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My Agora contribution considers the counterintuitive possibility that, in the long run, Kiobel might strengthen the status of international law in U.S. courts. Here, I explore how lower courts have interpreted Kiobel in the short term. Two trends have emerged.
First, courts have set a high bar for an ATS case to “touch and concern” U.S. territory with “sufficient force” to overcome the presumption against extraterritoriality, as Kiobel requires. The Second Circuit set the tone with Balintulo, concerning the decade-long South African apartheid litigation. In denying the defendant corporations’ request for a writ of mandamus, the panel reasoned that the writ was unnecessary because, under Kiobel, the defendants could clearly win on the pleadings, given that the alleged violations of international law occurred abroad. The plaintiffs had argued that the defendants’ conduct had nevertheless sufficiently touched and concerned U.S. territory because the defendants were U.S. nationals and the conduct affronted significant U.S. interests in opposing apartheid, but the panel rejected both arguments. The panel also stated that the plaintiffs’ claim that the defendants “took affirmative steps in this country to circumvent the sanctions regime” was irrelevant because all that mattered was whether the violations of international law themselves took place abroad.
Balintulo overstates Kiobel’s clarity and chose an odd procedural order (a mandamus denial) for expounding a novel legal question, but it is representative of lower courts’ approach. In determining whether a defendant’s conduct sufficiently touches and concerns U.S. territory to survive Kiobel, other federal courts have ruled that it’s insufficient that a defendant corporation is a U.S. national (Adhikari), made some decisions in the United States regarding the conduct (Giraldo), or had “substantial operations in this country,” including billions of dollars of assets (Rio Tinto). Other courts have held that it’s insufficient that a defendant had taken refuge in the United States to avoid prosecution (Dacer) or that a defendant “specifically directed” an online propaganda campaign at persons living in the United States (Chen Gang).
Only a few cases have gone well for ATS plaintiffs. One district court held that Kiobel did not bar a case involving crimes committed in Somalia by a U.S. permanent resident (Ahmed v. Magan). A different court allowed a case where the defendant was a U.S. national who oversaw a campaign of oppression against gay persons in Uganda from his American home (Sexual Minorities Uganda). And another court ruled a case was sufficiently linked to U.S. territory where the defendants directed a terrorist attack that was partly plotted in the United States at a U.S. embassy (Mwani v. Bin Laden). But the same court dismissed a case where U.S. citizens were merely incidental victims of terrorist attacks funded, launched, and targeted abroad (Kaplan). A final case with a (slight) silver lining for ATS plaintiffs was Al Shimari, in which the district court was open to considering whether places where the United States has de facto sovereignty qualify as U.S. territory for purposes of the ATS (but the court found that Abu Ghraib was not such a place).
Second, the split over corporate liability might be reemerging. In a short order issued in Doe v. Nestle, the Ninth Circuit held that corporations could face liability under the ATS. The panel reasoned that Kiobel’s dictum that “mere corporate presence” in U.S. territory is insufficient for ATS liability implies that a corporation could be liable if the presumption against extraterritoriality is overcome. The holding seems to reestablish the split over corporate liability between the Ninth Circuit and the Second Circuit, whose holding in its 2010 Kiobel decision that the ATS did not recognize corporate liability was not explicitly overruled on appeal to the Supreme Court.
But maybe not so fast. Although Balintulo assumed that the Second Circuit’s approach to corporate liability survived Kiobel (and an SDNY decision one week later reached this conclusion explicitly), a subsequent decision in Licci by a different Second Circuit panel remanded the question of corporate liability to the district court. And now the district court in the Balintulo litigation has also asked for briefing on this question in light of Licci.
So what can we conclude nine months out? If the first trend holds, it will probably be enough for most corporate defendants to avoid liability. But in the unlikely event that courts buck the first trend, the second trend—barring a Second Circuit turnaround—would send ATS litigation back to the Supreme Court after Sosa and Kiobel to complete an ATS trilogy.
Marco Basile is a JD/PhD Candidate at Harvard Law School and Harvard's Department of History.