Throwback Thursday: Kiobel v. Royal Dutch Petroleum Co.
April 20, 2023
Ten years ago this week, the U.S. Supreme Court handed down its decision in Kiobel v. Royal Dutch Petroleum Co., applying the presumption against extraterritoriality to the implied cause of action for human rights violations under the Alien Tort Statute (ATS). In Kiobel, the Court began to whittle down the cause of action it had recognized in Sosa v. Alvarez-Machain (2004), a process that continued in later cases until today there is almost nothing left. In this Throwback Thursday, I look at the course of human rights litigation under the ATS and its key turning point in Kiobel.
From Filartiga to Sosa
The ATS was part of the first Judiciary Act of 1789 and was intended to provide a civil remedy to aliens injured by violations of the law of nations that were recognized at that time, such as violations of safe-conducts, infringement of the rights of ambassadors, and piracy. As codified today in 28 U.S.C. § 1350, the ATS grants federal district courts “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.” In Filartiga v. Pena-Irala (1980), the Second Circuit held that the ATS gave the district court jurisdiction over claims by two Paraguayan plaintiffs that a Paraguayan police inspector had tortured a member of their family to death in Paraguay. Certainly, the claims fit within the language of the ATS: the plaintiffs were aliens; torture is a tort; and torture by a government official violates international law.
Other courts followed Filartiga, allowing aliens to bring claims under the ATS against individual defendants for violations of human rights norms that are “specific, universal, and obligatory.” Congress also created an express cause of action for claims of torture and extrajudicial killing against individuals in the Torture Victim Protection Act (TVPA). During the mid-1990s, plaintiffs began to bring human rights claims under the ATS against corporations. In Doe v. Unocal (2002), the Ninth Circuit held that corporations could be liable for aiding and abetting human rights violations abroad.
The Supreme Court did not decide an ATS case until Sosa v. Alverez-Machain in 2004. The question in Sosawas whether plaintiffs could bring claims under the ATS in the absence of an express, statutory cause of action like the TVPA. Although Sosa rejected the argument that the ATS itself created a cause of action, it held that courts could recognize an implied cause of action under federal common law for violations of modern human rights norms that were as well accepted and specifically defined as the eighteenth-century paradigms like piracy.
The Kiobel Case
A group of Nigerian nationals living in the United States sued the Shell oil company, both the English and Dutch holding companies and their Nigerian subsidiary, for aiding and abetting human rights violations in Nigeria. According to the complaint, Shell enlisted the Nigerian government to violently suppress protests against environmental damage in the Niger Delta. The Nigerian military and police attacked Ogoni villages, beating, raping, killing, and arresting their inhabitants. Shell allegedly provided food, transportation, and money to the Nigerian forces and let them use Shell’s property as a staging ground to launch attacks.
The Second Circuit’s Decision
When the complaint was filed, ATS suits against corporations had become common, and other courts of appeals had let them proceed. But in Kiobel, the Second Circuit disagreed, holding that corporate liability for human rights violations was not sufficiently well established to meet the Sosa standard. Writing for the majority, Judge José Cabranes noted that the Nuremburg Tribunal and subsequent international criminal courts tried only individuals, not corporations, and that international treaties also failed to establish a norm of corporate liability. Judge Pierre Leval strongly disagreed, pointing out that limits on the jurisdiction of particular courts did not prove that corporations were not subject to international law. The Supreme Court granted cert to resolve the circuit split on corporate liability under the ATS.
The U.S. Amicus Brief
The Obama Administration filed an amicus brief arguing that corporations could be held liable under the ATS for human rights violations. The brief criticized the Second Circuit’s opinion for “examin[ing] the question of corporate liability in the abstract” rather than addressing whether any of the specific norms relied on by the plaintiffs excluded corporations from their scope. “At the present time,” the brief said, “the United States is not aware of any international-law norm, accepted by civilized nations and defined with the degree of specificity required by Sosa, that requires, or necessarily contemplates, a distinction between natural and juridical actors,” citing provisions of the Convention Against Torture, the Genocide Convention, and the Geneva Conventions in support. (Disclosure: At the time, I served as Counselor on International Law to the Legal Adviser at the State Department and participated in drafting this brief.)
The Supreme Court’s Decision
In the end, however, the Supreme Court did not reach the question of corporate liability. After oral argument, the Court directed the parties to address a different question: whether the ATS cause of action applies to human rights violations abroad. The Obama Administration filed a second amicus brief arguing that the Court should not recognize a cause of action for human rights violations abroad when the primary tortfeasor is a foreign government and the defendant is a foreign corporation. Unlike the government’s first amicus brief, this one was signed by neither the State Department’s Legal Adviser nor the Commerce Department’s General Counsel.
Writing for the Court in Kiobel, Chief Justice Roberts held that, when ATS claims are based on human rights violations abroad, they must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application.” While acknowledging that the presumption against extraterritoriality generally applies to federal statutes that regulate conduct, the Court concluded that “the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.”
Reviewing the text, history, and purposes of the ATS, the Kiobel Court found no clear indication of extraterritoriality. The text of the ATS says nothing about its geographic scope. With respect to history, the Court noted that two of the paradigm law of nations violations—violations of safe-conducts and infringement of the rights of ambassadors—could and did occur in the United States. Piracy obviously did not, but the Court distinguished violations of the law of nations on the high seas from violations within the territory of another sovereign. Finally, the Court observed that, although the purpose of the ATS was to provide remedies to avoid “diplomatic strife,” recognizing a cause of action for claims in another country’s territory might generate such strife.
The Court’s reasoning might have led it to bar all claims arising abroad, but the Chief Justice added a final paragraph to his opinion leaving open the possibility that human rights violations abroad might “touch and concern” the United States sufficiently to overcome the presumption. It appears that this paragraph was added to secure a fifth vote from Justice Kennedy, who penned a brief concurrence expressing concern over human rights violations abroad and noting that the Court’s opinion left “open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.” Lower courts proceeded to wrestle with the question of what “touch and concern” might possibly mean.
After Kiobel
The Supreme Court’s decision in Kiobel left the circuit split on corporate liability intact. The Court granted cert again in Jesner v. Arab Bank (2018) to resolve the question. But, in a badly fractured decision, it succeeded in agreeing only that the ATS cause of action should not extend to foreign corporations.
The Court granted cert once more in Nestlé U.S.A., Inc. v. Doe (2021), a case in which the defendants were U.S. corporations alleged to have aided and abetting child slavery in Côte d’Ivoire. But the Court resolved this case, like Kiobel, on extraterritoriality grounds. It abandoned the “touch and concern” test and held that general corporate decisionmaking was not sufficient conduct in the United States to rebut the presumption against extraterritoriality.
Five Justices in Nestlé expressed the view that the ATS cause of action could apply to corporations. In a concurring opinion, Justice Sotomayor (joined by Justices Breyer and Kagan) wrote that corporations are not immune from suit under the ATS. Justice Gorsuch (joined by Justice Alito) agreed in a separate concurring opinion. But this was a Pyrrhic victory. By requiring substantial conduct in the United States, as I have noted elsewhere, Nestlé appears to foreclose not just most suits against U.S. corporations but also Filartiga-type suits against individuals arising abroad.
Conclusion
The Supreme Court’s decision in Kiobel ten years ago marked an important turning point in ATS litigation. The Court moved from a position of seeming to encourage ATS claims for violations of well-established human rights norms abroad, to a position of opposing them. Although the Court has never overruled Sosa’s decision to recognize an implied cause of action for violations of modern customary international law, it has so limited that cause of action that barely anything remains.
We live today in a post-ATS world. It is possible that Congress might reverse the Supreme Court’s decisions by amending the ATS to apply extraterritorially like the Trafficking Victims Protection Reauthorization Act(TVPRA). But until that happens, plaintiffs bringing human rights litigation will have to depend on the express causes of action that Congress has created with statutes like the TVPRA for trafficking and the TVPA for torture and extrajudicial killing.