Originally enacted by the First Congress as part of the Judiciary Act of 1789,¹ the Alien Tort Statute (ATS)² has been described as a provision that is "unlike any other in American law" and "unknown to any other legal system in the world."³ 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."⁴ 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. This report examines the development of the ATS, beginning with its origins in the First Congress and continuing through to the Supreme Court's most recent ATS decision, Nestlé (USA), Inc. v. Doe.⁵

Deconstructed, the ATS provides federal district courts with jurisdiction to hear cases that contain the following 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 each element is as follows:

• 1. A civil 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).⁶ The ATS does not provide jurisdiction for suits alleging torts in violation of the law of nations by U.S. nationals⁷—although other statutes may allow for such claims.⁸
• 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[.]"⁹
• 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.¹⁰ The term "law of nations" is now often understood to refer to "customary international law."¹¹ As a general matter, customary international law is international law that is derived from "a general and consistent practice of States¹² followed by them from a sense of legal obligation."¹³ State practices that form the basis for customary international law are often referred to as international "norms."¹⁴ 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,¹⁵ discussed below.¹⁶

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.¹⁷ 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.¹⁸ 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.¹⁹ Congress made minor modifications to the ATS in 1873²⁰ and 1911.²¹ The current version, quoted above, was enacted in 1948.²²

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."²³ 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.²⁴ Under the Articles of Confederation, the federal government had little ability to provide redress to foreign citizens for violations of international law.²⁵ In response, the Confederation Congress²⁶ 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.²⁷ Only one state, Connecticut, passed legislation creating penalties for violations of the law of nations.²⁸

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.²⁹ 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.³⁰ 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,³¹ admiralty and maritime cases,³² and disputes between U.S. citizens and citizens of foreign nations.³³ The ATS was included among the 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.³⁴

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.³⁵ 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 arrest³⁶—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.³⁷ Longchamps was eventually recaptured, convicted, and sentenced to two years in jail by a Pennsylvania court.³⁸ Pennsylvania officials declined French requests to deliver Longchamps to French authorities,³⁹ 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.⁴⁰

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.⁴¹ 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.⁴²

Some dispute whether the Marbois and Van Berckel incidents were an impetus for the ATS.⁴³ Nevertheless, 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[.]"⁴⁴ 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.⁴⁵ The Supreme Court has 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.⁴⁶

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.⁴⁷ The first case, Bolchos v. Darrel,⁴⁸ involved a French captain attempting to recover a cargo of slaves he had captured along with a Spanish vessel. The second, Adra v. Clift,⁴⁹ was brought over 150 years later, and involved the use of forged passports in an international child custody dispute.⁵⁰ 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"⁵¹—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.⁵²

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)⁵³ issued a landmark decision in Filártiga v. Peña-Irala.⁵⁴ 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.⁵⁵ The defendant, Americo Norberto Peña-Irala, was also a Paraguayan citizen who was discovered to be living in New York on an expired visa.⁵⁶ 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 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.⁵⁷

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.⁵⁸ The court in Filártiga 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."⁵⁹ 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 courts⁶⁰ for human rights violations even when the events underlying the claims occurred outside the United States.⁶¹

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,⁶² 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.⁶³ 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 in district court against the Palestinian Liberation Organization and others who allegedly orchestrated the attack.⁶⁴ In a per curiam opinion, a three-judge panel of the D.C. Circuit unanimously affirmed the dismissal of the case, but each judge issued a separate opinion relying on a different rationale for dismissal.

In a widely discussed concurring opinion,⁶⁵ Judge Bork concluded that the ATS is a purely jurisdictional statute that does not create a cause of action for damages.⁶⁶ 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.⁶⁷ Judge Edwards disagreed with Judge Bork and argued that the ATS itself creates a statutory cause of action.⁶⁸ Judge Edwards still concurred in the dismissal under the rationale that the case lacked official state action,⁶⁹ and that the claim for terrorism was not sufficiently recognized as a violation of international law.⁷⁰ Lastly, Judge Robb determined that the case raised nonjusticiable political questions—meaning it raised disputes more appropriately addressed by the legislative and executive branches.⁷¹ Ultimately, 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 20 years later, Sosa v. Alvarez-Machain,⁷² discussed below.⁷³ 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.⁷⁴ The TVPA's legislative history suggests that the act was designed to establish an "unambiguous basis" for the causes of action recognized in Filártiga under the ATS, 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.⁷⁵ In its report on the statute, the House Judiciary Committee stated that it did not intend for the TVPA to replace the ATS, but rather for it to "be a clear and specific remedy, not limited to aliens, for torture and extrajudicial killing."⁷⁶ As such, there are a few important distinctions between the TVPA and ATS worth noting.

First, 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.⁷⁷ 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."⁷⁸ Courts have interpreted this term as extending a cause of action to both U.S. and foreign nationals,⁷⁹ but excluding liability against corporations.⁸⁰ Lastly, 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."⁸¹

Given these important distinctions, 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.⁸² 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.⁸³ 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.⁸⁴

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.⁸⁵ 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.⁸⁶

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 grounds that his apprehension was "outrageous governmental conduct" and that it violated the extradition treaty between the United States and Mexico.⁸⁷ In its first decision arising out of his case, United States v. Alvarez-Machain,⁸⁸ the Supreme Court rejected Alvarez's arguments, finding no grounds to justify dismissal of the criminal case against him.⁸⁹

The case was remanded to district court, and the district court dismissed the charges for lack of evidence at close of the government's case during trial.⁹⁰ No longer subject to criminal charges, Alvarez filed suit in 1993 asserting ATS claims against the Mexican nationals responsible for his abduction.⁹¹ This civil case, Sosa v. Alvarez-Machain,⁹² 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."⁹³

The Sosa Holding

Adopting reasoning that largely appeared to comport with Judge Bork's concurring opinion in Tel-Oren, the Court in Sosa agreed that the "ATS is a jurisdictional statute creating no new causes of action . . . ."⁹⁴ Among other things, the Court explained 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.⁹⁵

While the Court in Sosa agreed that the ATS was not intended to create statutory causes of action, the 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.⁹⁶ 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.⁹⁷ 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,⁹⁸ as opposed to a congressionally created, statutory cause of action.⁹⁹

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,¹⁰⁰ infringement on the rights of ambassadors, and piracy.¹⁰¹ The Court also held that ATS jurisdiction is not limited to those claims.¹⁰² 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.¹⁰³ 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.¹⁰⁴ 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.¹⁰⁵

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.¹⁰⁶ First, courts must determine whether the claim is based on violation of an international law norm that is "specific, universal, and obligatory."¹⁰⁷ Second, if step one is satisfied, courts should determine whether allowing the case to proceed is an "appropriate" exercise of judicial discretion.¹⁰⁸

Although Sosa warned that lower courts should exercise "vigilant doorkeeping" and "great caution" before recognizing causes of action under the ATS,¹⁰⁹ the post-Filártiga movement of using the ATS to seek redress for human rights abuses continued "largely unabated" after Sosa.¹¹⁰ 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.¹¹¹

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.¹¹² The Second Circuit dismissed the case on the ground that corporations cannot be liable for violations of the law of nations under the ATS. The Supreme Court originally granted certiorari to consider whether it lacked subject matter jurisdiction because the law of nations does not recognize corporate liability.¹¹³ 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?¹¹⁴

The Kiobel Majority

In a majority opinion written by Chief Justice Roberts, the Court in Kiobel 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.¹¹⁵ Also known as the "presumption against extraterritoriality," this canon of construction is intended to avoid unintended clashes between U.S. and foreign law that could result in international discord.¹¹⁶ Reliance on the presumption also reflects the "more prosaic commonsense notion that Congress generally legislates with domestic concerns in mind."¹¹⁷ Therefore, 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.¹¹⁸

According to the Court in Kiobel, nothing in the text or history of the ATS suggests that the First Congress intended the statute to have extraterritorial reach.¹¹⁹ 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.¹²⁰ 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.¹²¹

In a brief concluding paragraph, the Court in Kiobel 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.¹²²

The Court, however, did not provide any further explanation as to how an ATS claim would satisfy the "touch and concern" test—leading to divergent interpretations in the lower courts.¹²³

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 view 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.¹²⁴

Justice Alito, in an opinion joined by Justice Thomas, agreed that the majority's opinion "le[ft] much unanswered," and would have further explained how litigants can satisfy the "touch and concern" requirement.¹²⁵ 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.¹²⁶

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.¹²⁷ 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.¹²⁸ 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.¹²⁹

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.¹³⁰ Applying this test to the facts in 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."¹³¹

Interpreting Kiobel

Many commentators interpret the Supreme Court's decision in Kiobel as having significantly limited the ATS as a vehicle to redress human rights abuses in U.S. courts.¹³² 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.¹³³ On the other hand, under Kiobel, cases in which there is some connection to the United States—such as a defendant who is a U.S. citizen or corporation—are not easy to resolve. In particular, courts have used differing interpretative frameworks for deciding what level of domestic connections are necessary to satisfy Kiobel's "touch and concern" test.¹³⁴ Some lower courts have adopted a bright-line rule whereby the conduct that constitutes a violation of the law of nations must occur in the United States.¹³⁵ Other courts have used more flexible, fact-specific frameworks that considered factors such as the citizenship and residence of the defendants and the potential U.S. national interests triggered by the nature of the defendants' conduct.¹³⁶

The Supreme Court would revisit the extraterritoriality issue in its 2021 decision, Nestle v. Doe.¹³⁷ In the interim, the Court granted certiorari in Jesner v. Arab Bank, PLC to resolve the question it initially granted certiorari to resolve in Kiobel, but ultimately left undecided: whether the ATS forecloses corporate liability.

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

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 2005.¹³⁸ The plaintiffs alleged that Arab Bank—one of the largest financial institutions in the Middle East¹³⁹—aided and abetted four terrorist organizations allegedly responsible for the attacks.¹⁴⁰ 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."¹⁴¹ 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.¹⁴²

Jesner was a consolidation of five cases filed in the Eastern District of New York, all of which asserted similar allegations of facilitating and financing terrorism against Arab Bank.¹⁴³ 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.¹⁴⁴ 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.¹⁴⁵

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.¹⁴⁶ The Court left open the possibility that U.S. corporations could face claims under the ATS.¹⁴⁷

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 step¹⁴⁸ of the two-part inquiry described in Sosa v. Alvarez-Machain for evaluating whether violations of international norms are actionable under the ATS.¹⁴⁹ In Sosa step two, courts consider whether circumstances make it "appropriate" to deem a violation of an international norm cognizable under the ATS.¹⁵⁰ Although Sosa described federal courts' ability to recognize claims under the ATS as within judicial discretion, the Court in Sosa instructed federal courts to exercise "great caution"¹⁵¹ and to act with "restraint in judicially applying internationally generated norms."¹⁵² 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.¹⁵³ Against this backdrop of judicial caution, the Court in Jesner concluded that "it would be inappropriate for courts to extend ATS liability to foreign corporations."¹⁵⁴

The Court's decision arose, in part, from separation-of-powers and foreign affairs concerns.¹⁵⁵ 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.¹⁵⁶ According to the Court, ATS claims against foreign corporations often impact the United States' foreign relations.¹⁵⁷ The Court explained that 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."¹⁵⁸ The Court concluded that, because the "political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign policy concerns[,]" 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."¹⁵⁹

Plurality, Concurring, and Dissenting Opinions in Jesner

Although a majority of the Court in Jesner 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.¹⁶⁰ Only Chief Justice Roberts and Justice Thomas joined the remainder of Justice Kennedy's plurality opinion.¹⁶¹

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."¹⁶² Justice Gorsuch also wrote separately to describe "two more fundamental reasons" why he believed Jesner should be dismissed.¹⁶³ According to Justice Gorsuch, (1) separation-of-powers principles dictate that courts should never recognize new causes of action under the ATS; and (2) 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.¹⁶⁴ Justice Thomas 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.¹⁶⁵

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.¹⁶⁶ 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.¹⁶⁷ 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.¹⁶⁸

Implications of Jesner

Jesner led to a debate over the continuing viability of the ATS as a prominent vehicle for civil lawsuits alleging human rights abuses.¹⁶⁹ Some observers 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.¹⁷⁰ Others argued the ATS retained at least some significance because Jesner did not foreclose suits against U.S. corporations, and the Court's holding allows claims against the individual employees of foreign companies.¹⁷¹ Three years later, the Supreme Court again evaluated the statute's scope in its most recent ATS decision: Nestlé v. Doe.

Nestlé USA, Inc. v. Doe: Extraterritoriality Revisited

In Nestlé, six individuals from Mali alleged that they were trafficked as children into Côte d'Ivoire (also known as Ivory Coast) and forced to work as slave laborers on cocoa farms.¹⁷² The plaintiffs alleged that two U.S. based corporations—Nestlé USA, Inc. (Nestlé USA) and Cargill, Inc. (Cargill)¹⁷³—aided and abetted child slavery by purchasing cocoa from those Ivorian farms.¹⁷⁴ Although the companies did not operate the farms themselves, they provided technical resources, such as training and tools, and financial assistance in exchange for the exclusive right to purchase cocoa.¹⁷⁵ According to the plaintiffs, Nestlé USA and Cargill had "economic leverage" over the farms and their labor practices, and continued to purchase cocoa after they "knew or should have known" that the farms exploited children for slave labor.¹⁷⁶ The plaintiffs' theory of the case was that the companies "depended on—and orchestrated—a slave-based supply chain."¹⁷⁷

The Nestlé Holding

The Supreme Court's decision in Nestlé turned on the issue of extraterritoriality. In 2013, the Supreme Court held in Kiobel that the ATS does not apply to purely extraterritorial claims, but lower courts failed to reach consistent conclusions on when claims could go forward if they arose partially overseas but still had some connection to the United States.¹⁷⁸ The plaintiffs in Nestlé argued that, although the actual forced labor occurred overseas, their case survived Kiobel's extraterritoriality bar because the alleged aiding and abetting took place in the defendants' corporate offices in the United States.¹⁷⁹ According to the plaintiffs, Nestlé USA and Cargill made decisions from U.S.-based offices to provide personal spending money to cocoa farmers in Côte d'Ivoire in order to maintain their loyalty and secure a cocoa supply.¹⁸⁰ The plaintiffs also alleged that employees from the companies' U.S. headquarters "regularly inspect[ed] operations in the Ivory Coast and report[ed] back" to offices in the United States.¹⁸¹

In an 8-1 opinion authored by Justice Thomas, the Supreme Court concluded that these allegations did not draw a "sufficient connection" between the alleged forced labor and U.S.-based conduct to sustain ATS jurisdiction.¹⁸² Although Nestlé USA and Cargill made or approved "every major operational decision" from the United States, the Court described that decision-making as too "common" or "generic" a corporate function to connect the claim to the United States.¹⁸³ Such "general corporate activity," the Court held, was not sufficient to plead a domestic application of the ATS.¹⁸⁴

In reaching this conclusion, the Court in Nestlé applied a doctrinal framework previously used to examine extraterritoriality of U.S. statutes in non-ATS cases.¹⁸⁵ Under this rubric, courts first consider whether a statute gives a clear indication that the law applies to claims arising outside the United States.¹⁸⁶ The Court in Nestlé noted that it had previously examined the plain text of the ATS in Kiobel, and concluded that the statute does not contain a statement suggesting it applies extraterritorially.¹⁸⁷

When there is no clear indication that a statute applies extraterritorially, courts next consider whether a claim involving overseas activity can still proceed because the "conduct relevant to the statute's focus occurred in the United States."¹⁸⁸ This step requires courts to pinpoint the precise "focus" of a particular statute, and determine whether the conduct related to this focus took place in U.S. territory. Before Nestlé, some lower courts had concluded that the "focus" analysis did not apply in ATS cases because Kiobel announced a different standard—the "touch and concern" test¹⁸⁹—for ATS claims. ¹⁹⁰ In Nestlé, however, the Supreme Court did not mention the phrase "touch and concern." Instead, the Court examined the extraterritoriality issue using the focus test as part of its standard framework for evaluating extraterritorial application of U.S. laws.¹⁹¹

While the Court in Nestlé clarified that the "focus" test applies to the ATS, it did not resolve the parties' disagreement over what conduct is, in fact, the focus of the statute. The defendant companies contended that ATS's focus is the act that directly caused the injury—in the plaintiffs' case, the alleged child trafficking and forced labor in West Africa.¹⁹² The plaintiffs, by contrast, argued that the ATS's focus is the act that violates international law, which they viewed as acts of aiding and abetting forced labor through corporate support from U.S. offices.¹⁹³ In the end, the Supreme Court did not resolve the question or identify the focus of the ATS. The Court reasoned instead that, even if it accepted the plaintiffs' legal interpretation, their ATS claims were still improperly extraterritorial because "[n]early all the conduct that they say aided and abetted forced labor . . . occurred in Ivory Coast."¹⁹⁴

Plurality, Concurring, and Dissenting Opinions in Nestlé

All of the members of the Court but Justice Alito joined the portion of Justice Thomas's opinion which held that the plaintiffs improperly asserted extraterritorial claims under the ATS. Several Justices wrote concurring opinions debating other aspects of the ATS. The portion of Justice Thomas's opinion joined only by Justices Gorsuch and Kavanaugh advocated for revisiting the Supreme Court's 2004 Sosa decision.¹⁹⁵ In Sosa, the Supreme Court concluded there are at least three offenses actionable under the ATS: violations of safe conducts, infringement on the rights of ambassadors, and piracy.¹⁹⁶ Sosa also stated that the "door is still ajar" for federal courts to allow new ATS claims,¹⁹⁷ but only when the new cause of action is specifically defined, universally accepted, and it would be "appropriate" for courts to recognize the new claim.¹⁹⁸ According to this portion of Justice Thomas's opinion, the plaintiffs' aiding and abetting claims should be dismissed for the alternative reason that they did not meet Sosa's standards.¹⁹⁹ Justice Thomas also would have gone further and held that courts cannot recognize any new causes of action in ATS cases other than the three offenses recognized in Sosa.²⁰⁰

Justice Gorsuch wrote a two-part concurrence. In part I, joined by Justice Alito, Justice Gorsuch opined that domestic corporations are subject to ATS suits to the same extent as individual defendants.²⁰¹ In part II, joined by Justice Kavanaugh, Justice Gorsuch agreed with Justice Thomas that federal courts should no longer recognize any new ATS causes of action beyond the three claims cited in Sosa.²⁰²

Justice Sotomayor authored a concurring opinion, joined by Justice Breyer and Kagan, disagreeing with the portion of Justice Thomas's opinion on whether courts can recognize new ATS causes of action.²⁰³ Justice Sotomayor argued that the First Congress expected the judiciary to interpret international law and identify those norms that, when breached, give rise to a cause of action.²⁰⁴ To decline to recognize new causes of action, Justice Sotomayor argued, would be an abdication of the First Congress's legislative directive.²⁰⁵

Justice Alito authored the lone dissent in which he argued that it was procedurally improper to resolve the case on extraterritoriality grounds when unanswered questions remained concerning, among other things, whether the plaintiffs satisfied Sosa's requirements to recognize new ATS causes actions.²⁰⁶

Interpreting Nestlé and the Future of Domestic Corporate Liability

The Supreme Court clarified the legal framework governing the extraterritorial reach of the ATS in Nestlé by abandoning the "touch and concern" test in favor of the "focus" test.²⁰⁷ While the Court made clear which framework applies, it declined to specify the exact conduct that must transpire in the United States in order satisfy the "focus" test and plead a proper domestic ATS case.²⁰⁸ Many commentators interpret the "focus" analysis as more restrictive than the "touch and concern" test²⁰⁹ and view Nestlé as further constraining the types of human rights cases available under the ATS when the key conduct occurs outside the United States.²¹⁰

Separate from the Court's central holding on extraterritoriality, the concurring opinions in Nestlé revealed that five Justices agreed on a different question in ATS litigation: can domestic corporations be liable under the statute? Although the Supreme Court held in Jesner that foreign corporations are not liable for ATS claims, five Justices in Nestlé either authored or joined concurring opinions which argued that domestic corporations can be held liable to the same extent as natural persons.²¹¹ These opinions suggest that ATS claims against domestic companies can go forward provided they meet the ATS's requirements and satisfy the Supreme Court's increasingly strict extraterritoriality jurisprudence announced in Nestlé.

Lastly, the Justices did not resolve their disagreement on whether to continue to leave the "door ajar" for courts to recognize new causes of action in ATS cases.²¹² Three Justices (Thomas, Kavanaugh, and Gorsuch) argued that the Supreme Court should no longer recognize any new causes of action beyond the three historical offenses cited in Sosa—an approach that would likely eliminate a large majority of modern ATS claims. ²¹³ Three Justices (Sotomayor, Breyer, and Kagan) argued that the Court has an affirmative obligation to identify new causes of action,²¹⁴ and three Justices (Roberts, Barrett, and Alito) did not address the issue. Accordingly, debate over the cause of action question is likely to continue in lower court litigation.

Conclusion and Considerations for Congress

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.²¹⁵ While many 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.²¹⁶ Instead, the Court placed significant limitations on the scope of viable ATS claims through decisions in Sosa, Kiobel, Jesner, and, most recently, Nestlé.²¹⁷ 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.²¹⁸ Others interpret the Court's rulings as having left the door open for certain limited categories of cases against natural persons or U.S. corporate defendants.²¹⁹

According to the Supreme Court, "Congress is well aware of the necessity of clarifying the proper scope of liability under the ATS[,]"and "further action from Congress" is needed before courts may expand ATS jurisdiction beyond its 18th century roots. ²²⁰ Despite the Court's suggestion that the legislative branch should consider clarifying the ATS, there have been infrequent discussions in Congress to amend the statute.²²¹ In the 109th Congress, the Alien Tort Statute Reform Act would have amended the ATS to, among other things, specify six violations of international law that are actionable under the statute,²²² but no congressional action was taken on the bill, and similar legislation amending the ATS has not since been introduced.

Commentators have suggested a variety of ways to amend the ATS to address disputes raised in litigation. Observers' proposals include legislation that: specifies the actionable violations of international law;²²³ provides that the ATS applies to conduct overseas;²²⁴ or expressly makes corporations subject to ATS jurisdiction.²²⁵ Other commentators suggest that the ATS has been an ineffective avenue to address human rights abuses, and Congress should focus on other legislative initiatives, such as crafting alternative dispute resolution procedures²²⁶ or mandating corporate supply chain due diligence to ensure that companies do not benefit from labor practices that violate international law.²²⁷