Kiobel and Extraterritoriality
by William Hart
The Alien Tort Statute (ATS) provides federal courts with jurisdiction to hear tort lawsuits brought by aliens against others for violations of international law and U.S. treaties. The statute, passed by the First Congress in 1789, was all but dormant until the Second Circuit held in Filártiga v. Peña-Irala (1980) that a district court had jurisdiction to hear a suit brought by one alien against another for torturing the former’s son to death. After Filártiga, there was a veritable explosion in ATS litigation, which eventually reached the Supreme Court in 2004 in Sosa v. Alvarez-Machain. In Sosa, the Court reined in ATS litigation by concluding that any ATS claim must rest on “a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th-century paradigms [the Court had] recognized.”
Less than a decade after Sosa, the Supreme Court has another opportunity to limit the scope of the ATS in Kiobel v. Royal Dutch Petroleum Co. The Court was initially concerned with whether a corporation could be held liable under the ATS, but at the first oral argument the questioning turned to the wisdom of allowing a federal court to hear claims brought by aliens against a foreign corporation for acts which occurred in another country. The Court ordered the parties to brief the issue of extraterritoriality and re-argument was held on this new question at the beginning of October 2012.
