Last week, in Kiobel v. Royal Dutch Petroleum, the United States Supreme Court rejected a lawsuit by Nigerian plaintiffs who were suing foreign corporations for allegedly aiding and abetting human rights violations in Nigeria. Although the Justices were unanimous in their result, they divided 5-4 on the rationale. The Court’s more liberal bloc—in a separate opinion by Justice Stephen Breyer—said that the lawsuit was not sufficiently related to the United States to warrant jurisdiction in a U.S. Court. But the Court’s conservative majority—in an opinion by Chief Justice Roberts—appeared to rest the decision on a sweeping categorical rule: Plaintiffs have no right to sue under the Alien Tort Statute (ATS) for conduct occurring within the territory of a foreign sovereign.
In so ruling, the Court angered human rights lawyers who, for over three decades, have been relying on the ATS as a basis for a form of “universal jurisdiction,” a concept that allows any sovereign to open its courts to parties aggrieved by very serious wrongs, regardless of where those wrongs were committed, so long as the defendants are subject to personal jurisdiction in the forum country. In shutting the courthouse door to universal jurisdiction under the ATS, the Court said that the statute was never intended for that purpose.
In principle, the decision in Kiobel merely sends the issue back to Congress. But in practice, the ruling is likely to be final. The ATS was enacted in 1789 and generated only a tiny handful of cases until 1980, when the U.S. Court of Appeals for the Second Circuit permitted a lawsuit by Paraguayan nationals against a Paraguayan defendant accused of torture in the Filártiga case.
Despite substantial ATS litigation in the lower courts and a 2004 ruling on the statute’s scope by the U.S. Supreme Court in Sosa v. Alvarez-Machain, Congress has not amended the statute. Given ideological divisions about the wisdom of entertaining ATS litigation in the U.S. courts, it is doubtful that legislative inertia could be overcome in order to make changes to the statute, in any direction. Accordingly, for practical purposes, the Supreme Court decision in Kiobel will define the scope of the ATS for years to come.
No doubt that sounds like bad news for human rights lawyers, and mostly, it is. However, despite condemnation of the Kiobel decision from those who are sympathetic to human rights lawsuits—like a New York Times editorial—the ruling appears to leave open at least three potential avenues for ATS litigation: First, by analogy to piracy, ATS litigation may be permissible where the underlying events took place in the territory of a failed state; second, the majority opinion allows for litigation under statutes that specify their extraterritorial effect; and third, the majority opinion itself and especially a concurrence by Justice Kennedy suggest that even absent a statute, there may still be room for ATS litigation involving conduct on foreign soil, where that conduct touches and concerns United States territory.
The Ruling in Kiobel
The legal issues at play in Kiobel were complex, to say the least. Here, I shall only skim the surface of what was at stake. (Readers interested in greater depth might consult my blog post previewing the case, or Professor Rodger Citron’s thorough column that appeared here on Verdict shortly after the oral argument last fall).
The ATS provides simply that federal “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.” In the Sosa case, the Supreme Court held that although the law merely provides for jurisdiction, federal courts have the authority to provide for a substantive right to sue—what lawyers call a “cause of action”—for violations of international law, but only where the relevant legal norms are specific, universal, and obligatory. Justice Souter explained for the Court that when the ATS was enacted in 1789, there were three types of international law violations that could give rise to ATS jurisdiction: violations of the rights of ambassadors; violations of “safe conduct” guarantees for foreign visitors; and piracy.
Although the particular plaintiff in Sosa lost in the Supreme Court, the case received a mixed reception among human rights lawyers, because it recognized the possibility of litigation for the most serious human rights violations.
In Kiobel, the Court began with the presumption that federal laws do not apply extraterritorially. Finding nothing in the language or history of the ATS that was sufficiently clear to overcome that presumption, the majority appeared to announce a seemingly categorical rule: The ATS does not apply to acts committed on the territory of a foreign sovereign.
The majority’s reasoning is subject to various criticisms. I shall discuss three.
First, as Justice Breyer argued in his separate opinion, the presumption of extraterritoriality arises because most statutes take domestic matters as their basic focus. But the ATS, by its terms, addresses the rights of aliens and international law. Therefore, the presumption of extraterritoriality arguably should not even be in play.
Second, the majority rule does not really apply the presumption of extraterritoriality because it does not cut back on Sosa’s recognition that the ATS has historically been available against pirates operating on the high seas—that is, outside of the territory of the United States. Recognizing this seeming anomaly, Chief Justice Roberts argues in his Kiobel opinion that litigation based on conduct on the high seas does not pose the same risks to the elected branches’ conduct of foreign policy as litigation based on conduct in the territory of another sovereign. Thus, he contends that the policies behind the presumption against extraterritoriality only warrant a rule barring the application of the ATS to the latter category.
That is not a bad answer, but it is not ironclad either. As Justice Breyer notes, a ship at sea is under the jurisdiction of the nation the flag of which it flies. Thus, litigation in the territory of one sovereign based on acts of piracy against a ship that flew the flag of a different sovereign also poses the risk of inter-sovereign friction.
Third, the majority opinion is in considerable tension with Sosa, which itself arose on foreign territory. The majority does not say much to attempt to reconcile the opinion with Sosa or, for that matter, with the decades of cases that have been brought in the lower courts since the 1980 Second Circuit ruling in Filártiga.
The Court’s response is essentially that it had never before expressly considered the extraterritoriality question—which is technically true. But that response does not fully answer the objection that recent practice in the lower courts and the expectations of the bar ought to be given at least as much weight as scant precedents and scraps of history from the Eighteenth and early Nineteenth Centuries. And I do mean scraps. The late, great Second Circuit Judge Henry Friendly (for whom John Roberts once served as a law clerk) famously referred to the ATS as “a kind of legal Lohengrin; although it has been with us since the first Judiciary Act,” Friendly noted, “no one seems to know whence it came.”
Avenues That the Court Left Open for ATS Litigation
Whether the Supreme Court was right or wrong in Kiobel is now water under the bridge. The question going forward is what Kiobel means in practice. And the answer is that it leaves open a number of possible avenues for human rights litigation in the U.S. courts by non-citizens seeking relief against foreigners for acts committed on foreign soil.
A number of scholars have suggested that failed states, in which there is no effective sovereign, may fall outside of the presumption against extraterritoriality for the same reason that the majority thought that piracy on the high seas falls outside of the presumption. In a failed state, there is no sovereign authority to displace.
Moreover, the Kiobel opinion itself points to another set of avenues of redress. The Court only addresses the question of what causes of action the courts are authorized to recognize pursuant to the ATS. But the majority opinion acknowledges that other statutes expressly permit litigation against foreigners in U.S. courts for acts committed in foreign lands against other foreigners. That opinion cites the Torture Victim Protection Act, which provides for civil liability in such cases, as well as other provisions of law that allow for civil and criminal litigation for extraterritorial torture, genocide and extrajudicial killing.
Moreover, even in cases brought under the ATS alone, without reliance on any other statute, there may be some remaining scope for extraterritorial application. Justice Anthony Kennedy, whose vote was necessary to make a majority in Kiobel, stated in a concurrence that he read the lead opinion as leaving open questions about “the proper implementation of the presumption against extraterritorial application.”
It is not entirely clear what questions Justice Kennedy believes have been left open, but one possibility is that he reads the majority opinion as only applying to a case like Kiobel itself, in which the defendants are foreigners. Perhaps he would not apply the presumption against extraterritoriality in a case like Sosa, in which the underlying events occurred in Mexico but the United States itself and U.S. citizens were among the defendants. More generally, Justice Kennedy might read Kiobel as inapplicable to cases in which there is a more substantial U.S. interest. Reading the majority in that way would substantially narrow the gap between the lead opinion and the more expansive view of the ATS proposed by Justice Breyer.
Is that a plausible reading of the majority opinion? Maybe. The Chief Justice states that when the relevant conduct takes place outside of the United States, it must “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.” In yet another concurrence, Justice Alito (joined by Justice Thomas) says that he would squarely hold that the presumption against extraterritoriality can only be overcome where the domestic conduct itself violates the international law norm. Chief Justice Roberts does not say in Kiobel whether he agrees with the more stringent approach of Justice Alito or the potentially more permissive one of Justice Kennedy.
Whether the Court reads Kiobel as substantially narrowing the ATS thus remains to be seen. It appears that the ATS is not merely a legal Lohengrin but also a legal Odysseus. No one knows whence it came nor, for the time being, where it is going.