Kiobel and Extraterritoriality: A Rule Without a Rationale
Maryland Journal of International Law, Forthcoming
12 Pages Posted: 14 May 2013
Date Written: May 13, 2013
Analysis of recent judicial decisions applying the presumption against extraterritoriality indicates that U.S. courts and commentators invoke at least four different rationales for the presumption: an international law rationale; a domestic political science rationale; an international relations rationale; and a domestic judicial policy rationale. This essay briefly discusses each rationale and its application to Kiobel v. Royal Dutch Petroleum Co.
In the nineteenth century, the Court invoked an international law rationale to justify the presumption against extraterritoriality. Today, the international law rationale provides little support for the Supreme Court’s extraterritoriality jurisprudence because international law imposes weak constraints on the extraterritorial application of U.S. law, whereas the Court seeks to impose tighter constraints. In the mid-twentieth century the Court adopted a domestic political science rationale to justify the presumption against extraterritoriality. That rationale remains valid today, but it provides no support for those who seek to restrict the extraterritorial application of the Alien Tort Statute.
In the past decade, the Court has sometimes invoked an international relations rationale to justify the presumption against extraterritoriality. Applied with proper sensitivity, the Court could use the international relations rationale to support the Executive Branch in its careful, case-by-case balancing of competing foreign policy concerns. Unfortunately, in the hands of Chief Justice Roberts in Kiobel, the international relations rationale became a blunt weapon that the Court used to impose its own preferences in opposition to key foreign policy goals endorsed by the political branches. Congress and the President have made clear that they want to use the U.S. legal system in a limited set of cases to promote enforcement of widely accepted international human rights norms. In Kiobel, the Supreme Court invoked an international relations rationale to justify application of the presumption against extraterritoriality, and applied that presumption to subvert the international human rights policies of the federal political branches.
The Court has never explicitly invoked a domestic judicial policy rationale to justify its extraterritoriality jurisprudence. Even so, that rationale may help illuminate the normative judgments implicit in the Court’s extraterritoriality jurisprudence. Unfortunately, the pattern of judicial decision-making is deeply disturbing. The Supreme Court encourages federal courts to employ their judicial power to enforce constitutional norms created by the Supreme Court because the Court favors judicial lawmaking that it controls. In contrast, the Supreme Court erects obstacles for plaintiffs who seek to enforce statutory or international law norms because those norms are the product of lawmaking processes that the Court does not and cannot control. Thus, one might reasonably conclude that the Court’s jurisprudence manifests judicial hostility to democratic lawmaking processes.
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