April 18, 2013
In its long-awaited ruling in Kiobel v. Royal Dutch Petroleum Co., a five-justice majority of the Supreme Court announced that the 200 year-old Alien Tort Statute (ATS) presumptively does not apply to conduct occurring outside of the United States.
As detailed in previous posts, Kiobel arose from the torture and killing of Nigerians who protested against what they believed was exploitation of Nigeria’s oil by a corrupt regime and international oil companies. Nigerian government officials, allegedly aided by the oil companies, reacted to the protests with “massive scorched earth operations,” and massacred nearly a thousand residents.
The court initially granted certiorari to consider whether the ATS could be used to impose liability on corporations. Shortly after oral argument on that issue, the Court requested that the parties file supplemental briefs addressing whether the ATS applies extraterritorially.
The Court’s opinions – the majority, plus three separate concurrences- never reached the question of corporate liability, but the majority’s discussion of corporate presence in the US as insufficient to confer ATS jurisdiction suggests that a corporation could be held to account in certain circumstances.
The Majority Trims the ATS
All nine justices agreed that the unique facts of this case and the lack of US connections made it inappropriate for US courts to exercise ATS jurisdiction.
Five justices, however, went farther and held that the ATS was bound by a presumption against extraterritorially and therefore did not reach conduct outside the US. In support of its position, the majority stated that nothing in the statute’s text suggested an intended extraterritorial reach. The majority dismissed the textual references to the law of nations and to “torts,” which at common law included transitory torts, by arguing:
- law of nations could apply inside or outside the US; and
- including “torts” in the text doesn’t “necessarily” mean that Congress intended to include transitory torts.
The majority also noted that piracy was among the violations of the law of nations that were recognized when Congress passed the ATS. Although piracy is generally understood to occur on the high seas and, almost by definition, outside of the territorial limits of the US, and the Court has generally treated the high seas as the same as foreign soil, the majority nevertheless concluded that applying US law to pirates would not “impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign.” In any event, the majority shrugged, “pirates may well be a category unto themselves;”therefore, that piracy was among the violations originally contemplated as within the ATS does not mean Congress intended the ATS to apply to other conduct abroad. In sum, in the majority’s view, there was some evidence- but not enough- that Congress intended the ATS to apply extraterritorially and therefore it failed to overcome the presumption against extraterritoriality.
In setting forth its holding, however, the majority suggested without elaboration that there might be instances where the ATS would provide a remedy where the relevant conduct took place outside the US, if the “claims touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.”
Concurrences Raise Questions
Seven justices either wrote or joined concurrences.
Justice Kennedy observed that the majority opinion left many questions unanswered.
Justice Alito, joined by Justice Thomas, concurred with the majority “as far as it goes,” but advocated for a “broader standard” that an ATS action will only lie when domestic conduct constitutes one of the three recognized international law violations in 1789: violations of safe conducts; infringements on the rights of ambassadors; and piracy.
Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, also concurred in the judgment. Justice Breyerconcluded, however, that the presumption against extraterritoriality should not apply and, instead, the principles of foreign relations law should govern. Applying those principles, Justice Breyer opined that the ATS provided jurisdiction where:
- the alleged tort occurs on US soil;
- the defendant is an American national; and
- the defendant’s conduct substantially and adversely affects an important American national interest, such as keeping the US from becoming a safe harbor for a “common enemy of mankind.”
Justice Breyer also opined that the Court’s precedents, as well as international law, support his conclusion. Moreover, addressing the Court’s concern of an unlimited principle leading to an influx of international cases and ensuing diplomatic friction, he noted that the doctrines of forum non conveniens, comity, and exhaustion of remedies would serve as important limiters.
Unanswered Questions Remain
The court and its fragmented opinions left significant questions unanswered, including when, if ever, can the presumption against extraterritorial application of the ATS be overcome. It will surely take years for lower courts to work through the nearly unlimited scenarios that are likely to arise. This is likely not the final word from the Supreme Court on the ATS. Until then, victims of international human rights atrocities will find little relief through the ATS in US courts.