The Door Ajar: The Life of the Alien Tort Statute before and after Kiobel v. Royal Dutch Petroleum

Since the April 2013 Supreme Court decision of Kiobel v. Royal Dutch Petroleum, the future of international human rights litigation in U.S. federal courts flounders in a quagmire of complex precedent and wants a light in the darkness. This paper seeks to find the foundation of the relationship of the law of nations to at least one sovereign state, the United States, then investigates the life of a major liaison in this regard, the Alien Tort Statute, and explores the viability of the ATS as a channel for international human rights litigation moving forward. Consistent judicial opinion, contextual and textual evidence of congressional intent and the Constitution itself support that the raison d’etre of the ATS has been to uphold the law of nations consistently in cases of violations of accepted international norms of human conduct which are properly brought to United States forums for adjudication; the Supreme Court’s most recent conception of the statute notwithstanding, the vitality of this bedrock component of American judicial fabric will remain. This paper makes three main arguments: one, that despite an intended and requisite place for our federal judiciary in reinforcing international law, the Kiobel Court incorrectly applied the presumption against extraterritoriality to the ATS which is a purely jurisdictional statute and building upon its precedent, misunderstands the nature of the jurisdiction involved and the proper substantive rule of decision for ATS cases; two, future causes of action that will continue to be successful under the ATS will at least be those that continue to adhere to the contours of Filartiga v. Pena-Irala, where connection to the U.S. deriving from substantial personal jurisdiction over a defendant, for example in the ways of U.S. citizenship and permanent or longtime residency, will suffice to overcome the presumption; lastly, within this framework, international law lends support for the contention unaddressed by the Kiobel II court that jurisdiction over corporations for civil liability validly exists as well