The Alien Tort Statute (ATS): A Primer
Released: 2018-06-01T00:00:00

O riginally enacted by the First Congress as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) has been described as a provision that is "u nlike any other in American law" and "unknown to any other legal system in the world." In its current form, the complete text of the ATS provides 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." Although it is only a single sentence long, the ATS has been the subject of intense interest in recent decades, as it evolved from a rarely used jurisdictional statute to a prominent vehicle for foreign nationals to seek redress in U.S. courts for human rights offenses and acts of terrorism . T his report examines the development of the ATS, beginning with its origins in the First Congress and continuing through to the Supreme Court's recent decision in Jesner v. Arab Bank, PLC , where the Court held that foreign corporations are not subject to ATS liability.

Deconstructed, the ATS statute provides federal district courts with jurisdiction to hear cases with four elements: (1) a civil action (2) by an alien (3) for a tort (4) committed in violation of the law of nations or a treaty of the United States. The significance of these requirements is as follows:

1. A c ivil action : The ATS allows only for civil (rather than criminal) liability. 2. By an alien : A crucial, distinctive feature of the ATS is that it provides jurisdiction for U.S. courts to hear claims filed only by aliens (i.e., non-U.S. nationals). The ATS does not provide jurisdiction for suits alleging torts in violation of the law of nations by U.S. nationals —although other statutes may allow for such claims. 3. For a tort : As a general matter, a tort is "a civil wrong, other than breach of contract, for which a remedy may be obtained, [usually] in the form of damages[.]" 4. In violation of the law of nations or a treaty of the United States : The ATS requires that the tort asserted be considered a violation of either the "law of nations" or a treaty ratified by the United States. The term "law of nations" is now often understood to refer to "customary international law." As a general matter, customary international law is international law that is derived from "a general and consistent practice of States followed by them from a sense of legal obligation." State practices that form the basis for customary international law are often referred to as international "norms." But the process of identifying what norms are actionable under the ATS is a complex judicial function that was the subject of much debate and was addressed by the Supreme Court in Sosa v . Alvarez - Machain , discussed below.

Early History of the Alien Tort Statute

Under Article III of the Constitution, Congress is empowered (but not obligated) to create a system of federal courts inferior to the Supreme Court. As one of its first official duties, the First Congress passed legislation, now known as the Judiciary Act of 1789 (Judiciary Act), creating a system of federal district and circuit courts. The original iteration of the ATS was included in Section 9 of the Judiciary Act—a provision which broadly addressed the jurisdiction of the federal district courts. Congress made minor modifications to the ATS in 1873 and 1911. The current version, quoted above, was enacted in 1948 .

Congressional Intent

According to the Supreme Court, the ATS "was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of a remedy might provoke foreign nations to hold the United States accountable." During the early years of the Republic, between the end of the Revolutionary War and the adoption of the Constitution, the United States faced a number of difficulties meeting its obligations regarding foreign affairs. Under the Articles of Confederation, the federal government had little ability to provide redress to foreign citizens for violations of international law. Instead, the Confederation Congress passed a resolution recommending that each state create judicial tribunals to hear civil and criminal claims arising out of violations of the law of nations, and that state legislatures criminalize treaty infractions and other breaches of international law. But only one state, Connecticut, passed legislation creating penalties for violations of the law of nations.

At the same time, international law during the founding era was understood to place an affirmative obligation on the United States to redress certain violations of the law of nations, even when those violations were perpetrated by private individuals. The Framers expressed concern that the state governments did not fully understand or appreciate the duties that arose under international law by virtue of the United States' new position as a sovereign nation. These concerns led the Framers and the First Congress to provide jurisdiction to federal courts in a number of circumstances that may implicate foreign relations concerns—such as suits involving foreign diplomats, admiralty and maritime cases, and disputes between U.S. citizens and citizens of foreign nations. The ATS was included among those class of jurisdictional provisions designed to provide a forum for federal courts to hear claims for violations of international law when the absence of such a forum could impact U.S. foreign relations.

The Marbois and Van Berckel Incidents

In the 1780s, two incidents involving foreign diplomats highlighted the potential for conflict in international relations under the Articles of Confederation. In 1784, a French "adventurer," Julien de Longchamps, assaulted a French diplomat, François Barbé-Marbois ( Marbois ), on a public street in Philadelphia. Because no national judiciary existed at the time, any case against Longchamps could occur only in a Pennsylvania state court. Concerned that Pennsylvania officials may not adequately address the incident—especially after Longchamps briefly escaped following his arrest —the chief French diplomat in the United States lodged a protest with the Confederation Congress and threatened to leave the country unless an adequate remedy were provided. Longchamps was eventually recaptured, convicted, and sentenced to two years in jail by a Pennsylvania court. But Pennsylvania officials declined French requests to deliver Longchamps to French authorities, and the Confederation Congress passed a resolution directing the Secretary of Foreign Affairs to apologize to Marbois for its limited ability to provide redress at the federal level.

Three years later, similar tensions arose when a New York constable entered the home of the Dutch Ambassador and arrested one of his domestic servants. When the Ambassador, Pieter J. Van Berckel, protested that his servant should have been afforded diplomatic immunity, U.S. Secretary of Foreign Affairs John Jay reported to Congress that the federal government was not "vested with any Judicial Powers competent" to adjudicate the propriety of the constable's actions.

The United States was "embarrassed" by these incidents and by "its inability to provide judicial relief to the foreign officials injured in the United States[.]" Moreover, such incidents were not seen as low-level diplomatic quarrels. During the founding era, assaults on ambassadors (among other violations of international law) were considered "just causes of war" if not adequately redressed. Some dispute whether the Marbois and Van Berckel incidents were an impetus for the ATS . But the Supreme Court interpreted the ATS as part of a class of provisions in the Judiciary Act that was designed, at least in part, to respond to concerns that the federal government under the Articles of Confederation was unable to provide a judicial forum to protect the rights of foreign diplomats.

The Long Dormancy: 1789 to 1980

Regardless of its original purpose, the ATS was rarely used as a source of federal jurisdiction for the first 190 years of its existence. Between 1789 and 1980, litigants successfully invoked the ATS as a basis for jurisdiction in only two reported decisions. The first case, Bolchos v. Darrel , involved a French captain attempting to recover a cargo of slaves he had captured along with a Spanish prize vessel. The second, Adra v. Clift , was brought over 150 years later, and involved the use of forged passports in an international child custody dispute. The dearth of judicial opinions led one federal judge and prominent commentator on federal jurisdiction to describe the statute as "an old but little used section [that] is a kind of a legal Lohengrin . . . no one seems to know from whence it came" —a reference to a Germanic tale involving a knight who appears in a boat drawn by swans to help a noblewoman in distress, but refuses to disclose his origins.

The End of the Long Dormancy: 1980-2004

The Rebirth of the ATS: Filártiga v. Peña-Irala

After nearly two centuries of dormancy, the ATS sprang into judicial and academic prominence in 1980 after the U.S. Court of Appeals for the Second Circuit (Second Circuit) issued a landmark decision in Filártiga v. Peña-Irala . In that case, two Paraguayan citizens (the Filártigas) brought suit against the former Inspector General of Asuncion, Paraguay, alleging that he had kidnapped, tortured, and killed the plaintiffs' relative in retaliation for their family's support of a political opposition party. The defendant, Americo Norberto Peña-Irala, was also a Paraguayan citizen who was discovered to be living in New York on an expired visa. Relying on the ATS for jurisdiction, the Filártigas contended that Peña-Irala's actions constituted a tort in violation of the law of nations, but the district court initially dismissed the case on the ground that the law of nations actionable under the ATS did not include modern provisions in international law that govern how a nation (in this case, Paraguay) treats its own citizens.

In a first-of-its-kind decision, the Second Circuit reversed and concluded that torture by a state official against its own citizen violates "established norms of the international law of human rights" and therefore provides an actionable claim under the ATS. The Filártiga court reasoned that courts applying the ATS "must interpret international law not as it was in 1789, but as it has evolved and exists among the nations of the world today." Although Filártiga never reached the Supreme Court, it was a highly influential decision that caused the ATS to "skyrocket" into prominence as a vehicle for asserting civil claims in U.S. federal courts for human rights violations even when the events underlying the claims occurred outside the United States.

Framing the Cause of Action Question: Tel-Oren v. Libyan Arab Republic

While Filártiga was a watershed moment in the history of the ATS, courts soon began to identify certain limits on ATS jurisdiction that were not addressed in the Second Circuit's decision. In one prominent 1984 decision, Tel-Oren v. Libyan Arab Republic , the D.C. Circuit framed one of the chief, conceptual questions related to the ATS: Is the statute solely jurisdictional in nature, or does it also create a cause of action for plaintiffs? As a general matter, plaintiffs pursuing a civil claim in federal court must both (1) identify a court that possesses jurisdiction over the subject matter of the case and (2) have a cause of action that allows them to seek the relief requested, such as compensatory relief for monetary damages. In Tel-Oren , the D.C. Circuit addressed—but did not resolve—whether the ATS satisfies both requirements.

Tel-Oren involved a group of Israeli citizens and survivors of a terrorist attack in Israel who brought an ATS claim against the Palestinian Liberation Organization and others who allegedly orchestrated the attack. In a per curiam opinion, a three-judge panel of the D.C. Circuit unanimously agreed to dismiss the case, but each judge issued a separate opinion relying on a different rationale for dismissal.

In a widely discussed concurring opinion, Judge Bork concluded that the ATS is a purely jurisdictional statute that does not create a cause of action for damages. To hold otherwise, Judge Bork reasoned, would violate separation-of-powers principles by allowing judges, rather than Congress, to create causes of action that could affect U.S. foreign relations. Judge Edwards disagreed, and argued that the ATS itself creates a statutory cause of action. However, Judge Edwards still concurred in the dismissal under the rationale that the case lacked official state action, and that the claim for terrorism was not sufficiently recognized as a violation of international law. In addition, Judge Robb found the case to raise nonjusticiable political questions—meaning it raised disputes more appropriately addressed by the legislative and executive branches. But it was the broader, doctrinal disagreement between Judge Bork and Judge Edwards over the cause-of-action question that would eventually become the subject of a landmark Supreme Court decision, Sosa v. Alvarez-Machain , discussed below. However, Sosa was not decided until 20 years later. In the interim, Congress created a new statutory basis for civil claims for torture and extrajudicial killing—the same claims asserted in Filártiga —through the Torture Victim Protection Act.

The Torture Victim Protection Act

In 1992, President George H. W. Bush signed into law the Torture Victim Protection Act (TVPA), which creates a civil cause of action for damages against any "individual who, under actual or apparent authority, or color of law, of any foreign nation," subjects another to torture or extrajudicial killing. Legislative history of the TVPA suggests the act was designed to establish an "unambiguous basis" for the causes of action recognized in Filártiga and to respond to Judge Bork's argument in Tel-Oren that there must be a separate and explicit "grant by Congress of a private right of action" in order to assert a tort claim for a violation of international law. However, there are important distinctions between the TVPA and ATS.

Whereas the TVPA expressly creates a civil cause of action for torture and extrajudicial killing, the ATS refers only to the jurisdiction of federal courts. Moreover, while the ATS applies only to civil actions brought by aliens, the TVPA allows a cause of action to be brought by and against "individuals." Courts have interpreted this term as extending a cause of action to both U.S. and foreign nationals, but excluding liability against corporations. At the same time, the TVPA places limitations on civil actions that are not present in the ATS. Most notably, the TVPA requires that plaintiffs exhaust all "adequate and available remedies in the place in which the conduct giving rise to the claim occurred."

The relationship between the TVPA and the ATS is not clearly defined. Some courts concluded that the TVPA supplements (but does not displace) the ATS, and therefore plaintiffs can choose whether to bring claims for torture or extrajudicial killing under either statute. Others courts reasoned that the TVPA was intended to "occupy the field," and that plaintiffs cannot avoid its exhaustion-of-remedies requirement merely by pleading their claims under the ATS. Regardless of how the two statutes interact, the TVPA serves as an example of Congress providing an express cause of action for certain claims that litigants had argued were actionable under the ATS as torts in violation of the law of nations.

The Supreme Court Addresses the Cause-of-Action Question: Sosa v. Alvarez-Machain

Twenty years after Judge Bork and Judge Edwards framed the debate over whether the ATS creates a cause of action, the Supreme Court addressed the cause-of–action question in Sosa v. Alvarez-Machain .

Background and History of Sosa

Sosa concerned a Mexican doctor, Humberto Alvarez-Machain (Alvarez), who allegedly participated in the torture and murder of a Drug Enforcement Administration (DEA) agent in Mexico by prolonging the agent's life so he could be further interrogated and tortured. When the Mexican government declined the DEA's requests for assistance in apprehending Alvarez, DEA officials approved a plan to hire Mexican nationals to apprehend Alvarez and bring him to the United States for trial.

The Supreme Court twice reviewed cases arising from Alvarez's seizure. After being brought into U.S. custody, Alvarez moved to dismiss the criminal indictment against him on the ground that his apprehension was "outrageous governmental conduct" and that it violated the extradition treaty between the United States and Mexico. In its first decision arising out of his case, United States v. Alvarez-Machain , the Supreme Court rejected Alvarez's arguments, finding no grounds to justify dismissal of the criminal case against him.

The case was remanded to district court, but the district court dismissed the charges for lack of evidence at close of the government's case during trial. No longer subject to criminal charges, Alvarez filed suit in 1993 asserting ATS claims against the Mexican nationals responsible for his abduction. This civil case, Sosa v. Alvarez-Machain , also reached the Supreme Court, which granted certiorari to clarify whether the ATS "not only provides federal courts with [jurisdiction], but also creates a cause of action for an alleged violation of the law of nations."

The Sosa Holding

Adopting reasoning that largely appeared to comport with Judge Bork's concurring opinion in Tel-Oren , the Sosa Court agreed that the "ATS is a jurisdictional statute creating no new causes of action . . . ." Among other things, the Court noted that the ATS is written in jurisdictional language and was originally enacted as part of the Judiciary Act—a statute that concerned the jurisdiction of all federal courts more broadly.

While the Sosa Court agreed that the ATS was not intended to create statutory causes of action, a majority nevertheless concluded that the statute was not meant to be "stillborn"—meaning it was not intended to be a "jurisdictional convenience to be placed on a shelf" until a future Congress authorized specific causes of action. Instead, the Court held that, under the "ambient law" of the era, the First Congress would have understood a "modest number of international law violations" to have been actionable under the ATS without the need for a separate statute creating a cause of action. In other words, Sosa held that, while the ATS is jurisdictional in nature, it was enacted with the expectation that federal courts could recognize a "narrow set" of causes of action as a form of judicially developed common law, as opposed to a congressionally created, statutory cause of action.

Sosa cited three particular offenses against the law of nations in 18th-century English criminal law that the Court believed the Founders would have considered to have been tort claims actionable under the ATS at the time of its enactment: violations of safe conducts, infringement on the rights of ambassadors, and piracy. But the Court also held that ATS jurisdiction is not limited to those claims. Rather, under Sosa , federal courts can recognize common law claims for violations of the "present-day law of nations," provided the claims satisfy an important and overarching limitation: only those claims that "rest on a norm of international character accepted by the civilized world and defined with specificity comparable to the features of the 18th-century paradigms" of international law are actionable under the ATS. Thus, while Sosa allows federal courts to recognize some tort claims for violations of modern customary international law, the Court emphasized the need for "judicial caution" and "restraint" in identifying new causes of action. Applying these principles, the Court held that Alvarez's claim for arbitrary arrest and detention was not sufficiently defined or supported in modern-day international law to meet the newly described requirements for an ATS claim, and was thus dismissed.

Sosa's Two-Step Framework

Since Sosa was decided, a majority of Justices on the Supreme Court have interpreted the case to establish a two-step framework for addressing questions related to the breadth of ATS liability. First, courts must determine whether the claim is based on violation of an international law norm that is "specific, universal, and obligatory." Second, if step one is satisfied, courts should determine whether allowing the case to proceed is an "appropriate" exercise of judicial discretion.

Although Sosa warned that lower courts should exercise "vigilant doorkeeping" and "great caution" before recognizing causes of action under the ATS, the post- Filártiga movement of using the ATS to seek redress for human rights abuses continued "largely unabated" after Sosa . Beginning in 2013, that trend slowed after the Supreme Court recognized restrictions on the territorial reach of the ATS in Kiobel v. Royal Dutch Petroleum .

Extraterritoriality and the ATS: Kiobel v. Royal Dutch Petroleum

In Kiobel , a group of Nigerian nationals residing in the United States filed an ATS suit against Dutch, British, and Nigerian oil companies for allegedly aiding and abetting human rights abuses committed by the Nigerian police and military in Nigeria. The Second Circuit dismissed the case on the ground that corporations cannot be liable for violations of the law of nations under the ATS, and the Supreme Court originally granted certiorari on the question of corporate liability. After hearing oral argument, the Court requested additional briefing and ordered reargument on a new issue that would become dispositive for the case: Does the ATS confer jurisdiction to hear claims for violations of the law of nations occurring within the territory of a sovereign other than the United States ?

The Kiobel Majority

In a majority opinion written by Chief Justice Roberts, the Kiobel Court relied on a canon of statutory interpretation known as the "presumption against extraterritorial application" to conclude that the ATS does not reach conduct that occurred entirely in the territory of a foreign nation. Also known as the "presumption against extraterritoriality," the canon of construction is intended to avoid unintended clashes between U.S. and foreign law that could result in international discord. Reliance on the presumption also reflects the "more prosaic commonsense notion that Congress generally legislates with domestic concerns in mind." Unless a statute gives "clear indication of an extraterritorial application," federal courts generally will presume that it is not intended to apply to claims that arise in foreign territory.

According to the Kiobel Court, nothing in the text or history of the ATS suggests the First Congress intended the statute to have extraterritorial reach. To the contrary, the events giving rise to the ATS—including the Marbois and Van Berckel incidents—demonstrate that the statute was designed to avoid the same types of "diplomatic strife" and foreign relations friction that the presumption of extraterritoriality is intended to guard against. Accordingly, the Court held that the presumption against extraterritoriality applies to the ATS, and the Nigerian plaintiffs' claims for violations of the law of nations in Nigerian territory were barred.

In a brief concluding paragraph, the Kiobe l Court suggested that the presumption against extraterritoriality might be displaced in future ATS cases if the claims "touch[ed] and concern[ed]" the United States :

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. 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 Court, however, did not provide any further explanation as to how an ATS claim could satisfy the "touch and concern" test—leading to divergent interpretations in the lower courts, as discussed below.

The Kiobel Concurring Opinions

Kiobel produced two concurring opinions and one opinion concurring in the judgment only. Justice Kennedy wrote a one-paragraph concurrence, emphasizing his belief that it was the "proper disposition" for the majority to "leave open a number of significant questions regarding the reach and interpretation" of the ATS that will require elaboration in the future.

Justice Alito, in an opinion joined by Justice Thomas, agreed that the majority's opinion "le[ft] much unanswered." But Justice Alito would have further explained how litigants can satisfy the "touch and concern" requirement. Under Justice Alito's self-described "broader standard," only when the conduct that constitutes a violation of the law of nations occurred domestically will the claim "touch and concern" the United States with sufficient force to displace the presumption against extraterritoriality.

In a third separate opinion, Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, concurred in the majority's decision to dismiss the case, but disagreed with its reasoning. Justice Breyer argued the presumption of extraterritoriality should not apply because the ATS was always intended to create a cause of action for at least one act, piracy, which occurs outside the territorial jurisdiction of the United States. Instead, Justice Breyer argued that the Court should have limited ATS jurisdiction to cases involving one of the following factors:

(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.

Justice Breyer reasoned that his test was consistent with the United States' long-standing obligation under international law not to become a safe harbor for violators of fundamental international norms. Applying this test to the facts of the Kiobel , Justice Breyer agreed that the matter should be dismissed because "the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction."

Interpreting Kiobel

Although lower courts' interpretations of Kiobel are still evolving, many commentators see the Supreme Court's decision as having significantly limited the ATS as a vehicle to redress human rights abuses in U.S. courts. In particular, Kiobel appears to preclude so-called "foreign cubed" cases in which a foreign plaintiff sues a foreign defendant for conduct and injuries that occurred in a foreign nation. On the other hand, cases in which there is some connection to the United States—such as a defendant who is a U.S. citizen or corporation—are less easily resolved under Kiobel . In particular, courts have adopted differing interpretative frameworks for deciding what level of domestic conduct or contact is necessary to satisfy Kiobel 's "touch and concern" test, creating a split among the circuits.

The "Touch and Concern" Circuit Split

As of the date of this report, five circuits have considered the "touch and concern" test in the context of the ATS. The Fifth and Second Circuits adopted a bright-line approach similar to Justice Alito's concurrence in Kiobel . In order to displace the presumption against extraterritoriality under this approach, the conduct that constitutes a violation of the law of nations must have occurred in the United States, regardless of whether the case has other domestic connections , such as a U.S. citizen defendant.

The Fourth, Ninth, and Eleventh Circuits, by contrast, have developed flexible methods of interpretation. According to the Fourth Circuit, an ATS claim "touches and concerns" the United States "when extensive United States contacts are present and the alleged conduct bears . . . a strong and direct connection to the United States." The Fourth Circuit emphasized that this is a fact-based analysis that most cases will not satisfy. But it allowed one case to go forward that involved American employees of a U.S. corporation, even though the primary conduct giving rise to a violation of the law of nations—alleged torture at the Abu Ghraib prison facility in Iraq—occurred outside the territorial jurisdiction of the United States.

The Eleventh Circuit has held that an ATS claim satisfies the "touch and concern test" if it "has a U.S. focus and adequate relevant conduct occurs in the United States." Under this "fact-intensive" approach, the Eleventh Circuit has considered factors such as the citizenship of the defendants and potential U.S. national interests triggered by the nature of the defendants' conduct. But it deemed these factors insufficient on their own to displace the presumption against extraterritoriality. Similarly, the Ninth Circuit reasoned "that a defendant's U.S. citizenship or corporate status is one factor that, in conjunction with other factors, can establish sufficient connection between an ATS claim and the territory of the United States."

Applying Morrison and RJR Nabisco Inc. to the ATS

Some of the disparity among the circuits arises from their interpretation of Morrison v. National Australia Bank Ltd. —a pre- Kiobel Supreme Court decision analyzing how the presumption of extraterritoriality applies to Section 10(b) of the Securities and Exchange Act of 1934. Section 10(b) prohibits the use of "any manipulative or deceptive device or contrivance" in connection with the purchase or sale of a "security registered on a national securities exchange[.]" The plaintiffs in Morrison argued that, although they purchased their securities on a foreign stock exchange outside the United States, their claim was domestic in nature because the deceptive conduct took place in the United States. The Supreme Court disagreed, and held that the presumption against extraterritoriality still defeated their case because the "focus" of Section 10(b) is on the "purchase and sale of securities"—which occurred in Australia—not the deceptive conduct.

Application of Morrison 's "focus" analysis in ATS cases may make it more difficult for plaintiffs to displace the presumption against extraterritoriality, but courts have reached differing conclusions about whether Morrison applies to the ATS. The Ninth and Fourth Circuits concluded that the Morrison "focus" analysis should not control in ATS cases because the Supreme Court deliberately announced a different standard—the "touch and concern" tes t—in Kiobel . By contrast, the Fifth and Second Circuits were guided by Morrison 's "focus" analysis in their interpretations of Kiobel . And the Fifth and Second Circuits also adopted a bright line rule that plaintiffs can displace the presumption against extraterritoriality in ATS cases only when the conduct that constitutes a violation of the law of nations occurred domestically . Finally, the Eleventh Circuit adopted a hybrid approach "amalgamat[ing] Kiobel 's standards with Morrison 's focus test[.]"

The Supreme Court's 2016 decision in RJR Nabisco, Inc. v. European Community may help to resolve this conflict. There, the Court applied the presumption against extraterritoriality to the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO). In the course of discussing its prior jurisprudence on extraterritoriality, including Kiobel , the Supreme Court explained:

Morrison and Kiobel reflect a two-step framework for analyzing extraterritoriality issues. At the first step, we ask whether the presumption against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative indication that it applies extraterritorially. . . . If the statute is not extraterritorial, then at the second step we determine whether the case involves a domestic application of the statute, and we do this by looking to the statute's "focus."

Some commentators interpreted this reference to Kiobel as a clarification that Morrison 's "focus" analysis applies in ATS cases. The Fifth Circuit also adopted this interpretation in the only court of appeals decision analyzing extraterritoriality and the ATS since the Supreme Court's ruling RJR Nabisco . However, at least one district court held that RJR Nabisco did not overturn prior Ninth Circuit precedent that Morrison 's "focus" test does not apply to the ATS. Thus, it remains to be seen whether RJR Nabisco will streamline lower courts' interpretive frameworks for analyzing extraterritoriality under the ATS.

Moreover, even if the "focus" test becomes part of all the circuits' analyses, RJR Nabisco may still leave room for courts to disagree on precisely what the "focus" of the ATS is. But if courts follow the Fifth Circuit's interpretation of RJR Nabisco in ATS cases, they appear more likely to create a bright-line rule that ATS plaintiffs can overcome the presumption against extraterritoriality only if the specific conduct constituting a violation of the law of nations occurred within the United States. Regardless of which interpretation courts adopt, the Supreme Court's decision in Jesner v. Arab Bank, PLC , discussed below, is likely to further restrict the use of the statute in pursuing extraterritorial ATS claims.

Jesner v. Arab Bank, PLC: Barring Foreign Corporate Liability

In the Supreme Court's most recent ATS case, Jesner v. Arab Bank, PLC , the Court granted certiorari to resolve another lingering circuit split in ATS litigation: May corporations be deemed liable under the ATS? Jesner was the second time the Supreme Court took up the issue of corporate liability under the ATS. Although it ultimately decided Kiobel on extraterritoriality grounds, the Court originally granted certiorari in that case to review a holding in the Second Circuit that the law of nations does not recognize corporate liability. At the time certiorari was granted in Je s n er , however, the Second Circuit was the only circuit to reach this conclusion. All other circuits that considered the issue had determined that corporate liability is available under the ATS.

Background on Jesner

Jesner involved claims by approximately 6,000 foreign nationals (or their families or estate representatives) who were injured, killed, or captured by terrorist groups in Israel, the West Bank, and Gaza between 1995 and 2005. The plaintiffs alleged that Arab Bank—one of the largest financial institutions in the Middle East —aided and abetted four terrorist organizations allegedly responsible for the attacks. Among other things, the plaintiffs alleged that Arab Bank maintained accounts for the organizations knowing that they would be used for terrorist actions, and played an active role in identifying the families of victims of suicide bombing so that they could be compensated in so-called "martyrdom payments." As one court described the allegations, Arab Bank allegedly served as a "paymaster" for terrorist groups through its branch offices in the West Bank and Gaza Strip.

Jesner was a consolidation of five cases filed in the Eastern District of New York, all of which assert similar allegations of facilitating and financing terrorism against Arab Bank. Relying on its prior circuit precedent, both the district court and Second Circuit dismissed the ATS claims on the ground that the ATS does not permit any form of corporate liability. Although the Second Circuit acknowledged there is a "growing consensus among [its] sister circuits" that the ATS allows for corporate liability, it nevertheless declined to overturn its prior circuit precedent.

The Jesner Decision

After granting certiorari in Jesner , the Supreme Court sided with the Second Circuit's minority approach regarding corporate liability under the ATS, with one modification: the Court held that foreign corporations are not subject to liability under the ATS. The Court left open the possibility that U.S. corporations could face claims under the ATS.

Writing for a 5-4 majority, Justice Kennedy (joined, in relevant part, by Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch) placed the decision in the context of the second step of the two-part inquiry described in Sosa v. Alvarez-Machain for evaluating whether violations of international norms are actionable under the ATS. In Sosa step two, courts consider whether circumstances make it "appropriate" to deem a violation of an international norm cognizable under the ATS. Although Sosa described federal courts' ability to recognize claims under the ATS as within judicial discretion, the Sosa Court instructed federal courts to exercise "great caution" and to act with "restraint in judicially applying internationally generated norms." In Jesner , the Court reasoned that the same restrained approach applies when evaluating the question of whether artificial entities like corporations can be defendants in ATS suits. Against this backdrop of judicial caution, the Jesner Court concluded that it would be "inappropriate for courts to extend ATS liability to foreign corporations."

The Court's decision arose, in part, from separation-of-powers and foreign affairs concerns. Congress is in "the better position to consider if the public interest would be served by imposing" ATS liability on foreign corporations, the majority in Jesner reasoned. And ATS claims against foreign corporations often impact the United States' foreign relations, according to the Jesner Court. In fact, the Court noted, the claims against Arab Bank had already caused diplomatic tensions with Jordan, which filed an amicus brief describing the case as a "direct affront to its sovereignty." Because the "political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign policy concerns[,]" the Jesner Court concluded that the judicial caution described in Sosa warranted the creation of a bright-line rule that "foreign corporations may not be defendants in suits brought under the ATS."

Plurality, Concurring, and Dissenting Opinions in Jesner

Although a majority of the Jesner Court agreed to a categorical rule foreclosing ATS claims against foreign corporate entities, several Justices diverged in their rationale for the holding. A five-Justice majority joined portions of an opinion authored by Justice Kennedy, described above. But only Chief Justice Roberts and Justice Thomas joined the remainder of Justice Kennedy's plurality opinion.

In a separate opinion concurring in part with Justice Kennedy and concurring in the judgment, Justice Alito expressed the view that courts should decline to recognize ATS claims "whenever doing so would not materially advance the ATS's objective of avoiding diplomatic strife." Justice Gorsuch also wrote separately to describe "two more fundamental reasons" why he believed Jesner should be dismissed. According to Justice Gorsuch, (1) separation-of-powers principles dictate that courts should never recognize new causes of action under the ATS; (2) and a reexamination of the history of the ATS shows that the statute was intended to apply only to claims against U.S. defendants—regardless of whether they are corporations or natural persons. Justice Thomas also wrote a one-paragraph concurring opinion in which he stated that, although he joined Justice Kennedy's opinion because he believed it "correctly applies" the Court's precedents, he also agreed with the concurrences of Justices Alito and Gorsuch.

Justice Sotomayor, writing in dissent and joined by Justices Ginsburg, Breyer, and Kagan, argued that nothing in the "corporate form in itself raises" foreign policy concerns that require the Court to "immunize all foreign corporations from liability under ATS," regardless of the specific claim alleged. To the extent that ATS suits against foreign corporate entities lead to friction in foreign affairs, the dissent contended, such tension is better resolved through other limitations on ATS jurisdiction, such as Kiobel 's presumption against extraterritoriality. Further, while the majority emphasized that the political branches are better suited to consider the foreign policy implications of ATS suits, the dissenters observed that both the U.S. Solicitor General and certain Members of Congress urged the Supreme Court to permit foreign corporate liability.

Implications of Jesner

Jesner has led to a debate over the continuing viability of the ATS as a prominent vehicle for civil lawsuits alleging human rights abuses. Some observers have suggested that, when Jesner is combined with Kiobel 's presumption against extraterritoriality and the limitations of Sosa 's two-step framework, very few cases will satisfy the Supreme Court's requirements for ATS jurisdiction. Others see the ATS as retaining at least some significance because the Jesner Court did not foreclose suits against U.S. corporations , and the Court's holding allows for claims against the individual employees of foreign companies.

Although not resolved in the Jesner Court's opinion, several Justices expressed a desire to revisit Sosa 's conclusion that federal courts have discretion under the ATS to recognize new causes of action for violations of modern international norms. If the Supreme Court were, in a future case, to hold that federal courts do not possess such discretion, ATS jurisdiction potentially could be limited to three types of claims that were generally recognized as actionable violations of international law at the time of the ATS's enactment: (1) piracy; (2) interference with the rights of ambassadors; and (3) violations of safe conducts. Such a holding could cabin the scope of ATS jurisdiction so significantly that it potentially could relegate the statute to its status during the long dormancy in which it was a rarely invoked jurisdictional provision.

Conclusion

After nearly two centuries of relative obscurity, the ATS emerged as a prominent legal mechanism for human rights and terrorism-related litigation after the Second Circuit's decision in Filártiga . But while numerous suits premised on the ATS were filed by foreign nationals in the aftermath of Filártiga , the Supreme Court has never ruled in the plaintiff's favor in an ATS case. Instead, the High Court placed significant limitations on the scope of viable ATS claims through decisions in Sosa , Kiobel , and, most recently, Jesner . Some commentators see the Supreme Court's ATS jurisprudence as having limited the statute's jurisdictional reach so significantly as to result in the end of the ATS's era of importance. Others interpret the High Court's rulings as having left the door open for certain limited categories of cases against natural persons or U.S. corporate defendants. Ultimately, the Jesner Court emphasized the need for "further action from Congress" before recognizing an expansion of ATS jurisdiction beyond its 18th century roots, and therefore the future of ATS litigation may be dictated by the legislative branch rather than the courts.