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May 3, 2013

KIOBEL WATCH - The ATS: Not if, but when?

by: Jodi Westbrook Flowers

There was a rush to pop champagne corks and declare complete victory by corporations facing current or potential litigation under the Alien Tort Statute (ATS) in light of the Supreme Court’s recent decision in Kiobel v. Royal Dutch Petroleum Co. I believe this reaction to be likely based on a one-sided reading of a deliberately narrow decision that reaffirmed the standards of Sosa v. Alvarez—that violations of certain universal norms of conduct give rise to liability in tort where the conduct at issue rises to a level abhorrent to civilized nations and customary international law. In the final paragraph of the majority opinion, Chief Justice Roberts gives us conditions under which extraterritoriality presumption does not apply: “where the claims touch and concern the territory of the United States against extraterritorial application  . . . corporations are often present in many countries, and it would reach too far to say mere corporate presence suffices they must do so with sufficient force to displace the presumption.”

Kiobel held that the presumption against extraterritorial application of the ATS applied and was not displaced under those facts. In Kiobel, all of the relevant conduct and parties were outside the United States. Many pending ATS cases, however, simply do not fit those facts. In many cases, some, if not all, of the alleged misconduct took place within the U.S. or the defendants are U.S.-based. The Court points out that, where defendants’ domicile was or is a part of the alleged conduct transpiring in the U.S., the presumption against extraterritorial application of the ATS can be displaced.

As posited by Justice Breyer, the question after Kiobel is not if sufficient domestic conduct can “overcome” the presumption, but rather, when. Kiobel, (Breyer, J., concurring in the judgment). Far from barring all ATS cases on extraterritoriality grounds, Justice Kennedy explained that “[o]ther cases may raise with allegations of serious violations of international principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case.” On balance, the Court makes clear that the federal courts have jurisdiction over an ATS claim where claims “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.”

While Kiobel recognizes that the presumption against extraterritoriality guards against the concern over “international discord” that might arise if the ATS were applied indiscriminately to conduct occurring abroad, many ATS cases do not impact international relations. Where they do, they do so in a positive manner. I find that a good case in point is international terrorism. The U.S. and its allies are fighting terrorism in their own territories and beyond, often with support given to radicals from across the globe. I can’t understand how cutting off material support pipelines to international terrorist groups would be injurious to our national interest or foreign policy. Like me, many innocent families brutalized by acts of international terrorism fail to see the logic. Acts of terrorism and similar crimes against humanity don’t discriminate based on nationality. Innocent people from more than 90 nations were murdered on Sept. 11, 2001, and the Lockerbie bombing stole the lives of people from 21 nations. As the Supreme Court previously held in Holder v. Humanitarian Law Project: “[p]roviding foreign terrorist groups with material support in any form also furthers terrorism by straining the United States’ relationships with its allies and undermining cooperative efforts between nations to prevent terrorist attacks.” The logic of the notion that the federal courts are not suited to be world courts has some appeal, but surely we agree that our courts should serve as an example to the world in holding terrorists and human rights abusers—corporate or otherwise—to task.

Also, let’s not forget that the ATS remains the law as described in Sosa and, as limited by Kiobel, excludes cases entirely concerned with foreign parties and conduct. Where the parties and conduct span the globe and involve the United States, its territories, allies or interests, we may see a different result.