Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute

12 Pages Posted: 21 Feb 2012 Last revised: 26 Jul 2013

See all articles by Anthony J. Bellia Jr.

Anthony J. Bellia Jr.

Notre Dame Law School

Bradford R. Clark

George Washington University Law School

Date Written: February 20, 2012


The Supreme Court is currently reviewing the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum, a case holding that federal courts lack jurisdiction under the Alien Tort Statute (“ATS”) over claims against corporations. Although the parties have focused on issues of corporate liability under the ATS, there is a logically antecedent question of subject matter jurisdiction that the Court should decide before considering corporate liability. All of the parties in Kiobel — whether corporate or individual — are aliens. Understood in its full legal and historical context, the ATS was a jurisdictional statute that did not apply to suits between aliens. The First Congress enacted the ATS as a species of foreign diversity jurisdiction to satisfy the United States’ obligation under international law to redress violence by U.S. citizens against foreign citizens. Accordingly, the ATS was originally understood to give federal courts jurisdiction only over claims by aliens against U.S. citizens for intentional torts to person or personal property. In Sosa v. Alvarez-Machain, the Supreme Court sought to interpret the ATS in accordance with the expectations of the First Congress. If the Court adheres to this goal in Kiobel, then it should conclude that it lacks statutory subject matter jurisdiction over the case. If the Court decides that the ATS does not apply to suits between aliens, then the Court likely will never have occasion to decide the thorny question of corporate liability under the ATS. Under the express terms of 28 U.S.C. §1332, federal courts already have jurisdiction over suits by aliens against U.S. corporations provided that the amount in controversy is greater than $75,000.00 — a condition easily met in cases against large corporations.

Keywords: alien tort statute, ats, article III, subject matter jurisdiction, kiobel, alien, first judiciary act, judiciary act of 1789, sosa, law of nations, customary international law, foreign diversity, diversity

Suggested Citation

Bellia Jr., Anthony J. and Clark, Bradford R., Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute (February 20, 2012). Notre Dame Legal Studies Paper No. 12-52, GWU Legal Studies Research Paper No. 2012-27, Available at SSRN: or

Anthony J. Bellia Jr. (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0399
United States
574-631-9353 (Phone)
574-631-8078 (Fax)

Bradford R. Clark

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-2073 (Phone)
202-994-9446 (Fax)

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