Rory Pulvino, Associate Editor, Michigan Journal of International Law
Many people in the developing world suffer under extractive institutions, governments that don’t have the infrastructure or possibly the motivation to protect its citizens from harm. Within these jurisdictions poor citizens must endure genocide, cruel or inhuman treatment, torture, forced labor and many other civil right violations for which the U.S. gives redress. Many of these abuses are perpetuated by large corporations that seek to exploit the resources and people in the developing world, knowing that these countries lack the inclusive government structures to hold them accountable. Given these harms and the lack of legal recourse within the countries where the injuries occur, some of these victims have sought relief in countries such as the United States and the United Kingdom, or in international courts. Recent signs and decisions from the Supreme Court of the United States have implied limiting such claims due to serious policy and jurisdictional concerns. In contrast, the United Kingdom may have recently signaled a move towards opening such avenues for alien claims to be brought within British courts.
Passed during the First Congress in 1789, the ATS originally envisioned allowing claims on at least three bases: “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” After its inception though, few claims arose under the ATS until the hallmark case of Filartiga v. Pena-Irala. In Filartiga, the sister of Joelito Filartiga (a Paraguayan national) filed a claim against Americo Norberto Pena-Irala, a Paraguayan police officer, for the torture of her brother while acting in his role as an officer in Paraguay, which eventually resulted in Joelito’s death. Believing that justice would not be served in the corrupt system of Paraguay, the Filartiga family filed a claim against Pena-Irala for violation of Joelito’s right to freedom from torture. The Filartiga’s filed the claim in federal court under the ATS which states that “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.” In deciding to allow the claim the Second Circuit had to determine both what rights Joelito had been entitled to under the ‘law of nations’ as well as whether the court had jurisdiction over an alien for a violation committed abroad.
In determining the right at stake, the Second Circuit reviewed international legal scholarship, U.N. charters, the U.S. Constitution and U.S. treaties, eventually deciding that the right to freedom from torture has the “general assent of civilized nations.” The Second Circuit also found that federal jurisdiction did extend over Pena-Irala, citing the doctrine of transitory torts and explaining that “[i]t is not extraordinary for a court to adjudicate a tort claim arising outside of its territorial jurisdiction.” This groundbreaking case would open up federal courts for claims from aliens for the next twenty years without much interference from the Supreme Court until 2004.
The Supreme Court finally stepped into the debate over the expanse of the ATS in Sosa v. Alvarez-Machain, where the Court outlined what claims may arise and thus what rights federal courts recognize for aliens living abroad, under the Statute’s vague language of “in violation of the law of nations.” In Sosa the plaintiff (Alvarez-Machain, a Mexican doctor) sought to bring a claim against a fellow Mexican that had captured and detained Alvarez in Mexico for the purpose of handing him over to the U.S. DEA. Alvarez claimed that Sosa, in arresting and transporting Alvarez to the U.S. over the course of three days, had violated his right to freedom from arbitrary arrest and/or detention since DEA lacked extraterritorial authority. The Supreme Court though found that Alvarez’s failed to state a claim for a violation of his rights as established by the law of nations.
Prior to the Sosa decision courts had debated whether the ATS and international law had created a new set of actionable claims. While the Sosa decision moved to restrict claims that could be heard under the ATS, the Court did not condone the proposition that actionable claims must be explicitly granted by Congress. Rather, the Court held that there may be actionable claims under federal common law that incorporates international law and that:
[R]est[s] on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the recognized 18th century paradigms.
In defining what norms might reach this standard, the Court argued that even those rights outlined in ratified U.N. covenants may not reach the level of an actionable claim if the covenant is not self-executing, most of which are not. Whether previous ATS claims that succeeded at lower court levels are still available or whether claims that scholars believed may be covered under the law of nations is not clear. The Court did not consider whether the federal court had jurisdiction over the defendant, even though both parties were aliens and the harm occurred outside U.S. territory, stating only that the ATS acted to extend U.S. jurisdiction outside its territory.
The Supreme Court’s recent decision in Kiobel v. Royal Dutch Petro. Co. outlined a jurisdictional standard for the ATS that most courts had not previously considered. The case concerned Nigerian citizens who had protested against the oil exploration of Shell’s Nigerian subsidiary over the environmental effects of the company’s practices. In response, the oil company enlisted the help of the Nigerian government to violently suppress the protests, providing the Nigerian forces with necessary supplies to carry out the atrocities. Shell had originally argued that it could not be held liable as the ATS only covered private individuals and not corporations, yet the Supreme Court unexpectedly reframed the question presented.
Though initially granted cert to examine the possibility of corporate liability under ATS, the Court reformed the question presented as:
[W]hether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.
In answering this question the Court determined that the ATS operated under the presumption of extraterritoriality. Though the Court had previously decided that the ATS was not ‘stillborn,’ i.e. that causes of action had to be explicitly defined by Congress, the presumption against extraterritoriality has much the same effect by requiring that Congress clearly express an intent for the ATS to extend extraterritorial. This presumption seems at odds with the ATS, the statute is an explicit grant of extraterritorial jurisdiction that the Supreme Court has now handcuffed by requiring direct grants of jurisdiction from Congress. Interestingly, the Court’s decision has focused ATS analysis on the location of the conduct rather than the court’s jurisdiction over the defendant. Because the conduct of the claim took place abroad, the Court seems to argue that it thus did not “touch and concern the territory of the United States […] with sufficient force to displace the presumption.” Despite this, the Court’s holding does not explicitly bar claims for conduct abroad, rather it simply sets a bar and states that “it would reach too far to say that mere corporate presence suffices [to overcome the presumption.]” The Kiobel decision seems to have begun limiting the viability of ATS claims, as recent lower court decisions have shown.
While the Court appears to have definitively closed the door on a certain set of ATS claims (those from a foreign alien against a foreign entity for a harm committed in a foreign jurisdiction), it is debatable whether the Court has precluded corporate liability unless Congress expands jurisdiction given the Chief Justice’s concluding paragraph. After Kiobel, there appears now to be at least a two-step inquiry necessary for bringing claims under the ATS: (1) is the cause of action recognized under the law of nations (international norms with as much acceptance as the international norms accepted at the time of the acceptance of the ATS)? and (2) does the defendant’s U.S. presence warrant overcoming the presumption against extraterritoriality and granting jurisdiction? While the Court has laid out this process, there has not been an example yet of what will overcome these two steps, only for what is insufficient.
The Supreme Court will have an opportunity to outline more of its ATS jurisprudence when it issues its decision in the recent Daimler AG v. Bauman case. Specifically, the case involves corporate liability for human rights abuses committed in Argentina by a subsidiary of the company.  Regardless of that decision though, the Court has outlined that Congress may expand federal jurisdiction to allow courts to hear these ‘extraterritoriality’ claims. Furthermore, these claims have namely involved corporate liability. It is unclear whether the Court may differentiate between abuses committed by corporations and their agents versus abuses committed by private individuals.
One can imagine that the Court may wish to allow aliens to seek civil redress for harms perpetrated by Americans in a foreign jurisdiction. This raises the question of the Court’s choice to view claims under the ATS as potentially so damaging to foreign policy and as an imposition on foreign sovereignty. This framework has two obvious and detestable implications: that those who do harm abroad may seek refuge within the U.S. and that corporations may simply incorporate abroad in order to avoid liability within the U.S. for harms committed abroad. Furthermore, this framework fails to recognize that extending jurisdiction in these cases does not impose on foreign sovereignty, but rather imposes costs and enforces American values and norms on those wishing to do business within the U.S. These recent moves by the Court to restrict federal courts jurisdiction over wrongs committed abroad seem to move in the opposite direction of trends in the United Kingdom and elsewhere.
In June, the Government of the United Kingdom decided to settle a £19.9 million claim involving 5,228 Kenyan resistance fighters. Originally filed in 2009, Mutua and Others v. the Foreign and Commonwealth Office had steadily progressed through the various challenges from the British government. The claim arose for harm suffered at the hands of the Colonial Administration of Kenya during the Mau Mau Rebellion and the Emergency period in the 1950s. The British Government challenged the case initially on the ground that they were not liable for claims arising against the Colonial Administration of Kenya, yet the Court dismissed this challenge, finding the factual evidence sufficient to put in question whether the Government would be liable. The Government then challenged on the basis that the statute of limitations had run on the claim, but again was rebuffed by the Queen’s Bench with the case set to proceed to trial. Rather than proceed to trial, the Government ultimately settled with the claimants, so it is impossible to determine whether the Queen’s Bench would have found the Government liable. However, it is important to note the similarities and differences of this case to that of Kiobel. In both cases the plaintiffs were aliens and the claim arose for harm suffered in a foreign jurisdiction. Yet the defendant in Mutua, the FCO, is an arm of the British Government, while in Kiobel the defendant was a foreign incorporated company that had only business ties to the United States. It has yet to be determined whether the ‘citizenship’ of the defendant is determinative to courts in either country finding jurisdiction for such abuses. Regardless of this question though, by the time of the settlement, the British Government had not sought to challenge on jurisdictional grounds equivalent to that raised in Kiobel.
How open is the door now for those suffering human rights abuses to bring those cases before British courts? In his speech to Parliament announcing the settlement, Minister William Hague emphasized that “the courts have made no finding of liability […nor] that this settlement establishes a precedent in relation to any other former British colonial administration.” Minister Hague also outlined the multitude of issues/challenges that similar cases may bring, yet without a trial it is impossible to know whether any one or all of those issues would necessarily prevent a future claim. More generally, the British Prime Minister, David Cameron, emphasized at the most recent G8 Summit the need for greater transparency between nations and corporations with the hope of increasing liability for corporate abuses. With a litany of abuses committed under various colonial administrations and with plenty of British tied companies accused of human rights abuses only time will tell whether the courts of the United Kingdom offer an avenue for seeking redress from these abuses, yet it certainly appears more promising than the current trends within the United States federal courts.
 See, e.g., Kiobel v. Royal Dutch Petrol., 133 S. Ct. 1659 (2013) (holding that courts are constrained from exercising their power under the Alien Tort Statute (ATS) by principles underlying the presumption against extraterritoriality, and that the ATS did not apply to violations of international law occurring within the territory of a sovereign other than the United States); See also Lyle Denniston, Argument Recap: Trying to Salvage a Lost Cause, SCOTUSblog (Oct. 15, 2013) http://www.scotusblog.com/2013/10/argument-recap-trying-to-salvage-a-lost-cause/ (“The [U.S. Supreme] Court has made it quite clear in recent years that it is highly skeptical of courts, either at the state or federal level, reaching out to hold a business firm to account based on the firm’s debatable ties to that court’s area of authority.”).
 See Mutua and Others v. The Foreign and Commonwealth Office, Redress (visited on Oct. 28, 2013) http://www.redress.org/case-docket/mutua-and-others-v-the-foreign-and-commonwealth-office (describing a case in which the British Government reached a settlement with claimants for redress for personal injuries and torture by agents of Kenya’s British Colonial Administration during the Mau Mau uprising).
 Kiobel, 133 S. Ct. at 1666.
 Filartiga v. Pena-Irala, 630 F.2d 876 (1980).
 Filartiga, 630 F.2d at 878.
 Filartiga, 630 F.2d at 882.
 Alien Tort Statute, 28 U.S.C.S. § 1350 (1789).
 Filartiga, 630 F.2d at 881-85. It is worth noting that Congress would later go on to explicitly grant the right to freedom from torture and extrajudicial killing with the passage of the Torture Victim Protection Act (TVPA) in 1991. The TVPA explicitly granted both aliens and U.S. citizens the right to a civil cause of action for torture or extrajudicial killing, regardless of jurisdiction, though with a few exceptions for state immunity. 28 U.S.C. §1350.
 Filartiga, 630 F.2d at 885.
 Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).
 28 U.S.C.S. § 1350.
 Sosa, 542 U.S. at 697-99.
 Sosa, 542 U.S. at 735-36.
 Sosa, 542 U.S. at 739.
 Sosa, 542 U.S. at 714.
 Sosa, 542 U.S. at 719-20.
 Sosa, 542 U.S. at 725.
 Sosa, 542 U.S. at 734-35.
 Lower courts had recognized torture, extrajudicial killing, genocide, war crimes and crimes against humanity, disappearance, arbitrary detention and cruel, inhuman or degrading treatment (though torture and extrajudicial killing are now explicitly recognized under the TVPA). There had been hopes of courts recognizing slavery, the slave trade, racial discrimination, systematic violations of human rights, gender violence and possibly environmental harm as tortious action as well. Beth Stephens & Michael Ratner, International Human Rights Litigation in U.S. Courts 63-92 (1d, 1996).
 Sosa, 542 U.S. at 746.
Kiobel v. Royal Dutch Petro. Co., 133 S. Ct. 1659, 1659 (2013).
 Kiobel, 133 S. Ct. at 1662.
 Kiobel, 133 S. Ct. at 1662-63.
 Anton Metlitsky, What’s Left of the Alien Tort Statute?, SCOTUSblog (Apr. 18, 2013) http://www.scotusblog.com/2013/04/commentary-whats-left-of-the-alien-tort-statute/.
 Kiobel, 133 S. Ct. at 1662.
 Kiobel, 133 S. Ct. at 1665. The presumption against extraterritoriality “is meant to avoid judicial interference with foreign relations by assuming Congress did not mean to extend U. S. law extraterritorially absent a clear statement to the contrary” Anton Metlitsky, What’s Left of the Alien Tort Statute?, SCOTUSblog (Apr. 18, 2013) http://www.scotusblog.com/2013/04/commentary-whats-left-of-the-alien-tort-statute/.
 See Oona Hathaway, The Door Remains Open to “Foreign Squared” cases, SCOTUSblog (Apr. 18, 2013) http://www.scotusblog.com/2013/04/kiobel-commentary-the-door-remains-open-to-foreign-squared-cases/.
 Meir Feder, Why the Court unanimously jettisoned thirty years of lower court precedent (and what that can tell us about how to read Kiobel), SCOTUSblog (Apr. 18, 2013) http://www.scotusblog.com/2013/04/commentary-why-the-court-unanimously-jettisoned-thirty-years-of-lower-court-precedent-and-what-that-can-tell-us-about-how-to-read-kiobel/.
 Kiobel, 133 S. Ct. at 1669. This decision seemed inevitable given that the plaintiff and defendant were both aliens and the claim arose for conduct in a foreign jurisdiction. Oona Hathaway, The Door Remains Open to “Foreign Squared” cases, SCOTUSblog (Apr. 18, 2013) http://www.scotusblog.com/2013/04/kiobel-commentary-the-door-remains-open-to-foreign-squared-cases/.
 Kiobel, 133 S. Ct. at 1669.
 “On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application […] Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.” Kiobel, 133 S. Ct. at 1669. See Anton Metlitsky, What’s Left of the Alien Tort Statute?, SCOTUSblog (Apr. 18, 2013) http://www.scotusblog.com/2013/04/commentary-whats-left-of-the-alien-tort-statute/ (Arguing that this closes the door on corporate liability); see Katie Redford, Door Still Open for Human Rights Claims after Kiobel, SCOTUSblog (Apr. 17, 2013) http://www.scotusblog.com/2013/04/commentary-door-still-open-for-human-rights-claims-after-kiobel/ (Arguing that corporations may still be liable for tortious action committed in foreign jurisdictions).
 Granted Cert April 22, 2013, argued October 15, 2013. SCOTUSblog http://www.scotusblog.com/case-files/cases/daimlerchrysler-ag-v-bauman/.
 Lyle Denniston, The Reach of U.S. Courts, SCOTUSblog (Oct. 11, 2013) http://www.scotusblog.com/2013/10/argument-preview-american-courts-reach/.
 Jesse Osmun, a Peace Corps Volunteer in South Africa from 2009 to 2011, utilized his position as a teacher to sexually abuse four South African girls under the age of 6 while a volunteer. Osmun is currently serving time in the U.S. for this illicit conduct, the question remains though whether, barring a specific treaty allowing these victims to pursue civil redress or should a court find jurisdiction under some §1331 and §1332 of the FRCP, they may under the ATS more generally. Former Peace Corps volunteer admits sexually abusing children in South Africa, ICE (June 27, 2012) http://www.ice.gov/news/releases/1206/120627hartford.htm.
 Kiobel v. Royal Dutch Petroleum, 133 S. Ct. 1659, 1673 (2013) (Breyer, J., concurring in judgment); Katie Redford, Door Still Open for Human Rights Claims after Kiobel, SCOTUSblog (Apr. 17, 2013) http://www.scotusblog.com/2013/04/commentary-door-still-open-for-human-rights-claims-after-kiobel/.
 William Hague, Statement to Parliament on settlement of Mau Mau claims, Foreign & Commonwealth Office (June 6, 2013).
 Mutua & Others v. the Foreign & Commonwealth Office, EWHC 2678 (QB), par. 20 (2012).
 Mutua & Others v. the Foreign & Commonwealth Office, EWHC 1913 (QB), par. 9-10 (2011) (summary of judgment).
 Under Section 11 of the Limitation Act 1980 there is a three year limit to claims, but the plaintiffs successfully challenged this under Section 33 of the Act which provides an exception to the time limitation, Mutua & Others v. the Foreign & Commonwealth Office, EWHC 2678 (QB), par. 160 (2012).
 William Hague, Statement to Parliament on settlement of Mau Mau claims, Foreign & Commonwealth Office (June 6, 2013).
 “We [the British Government] do not believe that claims relating to events that occurred overseas outside direct British jurisdiction more than fifty years ago can be resolved satisfactorily through the courts without the testimony of key witnesses that is no longer available,” William Hague, Statement to Parliament on settlement of Mau Mau claims, Foreign & Commonwealth Office (June 6, 2013).
 Camilla Toulmin, G8 summit: A revolutionary agenda, IIED (June 14, 2013) http://www.iied.org/g8-summit-revolutionary-agenda.