As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States. That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).
As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international-law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra-territorial application. Indeed, in such a case – and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case – there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).
Nothing in the text of the ATS overcomes that basic presumption against extra-territoriality and the Court’s fascinating historical exposition demonstrates why the First Congress – the ATS was enacted in 1789 as one of our first laws – wouldn’t have wanted to change that practice or make the fledgling republic a “uniquely hispitable forum for the enforcement of international norms.”
As Cato’s amicus brief argued, the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction. Their understanding of jurisdiction rested on the nexus between territory and sovereignty; the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted. That the law of nations permits jurisdiction over piracy on the high seas or in other unique circumstances doesn’t mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.
Finally, the Court correctly noted that the mere fact that corporations are present in the case – the original issue was whether the ATS recognized corporate liability – doesn’t somehow change the extraterritorial-applicability calculus. In Kiobel, even the corporations were foreign (Dutch and British oil companies), with nobody alleging that so much as a U.S. subsidiary was involved.
At the end of the day, this was an exceedingly complicated case with a relatively simple solution. Well done, Supreme Court.