Amicus Brief Before the US Supreme Court on the Non-Extraterritoriality of the Alien Tort Statute (Kiobel v. Royal Dutch Petroleum)

Abstract

The question presented for re-argument is whether and under what circumstances the Alien Tort Statute (ATS), 28 U.S.C. 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States. That provision states: "The district courts shall have original jurisdiction of 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." Amicus argues that that no cause of action shall be recognized for violations of the law of nations occurring within the territory of a sovereign other than the United States because the ATS must be interpreted under the presumption against extraterritoriality as having no application beyond the borders of the United States. The evidence presented by Petitioners to show clear congressional intent for extraterritoriality is unpersuasive. In particular, their argument based on the express geographical limitation in other clauses in § 9 of the Judiciary Act of 1789 would turn the default geographical scope for the application of a United States statute and the presumption against extraterritoriality upside down and treat the entire world as that default scope. However, the proper default scope is the territory of the United States. Amicus further argues that if the ATS applies extraterritorially to a violation occurring within the territory of a foreign sovereign, it should be interpreted as having incorporated the entire bundle of international law norms with respect to that particular violation, substantive, remedial and jurisdictional and the recognition of a cause of action under the ATS must meet the requirements from that bundle of norms. Applying these conditions, no cause of action shall be recognized for corporate liability because international law does not recognize corporate liability for torts for violations of customary international law and because any such alleged international law norm does not meet the Sosa clear definition requirement. Similarly no cause of action shall be recognized for violations with which the United States has no direct and substantial connection because ATS jurisdiction cannot be exercised over them. Furthermore, ATS Jurisdiction cannot be built upon universal jurisdiction since international law recognizes neither universal criminal jurisdiction except over piracy nor universal civil jurisdiction. Finally, ATS jurisdiction cannot be built upon the transitory tort doctrine because it is a peculiarly special doctrine having no general applicability and is contrary to international law.

Keywords: Alien Tort Statute; extraterritoriality