Kiobel v. Royal Dutch Petroleum Co. - 10-1491 (2013)


SUPREME COURT OF THE UNITED STATES

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No. 10–1491

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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 sufficient force to displace the presumption against extraterritorial 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 domestic 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 relevant statute takes place within the United States. Ibid. (quoting EEOC v. Arabian American Oil Co., 499 U. S. 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],’ ” Morrison, supra, at ___ (slip op., at 17), on the “three principal offenses against the law of nations” that had been identified 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 satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.



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