International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Summer 2013 Issue

General Principles of International Law


Extraterritoriality and the Law of Nations in American Federal Courts

Carolyn A. Dubay

By Carolyn A. Dubay, Associate Editor, International Judicial Monitor

In the last several years, the United States Supreme Court has handed down a number of decisions in transnational cases that appear to retract the ability of federal and state courts to entertain cases where the facts giving rise to the claim occurred entirely abroad, or where the putative defendant has only limited or tangential connections to the United States. This trend was confirmed in April 2013, when the Supreme Court handed down its decision in Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013). In Kiobel, the Supreme Court applied the presumption against the extraterritorial application of American laws to limit the reach of the Alien Tort Statute, 28 U. S. C. §1350 (the ATS). The ATS gives the federal courts subject matter jurisdiction over tort claims brought by aliens based on violations of the law of nations. After Kiobel, the ATS may not be used as a vehicle to litigate claims based on violations of basic human rights that occur abroad and have no obvious connection to the United States. 

In Kiobel, the plaintiffs, who now reside in the United States, were previously residents in the Niger delta area of Nigeria known for its oil resources.  In the early 1990s, local protests against oil exploration in the area led to violent clashes with the Nigerian military and police, whom the plaintiffs accuse of beating, raping, killing, and arresting local residents and destroying or looting their property. The defendants in Kiobel included foreign oil companies alleged to have aided and abetted these atrocities by supplying Nigerian forces with supplies, compensation and logistical support.  Other than the after-the-fact presence of the named plaintiffs in the United States and the existence of some tenuous contacts between the defendants’ corporate affiliates and the United States, the thrust of the lawsuit was to provide remedies for the violation of human rights that occurred entirely within Nigeria. In deciding Kiobel, the Supreme Court eluded the initial question presented as to whether corporate parties could be held liable as accessories to violations of international human rights law committed by public authorities. Instead, the justices focused on whether and under what circumstances courts may recognize a cause of action under the ATS for violations of the law of nations occurring within the territory of a sovereign other than the United States.

While the focus of the Kiobel decision was on statutory interpretation of the ATS and the presumption against extraterritoriality in American law, the outcome mirrors in many ways the general principle of international law limiting the prescriptive authority of any nation to regulate conduct that occurs outside of its territorial limits.  From an international law perspective, the concept of prescriptive jurisdiction limits a state’s regulatory powers in a way that recognizes the power of a nation to assert sovereignty over conduct that occurs within its territory or is carried out by its nationals, while at the same time limiting the encroachment of one sovereign’s laws into territories outside its jurisdiction. Prescriptive jurisdiction is limited, in essence, because attempting to regulate conduct that occurs in another country raises the possibility of international conflict and a breakdown of foreign relations. This was one of the major concerns that the Supreme Court articulated in Kiobel in applying the presumption against extraterritoriality to the reach of the ATS.

Beyond the conclusion that American laws are presumptively domestic in reach, the Supreme Court’s application of extraterritoriality in Kiobel recognized that the presumption could be overcome by the express intent of Congress.  Indeed, the Supreme Court in Kiobel clearly suggested that Congress could create a cause of action for extraterritorial violations of international law, such as under the Torture Victim Protection Act, which creates a cause of action for aliens who were victims of torture in a foreign nation. 


With respect to the ATS, however, the debate among the concurring justices focused on how limited the reach of the ATS would be in other potential cases where the connection to the United States was more substantial than the facts presented in Kiobel.   Along this spectrum of potential cases, the justices agreed generally that under the Supreme Court’s prior ATS decision in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the ATS could reach cases involving foreign ambassadors in the United States because these incidents were historically a source of international friction at the time the ATS was drafted.   Invoking Sosa, the justices also agreed that claims based on piracy would be cognizable under the ATS although occurring outside of the United States’ territorial jurisdiction. 

From there, however, there was little apparent agreement as to what other violations of international could give rise to an ATS claim, or what contacts with the United States would be necessary to sustain such a claim.   For example, the Court’s opinion, written by Chief Justice Roberts, took a very narrow and historical view of the ATS substantively, which limited the interpretation of the jurisdictional reach of the federal courts to entertain claims for violations of the law of nations that occur on foreign soil.   Justice Breyer, on the other hand, would not have invoked the American presumption against extraterritoriality in applying the ATS at all.  Rather, because the jurisdictional question is inherently tied to the law of nations to be enforced through the ATS, Justice Breyer argued that the jurisdictional question should also be guided in part by “principles and practices of foreign relations law,” which would allow for a court to exercise jurisdiction (given the potential foreign relations pitfalls of entertaining such cases) only where “(1) the alleged tort occurs on American soil, (2) the defendant is an Amer­ican national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in prevent­ing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

Although Justice Breyer relied on international law in developing his ATS formulation, he acknowledged that principles of judicial and constitutional restraint impose broader restrictions on the court’s adjudicatory authority to hear cases under the ATS.  Indeed, under international law, states may exercise prescriptive jurisdiction based on several factual situations beyond those recognized in Justice Breyer’s concurring opinion.  For example, as indicated in Section 402 of the Restatement (Third) of the Foreign Relations Law of the United States, a nation’s prescriptive authority can reach conduct occurring within its territory (the principle of territoriality), foreign conduct having a substantial effect in its territory (the effects principle), foreign conduct committed by domestic nationals (the nationality principle), foreign conduct that threatens domestic security (the protective principle), and foreign conduct injuring domestic nationals abroad (passive personality principle).   All such exercises of prescriptive jurisdiction are subject to the limitations of reasonableness, as indicated in Section 403 of the Restatement.

With Kiobel’s limited holding focused only on the presumption of extraterritoriality in cases involving only tangential contacts with the United States, the future of ATS claims based on violations of international human rights law remains uncertain.  The role of international law in interpreting the ATS also remains in doubt, not only when it comes to determining the substantive and jurisdictional scope of the statute. By skirting the issue of whether corporations could be held liable under the ATS for violations of the law of nations, the incentive for potential plaintiffs to pursue corporate defendants to seek redress has not been negated. But as Kiobel demonstrates, when this issue does finally become the focus of the Supreme Court’s decision-making authority, the impact and role of international law in deciding that issue may be limited at best.

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© 2013 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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