Journal Article

After Kiobel

Sarah H. Cleveland

in Journal of International Criminal Justice

Volume 12, issue 3, pages 551-577
Published in print July 2014 | ISSN: 1478-1387
Published online June 2014 | e-ISSN: 1478-1395 | DOI:
After Kiobel

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In Kiobel v. Royal Dutch Petroleum, the Supreme Court held that ‘principles underlying the presumption against extraterritoriality’ constrain courts in crafting a common law cause of action for claims under the Alien Tort Statute (ATS) arising on foreign soil. The Court thus articulated a ‘Kiobel presumption’ against extraterritoriality, for the ATS only, which it necessarily adapted to the purposes of that statute. The Court held that the presumption could be displaced where the claims ‘touch and concern’ US territory with sufficient force, but that the ‘mere corporate presence’ of Royal Dutch Petroleum was not enough. Although Justice Kennedy’s concurrence indicated that he did not consider the door fully closed to ATS claims arising abroad, the Court otherwise offered little guidance regarding how the Kiobel presumption should be applied in future ATS cases. This essay argues that the reading of the ‘Kiobel presumption’ and the ‘touch and concern test’ that best reconciles the various opinions in the case, the history and purpose of the ATS, the interests of the US government and the basic purpose of the presumption against extraterritoriality in avoiding foreign conflicts, would recognize that claims that sufficiently ‘touch and concern’ the United States can and should include: conduct that occurs in part on US territory, perpetrators who are US nationals or domiciled in the United States, and other claims implicating significant US national interests, including piracy and the United States’ important interest in denying safe haven to heinous human rights violators. This approach is also consistent with the exercises of jurisdiction allowable under international law. Ultimately, the nature of the Kiobel presumption that the Court applied and its rebuttal by claims that ‘touch and concern’ the United States, should allow for a range of ATS claims to continue to be brought, including suits like Filartiga. Properly understood, Kiobel preserves a limited ability for the ATS to continue advancing Filartiga’s promise of a borderless regime of accountability as a matter of last resort for egregious human rights violators.

Journal Article.  13078 words. 

Subjects: Criminal Law ; International Law ; International Criminal Law ; International Humanitarian Law ; Transnational Crime

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