June 24, 2013 Articles

Fighting "Today's Pirates": Kiobel and the Future of ATS Claims

The Supreme Court's decision represents a serious missed opportunity to settle the question of whether corporations can be subject to liability under the Alien Tort Statute.

By Morgen Morrissette – June 24, 2013

In the long anticipated ruling for Kiobel v. Royal Dutch Petroleum, the Supreme Court closed a major avenue to corporate tort liability and significantly limited the scope of the Alien Tort Statute (ATS). Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659, 1661 (2013). The Court unanimously declined to decide whether corporations could be held liable under the ATS, holding instead that a presumption against extraterritoriality bars suits from being brought under the ATS for torts committed abroad unless the claim will “touch and concern the territory of the United States . . . with sufficient force to displace the presumption against extraterritorial application.” The parameters of the “touch and concern” requirement are not addressed by the majority, but there is some guidance in the concurring opinions of Justice Alito and Justice Breyer.

The statute that was the center of the suit is simple; the text of the ATS reads, in its entirety: “The 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.” Plaintiffs had successfully sued for extraterritorial torts under the ATS in the past, and it seemed a forgone conclusion that the statute provided jurisdiction over such cases. In fact, the issue was not fully briefed at the time the Supreme Court first held oral arguments in the case, and the case had to be re-argued in the next term to allow the parties to develop arguments on the extraterritoriality question.

Virtually all legal controversy surrounding the ATS had focused on what torts rise to the level of “in violation of the law of nations or treaty of the United States.” In Sosa v. Alvarez-Machain, the Court famously stated that to rise to that level, a tort must “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms, offenses against ambassadors, violations of safe conduct and piracy, that Congress had in mind when it enacted the ATS.” Sosa v. Alvarez–Machain, 542 U.S. 692, 124 S.Ct. 2739, 159 L.Ed.2d 718 (2004). The Sosa requirements compose the modern definition of “the law of nations” found in the ATS. Under this analysis, courts were left to the work of determining what torts could come inside the scope of the Sosa test, and therefore the ATS: Which tortfeasors violate international law, legal “norms of international character accepted by the civilized world”? Who, as Justice Breyer would ask nine years later in his concurring Kiobel opinion, are today’s pirates?

In the years following Sosa, courts did define some of today’s pirates: slave traders, torturers acting under color of law, and those who commit genocide, murder, rape, and arbitrary detention of citizens during times of conflict. As the case law developed, controversies arose, chief among them a jurisdictional split on whether corporations could be held liable for violations of the law of nations in suits brought under the ATS.

Kiobel was filed in the midst of this controversy. The casewas brought by Nigerian citizens alleging that Royal Dutch Petroleum (more commonly, Shell), through its subsidiary, Shell Petroleum Development Company of Nigeria, Ltd (SPDC), in cooperation with Nigerian armed forces, aided and abetted the following violations of the law of nations in furtherance of oil-development activities in the Niger Delta: extrajudicial killing; crimes against humanity; torture or cruel, inhuman, and degrading treatment; arbitrary arrest and detention; violation of the rights to life, liberty, security, and association; forced exile; and property destruction. The U.S. Court of Appeals for the Second Circuit, in a departure from its previous holdings, dismissed the case, stating that international law does not recognize corporate liability, and that corporations, therefore, cannot be held liable under the ATS. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir. 2010).

When the Court granted certiorari on the corporate-liability issue, Kiobel seemed poised to settle the split on corporate liability. Because the Court sidestepped the corporate-liability issue by instead affirming the dismissal based on the presumption against extraterritoriality, the opinion created more questions than it answered. A jurisdictional split resembling the pre-Kiobel decision therefore seems inevitable. Future plaintiffs willing to brave the already uncertain path of ATS litigation will be faced with litigating the already contentious corporate-liability question in addition to the boundaries of the touch-and-concern requirement.

The good news for future plaintiffs is that the decision did not foreclose the possibility of corporate liability under the statute, and that the concurring opinions do offer suggestions to what arguments may be persuasive for the touch-and-concern requirement. Justice Alito wrote that if the domestic conduct of a defendant were to satisfy the Sosa requirements, the touch-and-concern requirement may be met. Under this formulation, Kiobel might have gone forward if at least some of the alleged aiding and abetting had taken place in one of Shell’s U.S. offices, rather than Dutch and Nigerian offices.

The possible parameters of the touch-and-concern requirement may be best explained by Justice Breyer’s concurring opinion. Although Justice Breyer stated that he would not have invoked the presumption against extraterritoriality, he outlined a required nexus between the tortious conduct and American interest that resembles a touch-and-concern requirement. Under the Breyer formulation, a court can exercise jurisdiction under the ATS when an American interest is at issue. For Breyer, this requires that (1) the tort occur in the U.S.; (2) the defendant be American; or that the (3) conduct “substantially and adversely affect” a U.S. interest. This formulation may in fact provide the best starting point for analyzing the touch-and-concern requirement; it is difficult to imagine that conduct meeting any of these requirements would not “touch and concern” the United States.

There is another bit of good news for future plaintiffs: It is inevitable that courts will soon entertain serious debate as to whether the touch-and-concern requirement is met by, as Justice Breyer stated in his concurring opinion, “this Nation’s interest in not becoming a safe harbor for violators of the most fun­damental international norms.” If the Breyer formulation has any influence on the future of ATS litigations, arguments, or outcomes, lower courts may begin dealing with this question as soon as plaintiffs are willing to try another ATS suit.

The Court’s decision represents a serious missed opportunity to settle the question of whether corporations can be subject to liability under the ATS. If the touch-and concern requirement is interpreted broadly in future cases, Kiobel may provide a blueprint for future international human-rights litigation in U.S. courts. If it is interpreted narrowly—including, for example, only domestic conduct—then Kiobel will likely represent the end of the ATS as a basis for international civil-rights litigation. In either case, the Kiobel decision is sure to create serious debate on the important question of whether or not the United States is willing to continue to develop as a safe haven for today’s pirates.

Keywords: civil rights litigation, Alien Tort Statute, SCOTUS, human rights


Morgen Morrissette recently graduated from Case Western Reserve University School of Law.


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