The Frankenstein’s Monster of Extraterritoriality Law
American Journal of International Law Unbound, Vol. 110, 2016
6 Pages Posted: 11 Aug 2016 Last revised: 31 Aug 2016
Date Written: August 10, 2016
The judge-made presumption against extraterritoriality has recently become a motley patchwork of eccentric and sometimes contradictory doctrines seemingly stitched together for one, and only one, mission: to deprive plaintiffs the right to sue in U.S. courts for harms suffered abroad. It lumbers along, blithely squashing precedent, principle, statutory text, and legislative intent — all to heed its abiding and single-minded obsession. The Supreme Court has so far mangled the scope of the Securities Exchange Act1 and the Alien Tort Statute (ATS),2 and, in RJR Nabisco v. European Community, has placed another statute — The Racketeer Influenced and Corrupt Organizations Act (RICO) — on the chopping block.3 The major surgery performed was amputating RICO’s private right of action for extraterritorial offenses and replacing it with a much stubbier appendage limited to injuries suffered on U.S. territory.
This contribution makes several observations. The first focuses on the Court’s loose but potentially loaded language that the presumption applies to jurisdictional statutes.4 This is of course an outgrowth of the Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, which applied the presumption to the cause of action authorized by the ATS — a statute that Kiobel itself acknowledged is “strictly jurisdictional.” I am less sure than others that Kiobel avoided applying the presumption to the ATS proper (as opposed to merely the cause of action the ATS authorized), especially in light of the post-Kiobel lower-court trend, which treats challenges to the ATS’s geographic scope as going to subject-matter jurisdiction, not the merits. My concern is that RJR may now swing wide open the door for courts to deploy the presumption to dismiss suits on subject-matter jurisdiction grounds more generally.
My second observation is that, despite its lip service to the contrary, RJR’s application of the presumption frustrates Congress and damages international relations. Herein lies a deep irony, for deference to Congress and reduction of international friction are precisely the considerations that originated the presumption and supposedly motivate it today. Yet rather than stay faithful to its origins as essentially a separation-of-powers canon designed to effectuate legislative supremacy and judicial modesty, it has paradoxically become a thoroughly judge-directed creature that carelessly neglects the real stakes in particular cases for needlessly formalistic elaborations that, in practice, defeat its intended purpose and allow the Court complete discretion to ignore congressional directives.
Keywords: extraterritoriality, foreign relations, international law
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