Kiobel Commentary: The door remains open to “foreign squared” cases

SCOTUSblog is pleased to have reactions from supporters of both sides to yesterday’s decision in Kiobel v. Royal Dutch Petroleum. This post is written by Oona A. Hathaway, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, and Carlton Forbes, a J.D. candidate at Yale Law School. Oona is the director of the Yale Law School Center for Global Legal Challenges, which filed an amicus brief and a supplemental amicus brief in this case. Oona served as a law clerk for Justice Sandra Day O’Connor.

What, exactly, will remain of the Alien Tort Statute (ATS) after the Supreme Court’s latest decision in Kiobel v. Royal Dutch Petroleum Co.?  “Foreign cubed” cases – cases in which there is a foreign plaintiff suing a foreign defendant for acts committed on foreign soil – are off the table.  But there may remain significant scope for “foreign squared” cases – cases in which the plaintiff or defendant is a U.S. national or where the harm occurred on U.S. soil.

To see why this is so requires close inspection of the majority opinion, Justice Breyer’s concurrence, and – most of all – Justice Kennedy’s brief and deliberately vague concurrence.

Let’s begin with the majority opinion, penned by Chief Justice Roberts. Roberts applies the presumption against extraterritoriality set forth by the Court in Morrison v. National Australia Bank Ltd., and he concludes that it bars the case. As Roberts acknowledges, the presumption against extraterritoriality is a bit of an odd fit here, particularly because the courts have typically applied it to the substantive content of laws rather than jurisdictional issues like causes of action. Roberts struggles to square his strong presumption against extraterritoriality with the paradigmatic ATS claim of piracy – which is typically based on acts outside of the U.S., often involving foreign-flagged ships.  He does so by arguing that applying U.S. law at sea carries fewer “direct foreign policy consequences” than applying it in foreign territory. In doing so, he ignores the more obvious rationale that piracy was a clear violation of the law of nations and therefore allowing a claim of piracy was not an imposition of “the sovereign will of the United States” but merely enforcement of international law.  This more natural reading would of course raise the question of why that is true of piracy but not of genocide, torture, or crimes against humanity.

Roberts leaves the door ajar to extraterritorial ATS claims, if only narrowly.  In his concluding paragraph, Roberts explains that, “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.”  What does he mean by “touch and concern?”  It cannot be that the claim must literally “touch” U.S. soil, for then extraterritoriality would clearly not be at issue.  “[T]ouch and concern” therefore appears to leave open the possibility of ATS claims involving U.S. plaintiffs or defendants abroad.  Indeed, Roberts’s assertion that “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices,” might indicate that U.S. corporations could, in some cases, be subject to ATS liability for actions committed against foreigners abroad. Indeed, it may have been precisely this possibility that prompted Justices Alito and Thomas to write separately to emphasize their broader view of the bar on extraterritorial application of the ATS.

Justice Breyer’s opinion concurring in the judgment, joined by three other Justices, expressly supports extending liability to “foreign squared” cases. Relying on “principles and practices of foreign relations law,” Breyer argues jurisdiction would be proper “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 … includ[ing] 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.” This clearly permits “foreign squared” cases (and even some “foreign cubed” cases). The only ambiguity arises where the sole direct connection to the United States is a U.S. plaintiff. Yet it seems very likely that if an American is harmed by a violation of the law of nations abroad (tortured, for example) and has not been able to obtain recourse in the country where the abuse took place (as required by doctrines of exhaustion and forum non conveniens), the case brought by that American in U.S. courts would meet Breyer’s third test for U.S. jurisdiction.

That brings us to Justice Kennedy’s deliberately (maddeningly) vague concurrence.  Kennedy, as will no doubt be blog fodder for days and weeks to come, begins by making clear that the Court “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”  Unfortunately, he does not specify what these open questions might be.  But he does hint at them.  He notes that cases may arrive that are not covered by the Torture Victim Protection Act that involve “allegations of serious violations of international law principles protecting persons.”  In those disputes, he explains, “the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.”  This explicitly leaves open the possibility of extraterritorial application of the ATS.  Indeed, there would be no need for “further elaboration and explanation” otherwise.

Taken as a whole, the Supreme Court’s decision appears to leave the door open to “foreign squared” cases.  Thus cases like that filed against U.S. corporation Exxon Mobile by fifteen Indonesian villagers that alleged the company colluded in brutal oppression in violation of the law of nations arguably survive this decision entirely intact.  In fact, the Chief Justice’s acknowledgement that “mere corporate presence” does not suffice to subject that corporation to liability in U.S. courts seems to imply that corporations with more than mere presence can be subject to that same liability.  Those celebrating the demise of the ATS may thus find themselves surprised to discover that the end result of the Supreme Court’s decision yesterday may not be the end of the ATS after all, but instead a renewed focus of ATS litigation on U.S. corporations.