SCOTUS rejects extraterritorial application of ATS in Kiobel v. Royal Dutch Petroleum Co.

The U.S. Supreme Court today released a significant decision on personal jurisdiction in Kiobel v. Royal Dutch Petroleum Co. (No. 10–1491, slip opinion: link). (backgrounder here and here).

The Court unanimously denied the appeal.

Roberts, C. J., in delivering the opinion of the Court (Scalia, Kennedy, Thomas and Alito JJ., joining), held that the presumption against extraterritoriality applies to claims under the Alien Tort Statute, 28 U. S. C. §1350, and nothing in the statute rebuts that presumption. The Chief Justice concludes:

On these facts, all the relevant conduct took place outside the United States. And 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. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

The judgment of the Court of Appeals is affirmed.

If there is any silver lining, it may be found in the concurring opinions.

Justice Kennedy writes:

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation. [emphasis added]

Justice Alito (Justice Thomas joining) adds:

“…only conduct that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations can be said to have been “the ‘focus’ of congressional concern,” Morrison, supra, at ___ (slip op., at 17), when Congress enacted the ATS. As a result, a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm that satisfies [Sosa v. Alvarez-Machain, 542 U. S. 692 (2004),] requirements of definiteness and acceptance among civilized nations.

Justice Breyer (Justices Ginsburg, Sotomayor and Kagan joining, concurring in the judgment) parts company with the majority’s invocation of the presumption of extraterritoriality; instead setting out a three factored jurisdictional test for future ATS cases:

Unlike the Court, I would not invoke the presumption against extraterritoriality. Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute 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, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind. See Sosa v. Alvarez-Machain, 542 U. S. 692, 732 (2004) (“‘[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.’” (quoting Filartiga v. Pena-Irala, 630 F. 2d 876, 890 (CA2 1980) (alteration in original))). See also 1 Restatement (Third) of Foreign Relations Law of the United States §§ 402, 403, 404 (1986). In this case, however, the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction.

There is much to commend in Justice Breyer’s jurisdictional approach. It reflects international law norms prohibiting torture committed abroad or allowing nations to “provide safe harbors for their own nationals who commit such serious crimes abroad.” (per Breyer J. at p. 10, citations omitted)

I appreciate that the United States post 9/11 foreign policy on waterboarding, torture memos, extraordinary rendition and indefinite detention in Guantanamo Bay leaves much to be desired. At least Breyer J. considers the interplay of jurisdiction and international law when he states:

Thus, the jurisdictional approach that I would use is analogous to, and consistent with, the approaches of a number of other nations. It is consistent with the approaches set forth in the Restatement. Its insistence upon the presence of some distinct American interest, its reliance upon courts also invoking other related doctrines such as comity, exhaustion, and forum non conveniens, along with its dependence (for its workability) upon courts obtaining, and paying particular attention to, the views of the Executive Branch, all should obviate the majority’s concern that our jurisdictional example would lead “other nations, also applying the law of nations,” to “hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world.” Ante, at 13.

In the end, the U.S. Supreme Court has given multinational corporations a free pass for aiding and abetting torture and human rights abuses abroad. Whether the U.S. Congress will legislate a response by imposing corporate liability for international human rights cases and allowing victims access to US courts to seek redress remains an unlikely prospect.