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Like the proverbial reports of Mark Twain’s demise, the death of alien tort litigation is easily exaggerated. In addition to Kiobel’s presumption against extraterritoriality, the U.S. Supreme Court recently added a personal jurisdiction barrier in another case brought in part under the Alien Tort Statute, Daimler AG v. Bauman, ruling that a German parent company is not within the general jurisdiction of the state courts simply by virtue of an in-state subsidiary unconnected to the plaintiffs’ underlying claims. According to the Court, Kiobel rendered the Bauman plaintiffs’ claims untenable, because all the allegedly wrongful conduct occurred abroad. Lower court decisions since Kiobel certainly confirm that “foreign-cubed” cases against corporations must be dismissed. But because the responsibility for defining the elements of Kiobel’s “touch and concern” test has fallen to the lower courts, they can be expected to generate the next cert-worthy conflict among the circuit courts of appeals.
In my view, some lower courts have over-interpreted Kiobel, inexplicably dismissing foreign-squared cases, where a U.S. actor is involved or where the defendant took decisions in U.S. territory to commit a tort in violation of the law of nations abroad (Balintulo, et al. v. Daimler AG, Al Shimari v. CACI Int’l., Inc., and Giraldo v. Drummond Co. are examples).
The Seventh Circuit, in Sikhs for Justice v. Badal, even hinted in dicta that it might extend Kiobel from the context of multinational corporations—where the “touch and concern” test might be more difficult to satisfy and might raise more profound foreign relations concerns—to individual violators of human rights, as in Filartiga, Karadzic, and Marcos. Nothing in Chief Justice Roberts’ opinion for the majority in Kiobel suggests that these landmark cases against individuals—cited with approval in Sosa—were wrongly decided, and Justice Kennedy’s heroically cryptic concurrence at a minimum leaves them intact: that concurrence, providing the fifth vote for the Roberts opinion, explicitly confirms that the ATS might still apply to “human rights abuses committed abroad” in cases not covered by the “reasoning and holding” of Kiobel. The Supreme Court's denial of certiorari in Samantar v. Yousuf suggests that the Kiobel presumption may not extend to cases in which an individual violator of human rights abroad seeks safe haven in the United States. See Yousuf v. Samantar.
The one thing that the Kiobel presumption cannot mean is that ATS cases must be limited to tortious conduct within the United States. Justices Alito and Thomas concurred in the judgment but would have required that the “domestic [i.e., U.S.] content” of the claim must be “sufficient to violate an international norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.” In other words, Justices Alito and Thomas insisted that ATS jurisdiction can be proper only if the breach of Sosa-qualified norms occurs in the territory of the United States. That standard would of course have barred Filartiga and its progeny. That the other seven justices in Kiobel did not adopt the Alito-Thomas restriction suggests in turn that foreign-injury cases can survive, so long as there is a sufficient connection to the United States.
Ralph Steinhardt is Arthur Selwyn Miller Research Professor of Law at George Washington University School of Law. He was co-counsel for the respondent in the Sosa litigation and, with Arin Brenner, represented a group of international law scholars appearing as amicus curiae in support of the plaintiffs/petitioners in the Kiobel litigation.