R.I.P. A.T.S.? How much of the Alien Tort Statute survives the Supreme Court’s Kiobel Decision?

This morning, the Supreme Court dismissed the human rights claims of a group of Nigerian nationals against Royal Dutch Petroleum (Shell) under the Alien Tort Statute (A.T.S.) in a 9-0 decision, though the justices split 5-4 as to the reasoning. For the original opinion, see: Kiobel v. Royal Dutch Petroleum Co., 569 U.S. ___ (2013)

Justice Roberts delivered the opinion of the Court on behalf of 5 justices. First, the Court held that the presumption against extraterritoriality, explained with force in Morrison v. National Australia Bank, 561 U.S. ___ (2010), applies to the statute and the federal common law cause of action under the statute. Second, the court found nothing in the statute’s language or history to rebut the presumption. Third, there are no facts to rebut the presumption in the instant case. Fourth and finally, the Court justifies its solution as preventing the ‘diplomatic strife’ that may arise from judicial interference in foreign policy, an area that is traditionally reserved to the political branches. The Court implied that even if the primary norm that created the cause of action might not cause strife, the judicial search for secondary rules (such as corporate liability) may still do so.

Justice Kennedy wrote a one paragraph concurrence whereby he noted that the A.T.S. is not dead, and that the “proper implementation of the presumption against extraterritorial application” could be revisited in the appropriate case. This seems to comport with Roberts’s analysis of whether or not the presumption applied in the instant case. Kennedy seems to be responding to the last paragraph of the majority opinion, which states “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.”

Justice Alito, joined by Justice Thomas, attempted both to give more guidance to lower courts on how to determine when to rebut the presumption and to link this decision with the one in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the only other Supreme Court opinion considering the A.T.S. Alito suggests that the test for whether the presumption applies is whether the “focus” of the statute was meant to apply territorially. The focus of the A.T.S., he concludes, is any conduct that violates “an international law norm that satisfies Sosa‘s requirements of definiteness and acceptance among civilized nations”. Therefore, in order to rebut the presumption against extraterritoriality, a valid claim under the A.T.S. must allege conduct that meets the Sosa definiteness standard and that occurred within the U.S.’s domestic jurisdiction.

Justice Breyer’s concurrence, joined by Justices Ginsburg, Sotomayor, and Kagan, takes the argumentative tone of a dissent. Breyer finds the statute’s references to “’alien[s],’ ‘treat[ies],’ and ‘the law of nations’” sufficient indication to rebut the presumption of extraterritoriality. Further, he picks apart the majority’s survey of history. In particular, he points out that the majority opinion “cannot wish [the] piracy example away”, especially as the Sosa court acknowledged that acts of piracy was one of the three international law norms definitely covered by the A.T.S. In response to Roberts’s point that piracy occurred on the high seas and not in another State’s territory, Breyer points to Supreme Court precedent finding that “a ship is like land, in that if falls within the jurisdiction of the nation whose flag it flies.” Further, Breyer quotes the majority’s language that “Pirates were fair game wherever found, by any nation”. From this, he deduces a different limitation to dispose of the case. Rather than requiring that the offensive conduct occur within the U.S.’s jurisdiction, Breyer would merely require that “distinct American interests” be at issue. Such interests are implicated when the alleged acts took place on U.S. soil, when the defendant is American, or when dismissing the case would create a safe harbor in the U.S. “for a torturer or other common enemy of mankind.” Because Breyer does not see an American interest at stake here, he joins the majority to dismiss the case.

Despite Justice Kennedy’s assurance that the decision does not kill the A.T.S., it wipes out much of its caselaw. Whereas Breyer’s concurrence would have upheld seminal cases like Filartiga and Marcos, the majority opinion essentially vacates them. This goes well beyond the dreams of the defendants in this case, who had initially asked for cert only on the question of whether corporations could be liable under international law. After raising the extraterritoriality issue sua sponte and demanding a rehearing, the Court has now overruled virtually unanimous findings in the lower courts that the presumption against extraterritoriality did not apply to the A.T.S. See Flomo v. Firestone Natural Rubber Co., 643 F.3d 1013 (7th Cir. 2011), Sarei v. Rio Tinto PLC, 487 F.3d 1193 (9th Cir. 2007), and Doe v. Exxon Mobil Corp., 654 F.3d 11 (D.C. Cir. 2011).

In addition to curtailing future A.T.S. litigation, the majority opinion will have important ramifications for the presumption against extraterritoriality. First, it is now clear that the presumption relies on a ‘focus’ test. That is, the conduct that is the focus of a particular statute is the start of the presumption analysis rather than any ‘effect’ on the U.S.

Second, the presumption against extraterritoriality now applies not just to statutes, but to judicial action. Because the Court decided in Sosa that A.T.S. is strictly jurisdictional, the cause of action in any A.T.S. suit arises not under the statute, but rather federal common law. This is troubling, because it is unclear what the presumption means when applied to judicial action; for example, the analysis of legislative history and congressional intent is completely inapplicable when the judge making the inquiry is also making up the rule. Additionally, it is unclear how far this presumption goes. Does the presumption against extraterritoriality prohibit judges from issuing anti-suit injunctions that apply abroad? Does the presumption prohibit certain discovery orders regarding information abroad?

Third, the opinion seems to bifurcate the analysis of the presumption into ‘facial’ and ‘as applied’ stages. Confusingly, however, the court did not make the second stage of this analysis clear, and there may be scope to insert the old ‘effects’ test here. Alternatively, this could be an opportunity to reconcile the majority opinion with Breyer’s concurrence; perhaps if a “distinct American interest” were at stake in a particular case, the Court would be satisfied that the presumption has been rebutted in that particular case. Only Alito and Thomas supported the notion that the offending conduct must occur on U.S. soil. The final paragraph of the majority opinion says that claims should “touch and concern the territory of the United States”, which sounds like the old ‘effects’ test. While the tone of the opinion suggests that the Court has grown hostile to A.T.S. suits, the final paragraph of the majority opinion suggests that A.T.S. litigation is not dead yet.