Alba V CA

Kiobel v. Royal Dutch Petroleum Co. :: 569 U.S.
108 (2013) :: Justia US Supreme Court Center 23/01/2019, 4*11 PM
Kiobel v. Royal Dutch Petroleum Co., 569

U.S. 108 (2013)
Syllabus Opinion (Roberts) Concurrence (Alito) Concurrence (Kennedy)
Concurrence (Breyer)
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of
the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors,
in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–1491
_________________
ESTHER KIOBEL, individually and on behalf of her late husband, Dr. BARINEM KIOBEL, et al.,
PETI- TIONERS v. ROYAL DUTCH PETROLEUM CO. et al.
on writ of certiorari to the united states court of appeals for the second circuit
[April 17, 2013]
Chief Justice Roberts delivered the opinion of the Court.
Petitioners, a group of Nigerian nationals residing in the United States, filed suit in federal court
against certain Dutch, British, and Nigerian corporations. Petitioners sued under the Alien Tort
Statute, 28 U. S. C. §1350, alleging that the corporations aided and abetted the Nigerian
Government in committing violations of the law of nations in Nigeria. The question presented is
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Kiobel v. Royal Dutch Petroleum Co. :: 569 U.S. 108 (2013) :: Justia US Supreme Court Center 23/01/2019, 4*11 PM
Government in committing violations of the law of nations in Nigeria. The question presented is
whether 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.
Petitioners were residents of Ogoniland, an area of 250 square miles located in the Niger delta
area of Nigeria and populated by roughly half a million people. When the complaint was filed,
respondents Royal Dutch Petroleum Company and Shell Transport and Trading Company, p.l.c.,
were holding companies incorporated in the Netherlands and England, respectively. Their joint
subsidiary, respondent Shell Petroleum Development Company of Nigeria, Ltd. (SPDC), was
incorporated in Nigeria, and engaged in oil exploration and production in Ogoniland. According to
the complaint, after concerned residents of Ogoniland began protesting the environmental effects
of SPDC’s practices, respondents enlisted the Nigerian Government to violently suppress the
burgeoning demonstrations. Throughout the early 1990’s, the complaint alleges, Nigerian military
and police forces attacked Ogoni vil- lages, beating, raping, killing, and arresting residents and
destroying or looting property. Petitioners further allege that respondents aided and abetted these
atrocities by, among other things, providing the Nigerian forces with food, transportation, and
compensation, as well as by allowing the Nigerian military to use respondents’ property as a
staging ground for attacks.
Following the alleged atrocities, petitioners moved to the United States where they have been
granted political asylum and now reside as legal residents. See Supp. Brief for Petitioners 3, and
n. 2. They filed suit in the United States District Court for the Southern District of New York,
alleging jurisdiction under the Alien Tort Statute and requesting relief under customary
international law. The ATS provides, in full, that “[t]he 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. According to petitioners, respondents
violated the law of nations by aiding and abetting the Nigerian Government in committing (1)
extrajudicial killings; (2) crimes against humanity; (3) torture and cruel treatment; (4) arbitrary
arrest and detention; (5) violations of the rights to life, liberty, security, and association; (6) forced
exile; and (7) property destruction. The District Court dismissed the first, fifth, sixth, and seventh
claims, reasoning that the facts alleged to support those claims did not give rise to a violation of the
law of nations. The court denied respondents’ motion to dismiss with respect to the remaining
claims, but certified its order for interlocutory appeal pursuant to §1292(b).
The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not
The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not
recognize corporate liability. 621 F. 3d 111 (2010). We granted certiorari to consider that question.
565 U. S. ___ (2011). After oral argument, we directed the parties to file supplemen- tal briefs
addressing an additional question: “Whether and under what circumstances the [ATS] 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.” 565 U. S. ___ (2012). We heard oral
argument again and now affirm the judgment below, based on our answer to the second question.
II
Passed as part of the Judiciary Act of 1789, the ATS was invoked twice in the late 18th century,
but then only once more over the next 167 years. Act of Sept. 24, 1789, §9, 1 Stat 77; see Moxon v.
The Fanny, 17 F. Cas. 942 (No. 9,895) (DC Pa. 1793); Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607)
(DC SC 1795); O’Reilly de Camara v. Brooke, 209 U. S. 45 (1908) ; Khedivial Line, S.A.E. v.
Seafarers’ Int’l Union, 278 F. 2d 49, 51–52 (CA2 1960) (per curiam). The statute provides district
courts with jurisdiction to hear certain claims, but does not expressly provide any causes of action.
We held in Sosa v. Alvarez-Machain, 542 U. S. 692, 714 (2004) , however, that the First Congress
did not intend the provision to be “stillborn.” The grant of jurisdiction is instead “best read as
having been enacted on the understanding that the common law would provide a cause of action
for [a] modest number of international law violations.” Id., at 724. We thus held that federal courts
may “recognize private claims [for such violations] under federal common law.” Id., at 732. The
Court in Sosa rejected the plaintiff’s claim in that case for “arbitrary arrest and detention,” on the
ground that it failed to state a violation of the law of nations with the requisite “definite content
and acceptance among civilized nations.” Id., at 699, 732.
The question here is not whether petitioners have stated a proper claim under the ATS, but
whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents
contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation
known as the presumption against extraterritorial application. That canon provides that “[w]hen a
statute gives no clear indication of an extraterritorial application, it has none,” Morrison v.
National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 6), and reflects the
“presumption that United States law governs domestically but does not rule the world,” Microsoft
Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007) .
This presumption “serves to protect against unintended clashes between our laws and those of
other nations which could result in international discord.” EEOC v. Arabian American Oil Co., 499
U. S. 244, 248 (1991) (Aramco). As this Court has explained:
“For us to run interference in . . . a delicate field of international relations there must be present
the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to
make fairly such an important policy decision where the possibilities of international discord are so
evident and retaliative action so certain.” Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138,
147 (1957) . The presumption against extraterritorial application helps ensure that the Judiciary
does not erroneously adopt an interpretation of U. S. law that carries foreign policy consequences
not clearly intended by the political branches.
We typically apply the presumption to discern whether an Act of Congress regulating conduct
applies abroad. See, e.g., Aramco, supra, at 246 (“These cases present the issue whether Title VII
applies extraterritorially to regulate the employment practices of United States employers who
employ United States citizens abroad”); Morrison, supra, at ___ (slip op., at 4) (noting that the
question of extraterritorial application was a “merits question,” not a question of jurisdiction). The
ATS, on the other hand, is “strictly jurisdictional.” Sosa, 542 U. S., at 713. It does not directly
regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of
action based on sufficiently definite norms of international law. But we think the principles
underlying the canon of interpretation similarly constrain courts considering causes of action that
may be brought under the ATS.
Indeed, the 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. This Court in Sosa repeatedly stressed the need for judicial caution in
considering which claims could be brought under the ATS, in light of foreign policy concerns. As
the Court explained, “the potential [foreign policy] implications . . . of recognizing . . . . causes
[under the ATS] should make courts particularly wary of impinging on the discretion of the
Legislative and Executive Branches in managing foreign affairs.” Id., at 727; see also id., at 727–
728 (“Since many attempts by federal courts to craft remedies for the violation of new norms of
international law would raise risks of adverse foreign policy consequences, they should be
undertaken, if at all, with great caution”); id., at 727 (“[T]he possible collateral consequences of
making international rules privately actionable argue for judicial caution”). These 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.
These concerns are not diminished by the fact that Sosa limited federal courts to recognizing
causes of action only for alleged violations of international law norms that are “ ‘specific, universal,
and obligatory.’ ” Id., at 732 (quoting In re Estate of Marcos, Human Rights Litigation, 25 F. 3d
1467, 1475 (CA9 1994)). As demonstrated by Congress’s enactment of the Torture Victim
1467, 1475 (CA9 1994)). As demonstrated by Congress’s enactment of the Torture Victim
Protection Act of 1991, 106Stat. 73, note following 28 U. S. C. §1350, identifying such a norm is
only the beginning of defining a cause of action. See id., §3 (providing detailed definitions for
extrajudicial killing and torture); id., §2 (specifying who may be liable, creating a rule of
exhaustion, and establishing a statute of limitations). Each of these decisions carries with it
significant foreign policy implications.
The principles underlying the presumption against extraterritoriality thus constrain courts
exercising their power under the ATS.
III
Petitioners contend that even if the presumption applies, the text, history, and purposes of the
ATS rebut it for causes of action brought under that statute. It is true that Congress, even in a
jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring
abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V) (providing jurisdiction over the offense of
genocide “regardless of where the offense is committed” if the alleged offender is, among other
things, “present in the United States”). But to rebut the presumption, the ATS would need to evince
a “clear indication of extraterritoriality.” Morrison, 561 U. S., at ___ (slip op., at 16). It does not.
To begin, nothing in the text of the statute suggests that Congress intended causes of action
recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of
the law of nations, but that does not imply extraterritorial reach—such violations affect- ing aliens
can occur either within or outside the United States. Nor does the fact that the text reaches “any
civil action” suggest application to torts committed abroad; it is well established that generic terms
like “any” or “every” do not rebut the presumption against extraterritoriality. See, e.g., id., at ___
(slip op., at 13–14); Small v. United States, 544 U. S. 385, 388 (2005) ; Aramco, 499 U. S., at 248–
250; Foley Bros., Inc. v. Filardo, 336 U. S. 281, 287 (1949) .
Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for “torts”
in violation of the law of nations. They claim that in using that word, the First Congress
“necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise
on foreign soil.” Supp. Brief for Petitioners 18. For support, they cite the common-law doctrine that
allowed courts to assume jurisdiction over such “transitory torts,” including actions for personal
injury, arising abroad. See Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep. 1021, 1030 (1774)
(Mansfield, L.) (“[A]ll actions of a transitory nature that arise abroad may be laid as happening in
an English county”); Dennick v. Railroad Co., 103 U. S. 11, 18 (1881) (“Wherever, by either the
common law or the statute law of a State, a right of action has become fixed and a legal liability
common law or the statute law of a State, a right of action has become fixed and a legal liability
incurred, that liability may be enforced and the right of action pursued in any court which has
jurisdiction of such matters and can obtain jurisdiction of the parties”).
Under the transitory torts doctrine, however, “the only justification for allowing a party to
recover when the cause of action arose in another civilized jurisdiction is a well founded belief that
it was a cause of action in that place.” Cuba R. Co. v. Crosby, 222 U. S. 473, 479 (1912) (majority
opinion of Holmes, J.). The question under Sosa is not whether a federal court has jurisdiction to
entertain a cause of action provided by foreign or even international law. The question is instead
whether the court has authority to recognize a cause of action under U. S. law to enforce a norm of
international law. The reference to “tort” does not demonstrate that the First Congress “necessarily
meant” for those causes of action to reach conduct in the territory of a foreign sovereign. In the
end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality.
Nor does the historical background against which the ATS was enacted overcome the
presumption against application to conduct in the territory of another sovereign. See Morrison,
supra, at ___ (slip op., at 16) (noting that “[a]ssuredly context can be consulted” in determining
whether a cause of action applies abroad). We explained in Sosa that when Congress passed the
ATS, “three principal offenses against the law of nations” had been identified by Blackstone:
violation of safe conducts, infringement of the rights of ambassadors, and piracy. 542 U. S., at 723,
724; see 4 W. Blackstone, Commentaries on the Laws of England 68 (1769). The first two offenses
have no necessary extraterritorial application. Indeed, Blackstone—in describing them—did so in
terms of conduct occurring within the forum nation. See ibid. (describing the right of safe
conducts for those “who are here”); 1 id., at 251 (1765) (explaining that safe conducts grant a
member of one society “a right to intrude into another”); id., at 245–248 (recognizing the king’s
power to “receiv[e] ambassadors at home” and detailing their rights in the state “wherein they are
appointed to reside”); see also E. De Vattel, Law of Nations 465 (J. Chitty et al. transl. and ed.
1883) (“[O]n his entering the country to which he is sent, and making himself known, [the
ambassador] is under the protection of the law of nations . . .”).
Two notorious episodes involving violations of the law of nations occurred in the United States
shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved
conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis
Barbe Marbois—the Secretary of the French Legion—in Philadelphia. The assault led the French
Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to
leave the country unless an adequate remedy were provided. Respublica v. De Longschamps, 1
Dall. 111 (O. T. Phila. 1784); Sosa, supra, at 716–717, and n. 11. And in 1787, a New York constable
entered the Dutch Ambassador’s house and arrested one of his domestic servants. See Casto, The
entered the Dutch Ambassador’s house and arrested one of his domestic servants. See Casto, The
Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18
Conn. L. Rev. 467, 494 (1986). At the request of Secretary of Foreign Affairs John Jay, the Mayor of
New York City arrested the constable in turn, but cautioned that because “ ‘neither Congress nor
our [State] Legislature have yet passed any act respecting a breach of the privileges of
Ambassadors,’ ” the extent of any available relief would depend on the common law. See Bradley,
The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002) (quoting 3 Dept. of
State, The Diplomatic Correspondence of the United States of America 447 (1837)). The two cases
in which the ATS was invoked shortly after its passage also concerned conduct within the territory
of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in
port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial
waters).
These prominent contemporary examples—immediately before and after passage of the ATS—
provide no support for the proposition that Congress expected causes of action to be brought under
the statute for violations of the law of nations occurring abroad.
The third example of a violation of the law of nations familiar to the Congress that enacted the
ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the
United States or any other country. See 4 Blackstone, supra, at 72 (“The offence of piracy, by
common law, consists of committing those acts of robbery and depredation upon the high seas,
which, if committed upon land, would have amounted to felony there”). This Court has generally
treated the high seas the same as foreign soil for purposes of the presumption against
extraterritorial application. See, e.g., Sale v. Haitian Centers Council, Inc., 509 U. S. 155 –174
(1993) (declining to apply a provision of the Immigration and Nationality Act to conduct occurring
on the high seas); Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989)
(declining to apply a provision of the Foreign Sovereign Immunities Act of 1976 to the high seas).
Petitioners contend that because Congress surely intended the ATS to provide jurisdiction for
actions against pirates, it necessarily anticipated the statute would apply to conduct occurring
abroad.
Applying U. S. law to pirates, however, does not typically impose the sovereign will of the
United States onto conduct occurring within the territorial jurisdiction of another sovereign, and
therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by
any nation, because they generally did not operate within any jurisdiction. See 4 Blackstone, supra,
at 71. We do not think that the existence of a cause of action against them is a sufficient basis for
concluding that other causes of action under the ATS reach conduct that does occur within the
territory of another sovereign; pirates may well be a category unto themselves. See Morrison, 561
U. S., at ___ (slip op., at 16) (“[W]hen a statute provides for some extraterritorial application, the
presumption against extraterritoriality operates to limit that provision to its terms”); see also
Microsoft Corp., 550 U. S., at 455–456.
Petitioners also point to a 1795 opinion authored by Attorney General William Bradford. See
Breach of Neutrality, 1 Op. Atty. Gen. 57. In 1794, in the midst of war between France and Great
Britain, and notwithstanding the American official policy of neutrality, several U. S. citizens joined
a French privateer fleet and attacked and plundered the British colony of Sierra Leone. In response
to a protest from the British Ambassador, Attorney General Bradford responded as follows:
So far . . . as the transactions complained of originated or took place in a foreign country, they
are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished
for them by the United States. But crimes committed on the high seas are within the jurisdiction of
the . . . courts of the United States; and, so far as the offence was committed thereon, I am inclined
to think that it may be legally prosecuted in . . . those courts . . . . But some doubt rests on this
point, in consequence of the terms in which the [applicable criminal law] is expressed. But there
can be no doubt that the company or individuals who have been injured by these acts of hostility
have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to
these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a
treaty of the United States . . . .” Id., at 58–59.
Petitioners read the last sentence as confirming that “the Founding generation understood the
ATS to apply to law of nations violations committed on the territory of a foreign sovereign.” Supp.
Brief for Petitioners 33. Respondents counter that when Attorney General Bradford referred to
“these acts of hostility,” he meant the acts only insofar as they took place on the high seas, and even
if his conclusion were broader, it was only because the applicable treaty had extraterritorial reach.
See Supp. Brief for Respondents 28–30. The Solicitor General, having once read the opinion to
stand for the proposition that an “ATS suit could be brought against American citizens for
breaching neutrality with Britain only if acts did not take place in a foreign country,” Supp. Brief
for United States as Amicus Curiae 8, n. 1 (internal quotation marks and brackets omitted), now
suggests the opinion “could have been meant to encompass . . . conduct [occurring within the
foreign territory],” id., at 8.
Attorney General Bradford’s opinion defies a definitive reading and we need not adopt one here.
Whatever its pre- cise meaning, it deals with U. S. citizens who, by partic- ipating in an attack
taking place both on the high seas and on a foreign shore, violated a treaty between the United
States and Great Britain. The opinion hardly suffices to counter the weighty concerns underlying
States and Great Britain. The opinion hardly suffices to counter the weighty concerns underlying
the presumption against extraterritoriality.
Finally, there is no indication that the ATS was passed to make the United States a uniquely
hospitable forum for the enforcement of international norms. As Justice Story put it, “No nation
has ever yet pretended to be the custos morum of the whole world . . . .” United States v. The La
Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822). It is implausible to suppose that
the First Congress wanted their fledgling Republic—struggling to receive international recognition
—to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed
to do such a thing.
The United States was, however, embarrassed by its potential inability to provide judicial relief
to foreign officials injured in the United States. Bradley, 42 Va. J. Int’l L., at 641. Such offenses
against ambassadors violated the law of nations, “and if not adequately redressed could rise to an
issue of war.” Sosa, 542 U. S., at 715; cf. The Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A.
Hamilton) (“As the denial or perversion of justice . . . is with reason classed among the just causes
of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the
citizens of other countries are concerned”). The ATS ensured that the United States could provide a
forum for adjudicating such incidents. See Sosa, supra, at 715–718, and n. 11. Nothing about this
historical context suggests that Congress also intended federal common law under the ATS to
provide a cause of action for conduct occurring in the territory of another sovereign.
Indeed, far from avoiding diplomatic strife, providing such a cause of action could have
generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654 F. 3d 11, 77–78
(CADC 2011) (Kavanaugh, J., dissenting in part) (listing recent objections to extraterritorial
applications of the ATS by Canada, Germany, Indonesia, Papua New Guinea, South Africa,
Switzerland, and the United Kingdom). Moreover, accepting petitioners’ view would imply that
other nations, also applying the law of nations, could hale our citizens into their courts for alleged
violations of the law of nations occurring in the United States, or anywhere else in the world. The
presumption against extraterritoriality guards against our courts triggering such serious foreign
policy consequences, and instead defers such decisions, quite appropriately, to the political
branches.
We therefore conclude that the presumption against extraterritoriality applies to claims under
the ATS, and that nothing in the statute rebuts that presumption. “[T]here is no clear indication of
extraterritoriality here,” Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners’ case seeking
relief for violations of the law of nations occurring outside the United States is barred.
IV
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. See Morrison, 561 U. S. ___ (slip op.
at 17–24). 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.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Oral Argument - February 28, 2012
Oral Reargument - October 01, 2012

Opinion Announcement - April 17, 2013
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Kiobel v. Royal Dutch Petroleum Co. :: 569 U.S.

108 (2013) :: Justia US Supreme Court Center 23/01/2019, 4*11 PM

Kiobel v. Royal Dutch Petroleum Co., 569

Syllabus Opinion (Roberts) Concurrence (Alito) Concurrence (Kennedy)

SUPREME COURT OF THE UNITED STATES

[April 17, 2013]

Chief Justice Roberts delivered the opinion of the Court.

The judgment of the Court of Appeals is affirmed.

Oral Argument - February 28, 2012

Oral Reargument - October 01, 2012

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