KIOBEL V. ROYAL DUTCH PETROLEUM CO.: THE ALIEN TORT STATUTE’S PRESUMPTION AGAINST EXTRATERRITORIALITY

Abstract

The Alien Tort Statute (ATS) provides jurisdiction for United States courts over tort cases brought by aliens who have been injured through violations of the law of nations. On its face, the text of the ATS does not limit that jurisdiction to cases where the defendants’ misconduct occurs in the United States. In Kiobel v. Royal Dutch Petroleum Co., however, the Supreme Court of the United States was confronted with a difficult question: Should a presumption against application of the ATS exist where defendants’ misconduct occurs completely outside of the United States? The Court ultimately decided the ATS has a presumption against extraterritorial application, and as a result, it would no longer apply to violations of the law of nations and treaties of the United States that occur abroad. A cause of action for violations of the law of nations occurring within the territory of a foreign sovereign had presumably existed since 1789, when the ATS was included in the passage of the Judiciary Act. As identified by William Blackstone, offenses against the law of nations included violation of safe conducts, infringement of the rights of ambassadors, and piracy. The Supreme Court’s decision in Kiobel removed any cause of action arising from these offenses when occurring outside the United States. To reach its decision, the Kiobel majority looked to the text of the ATS, the historical background surrounding its enactment, and the legislative intent of its drafters. Although the Court ultimately found that the ATS could not be used to seek remedies for violations of the law of nations occurring outside the United States in this instance, it left open the possibility to rebut the presumption against extraterritoriality without identifying how to do so. Section II of this Note discusses the facts and procedural history that gave rise to the Supreme Court’s Kiobel decision. Next, Section III addresses the history of the ATS and identifies the precedent that the majority relied on to reach its decision in Kiobel. Section IV summarizes the majority and concurring opinions. Finally, Section V dissects the Supreme Court’s reasoning behind its decision and critiques the largely ambiguous opinion. Specifically, the analysis in this Section contemplates the potential foreign policy motive behind the majority’s decision as compared with its identifiable originalist argument. In addition, this Section evaluates the Court’s failure to provide a decision that indicates when the presumption against extraterritoriality might be overcome in future cases.