

ing universal criminal jurisdiction, such as requiring the

presence of the alleged perpetrator within the territory of

the State asserting jurisdiction or, with respect to civil

claims, the existence of minimum contacts between the

alleged conduct and the forum State. See Donovan, supra

n.36, at 144. Such additional requirements are consistent

with the discretion afforded States to legislate within—

and not necessarily up to—the outer bounds of jurisdic-

tion permitted by international law. They are also con-

sistent with the United States’ doctrines of personal ju-

risdiction and due process, which prohibit courts from is-

Extraterritorial applications of the ATS under

the universal jurisdiction principle are therefore

likely to encounter relatively little resistance in the

international community. Notably, as far as the

European Commission is aware, not a single State

appears to have objected to the United States’

exercise of jurisdiction over the extraterritorial ATS

claim brought in Fi/artiga, by an alien against an

alien, for the universally condemned crime of official

torture, which had occurred in a foreign country.®?

Nor, apparently, as far as the European Commission

is aware, has any State objected to the enactment of

the TVPA, which on its face provides universal

jurisdiction over civil claims based on the crimes of

official torture and extrajudicial killing. These

suing “a judgment in personam against an individual or

corporate defendant with which the state has no contacts,

ties, or relations.” Jnt7 Shoe Co. v. State of Wash., Office

of Unemployment Comp. & Placement, 326 U.S. 310, 319

(1945); see Goodyear Dunlop Tires Operations, S.A. v.

Brown, 131 S. Ct. 2846, 2853-54 (2011). Indeed, Filartiga

recognized the additional constraints that such considera-

tions may place upon courts’ ability to hear extraterritori-

al claims under the ATS by requiring that the alleged

perpetrator be “found and served with process by an alien

within our borders.” 630 F.2d at 878. Accordingly, these

separate considerations further enable United States

courts to safeguard against adjudicating extraterritorial

claims where inappropriate.

59 See id. at 878-79.

6 Specifically, the defendant in a TVPA action will almost

always be an alien since he must have acted under color

of law of a foreign nation, the plaintiff may (but need not)

be an alien, and the TVPA’s exhaustion requirement con-

exercises of universal jurisdiction are consistent with

international law and have not engendered

opposition.®!

In sum, “universal criminal jurisdiction

necessarily contemplates a significant degree of civil

tort recovery”’®2 and therefore authorizes the United

States’ exercise of universal jurisdiction for ATS

claims based on crimes of universal concern. Such

jurisdiction enables U.S. courts to provide a forum in

which to condemn the narrow category of crimes that

attack the fundamental values of the international

community and is sanctioned under international

law.

c. Relevant European Union Law and

Practice

The twenty-seven European Union Member

States and three other European States—

Switzerland, Norway, and Iceland—are currently

templates that the conduct in question took place outside

of the United States. See Pub. L. 102-256 § 2(a)-(b).

61 Indeed, in the years since, some States have expressly

accepted exercises of universal civil jurisdiction by the

United States federal courts under the ATS. These in-

clude States that had a traditional territorial nexus to the

case in question. See, e.g., Ingrid Wuerth, The Alien Tort

Statute and Federal Common Law, 85 NOTRE DAME L.

REV. 1931, 1959 (2010) (South Africa changed its position

to support the United States’ entertainment of ATS

claims based on apartheid in South Africa); Sarei, 671

F.3d at 756 (noting that the government of Papua New

Guinea changed its position to support the United States’

jurisdiction over the Sarei v. Rio Tinto litigation).

62 Sosa, 542 U.S. at 763 (Breyer, J., concurring).

governed by common rules® on allocation of

jurisdiction established through the “Brussels I”

Regulation and the 2007 Lugano Convention.™

Many of the European Union’s Member States can

exercise universal civil jurisdiction through actions

In addition, the national legislation of several States

bound by the Brussels/Lugano regime expressly

allows for universal civi/ jurisdiction in exceptional

circumstances.

63 Fully harmonized rules cover cases where the defend-

ant is domiciled in one of the governed States. National

laws on jurisdiction currently still apply when the de-

fendant is not domiciled within one of the governed

States.

6 See Council Regulation 44/01 on Jurisdiction and the

Recognition and Enforcement of Judgments in Civil and

Commercial Matters, 2001 O.J. (L 12) 1-17 (EC); Lugano

Convention, supra n.4.

65 See supra n.48.

66 At least ten States also have jurisdictional rules allow-

ing civil courts to assume jurisdiction in exceptional cir-

cumstances on a “necessity basis” (forum necessitatis)

where the claimant has no other forum available and the

State has a sufficient nexus to the dispute in order to pro-

tect against a denial of justice. See Arnaud Nuyts, Study

on Residual Jurisdiction (Review of the Member States’

Rules concerning the “Residual Jurisdiction” of their

courts in Civil and Commercial Matters pursuant to the

Brussels I and II Regulations), GENERAL REPORT (final

version dated Sept. 3, 2007) ch. 16, 21, available at

http://ec.europa.eu/civiljustice/news/docs/study_residual_j

urisdiction_en.pdf (last visited June 11, 2012).

Importantly, a// thirty States currently governed

by the regime are obligated to recognize and enforce

judgments for civil damages entered in any of the

other thirty States bound by the regime and are

expressly prohibited from challenging’§ the

jurisdiction of the issuing State, even on grounds of

public policy.§®7

As a result, even those States that do not

recognize universal civil jurisdiction on a national

basis can be required to enforce a judgment on such

basis by courts of other States bound by the regime.

For example, in 2007, the Belgian court of

Assises (a criminal court) awarded damages to non-

Belgian citizens for killings relating to genocide

committed outside Belgium by a non-Belgian citizen

in an action civile during criminal proceedings based

on the Belgian universal jurisdiction law.® In

addition, on March 21, 2012, a Dutch civil court

awarded a Palestinian doctor—a non-Dutch citizen—

€1,000,000 in damages for torture and inhumane

treatment to which he had been subjected in Libya

by twelve Libyan state agents.®9 Notably, this case

was unconnected to a criminal proceeding.7” These

67 Council Regulation 44/01, supra n.64, arts. 33(1), 35(3):;

Lugano Convention, arts. 33(1), 35(3).

68 See Cour d’Assises [Cour. ass.} [Court of Assizes] Brus-

sels, July 5, 2007, THE CASE OF THE MAJOR, (Belg.).

68 See Rechtbank’s Gravenhage, 21 maart 2012, No.

400882/HA ZA 11-2252 (El-Hojouj/Derbal et al.) (Neth.).

77 Judgment was rendered on the basis of article 9(c) of

the Dutch procedural law, which allows assumption of

jurisdiction in exceptional cases on a necessity basis

where the case is sufficiently connected with the Dutch

judgments can be recognized and enforced in any of

the 29 other Brussels/Lugano States—even in those

states whose national laws do not recognize the

jurisdictional ground pursuant to which the

judgment was issued.

In sum, while EU law does not require States to

exercise universal civil jurisdiction, this requirement

of mandatory recognition and enforcement of

judgments illustrates that universal civil jurisdiction

comports with both the laws of the European Union

and international law generally.

Il. THE UNITED STATES’ EXERCISE OF UNIVERSAL

CIVIL JURISDICTION MUST BE CONSTRAINED BY

SUBSTANTIVE AND PROCEDURAL LIMITATIONS

IMPOSED BY INTERNATIONAL LAW

To comply with international law, the exercise of

universal civil jurisdiction must satisfy both a sub-

stantive and a procedural requirement: the nature

of the tort must rise to the level of the most serious

crimes recognized under international law; and the

plaintiff must demonstrate that local remedies have

been exhausted or that the local forum is unwilling

or unable to provide relief. Accordingly, the ATS

should not be read to authorize universal civil juris-

diction in the absence of these international law con-

straints, which appropriately limit its jurisdictional

reach.

legal order and it is unacceptable to require the plaintiff

to pursue his claims in a foreign state. See Dutch Code of

Civil Procedure, art. 9(c). In this case, however, the court

did not identify the connection between the dispute and

the State.

A. When Universal Civil Jurisdiction Arises

Under the Alien Tort Statute, Interna-

tional Law Must Define the Narrow Cate-

gory of Cognizable Claims

As noted, universal civil jurisdiction is limited to

conduct that also gives rise to criminal jurisdiction

under the universality principle.

Universal criminal jurisdiction traditionally ex-

tends to two categories of conduct under contempo-

rary principles of internationa! law. The first cate-

gory encompasses conduct so heinous that every

State has a legitimate interest in its suppression and

punishment. Such conduct includes only core crimes

of universal concern, such as torture, genocide,

crimes against humanity, and certain war crimes.’!

71 See supra n.38. For example, universal criminal juris-

diction is mandatory for States that are parties to the Ge-

neva Conventions for grave breaches, including willful

killing, torture, or inhumane treatment and willfully

causing great suffering. See First Geneva Convention,

art. 49; Second Geneva Convention, art. 50; Third Geneva

Convention, art. 129; Fourth Geneva Convention, art.

146. These offenses are also listed under Article 8(2)(a) of

the Rome Statute of the International Criminal Court.

See Rome Statute, art. 8(2)(a). Universal criminal juris-

diction exists over crimes against humanity that were

recognized in art. 6(2)(c) of the Nuremberg Charter of the

International Military Tribunal, Aug. 8, 1945, 8 U.N.T.S.

279, including murder, extermination, enslavement, de-

portation, and other inhumane acts. There is indication

that universal jurisdiction may be extended beyond the

category of conduct over which it has been traditionally

exercised consistent with evolving notions of international

law. See, e.g., Africa Legal Aid, The Cairo-Arusha Princi-

ples of Universal Jurisdiction in Respect of Gross Human

Universal jurisdiction over this category of conduct

helps to enforce the most fundamental norms of in-

ternational law.72

The second category includes crimes that occur

outside sovereign territorial boundaries—such as pi-

racy—that could not be prosecuted in courts under

traditional jurisdictional bases.73 Universal jurisdic-

tion over this category of conduct helps to ensure

Rights, pmbl. princ. 4 (2002), available at

http://www.kituochakatiba.org/index2.php? op-

tion=com_docman&task=doc_view&gid=116&Itemid= 27

(last visited June 11, 2012) (stating that in addition to

crimes currently recognized under international law, “cer-

tain other crimes that have major adverse economic, so-

cial or cultural consequences” should be subject to univer-

sal jurisdiction).

72 See supra Part I.B.2.a; RESTATEMENT § 404, cmt. a

(“Universal jurisdiction over the specified offenses is a re-

sult of universal condemnation of those activities and

general interest in cooperating to suppress them, as re-

flected in widely-accepted international agreements and

resolutions of international organizations.”).

73 Under customary international law, and historically,

the term “piracy” refers to conduct occurring on the high

seas outside sovereign territorial boundaries. See United

Nations Convention on the Law of the Sea, art. 101, Dec.

10, 1982, 1833 U.N.T.S. 397. Acts similar to piracy that

take place in the territorial and internal waters of. a

coastal State are considered traditional crimes (e.g.

armed robbery). Such acts, therefore, are not cognizable

under principles of universal jurisdiction. Similar acts

that occur in the exclusive economic zones of States that

have proclaimed such maritime zones, pursuant to Article

58(2) of the U.N. Convention on the Law of the Sea, are

treated as though they had occurred on the high seas.

that perpetrators of such crimes do not escape pun-

ishment.

As Sosa confirms, the jurisdiction conferred by

the ATS does not extend to all claims arising under

the law of nations but only to a “relatively modest set

of actions.”74 Claims arising under the ATS pursu-

ant to universal jurisdiction must be limited to con-

duct meeting the rigorous international law stand-

ards that would justify the ATS’s extraterritorial

reach.

This Court and lower federal courts entertaining

ATS litigation have previously applied the universal-

ity principle to identify customary international law

norms that state cognizable claims under the ATS.75

™ 542 U.S. at 720.

75 See Sosa, 542 U.S. at 732 (quoting Te/-Oren v. Libyan

Arab Republic, 726 F.2d 774, 781 (D.C. Cir. 1984) (Ed-

wards, J., concurring) (suggesting that the “limits of sec-

tion 1350’s reach” be defined by “a handful of heinous ac-

tions—each of which violates definable, universal, and

obligatory norms”); Jn re Estate of Marcos Human Rights

Litig., 25 F.3d 1467, 1475 (9th Cir. 1994) (“Actionable vio-

lations of international law must be of a norm that is spe-

cific, universal, and obligatory.”)); Flomo, 643 F.3d at

1016 (concluding that Sosa “limit[ed] the statute’s scope

to ‘the customs and usages of civilized nations’ that are

‘specific universal, and obligatory” (citing Sosa, 542 U.S.

at 732); Kiobel v. Royal Dutch Petroleum Co., 621 F.3d

111, 120 (2d Cir. 2010) (holding that “[iJn an ATS suit, we

may only apply those norms that are specific, universal,

and obligatory” and only recognize those norms “that ...

could be regarded as universal” (internal quotation marks

omitted) (citing Sosa, 542 U.S. at 732)); see also K. Lee

Boyd, Universal Jurisdiction and Structural Reasonable-

ness, 40 TEX. INTL L.J. 1, 40-41 (2004) (noting that in

Claims giving rise to extraterritorial applications of

the ATS pursuant to universal jurisdiction must

qualify as international law violations of universal

concern under this same rigorous analysis.

B. International Law Contemplates Manda-

tory Exhaustion of Claims Giving Rise to

Universal Civil Jurisdiction

Separately, universal jurisdiction must be lim-

ited to “conduct that would otherwise fall beyond ef-

fective sanction.”76 Accordingly, before the United

States may exercise universal jurisdiction under the

ATS, international law requires exhaustion of local

and international remedies or, alternatively, the

claimant’s demonstration that such remedies are un-

available or their pursuit is futile.”’

This requirement derives from a general rule of

international law that before a claim may be assert-

ed in an international tribunal or forum, the claim-

ant must have exhausted remedies in the domestic

legal system.”8 For example, prosecutions in the In-

evaluating ATS claims, “courts have routinely found that

the list of offenses for which [statutory] jurisdiction exists

is limited by the universality principle”).

76 Sosa Br. at 22-26; see also id. at 23 (“[A]pproaches to

universal civil jurisdiction are emerging that favor the

pursuit of remedies in States that may regulate the offen-

sive conduct on traditional bases of jurisdiction.”).

77 For purposes of this discussion, exhaustion of “local”

remedies requires a demonstration by the claimant that

those states with a traditional jurisdictional nexus to the

conduct are unwilling or unable to proceed.

78 See RESTATEMENT § 713 cmt. f (“Under international

law, ordinarily a state is not required to consider a claim

ternational Criminal Court must be preceded by a

showing that States with a jurisdictional nexus to

the crime based on territory or nationality are “un-

willing or unable genuinely to proceed.”79 Exhaus-

tion is thus a fundamental and firmly-rooted princi-

ple of international law.

Moreover, exhaustion is consistent with estab-

lished notions of comity and equality of sovereign-

by another state for an injury to its national until that

person has exhausted domestic remedies, unless such

remedies are clearly sham or inadequate, or their applica-

tion is unreasonably prolonged.”); Int’l L. Comm'n, 58th

Sess., May 1—June 9, July 3—August 11, 2006, Draft Ar-

ticles on Diplomatic Protection, U.N. Doc. A/61/10, GAOR

6lst Sess., art. 14 (2007) (recognizing exhaustion as a

“principle of general international law” and noting that

“exhaustion of local remedies . . . ensures that the State

where the violation occurred should have an opportunity

to redress it by its own means, within the framework of

its own domestic system” (internal quotation marks omit-

ted)) available at http://untreaty.un.org/ilc/texts/ instru-

ments/english/commentaries/9_8_2006.pdf (last visited

June 11, 2012); Rep. of the Int'l] L. Comm’n, 53rd Sess.,

April 23—June 1, July 2—August 10, 2001, Draft Articles

on Responsibility of States for Internationally Wrongful

Acts, U.N. Doc. A/56/10, GAOR, 56th Sess., Supp. No. 19,

art. 44 (2001).

79 Rome Statute, art. 17.

80 “Comity refers to the spirit of cooperation in which a

domestic tribunal approaches the resolution of cases

touching the laws and interests of other sovereign states.”

Societe Nationale Industrielle Aeropatiale v. U.S. Dist.

Court for the S. Dist. of Iowa, 482 U.S. 522, 544 n.27

(1987).

ty®\—ensuring that those States with traditional ju-

risdictional bases have authority to remedy interna-

tional law violations within their borders.§? By pro-

8i Equality of sovereignty recognizes “a state’s lawful con-

trol over its territory generally to the exclusion of other

states, authority to govern in that territory, and authority

to apply the law there,” RESTATEMENT § 404 cmt. b., and

confirms that “every sovereign is to be treated as the

equal of every other in its entitlement to govern persons

within its own territory,” Sarei, 671 F.3d at 803 (Bea, J.,

concurring in part and dissenting in part) (citing Devel-

opments in the Law—Extraterritoriality, 124 HARV. L.

REV. 1226, 1280 (2011) (recognizing that “states are sup-

posed to respect each other’s exclusive authority to regu-

late behavior within their territorial boundaries”)); see

also United States v. Diekelman, 92 U.S. 520, 524 (1875)

(“[A sovereign’s] own dignity, as well as the dignity of the

nation he represents, prevents his appearance to answer

a suit against him in the courts of another sovereignl],

except in performance of his obligations, by treaty or oth-

erwise, voluntarily assumed.”).

82 See Donovan, supra n.36, at 157-58. Germany has also

affirmed the exhaustion principle. See Brief of Amicus

Curiae the Federal Republic of Germany in Support of

Respondents at 13, Kiobel v. Royal Dutch Petroleum Co.,

No. 10-1491 (Feb. 2, 2012) (“While it certainly would be

inappropriate to require plaintiffs to exhaust their legal

remedies in countries which have a proven record of hu-

man rights violations and no due process, it is certainly

reasonable and appropriate to require a victim of a tort

committed in a third country by a German tortfeasor to go

to Germany and utilize the legal system of the Federal

Republic of Germany to seek legal satisfaction.”). It bears

further mention that under the jurisprudence of the Eu-

ropean Court of Justice of the European Union, the rules

allowing a defendant domiciled in an EU State to be sued

moting a preference for domestic resolution of dis-

putes, exhaustion encourages the development of

meaningful remedies in countries with a nexus to the

tortious conduct, while also preserving the judicial

resources of those States that lack such a nexus from

unnecessary intervention.

In addition, as a practical matter, exhaustion

acknowledges that disputes often can be most effi-

ciently resolved in States where the parties live or

the conduct occurred®? and that local fora provide

victims the opportunity to speak in the State con-

cerned, thereby encouraging those States to redress

conduct within their territorial borders.*4 As op-

posed to “remote justice,” such “in-country justice”

may be more likely to inspire accountability in the

afflicted nation, and, where needed, to generate re-

medial policy reforms. However, to prevent waste-

ful resort to ineffective remedies and protect against

in the state of domicile apply even where the plaintiff is

domiciled outside the EU. See Case C-412/98, Group Josi

Reinsurance Co. v. Universal General Ins. Co., 2000

E.C.R. I-05925.

83 For example, universal criminal jurisdiction is general-

ly exercised in a manner that accords deference to local

remedies over transnational ones. While the duty to ex-

tradite or prosecute does not establish a legal hierarchy,

deference is usually paid to states exercising jurisdiction

under traditional bases. See PRINCETON UNIV. PROGRAM

IN LAW & PUB. AFFAIRS, THE PRINCETON PRINCIPLES ON

UNIVERSAL JURISDICTION (2001).

84 See Donovan, supra n.36, at 157-58.

85 See id.

a denial of justice, exhaustion is not required where

local redress is either unavailable or obviously futile.

Some lower federal courts have incorporated ex-

haustion as a prudential limitation on their jurisdic-

tion in ATS cases involving extraterritorial conduct.

Interpreting Sosa’s statement that an exhaustion re-

quirement might be considered “in an appropriate

case,”"86 the Ninth Circuit in Sarei v. Rio Tinto con-

cluded that the “lack of a significant U.S. nexus is an

important consideration in evaluating whether

plaintiffs should be required to exhaust their local

remedies in accordance with the principle of interna-

tional comity.”8? But, in accordance with interna-

tional law, exhaustion of claims is mandatory, not

prudential, for all claims over which the United

States seeks to exercise universal jurisdiction.

The mandatory nature of the exhaustion re-

quirement accords with the purpose of universal ju-

risdiction to ensure that certain execrable conduct

may not escape punishment. The availability of local

or international fora to effectively remedy interna-

tional law violations of universal concern eliminates

the need for the United States, when lacking a nexus

to such violations, to exercise universal jurisdiction

under the ATS. Accordingly, a showing of exhaus-

tion of local or international remedies (or the futility

of their pursuit) is essential in order to constrain the

category of cognizable ATS claims under principles of

universal jurisdiction.

86 Sosa, 542 U.S. at 733 n.21.

87 550 F.3d at 831.

Exhaustion finds further support in the Torture

Victim Protection Act,°* which expressly requires

claimants to exhaust local remedies in the State

where the alleged conduct occurred.®® Indeed, Con-

gress’s imposition of the exhaustion requirement in

the TVPA indicates its cognizance of international

law principles that must restrict the United States’

exercise of jurisdiction over extraterritorial con-

duct. Exhaustion of claims involving torture can

naturally extend to ATS claims involving other in-

ternational law violations of universal concern that

may give rise to universal jurisdiction under interna-

tional law.%!

88 Pub. L. No. 102-256, 106 Stat. 73 (Mar. 12, 1992).

89 Jd. § 2(b) (“A court shall decline to hear a claim under

this section if the claimant has not exhausted adequate

and available remedies in the place in which the conduct

giving rise to the claim occurred.”).

# See Enahoro v. Abubakar, 408 F.3d 877, 890 (7th Cir.

2005) (“[W]hile not directly applicable to the [ATS], the

TVPA scheme is surely persuasive since it demonstrates

that Congress not only assumed that the exhaustion re-

quirements imposed by customary international law were

discernible and effective in themselves, but also that they

should be reflected in U.S. domestic law.”); id. at 889-90

(noting that “incorporating an implicit exhaustion re-

quirement in the [ATS] would . . . among other things,

bring the Act into harmony with both the provisions of the

TVPA (with which it is at least partially coextensive) and

with the acknowledged tenets of international law’ (em-

phasis added)).

%” See Sarei, 550 F.3d at 832 (“While the TVPA is not dis-

positive of the question of whether exhaustion is required

by the ATS, the TVPA nonetheless provides a useful, con-

In sum, just as the ATS incorporates the full

body of the law of nations to define the content of

substantive claims, the statute must also adopt and

rigorously apply jurisdictional limitations of interna-

tional law to constrain the United States’ exercise of

universal jurisdiction under the ATS.

CONCLUSION

The European Commission on behalf of the Eu-

ropean Union respectfully requests that the Court

interpret the ATS with reference to the jurisdictional

framework and limitations of international law. Ac-

cordingly, the United States may exercise prescrip-

tive jurisdiction to reach claims based on extraterri-

torial conduct where the defendant is a United

States national or the conduct implicates United

States security interests of fundamental importance.

In addition, the United States can assume universal

jurisdiction over a narrow category of the most grave

international law violations involving conduct of uni-

versal concern so long as the ATS claimant demon-

strates that those States with a nexus to the case are

unwilling or unable to provide a forum and no inter-

national remedies are available.

The ATS’s extraterritorial reach is consistent

with international law provided that the statute’s

coverage of conduct occurring in the territory of an-

other sovereign implements these constraints. In do-

ing so, extraterritorial applications of the ATS not

only respect principles of comity but also ensure that

courts remain open to claiman‘s who might other-

wise be subject to a denial of justice.

gressionally-crafted template to guide our adoption of an

exhaustion principle for the ATS.” (emphasis in original)).

Respectfully submitted,

Steven Alan Reiss

Counsel of Record

Gregory Silbert

Karin S. Portlock