The Alien Tort Statute and the Law of Nations in \u3cem\u3eKiobel\u3c/em\u3e and Beyond

In Kiobel v. Royal Dutch Petroleum the U.S. Supreme Court wrongly applied a presumption against extraterritoriality to claims authorized by the Alien Tort Statute (ATS). Even assuming such a presumption properly could extend to the ATS and claims authorized thereunder, the presumption is easily overcome by Congress’s unambiguous instruction that the statute encompasses violations of “the law of nations,” which includes both substantive and jurisdictional components — including principles of extraterritorial jurisdiction. Early 19th Century case law and congressional reaction thereto clearly demonstrate that Congress expressly invoked “the law of nations” to overturn the Court’s imposition of a limiting presumption in the piracy context in order to grant the United States universal jurisdiction over that offense. Rather than rely on this strong indicia of congressional intent, the Court in Kiobel instead seized upon a judicially invented presumption that came into existence twenty years after the ATS was enacted, gave it novel application to a jurisdictional statute and claims authorized thereunder, and then projected it backward in time. Yet Kiobel nonetheless correctly determined that conduct-regulating rules of decision under the ATS derive from international law and that domestic law of the forum, or lex fori, provides procedures and remedies. This framework is consistent with public and private law principles of the law of nations under which the statute ought to be construed. Although this framework should have led the Court to conclude that the claims in Kiobel were actionable, the Court’s misunderstanding has not completely erased the possibility of future claims involving foreign elements from being brought under the statute. The Court left the door open for claims that sufficiently “touch and concern” the United States. The Article concludes that, going forward, courts should use international law for the conduct-regulating rules under the ATS and domestic law for procedures and remedies. Jurisdictional principles of the law of nations ought to guide analysis of whether claims involving foreign elements sufficiently touch and concern the United States so as to displace the presumption against extraterritoriality