Extraterritorial Application of the Alien Tort Statute After Kiobel

This article explores when corporations can be held liable under the Alien Tort Statute for human rights abuses that are committed outside of the United States. The Alien Tort Statute grants the United States district courts jurisdiction for torts committed against foreigners in violation of the law of nations. While the Alien Tort Statute concerns international law, it does not indicate whether the district courts have jurisdiction over disputes that involve conduct outside of the United States. In this article, I focus my analysis on the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co. That case determined that the Alien Tort Statute only applies to “relevant conduct” in the United States. In so deciding, the Court evoked a statutory rule of interpretation called the presumption against extraterritoriality, which dictates that unless a federal statute indicates otherwise, it is to only be applied in the territorial jurisdiction of the United States. This article addresses questions that arise from the application of the presumption against extraterritoriality to the Alien Tort Statute. For example, do federal courts have jurisdiction over claims in which conduct that does not constitute “relevant conduct” under the ATS takes place in the United States, but the international law violation (the “relevant conduct”) takes place in a foreign country? Additionally, to what extent does it matter for purposes of ATS jurisdiction that a defendant is a United States corporation? In the final portion of this Article, I propose alternative ways to apply the presumption against extraterritoriality to the Alien Tort Statute. I base this analysis on the Supreme Court’s decision in Morrison v. National Australia Bank