Bench Memos

Today’s Ruling Against Extraterritorial Application of Alien Tort Statute

By a 5-4 vote, the Supreme Court today ruled in Kiobel v. Royal Dutch Petroleum Co. that the Alien Tort Statute of 1789 does not apply extraterritorially. The Chief Justice authored the majority opinion, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. The four liberals agreed that the Alien Tort Statute did not provide jurisdiction in this case, and they therefore concurred in the judgment (in an opinion by Justice Breyer), but they disagreed with the majority’s holding that the ATS does not apply extraterritorially.

The ruling is a significant defeat for American transnationalists (like former State Department legal adviser Harold Koh) who aim to use American courts to import actual or supposed norms of international law to override the policies that American citizens adopt through the processes of representative government. Over the last three decades, the ATS has been a favorite tool of transnationalists. Through litigation alleging human rights abuses abroad by foreign governments, transnationalists have sought to have federal judges act in a way that intrudes on and interferes with the authority of the executive branch and Congress to manage our nation’s foreign affairs. Today’s ruling should put an end to much of that ATS litigation.

I will note that the Court did not undertake to define exactly when invocation of the ATS would violate the principle against extraterritoriality. In Kiobel itself, the plaintiffs were residents of Nigeria who claimed that Dutch, British, and Nigerian corporations that were engaged in oil exploration and production in Nigeria aided and abetted the Nigerian government in committing human rights abuses. Because “all the relevant conduct took place outside the United States,” the principle that the ATS does not apply extraterritorially defeated jurisdiction.

There will, though, be many cases in which some of the relevant alleged conduct takes place within the United States (and, indeed, after today’s ruling, creative pleading will surely seek to identify relevant domestic conduct). Beyond making clear that “mere corporate presence” in the United States will not suffice, the Chief Justice’s opinion observes that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” That observation (and its supporting citation) ought to signal that there will not be ATS jurisdiction over claims based predominantly on, or focused on, foreign conduct, but future cases will have to sort out the precise lines.

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