Alien Tort Statute - Tortious Conduct in Foreign Country

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Apr 22, 2013 — by Jeff Mundy
Tags: Personal Injury


Kiobel v. Royal Dutch Petroleum Co. (Supreme Court of the United States, 2013)

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

Petitioners, a group of Nigerian nationals residing in the United States, filed suit in federal court against certain Dutch, British, and Nigerian corporations. Petitioners sued under the Alien Tort Statute, 28 U. S. C. §1350, alleging that the corporations aided and abetted the Nige­rian Government in committing violations of the law of nations in Nigeria. The question presented is whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.


Petitioners were residents of Ogoniland, an area of 250 square miles located in the Niger delta area of Nigeria and populated by roughly half a million people. When the complaint was filed, respondents Royal Dutch Petroleum Company and Shell Transport and Trading Company, p.l.c., were holding companies incorporated in the Netherlands and England, respectively. Their joint subsidiary, respondent Shell Petroleum Development Company of Nigeria, Ltd. (SPDC), was incorporated in Nigeria, and engaged in oil exploration and production in Ogoniland. According to the complaint, after concerned residents of Ogoniland began protesting the environmental effects of SPDC's practices, respondents enlisted the Nigerian Gov­ernment to violently suppress the burgeoning demonstrations. Throughout the early 1990's, the complaint alleges, Nigerian military and police forces attacked Ogoni villages, beating, raping, killing, and arresting residents and destroying or looting property. Petitioners further allege that respondents aided and abetted these atrocities by, among other things, providing the Nigerian forces with food, transportation, and compensation, as well as by al­lowing the Nigerian military to use respondents' property as a staging ground for attacks.

Following the alleged atrocities, petitioners moved to the United States where they have been granted political asylum and now reside as legal residents. See Supp. Brief for Petitioners 3, and n. 2. They filed suit in the United States District Court for the Southern District of New York, alleging jurisdiction under the Alien Tort Statute and requesting relief under customary international law. The ATS provides, in full, that "[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 U. S. C. §1350. According to petitioners, respondents violated the law of nations by aiding and abetting the Nigerian Government in committing (1) extrajudicial killings; (2) crimes against humanity; (3) torture and cruel treatment; (4) arbitrary arrest and detention; (5) violations of the rights to life, liberty, security, and association; (6) forced exile; and (7) property destruction. The District Court dismissed the first, fifth, sixth, and seventh claims, reasoning that the facts alleged to support those claims did not give rise to a violation of the law of nations. The court denied respondents' motion to dismiss with respect to the remaining claims, but certified its order for interlocutory appeal pursuant to §1292(b).

The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability. 621 F. 3d 111 (2010). We granted certiorari to consider that question. 565 U. S. ___ (2011). After oral argument, we directed the parties to file supplemental briefs addressing an additional question: "Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." 565 U. S. ___ (2012). We heard oral argument again and now affirm the judgment below, based on our answer to the second question.


Passed as part of the Judiciary Act of 1789, the ATS was invoked twice in the late 18th century, but then only once more over the next 167 years. Act of Sept. 24, 1789, §9, 1 Stat 77; see Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (DC Pa. 1793); Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607) (DC SC 1795); O'Reilly de Camara v.Brooke, 209 U. S. 45 (1908); Khedivial Line, S.A.E. v. Seafarers' Int'l Union, 278 F. 2d 49, 51–52 (CA2 1960) (per curiam). The statute provides district courts with jurisdiction to hear certain claims, but does not expressly provide any causes of action. We held in Sosa v. Alvarez-Machain, 542 U. S. 692, 714 (2004), however, that the First Congress did not intend the provision to be "stillborn." The grant of juris­diction is instead "best read as having been enacted on the understanding that the common law would provide a cause of action for [a] modest number of international law violations." Id., at 724. We thus held that federal courts may "recognize private claims [for such violations] under federal common law." Id., at 732. The Court in Sosa rejected the plaintiff's claim in that case for "arbitrary arrest and detention," on the ground that it failed to state a violation of the law of nations with the requisite "definite content and acceptance among civilized nations." Id., at 699, 732.

The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none," Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 6), and reflects the "presumption that United States law governs domestically but does not rule the world," Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007).

This presumption "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord." EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco). As this Court has explained:

"For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain."Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957). The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U. S. law that carries foreign policy consequences not clearly intended by the political branches.

We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad. See, e.g., Aramcosupra, at 246 ("These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad");Morrisonsupra, at ___ (slip op., at 4) (noting that the question of extraterritorial application was a "merits question," not a question of jurisdiction). The ATS, on the other hand, is "strictly jurisdictional." Sosa, 542 U. S., at 713. It does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.

Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do. This Court in Sosa repeatedly stressed the need for judicial caution in considering which claims could be brought under the ATS, in light of foreign policy concerns. As the Court explained, "the potential [foreign policy] implications . . . of recognizing. . . causes [under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs." Id., at 727; see also id., at 727–728 ("Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution"); id., at 727 ("[T]he possible collateral consequences of making international rules privately actionable argue for judicial caution"). These concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.

These concerns are not diminished by the fact that Sosa limited federal courts to recognizing causes of action only for alleged violations of international law norms that are "'specific, universal, and obligatory.'" Id., at 732 (quoting In re Estate of Marcos, Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994)). As demonstrated by Congress's enactment of the Torture Victim Protection Act of 1991, 106 Stat. 73, note following 28 U. S. C. §1350, identifying such a norm is only the beginning of defining a cause of action. See id., §3 (providing detailed definitions for extra­judicial killing and torture); id., §2 (specifying who may be liable, creating a rule of exhaustion, and establishing a statute of limitations). Each of these decisions carries with it significant foreign policy implications.

The principles underlying the presumption against extraterritoriality thus constrain courts exercising their power under the ATS.


Petitioners contend that even if the presumption applies, the text, history, and purposes of the ATS rebut it for causes of action brought under that statute. It is true that Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V) (providing jurisdiction over the offense of geno­cide "regardless of where the offense is committed" if the alleged offender is, among other things, "present in the United States"). But to rebut the presumption, the ATS would need to evince a "clear indication of extraterritoriality." Morrison, 561 U. S., at ___ (slip op., at 16). It does not.

To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality. See, e.g., id., at ___ (slip op., at 13–14); Small v. United States, 544 U. S. 385, 388 (2005);Aramco, 499 U. S., at 248–250; Foley Bros., Inc. v. Filardo, 336 U. S. 281, 287 (1949).

Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for "torts" in violation of the law of nations. They claim that in using that word, the First Congress "necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise on foreign soil." Supp. Brief for Petitioners 18. For sup­port, they cite the common-law doctrine that allowed courts to assume jurisdiction over such "transitory torts," including actions for personal injury, arising abroad. See Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep. 1021, 1030 (1774) (Mansfield, L.) ("[A]ll actions of a transitory nature that arise abroad may be laid as happening in an English county"); Dennick v. Railroad Co., 103 U. S. 11, 18 (1881) ("Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has juris­diction of such matters and can obtain jurisdiction of the parties").

Under the transitory torts doctrine, however, "the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place." Cuba R. Co. v. Crosby, 222 U. S. 473, 479 (1912) (majority opinion of Holmes, J.). The question underSosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U. S. law to enforce a norm of international law. The reference to "tort" does not demonstrate that the First Congress "necessarily meant" for those causes of action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality.

Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. See Morrisonsupra, at ___ (slip op., at 16) (noting that "[a]ssuredly context can be consulted" in determining whether a cause of action applies abroad). We explained in Sosa that when Congress passed the ATS, "three principal offenses against the law of nations" had been identi­fied by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 542 U. S., at 723, 724; see 4 W. Blackstone, Commentaries on the Laws of England 68 (1769). The first two offenses have no necessary extraterritorial application. Indeed, Blackstone— in describing them—did so in terms of conduct occurring within the forum nation. See ibid. (describing the right of safe conducts for those "who are here"); 1 id., at 251 (1765) (explaining that safe conducts grant a member of one society "a right to intrude into another"); id., at 245–248 (recognizing the king's power to "receiv[e] ambassadors at home" and detailing their rights in the state "wherein they are appointed to reside"); see also E. De Vattel, Law of Nations 465 (J. Chitty et al. transl. and ed. 1883) ("[O]n his entering the country to which he is sent, and making himself known, [the ambassador] is under the protection of the law of nations . . .").

Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambas­sadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois—the Secretary of the French Legion—in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v.De Longschamps, 1 Dall. 111 (O. T. Phila. 1784); Sosasupra, at 716–717, and n. 11. And in 1787, a New York constable entered the Dutch Ambassador's house and arrested one of his domestic servants. See Casto, The Federal Courts' Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986). At the request of Secretary of Foreign Affairs John Jay, the Mayor of New York City arrested the constable in turn, but cautioned that because "'neither Congress nor our [State] Legislature have yet passed any act respecting a breach of the privileges of Ambassadors,'" the extent of any available relief would depend on the common law. See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int'l L. 587, 641–642 (2002) (quoting 3 Dept. of State, The Diplomatic Correspondence of the United States of America 447 (1837)). The two cases in which the ATS was invoked shortly after its passage also concerned conduct within the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial waters).

These prominent contemporary examples—immediately before and after passage of the ATS—provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.

The third example of a violation of the law of nations familiar to the Congress that enacted the ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country. See 4 Blackstone, supra, at 72 ("The offence of piracy, by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there"). This Court has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application. See, e.g., Sale v. Haitian Centers Council, Inc., 509 U. S. 155, 173–174 (1993) (declining to apply a provision of the Immigration and Nationality Act to conduct occurring on the high seas); Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989) (declining to apply a provision of the Foreign Sovereign Immunities Act of 1976 to the high seas). Petitioners contend that because Congress surely intended the ATS to provide jurisdiction for actions against pirates, it necessarily anticipated the statute would apply to conduct occurring abroad.

Applying U. S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. See 4 Blackstone, supra, at 71. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves. See Morrison, 561 U. S., at ___ (slip op., at 16) ("[W]hen a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms"); see alsoMicrosoft Corp., 550 U. S., at 455–456.

Petitioners also point to a 1795 opinion authored by Attorney General William Bradford. See Breach of Neutrality, 1 Op. Atty. Gen. 57. In 1794, in the midst of war between France and Great Britain, and notwithstanding the American official policy of neutrality, several U. S. citizens joined a French privateer fleet and attacked and plundered the British colony of Sierra Leone. In response to a protest from the British Ambassador, Attorney General Bradford responded as follows:

So far . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States. But crimes committed on the high seas are within the jurisdiction of the . . . courts of the United States; and, so far as the offence was committed thereon, I am inclined to think that it may be legally prosecuted in . . . those courts. . . But some doubt rests on this point, in consequence of the terms in which the [applicable criminal law] is expressed. But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States. . . " Id., at 58–59.

Petitioners read the last sentence as confirming that "the Founding generation understood the ATS to apply to law of nations violations committed on the territory of a foreign sovereign." Supp. Brief for Petitioners 33. Re­spondents counter that when Attorney General Bradford referred to "these acts of hostility," he meant the acts only insofar as they took place on the high seas, and even if his conclusion were broader, it was only because the applicable treaty had extraterritorial reach. See Supp. Brief for Respondents 28–30. The Solicitor General, having once read the opinion to stand for the proposition that an "ATS suit could be brought against American citizens for breaching neutrality with Britain only if acts did not take place in a foreign country," Supp. Brief for United States as Amicus Curiae 8, n. 1 (internal quotation marks and brackets omitted), now suggests the opinion "could have been meant to encompass . . . conduct [occurring within the foreign territory]," id., at 8.

Attorney General Bradford's opinion defies a definitive reading and we need not adopt one here. Whatever its pre­cise meaning, it deals with U. S. citizens who, by participating in an attack taking place both on the high seas and on a foreign shore, violated a treaty between the United States and Great Britain. The opinion hardly suffices to counter the weighty concerns underlying the presumption against extraterritoriality.

Finally, there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. As Justice Story put it, "No nation has ever yet pretended to be the custos morum of the whole world. . . " United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822). It is implausible to suppose that the First Congress wanted their fledgling Republic—struggling to receive international recognition—to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.

The United States was, however, embarrassed by its potential inability to provide judicial relief to foreign officials injured in the United States. Bradley, 42 Va. J. Int'l L., at 641. Such offenses against ambassadors violated the law of nations, "and if not adequately redressed could rise to an issue of war." Sosa, 542 U. S., at 715; cf. The Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) ("As the denial or perversion of justice . . . is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned"). The ATS ensured that the United States could provide a forum for adjudicating such incidents. See Sosasupra, at 715–718, and n. 11. Nothing about this historical context suggests that Congress also intended federal common law under the ATS to provide a cause of action for conduct occurring in the territory of another sovereign.

Indeed, far from avoiding diplomatic strife, providing such a cause of action could have generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654 F. 3d 11, 77–78 (CADC 2011) (Kavanaugh, J., dissent­ing in part) (listing recent objections to extraterritorial applications of the ATS by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom). Moreover, accepting petitioners' view would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world. The presumption against extraterritoriality guards against our courts trig­gering such serious foreign policy consequences, and in­stead defers such decisions, quite appropriately, to the political branches.

We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. "[T]here is no clear indication of extraterritoriality here,"Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners' case seeking relief for violations of the law of nations occurring outside the United States is barred.


On these facts, all the relevant conduct took place outside the United States. And 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. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

JUSTICE KENNEDY, concurring.

The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today's case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.

JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring.

I concur in the judgment and join the opinion of the Court as far as it goes. Specifically, I agree that when Alien Tort Statute (ATS) "claims touch and concern the territory of the United States, they must do so with suffi­cient force to displace the presumption against extraterritorial application." Ante, at 14. This formulation obviously leaves much unanswered, and perhaps there is wisdom in the Court's preference for this narrow approach. I write separately to set out the broader standard that leads me to the conclusion that this case falls within the scope of the presumption.

In Morrison v. National Australia Bank Ltd., 561 U. S. ___ (2010), we explained that "the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever somedomestic activity is involved in the case." Id., at ___ (slip op., at 17). We also reiterated that a cause of action falls outside the scope of the presumption—and thus is not barred by the presumption—only if the event or relationship that was "the 'focus' of congressional concern" under the rele­vant statute takes place within the United States. Ibid. (quoting EEOC v. Arabian American Oil Co., 499 U. S. 244, 255 (1991)). For example, because "the focus of the [Securities] Exchange Act [of 1934] is not upon the place where the deception originated, but upon purchases and sales of securities in the United States," we held in Mor­rison that §10(b) of the Exchange Act applies "only" to "transactions in securities listed on domestic exchanges, and domestic transactions in other securities." 561 U. S., at ___–___ (slip op., at 17–18).

The Court's decision in Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), makes clear that when the ATS was enacted, "congressional concern" was "'focus[ed],'" Morrisonsupra, at ___ (slip op., at 17), on the "three principal offenses against the law of nations" that had been identi­fied by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy, Sosa, 542 U. S., at 723–724. The Court therefore held that "federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted." Id., at 732. In other words, only conduct that satisfies Sosa's requirements of definiteness and acceptance among civilized nations can be said to have been "the 'focus' of congressional concern," Morrisonsupra, at ___ (slip op., at 17), when Congress enacted the ATS. As a result, a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality—and will therefore be barred—unless the domestic conduct is sufficient to violate an international law norm that satisfiesSosa's requirements of definiteness and acceptance among civilized nations.

JUSTICE BREYER, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR and JUSTICE KAGAN join, concurring in the judgment.

I agree with the Court's conclusion but not with its reasoning. The Court sets forth four key propositions of law: First, the "presumption against extraterritoriality applies to claims under" the Alien Tort Statute. Ante, at 13. Second, "nothing in the statute rebuts that presumption." Ibid. Third, there "is no clear indication of extraterritoria[l application] here," where "all the relevant conduct took place outside the United States" and "where the claims" do not "touch and concern the territory of the United States . . . with sufficient force to displace the presumption." Ante, at 13–14 (internal quotation marks omitted). Fourth, that is in part because "[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices." Ante, at 14.

Unlike the Court, I would not invoke the presumption against extraterritoriality. Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind. See Sosa v. Alvarez-Machain, 542 U. S. 692, 732 (2004) ("'[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.'" (quoting Filartiga v. Pena-Irala, 630 F. 2d 876, 890 (CA2 1980) (alteration in original))). See also 1 Restatement (Third) of Foreign Relations Law of the United States §§ 402, 403, 404 (1986). In this case, however, the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction.



Our decision in Sosa frames the question. In Sosa the Court specified that the Alien Tort Statute (ATS), when enacted in 1789, "was intended as jurisdictional." 542 U. S., at 714. We added that the statute gives today's courts the power to apply certain "judge-made" damages law to victims of certain foreign affairs-related misconduct, including "three specific offenses" to which "Black­stone referred," namely "violation of safe conducts, infringement of the rights of ambassadors, and piracy." Id., at 715. We held that the statute provides today's federal judges with the power to fashion "a cause of action" for a "modest number" of claims, "based on the present-day law of nations," and which "rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features" of those three "18th-century paradigms." Id., at 724–725.

We further said that, in doing so, a requirement of "exhaust[ion]" of "remedies" might apply. Id., at 733, n. 21. We noted "a strong argument that federal courts should give serious weight to the Executive Branch's view of the case's impact on foreign policy." Ibid. Adjudicating any such claim must, in my view, also be consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its own laws and their enforcement. Id., at 761 (BREYER, J., concurring in part and concurring in judgment). See also F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 165–169 (2004).

Recognizing that Congress enacted the ATS to permit recovery of damages from pirates and others who violated basic international law norms as understood in 1789, Sosa essentially leads today's judges to ask: Who are today's pirates? See 542 U. S., at 724–725 (majority opinion). We provided a framework for answering that question by setting down principles drawn from international norms and designed to limit ATS claims to those that are similar in character and specificity to piracy. Id., at 725.

In this case we must decide the extent to which this jurisdictional statute opens a federal court's doors to those harmed by activities belonging to the limited class that Sosa set forth when those activities take place abroad. To help answer this question here, I would refer both to Sosa and, as in Sosa, to norms of international law. See Part II, infra.


In my view the majority's effort to answer the question by referring to the "presumption against extraterritoriality" does not work well. That presumption "rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters." Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 5–6). See ante, at 4. The ATS, however, was enacted with "foreign matters" in mind. The statute's text refers explicitly to "alien[s]," "treat[ies]," and "the law of nations." 28 U. S. C. §1350. The statute's purpose was to address "violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs." Sosa, 542 U. S., at 715. And at least one of the three kinds of activities that we found to fall within the statute's scope, namely piracy, ibid., normally takes place abroad. See 4 W. Blackstone, Commentaries on the Law of England 72 (1769).

The majority cannot wish this piracy example away by emphasizing that piracy takes place on the high seas. Seeante, at 10. That is because the robbery and murder that make up piracy do not normally take place in the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 20–21 (1963); 2 Restatement §502, Comment d ("[F]lag state has jurisdiction to prescribe with respect to any activity aboard the ship"). Indeed, in the early 19th century Chief Justice Marshall described piracy as an "offenc[e] against the nation under whose flag the vessel sails, and within whose particular jurisdiction all on board the vessel are."United States v. Palmer, 3 Wheat. 610, 632 (1818)See United States v. Furlong, 5 Wheat. 184, 197 (1820) (a crime committed "within the jurisdiction" of a foreign state and a crime committed "in the vessel of another nation" are "the same thing").

The majority nonetheless tries to find a distinction between piracy at sea and similar cases on land. It writes, "Applying U. S. law to pirates . . . does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign and therefore carries less direct foreign policy consequences." Ante, at 10 (emphasis added). But, as I have just pointed out, "[a]pplying U. S. law to pirates"does typically involve applying our law to acts taking place within the jurisdiction of another sovereign. Nor can the majority's words "territorial jurisdiction" sensibly distinguish land from sea for purposes of isolating adverse foreign policy risks, as the Barbary Pirates, the War of 1812, the sinking of the Lusitania, and the Lockerbie bombing make all too clear.

The majority also writes, "Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction." Ibid. I very much agree that pirates were fair game "wherever found." Indeed, that is the point. That is why we asked, in Sosa, who are today's pirates? Certainly today's pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are "fair game" where they are found. Like those pirates, they are "common enemies of all mankind and all nations have an equal interest in their apprehension and punishment." 1 Restatement §404 Reporters' Note 1, p. 256 (quoting In re Demjanjuk, 612 F. Supp. 544, 556 (ND Ohio 1985) (internal quotation marks omitted)). See Sosa, supra, at 732. And just as a nation that harbored pirates provoked the concern of other nations in past centuries, see infra, at 8, so harboring "common enemies of all mankind" provokes similar concerns today.

Thus the Court's reasoning, as applied to the narrow class of cases that Sosa described, fails to provide significant support for the use of any presumption against extraterritoriality; rather, it suggests the contrary. See also ante, at 10 (conceding and citing cases showing that this Court has "generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application").

In any event, as the Court uses its "presumption against extraterritorial application," it offers only limited help in deciding the question presented, namely "'under what circumstances the Alien Tort Statute . . . allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.'" 565 U. S. ___ (2012). The majority echoes in this jurisdictional context Sosa's warning to use "caution" in shaping federal common-law causes of action. Ante, at 5. But it also makes clear that a statutory claim might sometimes "touch and concern the territory of the United States . . . with sufficient force to displace the presumption." Ante, at 14. It leaves for another day the determination of just when the presumption against extraterritoriality might be "overcome." Ante, at 8.


In applying the ATS to acts "occurring within the terri­tory of a[nother] sovereign," I would assume that Congress intended the statute's jurisdictional reach to match the statute's underlying substantive grasp. That grasp, defined by the statute's purposes set forth in Sosa, includes compensation for those injured by piracy and its modern-day equivalents, at least where allowing such compensa­tion avoids "serious" negative international "consequences" for the United States. 542 U. S., at 715. And just as we have looked to established international substantive norms to help determine the statute's substantive reach, id., at 729so we should look to international jurisdictional norms to help determine the statute's jurisdictional scope.

The Restatement (Third) of Foreign Relations Law is helpful. Section 402 recognizes that, subject to §403's "reasonableness" requirement, a nation may apply its law (for example, federal common law, see 542 U. S., at 729­730) not only (1) to "conduct" that "takes place [or to per­sons or things] within its territory" but also (2) to the "activities, interests, status, or relations of its nationals outside as well as within its territory," (3) to "conduct outside its territory that has or is intended to have substantial effect within its territory," and (4) to certain foreign "conduct outside its territory . . . that is directed against the security of the state or against a limited class of other state interests." In addition, §404 of the Restatement explains that a "state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade," and analogous behavior.

Considering these jurisdictional norms in light of both the ATS's basic purpose (to provide compensation for those injured by today's pirates) and Sosa's basic caution (to avoid international friction), I believe that the statute provides jurisdiction where (1) t

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