The Alien Tort Statute (“ATS”) creates federal jurisdiction over “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.” Although enacted as part of the original Judiciary Act of 1789, the ATS has only recently become a subject of significant litigation and academic debate. The first published appellate opinion to interpret the statute came in 1980 in Filartiga v. Pena-Irala, with the Second Circuit holding that the ATS provides federal jurisdiction where an alien files a claim alleging official torture in violation of the “law of nations”—commonly known today as “customary international law.”
Since Filartiga, federal appellate courts have issued several dozen published opinions on the ATS. Many of these have elaborated on the types of tort claims for which the ATS provides jurisdiction. Courts have held, for example, that jurisdiction is present for claims of tortious conduct violating customary international prohibitions on extrajudicial killing, genocide, crimes against humanity, and medical experiments on unknowing human subjects. Courts have also held that the ATS does not provide jurisdiction over claims of international environmental harms, cultural genocide, breach of fiduciary duty, and child labor. The task of ascertaining whether the ATS encompasses any given tort can be a difficult one, for it hinges upon often-murky indicia of international state practice. In Sosa v. Alvarez-Machain, the Supreme Court’s only opinion on the ATS, the Court held that jurisdiction is present only where a claim based on customary international law invokes an international norm that is both “accepted by the civilized world” and defined with a fairly high degree of specificity.
Sosa’s guidance notwithstanding, the frequent indeterminacy of international custom creates a significant risk of disagreement among circuit courts tasked with identifying the precise contours of ATS jurisdiction. And indeed, over the past year, appellate courts have split on a new and important aspect of the statute—namely, whether it creates federal jurisdiction over claims alleging corporate violations of customary international law. The D.C. and Seventh Circuits have answered the question affirmatively, and thus permitted plaintiffs to sue corporations for engaging in conduct that violates international custom. But in Kiobel v. Royal Dutch Petroleum Co., the Second Circuit reached precisely the opposite conclusion. The plaintiffs in Kiobel alleged that Royal Dutch helped the Nigerian government to suppress dissent among Nigerian citizens who were unhappy with the environmental effects of oil exploration in the region, and in doing so aided and abetted the government’s commission of various human rights abuses. The complaint asserted, for example, that Royal Dutch provided transportation to Nigerian forces, allowed its property to be used as a staging ground for military attacks on protestors, and provided food and compensation to soldiers involved in the attacks. The Nigerian forces allegedly used this support to engage in extrajudicial killings, crimes against humanity, torture, and arbitrary arrest and detention, among other acts. The plaintiffs asserted jurisdiction under the ATS, but Royal Dutch moved to dismiss on the ground that the statute does not confer jurisdiction over corporate defendants because there is no norm of corporate liability under international custom for the types of offenses alleged. The Second Circuit agreed, and therefore dismissed for lack of jurisdiction.
Given the circuit split and the importance of the question, the Supreme Court granted certiorari in Kiobel last month. It is difficult to predict how the Court will decide the case, but a ruling in favor of either side of the split will have significant implications for corporate responsibility abroad. If the Court agrees with the D.C. and Seventh Circuits, we can expect that plaintiffs will use the ATS to hold corporations accountable for conduct at odds with important international legal norms. If the Court agrees with the Second Circuit, however, plaintiffs will lose a valuable tool for constraining corporate behavior.