The Presumption Against Extraterritoriality and the Alien Tort Statute

The Alien Tort Statute

The Alien Tort Statute (“ATS”) was enacted as part of the Judiciary Act of 1789.  It provides that “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.” (28 U.S.C. § 1350).

From 1789 until 1960, cases were brought under the ATS only three times, but beginning in 1960, the statute began to be used much more frequently to hold individuals, corporations, and governments accountable for alleged human rights abuses.  This usage continued until 2013 when the Supreme Court greatly limited the statute’s reach in the landmark case Kiobel vs. Royal Dutch Petroleum Co.


In Kiobel, Several Nigerian nationals alleged that three corporations (from the Netherlands, the United Kingdom, and Nigeria) aided and abetted a Nigerian military campaign to suppress opposition to those corporations’ activities.  The crimes alleged included detention, torture, and extrajudicial killings, all of which violate the law of nations.

The Second Circuit dismissed the complaint because it did not believe that the law of nations recognizes corporate liability so cases could not be brought against corporations under the ATS.  The Supreme Court then granted certiorari and affirmed the lower court’s opinion.

The Supreme Court claimed to have granted certiorari to answer the question of whether corporations could be held liable under the ATS; however, the court instead reached out (no pun intended) to hold that a canon of statutory interpretation, the presumption against the extraterritoriality, applied to the ATS and therefore the statute could not be applied outside of the US.

The court said that the presumption could not be overcome since, “all of the relevant conduct took place outside of the United States.”  The court further noted that, “even where the claims touch and concern the territory of the United States,” it must be with “sufficient force” to overcome the presumption against extraterritoriality, and that “mere corporate presence” alone would not be sufficient.

This reasoning in the negative implied that the presumption could be overcome, however, which has left room for discrepancies among the lower courts.  The differences mainly center on how to analyze the phrase “touch and concern” and what is sufficient to overcome the presumption.

The Split

The Second Circuit

The split among the circuit courts is basically the Second versus the rest.  The Second Circuit is the most restrictive when applying the ATS and therefore has the highest bar of sufficiency to overcome the presumption.  In Mastafa v. Chevron Corp (2d Cir. 2014), the court said that the conduct which violates the law of nations must occur within the United States, and that U.S. citizenship of the defendant is not relevant.

The core purpose of the presumption of extraterritoriality is more pronounced in Mastafa than in Kiobel:

“[T]he danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do.” [Describing the dangers inherent when courts impinge on the role of the executive and legislative branches in managing foreign policy, the Court explained,] “[t]hese concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.”

In addition to the foreign policy argument, the court noted that a defendant’s citizenship is irrelevant because of Supreme Court language asserting that a “mere corporate presence” is not enough.

The Rest

Other courts have determined that a defendant’s citizenship can be relevant, though not sufficient alone.  In Doe v. Drummond Co., Inc., (2015) the Eleventh Circuit stated:

in determining whether a claim sufficiently touches and concerns the territory of the United States to confer jurisdiction to U.S. courts, the citizenship or corporate status of the defendant is relevant. If the defendants are U.S. citizens, some of the foreign policy concerns that the presumption against extraterritorial application is intended to reduce may be assuaged or inapplicable, since we would not be haling foreign nationals into U.S. courts to defend themselves.  Additionally, the acts of U.S. citizens may impact the United States, whether their actions occur extraterritorially or within the United States, particularly if those actions include international law violations.

The Eleventh Circuit believes that a less strict reading, which allows for the consideration of the citizenship of a defendant and conduct occurring outside the U.S., may not be significant foreign policy concern, and instead may be important to the U.S.

Similarly, the Fourth Circuit held in Al Shimari v. CACI Premier Technology, Inc. (2014) that the citizenship of a defendant is relevant, and that claims against acts committed outside the U.S. could be brought under the ATS because it was an important U.S. interest to allow aliens the right to hold U.S. citizens liable for torture committed abroad.

Looking Forward

The Kiobel decision has led to a sharp decrease in cases which can be brought under the ATS.  A strict interpretation will eliminate most cases which would have been eligible pre-Kiobel.  This is a concerning result considering our globalized world.  Increasingly, U.S. corporations are operating in foreign countries and an interpretation like the Second Circuit’s view in Kiobel will make it almost impossible for aliens to hold these corporations liable for torts committed abroad.  The other circuits have struck a balance between applying U.S. laws in other sovereign nations and still allowing foreigners the ability to hold companies and other individuals liable for human rights abuses that are of sufficient interest to the U.S.

Additional Reading

See: “Kiobel case: US Supreme Court Review of Alien Tort Claims Act” and “Is the Alien Tort Statute Headed Back to the Supreme Court?”