Human Rights Litigation and the National Interest: Kiobel's Application of the Presumption Against Extra-Territoriality to the Alien Tort Statute

Abstract

The debate over the extra-territorial application of the Alien Tort Statute (ATS) raised by Kiobel v. Royal Dutch Petroleum Co. presumes an underlying tension between a state’s exercise of civil universal jurisdiction and its national interest. Realist-based critiques of the ATS posit that harmful consequences result when the United States provides a civil remedy for human rights abuses that occur in foreign territory, even where the conduct transgresses universally recognized norms. These critiques maintain that ATS litigation undermines U.S. investment in foreign countries; provokes a backlash against the United States in affected countries while also angering U.S. allies; and, more generally, reflects a naïve view of international relations that interferes with the executive’s prerogative to make foreign policy.

In Kiobel, the Supreme Court appeared to vindicate these concerns in holding that the presumption against extra-territoriality applies to the ATS, thus limiting suits that may be brought under the statute for serious human rights violations that occur in foreign territory. Although the decision to adopt the presumption against extra-territoriality was supported only by a five-Justice majority, the Court was unanimous in concluding that the ATS did not provide for universal jurisdiction and in recognizing that ATS suits could potentially undermine U.S. interests.

This Essay explains how concerns about the adverse consequences of human rights litigation underlie Kiobel’s adoption of the presumption against extra-territorial application. It also argues, however, that those concerns are overstated and ignore the way in which ATS litigation can advance U.S. strategic interests. The Essay concludes that even as Kiobel imposes a new territorial nexus requirement, it leaves open the possibility that some consideration may be given in future cases to how ATS suits advance U.S. interests in determining whether the presumption against extra-territoriality is displaced.

Keywords: international law, federal courts, human rights