Kiobel v. Royal Dutch Petroleum Co. ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
KIOBEL, INDIVIDUALLY AND ON BEHALF OF HER LATE
HUSBAND KIOBEL, ET AL. v. ROYAL DUTCH
PETROLEUM CO. ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 10–1491. Argued February 28, 2012—Reargued October 1, 2012—
Decided April 17, 2013
Petitioners, Nigerian nationals residing in the United States, filed suit
in federal court under the Alien Tort Statute, alleging that respond-
ents—certain Dutch, British, and Nigerian corporations—aided and
abetted the Nigerian Government in committing violations of the law
of nations in Nigeria. 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.” 28 U. S. C. §1350. The District Court dismissed
several of petitioners’ claims, but on interlocutory appeal, the Second
Circuit dismissed the entire complaint, reasoning that the law of na-
tions does not recognize corporate liability. This Court granted certi-
orari, and ordered supplemental briefing on whether and under what
circumstances courts may recognize a cause of action under the ATS,
for violations of the law of nations occurring within the territory of a
sovereign other than the United States.
Held: The presumption against extraterritoriality applies to claims un-
der the ATS, and nothing in the statute rebuts that presumption.
Pp. 3–14.
(a) Passed as part of the Judiciary Act of 1789, the ATS is a juris-
dictional statute that creates no causes of action. It permits federal
courts to “recognize private claims [for a modest number of interna-
tional law violations] under federal common law.” Sosa v. Alvarez-
Machain, 542 U. S. 692, 732. In contending that a claim under the
ATS does not reach conduct occurring in a foreign sovereign’s territo-
2 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Syllabus
ry, respondents rely on the presumption against extraterritorial ap-
plication, which provides that “[w]hen a statute gives no clear indica-
tion of an extraterritorial application, it has none,” Morrison v. Na-
tional Australia Bank Ltd., 561 U. S. ___, ___. The 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. It is typically
applied to discern whether an Act of Congress regulating conduct ap-
plies abroad, see, e.g., id., at 246, but its underlying principles simi-
larly constrain courts when 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 this con-
text, where the question is not what Congress has done but what
courts may do. These foreign policy concerns are not diminished by
the fact that Sosa limited federal courts to recognizing causes of ac-
tion only for alleged violations of international law norms that are
“ ‘specific, universal, and obligatory,” 542 U. S., at 732. Pp. 3–6.
(b) The presumption is not rebutted by the text, history, or purpos-
es of the ATS. Nothing in the ATS’s text evinces a clear indication of
extraterritorial reach. Violations of the law of nations affecting
aliens can occur either within or outside the United States. And gener-
ic terms, like “any” in the phrase “any civil action,” do not rebut the
presumption against extraterritoriality. See, e.g., Morrison, supra, at
___. Petitioners also rely on the common-law “transitory torts” doc-
trine, but that doctrine is inapposite here; as the Court has ex-
plained, “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. The question under Sosa is not wheth-
er a federal court has jurisdiction to entertain a cause of action pro-
vided 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. That question is not
answered by the mere fact that the ATS mentions torts.
The historical background against which the ATS was enacted also
does not overcome the presumption. When the ATS was passed,
“three principal offenses against the law of nations” had been identi-
fied by Blackstone: violation of safe conducts, infringement of the
rights of ambassadors, and piracy. Sosa, supra, at 723, 724. Promi-
nent contemporary examples of the first two offenses—immediately
before and after passage of the ATS—provide no support for the
proposition that Congress expected causes of action to be brought un-
der the statute for violations of the law of nations occurring abroad.
And although the offense of piracy normally occurs on the high seas,
Cite as: 569 U. S. ____ (2013) 3
Syllabus
beyond the territorial jurisdiction of the United States or any other
country, applying U. S. law to pirates 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. A 1795 opinion of Attorney Gen-
eral William Bradford regarding the conduct of U. S. citizens on both
the high seas and a foreign shore is at best ambiguous about the
ATS’s extraterritorial application; it does not suffice to counter the
weighty concerns underlying the presumption against extraterritori-
ality. Finally, there is no indication that the ATS was passed to
make the United States a uniquely hospitable forum for the enforce-
ment of international norms. Pp. 6–14.
621 F. 3d 111, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. KENNEDY, J., filed a concur-
ring opinion. ALITO, J., filed a concurring opinion, in which THOMAS, J.,
joined. BREYER, J., filed an opinion concurring in the judgment, in
which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.
Cite as: 569 U. S. ____ (2013) 1
Opinion of the Court
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, Wash-
ington, 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 cer-
tain Dutch, British, and Nigerian corporations. Petition-
ers sued under the Alien Tort Statute, 28 U. S. C. §1350,
alleging that the corporations aided and abetted the Nige-
rian 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.
I
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 Nether-
2 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
lands 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 Gov-
ernment to violently suppress the burgeoning demonstra-
tions. 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 al-
lowing 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. Accord-
ing to petitioners, respondents violated the law of nations
by aiding and abetting the Nigerian Government in com-
mitting (1) extrajudicial killings; (2) crimes against hu-
manity; (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
Cite as: 569 U. S. ____ (2013) 3
Opinion of the Court
facts alleged to support those claims did not give rise to a
violation of the law of nations. The court denied respond-
ents’ 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, rea-
soning that the law of nations does not recognize corpo-
rate 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 juris-
diction 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
4 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
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 “defi-
nite 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 sover-
eign. Respondents contend that claims under the ATS
do not, relying primarily on a canon of statutory interpre-
tation 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 af-
firmative intention of the Congress clearly expressed.
It alone has the facilities necessary to make fairly
such an important policy decision where the possibili-
ties of international discord are so evident and retali-
ative action so certain.” Benz v. Compania Naviera
Hidalgo, S. A., 353 U. S. 138, 147 (1957). The pre-
sumption against extraterritorial application helps
ensure that the Judiciary does not erroneously adopt
Cite as: 569 U. S. ____ (2013) 5
Opinion of the Court
an interpretation of U. S. law that carries foreign pol-
icy 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 regu-
late 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 inter-
pretation 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 consid-
ering which claims could be brought under the ATS, in
light of foreign policy concerns. As the Court explained,
“the potential [foreign policy] implications . . . of recog-
nizing . . . . 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 viola-
tion of new norms of international law would raise risks of
adverse foreign policy consequences, they should be under-
taken, if at all, with great caution”); id., at 727 (“[T]he
6 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
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 ques-
tion 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 Protection Act of 1991,
106 Stat. 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 extra-
judicial 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 ex-
traterritoriality thus constrain courts exercising their power
under the ATS.
III
Petitioners contend that even if the presumption ap-
plies, 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 geno-
cide “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 extraterritorial-
Cite as: 569 U. S. ____ (2013) 7
Opinion of the Court
ity.” 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 jurisdic-
tion over extraterritorial transitory torts that could arise
on foreign soil.” Supp. Brief for Petitioners 18. For sup-
port, 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 stat-
ute 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 juris-
diction 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
8 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
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 au-
thority 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 “nec-
essarily 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 ap-
plication 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 prin-
cipal offenses against the law of nations” had been identi-
fied 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 occur-
ring 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 mem-
ber of one society “a right to intrude into another”); id., at
245–248 (recognizing the king’s power to “receiv[e] ambas-
sadors 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.
Cite as: 569 U. S. ____ (2013) 9
Opinion of the Court
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 pas-
sage of the ATS. Each concerned the rights of ambas-
sadors, and each involved conduct within the Union. In
1784, a French adventurer verbally and physically as-
saulted 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 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 Corre-
spondence 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
10 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
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 terri-
torial jurisdiction of the United States or any other coun-
try. See 4 Blackstone, supra, at 72 (“The offence of piracy,
by common law, consists of committing those acts of rob-
bery and depredation upon the high seas, which, if com-
mitted 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, 173–174 (1993) (de-
clining to apply a provision of the Immigration and Na-
tionality Act to conduct occurring on the high seas); Argen-
tine Republic v. Amerada Hess Shipping Corp., 488 U. S.
428, 440 (1989) (declining to apply a provision of the For-
eign 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 con-
duct occurring abroad.
Applying U. S. law to pirates, however, does not typi-
cally 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 oper-
ate 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
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Opinion of the Court
may well be a category unto themselves. See Morrison,
561 U. S., at ___ (slip op., at 16) (“[W]hen a statute pro-
vides for some extraterritorial application, the presump-
tion 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 Neu-
trality, 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 Gen-
eral Bradford responded as follows:
So far . . . as the transactions complained of origi-
nated 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 commit-
ted thereon, I am inclined to think that it may be le-
gally 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 indi-
viduals who have been injured by these acts of hostil-
ity 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
12 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
law of nations violations committed on the territory of a
foreign sovereign.” Supp. Brief for Petitioners 33. Re-
spondents 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 applica-
ble 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 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
Cite as: 569 U. S. ____ (2013) 13
Opinion of the Court
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 vio-
lated 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. Ham-
ilton) (“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 con-
cerned”). 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 histori-
cal 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., dissent-
ing 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 trig-
gering such serious foreign policy consequences, and in-
stead 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,”
14 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
Opinion of the Court
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 out-
side 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.
Cite as: 569 U. S. ____ (2013) 1
KENNEDY, J., concurring
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]
JUSTICE KENNEDY, concurring.
The opinion for the Court is careful to leave open a
number of significant questions regarding the reach and
interpretation of the Alien Tort Statute. In my view that
is a proper disposition. Many serious concerns with re-
spect to human rights abuses committed abroad have been
addressed by Congress in statutes such as the Torture
Victim Protection Act of 1991 (TVPA), 106 Stat. 73, note
following 28 U. S. C. §1350, and that class of cases will be
determined in the future according to the detailed statu-
tory scheme Congress has enacted. Other cases may arise
with allegations of serious violations of international law
principles protecting persons, cases covered neither by the
TVPA nor by the reasoning and holding of today’s case;
and in those disputes the proper implementation of the pre-
sumption against extraterritorial application may require
some further elaboration and explanation.
Cite as: 569 U. S. ____ (2013) 1
ALITO, J., concurring
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]
JUSTICE ALITO, with whom JUSTICE THOMAS joins,
concurring.
I concur in the judgment and join the opinion of the
Court as far as it goes. Specifically, I agree that when
Alien Tort Statute (ATS) “claims touch and concern the
territory of the United States, they must do so with suffi-
cient force to displace the presumption against extraterri-
torial application.” Ante, at 14. This formulation obviously
leaves much unanswered, and perhaps there is wisdom
in the Court’s preference for this narrow approach. I write
separately to set out the broader standard that leads me
to the conclusion that this case falls within the scope of
the presumption.
In Morrison v. National Australia Bank Ltd., 561 U. S.
___ (2010), we explained that “the presumption against
extraterritorial application would be a craven watchdog
indeed if it retreated to its kennel whenever some domes-
tic activity is involved in the case.” Id., at ___ (slip op., at
17). We also reiterated that a cause of action falls out-
side the scope of the presumption—and thus is not barred
by the presumption—only if the event or relationship that
was “the ‘focus’ of congressional concern” under the rele-
vant statute takes place within the United States. Ibid.(quoting EEOC v. Arabian American Oil Co., 499 U. S.
2 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
ALITO, J., concurring
244, 255 (1991)). For example, because “the focus of the
[Securities] Exchange Act [of 1934] is not upon the place
where the deception originated, but upon purchases and
sales of securities in the United States,” we held in Mor-
rison that §10(b) of the Exchange Act applies “only” to
“transactions in securities listed on domestic exchanges,
and domestic transactions in other securities.” 561 U. S.,
at ___–___ (slip op., at 17–18).
The Court’s decision in Sosa v. Alvarez-Machain, 542
U. S. 692 (2004), makes clear that when the ATS was
enacted, “congressional concern” was “ ‘focus[ed],’ ” Morri-
son, supra, at ___ (slip op., at 17), on the “three principal
offenses against the law of nations” that had been identi-
fied by Blackstone: violation of safe conducts, infringement
of the rights of ambassadors, and piracy, Sosa, 542 U. S.,
at 723–724. The Court therefore held that “federal courts
should not recognize private claims under federal common
law for violations of any international law norm with less
definite content and acceptance among civilized nations
than the historical paradigms familiar when [the ATS]
was enacted.” Id., at 732. In other words, only conduct
that satisfies Sosa’s requirements of definiteness and ac-
ceptance among civilized nations can be said to have been
“the ‘focus’ of congressional concern,” Morrison, supra, at
___ (slip op., at 17), when Congress enacted the ATS. As a
result, a putative ATS cause of action will fall within the
scope of the presumption against extraterritoriality—and
will therefore be barred—unless the domestic conduct is
sufficient to violate an international law norm that satis-
fies Sosa’s requirements of definiteness and acceptance
among civilized nations.
Cite as: 569 U. S. ____ (2013) 1
BREYER, J., concurring in judgment
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]
JUSTICE BREYER, with whom JUSTICE GINSBURG,
JUSTICE SOTOMAYOR and JUSTICE KAGAN join, concurring
in the judgment.
I agree with the Court’s conclusion but not with its
reasoning. The Court sets forth four key propositions of
law: First, the “presumption against extraterritoriality
applies to claims under” the Alien Tort Statute. Ante, at
13. Second, “nothing in the statute rebuts that presump-
tion.” Ibid. Third, there “is no clear indication of extra-
territoria[l application] here,” where “all the relevant
conduct took place outside the United States” and “where
the claims” do not “touch and concern the territory of the
United States . . . with sufficient force to displace the
presumption.” Ante, at 13–14 (internal quotation marks
omitted). Fourth, that is in part because “[c]orporations
are often present in many countries, and it would reach
too far to say that mere corporate presence suffices.” Ante,
at 14.
Unlike the Court, I would not invoke the presumption
against extraterritoriality. Rather, guided in part by
principles and practices of foreign relations law, I would
find jurisdiction under this statute where (1) the alleged
tort occurs on American soil, (2) the defendant is an Amer-
ican national, or (3) the defendant’s conduct substantially
2 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
and adversely affects an important American national
interest, and that includes a distinct interest in prevent-
ing 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. See Sosa v. Alvarez-Machain,
542 U. S. 692, 732 (2004) (“ ‘[F]or purposes of civil liability,
the torturer has become—like the pirate and slave trader
before him—hostis humani generis, an enemy of all man-
kind.’ ” (quoting Filartiga v. Pena-Irala, 630 F. 2d 876,
890 (CA2 1980) (alteration in original))). See also 1 Re-
statement (Third) of Foreign Relations Law of the United
States §§ 402, 403, 404 (1986). In this case, however, the
parties and relevant conduct lack sufficient ties to the
United States for the ATS to provide jurisdiction.
I
A
Our decision in Sosa frames the question. In Sosa the
Court specified that the Alien Tort Statute (ATS), when
enacted in 1789, “was intended as jurisdictional.” 542
U. S., at 714. We added that the statute gives today’s
courts the power to apply certain “judge-made” damages
law to victims of certain foreign affairs-related miscon-
duct, including “three specific offenses” to which “Black-
stone referred,” namely “violation of safe conducts, in-
fringement of the rights of ambassadors, and piracy.” Id.,
at 715. We held that the statute provides today’s federal
judges with the power to fashion “a cause of action” for a
“modest number” of claims, “based on the present-day law
of nations,” and which “rest on a norm of international
character accepted by the civilized world and defined with
a specificity comparable to the features” of those three
“18th-century paradigms.” Id., at 724–725.
We further said that, in doing so, a requirement of
“exhaust[ion]” of “remedies” might apply. Id., at 733,
n. 21. We noted “a strong argument that federal courts
Cite as: 569 U. S. ____ (2013) 3
BREYER, J., concurring in judgment
should give serious weight to the Executive Branch’s view
of the case’s impact on foreign policy.” Ibid. Adjudicating
any such claim must, in my view, also be consistent with
those notions of comity that lead each nation to respect the
sovereign rights of other nations by limiting the reach of
its own laws and their enforcement. Id., at 761 (BREYER,
J., concurring in part and concurring in judgment). See
also F. Hoffmann-La Roche Ltd v. Empagran S. A., 542
U. S. 155, 165–169 (2004).
Recognizing that Congress enacted the ATS to permit
recovery of damages from pirates and others who violated
basic international law norms as understood in 1789, Sosa
essentially leads today’s judges to ask: Who are today’s
pirates? See 542 U. S., at 724–725 (majority opinion). We
provided a framework for answering that question by
setting down principles drawn from international norms
and designed to limit ATS claims to those that are similar
in character and specificity to piracy. Id., at 725.
In this case we must decide the extent to which this
jurisdictional statute opens a federal court’s doors to those
harmed by activities belonging to the limited class that
Sosa set forth when those activities take place abroad. To
help answer this question here, I would refer both to Sosa
and, as in Sosa, to norms of international law. See Part II,
infra.
B
In my view the majority’s effort to answer the question
by referring to the “presumption against extraterritoriality”
does not work well. That presumption “rests on the per-
ception that Congress ordinarily legislates with respect
to domestic, not foreign matters.” Morrison v. National
Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at
5–6). See ante, at 4. The ATS, however, was enacted with
“foreign matters” in mind. The statute’s text refers explic-
itly to “alien[s],” “treat[ies],” and “the law of nations.” 28
4 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
U. S. C. §1350. The statute’s purpose was to address
“violations of the law of nations, admitting of a judicial
remedy and at the same time threatening serious con-
sequences in international affairs.” Sosa, 542 U. S., at
715. And at least one of the three kinds of activities that
we found to fall within the statute’s scope, namely piracy,
ibid., normally takes place abroad. See 4 W. Blackstone,
Commentaries on the Law of England 72 (1769).
The majority cannot wish this piracy example away by
emphasizing that piracy takes place on the high seas. See
ante, at 10. That is because the robbery and murder that
make up piracy do not normally take place in the water;
they take place on a ship. And a ship is like land, in that
it falls within the jurisdiction of the nation whose flag it
flies. See McCulloch v. Sociedad Nacional de Marineros
de Honduras, 372 U. S. 10, 20–21 (1963); 2 Restatement
§502, Comment d (“[F]lag state has jurisdiction to pre-
scribe with respect to any activity aboard the ship”).
Indeed, in the early 19th century Chief Justice Marshall
described piracy as an “offenc[e] against the nation under
whose flag the vessel sails, and within whose particular
jurisdiction all on board the vessel are.” United States v.
Palmer, 3 Wheat. 610, 632 (1818). See United States v.
Furlong, 5 Wheat. 184, 197 (1820) (a crime committed
“within the jurisdiction” of a foreign state and a crime
committed “in the vessel of another nation” are “the same
thing”).
The majority nonetheless tries to find a distinction
between piracy at sea and similar cases on land. It writes,
“Applying U. S. law to pirates . . . does not typically im-
pose 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.” Ante, at 10 (emphasis added). But, as I
have just pointed out, “[a]pplying U. S. law to pirates” does
typically involve applying our law to acts taking place
Cite as: 569 U. S. ____ (2013) 5
BREYER, J., concurring in judgment
within the jurisdiction of another sovereign. Nor can
the majority’s words “territorial jurisdiction” sensibly dis-
tinguish land from sea for purposes of isolating adverse
foreign policy risks, as the Barbary Pirates, the War of
1812, the sinking of the Lusitania, and the Lockerbie
bombing make all too clear.
The majority also writes, “Pirates were fair game wher-
ever found, by any nation, because they generally did not
operate within any jurisdiction.” Ibid. I very much agree
that pirates were fair game “wherever found.” Indeed,
that is the point. That is why we asked, in Sosa, who are
today’s pirates? Certainly today’s pirates include tortur-
ers and perpetrators of genocide. And today, like the
pirates of old, they are “fair game” where they are found.
Like those pirates, they are “common enemies of all man-
kind and all nations have an equal interest in their appre-
hension and punishment.” 1 Restatement §404 Reporters’
Note 1, p. 256 (quoting In re Demjanjuk, 612 F. Supp. 544,
556 (ND Ohio 1985) (internal quotation marks omitted)).
See Sosa, supra, at 732. And just as a nation that har-
bored pirates provoked the concern of other nations in past
centuries, see infra, at 8, so harboring “common enemies
of all mankind” provokes similar concerns today.
Thus the Court’s reasoning, as applied to the narrow
class of cases that Sosa described, fails to provide signifi-
cant support for the use of any presumption against extra-
territoriality; rather, it suggests the contrary. See also
ante, at 10 (conceding and citing cases showing that this
Court has “generally treated the high seas the same as
foreign soil for purposes of the presumption against extra-
territorial application”).
In any event, as the Court uses its “presumption against
extraterritorial application,” it offers only limited help in
deciding the question presented, namely “ ‘under what
circumstances the Alien Tort Statute . . . allows courts to
recognize a cause of action for violations of the law of
6 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
nations occurring within the territory of a sovereign other
than the United States.’ ” 565 U. S. ___ (2012). The ma-
jority echoes in this jurisdictional context Sosa’s warning
to use “caution” in shaping federal common-law causes of
action. Ante, at 5. But it also makes clear that a statutory
claim might sometimes “touch and concern the territory of
the United States . . . with sufficient force to displace the
presumption.” Ante, at 14. It leaves for another day the
determination of just when the presumption against ex-
traterritoriality might be “overcome.” Ante, at 8.
II
In applying the ATS to acts “occurring within the terri-
tory of a[nother] sovereign,” I would assume that Congress
intended the statute’s jurisdictional reach to match the
statute’s underlying substantive grasp. That grasp, de-
fined by the statute’s purposes set forth in Sosa, includes
compensation for those injured by piracy and its modern-
day equivalents, at least where allowing such compensa-
tion avoids “serious” negative international “consequences”
for the United States. 542 U. S., at 715. And just as
we have looked to established international substantive
norms to help determine the statute’s substantive reach,
id., at 729, so we should look to international jurisdictional
norms to help determine the statute’s jurisdictional
scope.
The Restatement (Third) of Foreign Relations Law is
helpful. Section 402 recognizes that, subject to §403’s “rea-
sonableness” requirement, a nation may apply its law
(for example, federal common law, see 542 U. S., at 729–
730) not only (1) to “conduct” that “takes place [or to per-
sons or things] within its territory” but also (2) to the
“activities, interests, status, or relations of its nationals
outside as well as within its territory,” (3) to “conduct
outside its territory that has or is intended to have sub-
stantial effect within its territory,” and (4) to certain
Cite as: 569 U. S. ____ (2013) 7
BREYER, J., concurring in judgment
foreign “conduct outside its territory . . . that is directed
against the security of the state or against a limited class
of other state interests.” In addition, §404 of the Restate-
ment explains that a “state has jurisdiction to define and
prescribe punishment for certain offenses recognized by
the community of nations as of universal concern, such as
piracy, slave trade,” and analogous behavior.
Considering these jurisdictional norms in light of both
the ATS’s basic purpose (to provide compensation for those
injured by today’s pirates) and Sosa’s basic caution (to
avoid international friction), I believe that the statute
provides jurisdiction where (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.
I would interpret the statute as providing jurisdiction
only where distinct American interests are at issue. Doing
so reflects the fact that Congress adopted the present
statute at a time when, as Justice Story put it, “No nation
ha[d] ever yet pretended to be the custos morum of the
whole world.” United States v. La Jeune Eugenie, 26
F. Cas. 832, 847 (No. 15,551) (CC Mass. 1822). That re-
striction also should help to minimize international fric-
tion. Further limiting principles such as exhaustion,
forum non conveniens, and comity would do the same. So
would a practice of courts giving weight to the views of the
Executive Branch. See Sosa, 542 U. S., at 733, n. 21; id.,
at 761 (opinion of BREYER, J.).
As I have indicated, we should treat this Nation’s interest
in not becoming a safe harbor for violators of the most fun-
damental international norms as an important jurisdiction-
related interest justifying application of the ATS in light of
8 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
the statute’s basic purposes—in particular that of compen-
sating those who have suffered harm at the hands of, e.g.,
torturers or other modern pirates. Nothing in the statute or
its history suggests that our courts should turn a blind eye to
the plight of victims in that “handful of heinous actions.”
Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781 (CADC
1984) (Edwards, J., concurring). See generally Leval, The
Long Arm of International Law: Giving Victims of Human
Rights Abuses Their Day in Court, 92 Foreign Affairs 16
(Mar. / Apr. 2013). To the contrary, the statute’s language,
history, and purposes suggest that the statute was to be
a weapon in the “war” against those modern pirates who,
by their conduct, have “declar[ed] war against all mankind.”
4 Blackstone 71.
International norms have long included a duty not to
permit a nation to become a safe harbor for pirates (or
their equivalent). See generally A. Bradford, Flying the
Black Flag: A Brief History of Piracy 19 (2007) (“Every
polis by the sea . . . which was suspected of sponsoring
piracy or harboring pirates could be attacked and de-
stroyed by the Athenians”); F. Sanborn, Origins of the
Early English Maritime and Commercial Law 313 (1930)
(“In 1490 Henry VII made a proclamation against harbor-
ing pirates or purchasing goods from them”); N. Risjord,
Representative Americans: The Colonists 146 (1981)
(“William Markham, Penn’s lieutenant governor in the
1690s, was accused of harboring pirates in Philadelphia
. . . . Governor Benjamin Fletcher of New York became the
target of a royal inquiry after he issued privateering com-
missions to a band of notorious pirates”); 3 C. Yonge, A
Pictorial History of the World’s Great Nations 954 (1882)
(“[In the early 18th century, t]he government of Connecti-
cut was accused of harboring pirates”); S. Menefee, Piracy,
Terrorism, and the Insurgent Passenger: A Historical and
Legal Perspective, in Maritime Terrorism and Interna-
tional Law 51 (N. Ronzitti ed. 1990) (quoting the judge
Cite as: 569 U. S. ____ (2013) 9
BREYER, J., concurring in judgment
who handled the seizure of the Chesapeake during the
Civil War as stating that “ ‘piracy jure gentium was justi-
ciable by the court of New Brunswick, wherever commit-
ted’ ”); D. Field, Outlines of an International Code 33, Art.
84 (2d ed. 1876) (citing the 1794 treaty between the United
States and Great Britain (“Harboring pirates forbidden.
No nation can receive pirates into its territory, or permit
any person within the same to receive, protect, conceal or
assist them in any manner; but must punish all persons
guilty of such acts”)).
More recently two lower American courts have, in effect,
rested jurisdiction primarily upon that kind of concern. In
Filartiga, 630 F. 2d 876, an alien plaintiff brought a law-
suit against an alien defendant for damages suffered
through acts of torture that the defendant allegedly in-
flicted in a foreign nation, Paraguay. Neither plaintiff nor
defendant was an American national and the actions
underlying the lawsuit took place abroad. The defendant,
however, “had . . . resided in the United States for more
than ninth months” before being sued, having overstayed
his visitor’s visa. Id., at 878–879. Jurisdiction was
deemed proper because the defendant’s alleged conduct
violated a well-established international law norm, and
the suit vindicated our Nation’s interest in not providing a
safe harbor, free of damages claims, for those defendants
who commit such conduct.
In Marcos, the plaintiffs were nationals of the Philip-
pines, the defendant was a Philippine national, and the
alleged wrongful act, death by torture, took place abroad.
In re Estate of Marcos, Human Rights Litigation, 25 F. 3d
1467, 1469, 1475 (CA9 1994); In re Estate of Marcos Hu-
man Rights Litigation, 978 F. 2d 493, 495–496, 500 (CA9
1992). A month before being sued, the defendant, “his
family, . . . and others loyal to [him] fled to Hawaii,” where
the ATS case was heard. Marcos, 25 F. 3d, at 1469. As in
Filartiga, the court found ATS jurisdiction.
10 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
And in Sosa we referred to both cases with approval,
suggesting that the ATS allowed a claim for relief in such
circumstances. 542 U. S., at 732. See also Flomo v. Fire-
stone Natural Rubber Co., 643 F. 3d 1013, 1025 (CA7
2011) (Posner, J.) (“Sosa was a case of nonmaritime extra-
territorial conduct yet no Justice suggested that therefore
it couldn’t be maintained”). Not surprisingly, both before
and after Sosa, courts have consistently rejected the no-
tion that the ATS is categorically barred from extraterrito-
rial application. See, e.g., 643 F. 3d, at 1025 (“[N]o court
to our knowledge has ever held that it doesn’t apply extra-
territorially”); Sarei v. Rio Tinto, PLC, 671 F. 3d 736, 747
(CA9 2011) (en banc) (“We therefore conclude that the ATS
is not limited to conduct occurring within the United
States”); Doe v. Exxon Mobil Corp., 654 F. 3d 11, 20
(CADC 2011) (“[W]e hold that there is no extraterritoriality
bar”).
Application of the statute in the way I have suggested is
consistent with international law and foreign practice.
Nations have long been obliged not to provide safe harbors
for their own nationals who commit such serious crimes
abroad. See E. de Vattel, Law of Nations, Book II, p. 163
(§76) (“pretty generally observed” practice in “respect to
great crimes, which are equally contrary to the laws and
safety of all nations,” that a sovereign should not “suffer
his subjects to molest the subjects of other states, or to do
them an injury,” but should “compel the transgressor to
make reparation for the damage or injury,” or be “deliv-
er[ed] . . . up to the offended state, to be there brought to
justice”).
Many countries permit foreign plaintiffs to bring suits
against their own nationals based on unlawful conduct
that took place abroad. See, e.g., Brief for Government of
the Kingdom of the Netherlands et al. as Amici Curiae 19–
23 (hereinafter Netherlands Brief) (citing inter alia Guer-
rero v. Monterrico Metals PLc [2009] EWHC (QB) 2475
Cite as: 569 U. S. ____ (2013) 11
BREYER, J., concurring in judgment
(Eng.) (attacking conduct of U. K. companies in Peru);
Lubbe and Others v. Cape PLc [2000] UKHL 41 (attacking
conduct of U. K. companies in South Africa); Rb. Graven-
hage [Court of the Hague], 30 December 2009, JOR 2010,
41 m.nt. Mr. RGJ de Haan (Oguro/Royal Dutch Shell PLC)
(Neth.) (attacking conduct of Dutch respondent in Nige-
ria)). See also Brief for European Commission as Amicus
Curiae 11 (It is “uncontroversial” that the “United States
may . . . exercise jurisdiction over ATS claims involving
conduct committed by its own nationals within the terri-
tory of another sovereign, consistent with international
law”).
Other countries permit some form of lawsuit brought by
a foreign national against a foreign national, based upon
conduct taking place abroad and seeking damages. Cer-
tain countries, which find “universal” criminal “jurisdic-
tion” to try perpetrators of particularly heinous crimes
such as piracy and genocide, see Restatement §404, also
permit private persons injured by that conduct to pursue
“actions civiles,” seeking civil damages in the criminal
proceeding. Thompson, Ramasastry, & Taylor, Translat-
ing Unocal: The Expanding Web of Liability for Busi-
ness Entities Implicated in International Crimes, 40 Geo.
Wash. Int’l L. Rev. 841, 886 (2009). See, e.g., Ely Ould
Dah v. France, App. No. 13113/03 (Eur. Ct. H. R.; Mar 30,
2009), 48 Int’l Legal Materials 884; Metcalf, Reparations
for Displaced Torture Victims, 19 Cardozo J. Int’l & Comp.
L. 451, 468–470 (2011). Moreover, the United Kingdom
and the Netherlands, while not authorizing such damages
actions themselves, tell us that they would have no objec-
tion to the exercise of American jurisdiction in cases such
as Filartiga and Marcos. Netherlands Brief 15–16, and
n. 23.
At the same time the Senate has consented to treaties
obliging the United States to find and punish foreign perpe-
trators of serious crimes committed against foreign persons
12 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
abroad. See Convention on the Prevention and Punish-
ment of Crimes Against Internationally Protected Persons,
Including Diplomatic Agents, Dec. 28, 1973, 28 U. S. T.
1975, T. I. A. S. No. 8532; Convention for the Suppression
of Unlawful Acts Against the Safety of Civil Aviation,
Sept. 23, 1971, 24 U. S. T. 565, T. I. A. S. No. 7570; Con-
vention for the Suppression of Unlawful Seizure of Air-
craft, Dec. 16, 1970, 22 U. S. T. 1641, T. I. A. S. No. 7192;
Restatement §404 Reporters’ Note 1, at 257 (“These
agreements include an obligation on the parties to pun-
ish or extradite offenders, even when the offense was
not committed within their territory or by a national”).
See also International Convention for the Protection of All
Persons from Enforced Disappearance, Art. 9(2) (2006)
(state parties must take measures to establish jurisdiction
“when the alleged offender is present in any territory un-
der its jurisdiction, unless it extradites or surrenders him
or her”); http://www.unhcr.org/refworld/docid/47fdfaeb0.pdf
(as visited Apr.1, 2013, and available in Clerk of Court’s
case file); Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment of Punishment, Dec. 10,
1984, 1465 U. N. T. S. 85, Arts. 5(2), 7(1) (similar); Geneva
Convention (III) Relative to the Treatment of Prisoners of
War, Art. 129, Aug. 12, 1949, [1955] 6 U. S. T. 3316,
T. I. A. S. No. 3364 (signatories must “search for persons
alleged to have committed, or to have ordered to be com-
mitted, such grave breaches, and shall bring such persons,
regardless of their nationality, before its own courts” or
“hand such persons over for trial”).
And Congress has sometimes authorized civil damages
in such cases. See generally note following 28 U. S. C.
§1350 (Torture Victim Protection Act of 1991 (TVPA)
(private damages action for torture or extrajudicial killing
committed under authority of a foreign nation)); S. Rep.
No. 102–249, p. 4 (1991) (ATS “should not be replaced” by
TVPA); H. R. Rep. No. 102–367, pt. 1, p. 4 (TVPA intended
Cite as: 569 U. S. ____ (2013) 13
BREYER, J., concurring in judgment
to “enhance the remedy already available under” the ATS).
But cf. Mohamad v. Palestinian Authority, 566 U. S. ___
(2012) (TVPA allows suits against only natural persons).
Congress, while aware of the award of civil damages
under the ATS—including cases such as Filartiga with
foreign plaintiffs, defendants, and conduct—has not
sought to limit the statute’s jurisdictional or substantive
reach. Rather, Congress has enacted other statutes, and
not only criminal statutes, that allow the United States to
prosecute (or allow victims to obtain damages from) for-
eign persons who injure foreign victims by committing
abroad torture, genocide, and other heinous acts. See, e.g.,
18 U. S. C. §2340A(b)(2) (authorizing prosecution of tor-
turers if “the alleged offender is present in the United
States, irrespective of the nationality of the victim or
alleged offender”); §1091(e)(2)(D) (2006 ed., Supp. V)
(genocide prosecution authorized when, “regardless of
where the offense is committed, the alleged offender is . . .
present in the United States”); note following 28 U. S. C.
§1350, §2(a) (private right of action on behalf of individu-
als harmed by an act of torture or extrajudicial killing
committed “under actual or apparent authority, or color of
law, of any foreign nation”). See also S. Rep. No. 102–249,
supra, at 3–4 (purpose to “mak[e] sure that torturers and
death squads will no longer have a safe haven in the
United States,” by “providing a civil cause of action in
U. S. courts for torture committed abroad”).
Thus, the jurisdictional approach that I would use is
analogous to, and consistent with, the approaches of a
number of other nations. It is consistent with the ap-
proaches set forth in the Restatement. Its insistence upon
the presence of some distinct American interest, its reli-
ance upon courts also invoking other related doctrines
such as comity, exhaustion, and forum non conveniens,
along with its dependence (for its workability) upon courts
obtaining, and paying particular attention to, the views of
14 KIOBEL v. ROYAL DUTCH PETROLEUM CO.
BREYER, J., concurring in judgment
the Executive Branch, all should obviate the majority’s
concern that our jurisdictional example would lead “other
nations, also applying the law of nations,” to “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.” Ante, at 13.
Most importantly, this jurisdictional view is consistent
with the substantive view of the statute that we took in
Sosa. This approach would avoid placing the statute’s
jurisdictional scope at odds with its substantive objectives,
holding out “the word of promise” of compensation for
victims of the torturer, while “break[ing] it to the hope.”
III
Applying these jurisdictional principles to this case,
however, I agree with the Court that jurisdiction does not
lie. The defendants are two foreign corporations. Their
shares, like those of many foreign corporations, are traded
on the New York Stock Exchange. Their only presence in
the United States consists of an office in New York City
(actually owned by a separate but affiliated company) that
helps to explain their business to potential investors. See
Supp. Brief for Petitioners 4, n. 3 (citing Wiwa v. Royal
Dutch Petroleum Co., 226 F. 3d 88, 94 (CA2 2000)); App.
55. The plaintiffs are not United States nationals but
nationals of other nations. The conduct at issue took place
abroad. And the plaintiffs allege, not that the defendants
directly engaged in acts of torture, genocide, or the equiva-
lent, but that they helped others (who are not American
nationals) to do so.
Under these circumstances, even if the New York office
were a sufficient basis for asserting general jurisdiction,
but see Goodyear Dunlop Tires Operations, S. A. v. Brown,
564 U. S. ___ (2011), it would be farfetched to believe,
based solely upon the defendants’ minimal and indirect
American presence, that this legal action helps to vindi-
Cite as: 569 U. S. ____ (2013) 15
BREYER, J., concurring in judgment
cate a distinct American interest, such as in not providing
a safe harbor for an “enemy of all mankind.” Thus I agree
with the Court that here it would “reach too far to say”
that such “mere corporate presence suffices.” Ante, at 14.
I consequently join the Court’s judgment but not its
opinion.