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United States of America > Federal > Litigation Dispute resolution > Article > Supreme Court Of The US Significantly Restricts Application of the Alien Tort Statute

Article: Supreme Court Of The US Significantly Restricts Application of the Alien Tort Statute

Supreme Court Of The US Significantly Restricts Application of the Alien Tort Statute

By Charles E."Trip" Dorkey, III, Lawrence S. Ebner and Cary Burke

In Kiobel v. Royal Dutch Petroleum Co., 569 U.S. __, 133 S. Ct. 1659 (2013), the Supreme Court held last April that U.S. courts cannot entertain foreign nationals’ claims that corporations (or individuals) committed human rights violations within the sovereign territory of a foreign nation. When the case was first argued before the Court in February 2012, the question presented appeared to be whether corporations, as well as individuals, can be sued under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, for violating international law. But in an uncommon move, the Court, after hearing oral argument, requested supplemental briefing on the more fundamental question of whether the ATS has extraterritorial application (i.e., whether it applies to conduct outside of the United States). In a majority opinion authored by Chief Justice Roberts and joined by four other Justices, the Court held that the ATS does not apply extraterritorially. As a result, foreign nationals cannot use U.S. courts as forum for redressing alleged human rights violations committed abroad either by corporations or individuals.

Petitioners, former residents of Nigeria, claimed that the Shell Petroleum Development Company of Nigeria, Ltd. (SPDC) enlisted the Nigerian government to violently suppress demonstrations against the SPDC's oil exploration and production in the Niger Delta. Slip. op. at 2. Petitioners were forced to flee to the United States in order to escape the alleged atrocities and were subsequently granted political asylum. Soon after, they filed suit in the U.S. District Court for the Southern District of New York, alleging that jurisdiction was proper pursuant to the ATS and seeking relief under customary international law. Id.

The Alien Tort Statute, 28 U.S.C. § 1350, was enacted as part of the Judiciary Act of 1789, primarily to permit recovery of damages against pirates. The ATS provides that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." As such, petitioners alleged that SPDC had aided and abetted the Nigerian Government in committing a host of atrocities in violation of the law of nations. The district court dismissed several of petitioners' claims, but immediately certified its order to the U.S. Court of Appeals for the Second Circuit for interlocutory review because of the gravity of the issues being litigated. Id. at slip. op. 3. The Second Circuit held that petitioners' entire complaint must be dismissed on the ground that the law of nations does not recognize corporate liability, and thus SPDC could not be held responsible for aiding and abetting the Nigerian Government under the ATS. See Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010).

The Supreme Court’s majority opinion begins by invoking the presumption against extraterritorial application. A canon of statutory interpretation, the presumption provides that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none." Slip. op. 4 (citing Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869 (2010)). The presumption against extraterritoriality reflects the understanding that the law of the United States is not the law of the rest of the world. Id. The Court opined that the "danger of unwarranted judicial interference in the conduct of foreign policy is magnified" in the context of a statute like the ATS, because there is a great deal of uncertainty surrounding the damage a court could possibly cause in the realm of international relations. Id. at 5.

Petitioners had argued that, even if the presumption against extraterritoriality applied to the ATS, the statute's text, history and purpose should rebut the presumption. Id. at 6. In order to rebut the presumption, however, petitioners would need to demonstrate the clear intent of Congress for the ATS to apply outside of the United States. The Court held that neither the statute nor its historical background evinces such intent. Id. at 6-10.
The Court's ruling also explained that the statute was not designed to make the United States an open forum to be used to enforce international norms. In particular, the Court indicated that it is implausible to imagine that a newly-formed Republic would be so bold as to want to "pretend to be the custos morum of the whole world." Id. at 12. The statute was passed in order to provide judicial relief to foreign officials operating within the United States, not to make the United States a de facto world court.

Accordingly, the Court held that petitioners' claims must be dismissed because “all of the relevant conduct took place outside of the United States.” Id. at 14. The Court further indicated 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." Id. This latter proviso leaves a number of questions unanswered about whether, and under what circumstances, the ATS can be used to invoke federal court jurisdiction where the alleged claims may have some connection to the United States.

In his concurring opinion, Justice Kennedy noted that the Court’s majority opinion “is careful to leave open a number of significant questions regarding the reach and interpretation of the [ATS],” including in view of statutes such as the Torture Victim Protection Act. Slip op. at 1 (Kennedy, J., concurring). In another concurring opinion, Justice Alito, joined by Justice Thomas, suggested a broader standard for determining whether the presumption against territoriality applies to ATS to “claims that touch upon and concern the territory of the United States.” Slip. op. at 1 (Alito, J., concurring). According to Justice Alito, the presumption should apply “unless the domestic conduct is sufficient to violate an international law norm.” Id. at 2.

Justice Breyer wrote a separate opinion, joined by three other Justices, concurring only in the judgment. According to that opinion, rather than invoking the presumption against extraterritoriality, the ATS would confer jurisdiction only where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest. Slip op. at 1-2 (Breyer, J., concurring in the judgment).

For additional information, please contact:
Charles E."Trip" Dorkey, III
Lawrence S. Ebner
Cary Burke

Last Update: 2013-Jun-29 Charles E. “Trip” Dorkey III - Dentons
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Author: Charles E. “Trip” Dorkey III
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