The Door Ajar: The Life of the Alien Tort Statute before and after Kiobel v. Royal Dutch Petroleum

• Author: Matthew Toyama
• Position: Santa Clara University Law School
• Pages: 689-732

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

rst published online 09 May 2014

689

Note. e author would like to thank Professor Francisco Rivera for his guidance and

support in this work.

THE DOOR AJAR

THE LIFE OF THE ALIEN TORT STATUTE BEFORE AND AFTER KIOBEL V.

ROYAL DUTCH PETROLEUM

MATTHEW K. TOYAMA

Santa Clara University Law School

E-mail: matttoyama@gmail.com

Since the April 2013 Supreme Court decision of Kiobel v. Royal Dutch Petroleum,

the future of international human rights litigation in U.S. federal courts ounders in

a quagmire of complex precedent and wants a light in the darkness. is article seeks

to nd the foundation of the relationship of the law of nations to at least one sovereign

state, the United States, then investigates the life of a major liaison in this regard,

the Alien Tort Statute (ATS), and explores the viability of the ATS as a channel for

international human rights litigation moving forward. Consistent judicial opinion,

contextual and textual evidence of congressional intent and the Constitution itself

support that the raison d’être of the ATS has been to uphold the law of nations

consistently in cases of violations of accepted international norms of human conduct

which are properly brought to United States forums for adjudication; the Supreme

Court’s most recent conception of the statute notwithstanding, the vitality of this

bedrock component of American judicial fabric will remain.

is article makes three main arguments: one, that despite an intended and

requisite place for our federal judiciary in reinforcing international law, the Kiobel

Court incorrectly applied the presumption against extraterritoriality to the ATS which

is a purely jurisdictional statute and building upon its precedent, misunderstands the

nature of the jurisdiction involved and the proper substantive rule of decision for ATS

cases; two, future causes of action that will continue to be successful under the ATS

will at least be those that continue to adhere to the contours of Filártiga v. Peña-Irala,

where connection to the U.S. deriving from substantial personal jurisdiction over a

defendant, for example in the ways of U.S. citizenship and permanent or longtime

residency, will suce to overcome the presumption; lastly, within this framework,

The Indonesian Journal of International & Comparative Law Volume I Issue 3 (2014) at 689–732

Matthew Toyama

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international law lends support for the contention unaddressed by the Kiobel II court

that jurisdiction over corporations for civil liability validly exists as well.

Keywords: Alien Tort Statute, Presumption Against Extraterritoriality, Adjudicative

Jurisdiction, Customary International Law, U.S. Federal Common Law, International

Civil Corporate Liability.

I. INTRODUCTION

ere is little danger that judicial enforcement [of customary

international law] will impair our foreign policy eorts. To the contrary,

a refusal to recognize a private cause of action in these circumstances

might seriously damage the credibility of our nation’s commitment to the

protection of human rights.

U.S. Dept of State (1980)1

In the beginning, the First Congress of a young United States of America

passed 28 U.S.C. section 1350, known today as the Alien Tort Statute.2

Nothing has been absolutely certain since then. Since the April 2013

Supreme Court decision of Kiobel v. Royal Dutch Petroleum,3 the future of

international human rights litigation in U.S. federal courts has oundered

in a quagmire of complex precedent and has been wanting a light in the

darkness. is article seeks to nd the foundation of the relationship

of the law of nations to at least one sovereign state, the United States,

then investigates the life of a major liaison in this regard, the ATS, and

explores the viability of the ATS as a channel for international human

rights litigation moving forward. Consistent judicial opinion, contextual

and textual evidence of congressional intent and the Constitution itself

support that the raison d’être of the ATS has been to uphold the law of

nations consistently in cases of violations of accepted international norms

of human conduct which are properly brought to United States forums for

adjudication; the Supreme Court’s most recent conception of the statute

1. Memorandum for the United States, Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir.

1980), p. 22-23.

2. 28 U.S.C. § 1350 (stating, “e 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.”).

3. Kiobel v. Royal Dutch Petro. Co., 133 S. Ct. 1659 (2013) [hereinafter “Kiobel”].

Matthew Toyama

THE DOOR AJAR: THE LIFE OF THE ALIEN TORT STATUTE BEFORE AND AFTER KIOBEL V. ROYAL DUTCH PETROLEUM

691

notwithstanding, the vitality of this bedrock component of American

judicial fabric will remain.

is article makes three main arguments: one, that despite an

intended and requisite place for our federal judiciary in reinforcing

international law, the Kiobel Court incorrectly applied the presumption

against extraterritoriality to the ATS which is a purely jurisdictional

statute and building upon its precedent,4 misunderstands the nature of

the jurisdiction involved and the proper substantive rule of decision for

ATS cases; two, future causes of action that will continue to be successful

under the ATS will at least be those that continue to adhere to the contours

of Filártiga v. Peña-Irala,5 where connection to the U.S. deriving from

substantial personal jurisdiction over a defendant, for example in the ways

of U.S. citizenship and permanent or longtime residency, will suce to

overcome the presumption; lastly, within this framework, international

law lends support for the contention unaddressed by the Kiobel II court

that jurisdiction over corporations for civil liability validly exists as well.

It is therefore necessary to rst address the foundational

misunderstanding which inuenced the Court to make its most critical

holding in Kiobel—that the presumption against extraterritoriality should

not in fact apply to the ATS because the statute provides only for the

adjudicative jurisdiction of a U.S. court to apply customary international

law which has existed as a valid rule of decision separate and not a part

of U.S. federal common law.6 e next section traces the development of

the ATS through its jurisprudential precedent and the relationship of the

Court’s most recent pronouncement in Kiobel built upon this questionable

foundation.7 e propriety of the major thrust of Kiobel, the application

of the presumption against extraterritoriality to the ATS, is then explored.8

After having discussed the important perpetual misunderstandings which

have plagued the ATS over the course of its life and usage, this article

explores why and how the statute will continue to be successfully used

as a channel for international human rights litigation despite the Court’s

4. See generally, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

5. Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980).

6. See infra at 692.

7. See infra at 697.

8. See infra at 708.