By William Fife, Florida Coastal School of Law graduate, Indiana University MA – International Relations.
Adopted in the first Judiciary Act of 1789, the Alien Tort Statute (ATS) is nearly as old as the American Republic itself. Although the ATS was included in this bedrock of American judicial power, the ATS has rarely been used to exercise jurisdiction in U.S. district courts as forums for lawsuits by foreign citizens against foreign defendants for torts in violation of international customary law or a treaty of the U.S. (28 USC § 1350). Congress furthered this standard by adopting the Torture Victim Protection Act (TVPA) in 1991 to enable both U.S. and foreign victims of torture and extra-judicial killing to seek redress in U.S. courts. Filartiga v. Pena-Irala in 1980 set ATS precedent by pursuing not just states but also individuals for violations of international customary law. Sosa v. Alvarez-Machain in 2004 affirmed Filartiga allowing federal courts to recognize claims for violations of international norms that are “specific, universal, and obligatory.” The ATS has also been used in several claims against multi-national corporations, such as Unocal, Royal Dutch Shell, and Caterpillar with varying results. However, the current U.S. Supreme Court, in Kiobel v. Royal Dutch Petroleum Co., limited the reach of the ATS by shielding corporate liability for international human rights violations—at least in terms of extraterritoriality.
In a unanimous decision, the Court in Kiobel held that “the presumption against extraterritoriality applies to claims under the ATS, and nothing in the statute rebuts that presumption.” Originally framed around the issue of whether or not there is corporate liability under the ATS, the Court then shifted focus to the issue of jurisdictional extraterritoriality. Why the about-face? Did the Court shift issue-focus to create a new limitation regarding extraterritoriality to avoid affirming corporate liability for human rights abuses abroad? The ATS only offers the following language: “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.” The Court held that since the precise language of the ATS does not specifically state the ability for extraterritoriality, then it has none in order to avoid judicial interference in foreign policy.
In an apparent victory for limiting corporate liability for human rights abuses abroad, Kiobel still does not extinguish all claims against corporations under the ATS. The opening to pursue claims under the ATS against corporations has just been narrowed in terms of extraterritoriality. Justice Breyer’s concurrence provides the opening. In his view, “(T)oday’s pirates include torturers and perpetrators of genocide…and… they are “fair game” where they are found.”