The Alien Tort Statute: A Primer

September 13, 2017 – January 11, 2022 R44947

The Alien Tort Statute: A Primer
Updated January 11, 2022
Congressional Research Service
https://crsreports.congress.gov
R44947

The Alien Tort Statute: A Primer

Summary
Passed by the First Congress as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS), in
its current form, provides the following: “The 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.” While just one sentence, the ATS has evolved over the years from an obscure
jurisdictional provision to a prominent vehicle for foreign nationals to seek redress in U.S. courts
for injuries caused by human rights offenses and acts of terrorism.
The ATS has its historical roots in founding-era efforts to give the federal government supremacy
over the nation’s power of foreign affairs and to avoid international conflict arising from disputes
about aliens’ treatment in the United States. Although it has been part of U.S. law since 1789, the
ATS was rarely used for nearly two centuries. In 1980, that long dormancy came to an end when
the U.S. Court of Appeals for the Second Circuit rendered a landmark decision, Filártiga v. Peña-
Irala, which held that the ATS permits claims for violations of modern international human rights
law.
Filártiga caused an explosion of ATS litigation in the decades that followed, but the Supreme
Court has placed limits on ATS jurisdiction in its recent jurisprudence. In a 2004 case, Sosa v.
Alvarez-Machain, the Court held that the ATS allows federal courts to hear only a “narrow set” of
claims for violations of international law. In 2013, the Supreme Court held in Kiobel v Royal
Dutch Petroleum Co. that the statute does not provide jurisdiction for claims between foreign
plaintiffs and defendants involving matters arising entirely outside the territorial jurisdiction of
the United States. Five years later, in 2018, the Supreme Court further limited the scope of viable
claims in Jesner v. Arab Bank, PLC by holding that foreign corporations may not be defendants in
suits brought under the ATS.
In its most recent ATS case, Nestlé (USA), Inc. v. Doe, the Supreme Court addressed the
extraterritorial reach of the ATS for the second time, and it again ruled against the plaintiffs.
Nestlé involved individuals from West Africa who alleged they were trafficked as children and
forced to as slaves on cocoa farms. The alleged trafficking victims claimed that two U.S.-based
corporations—Nestlé USA, Inc. (Nestlé USA) and Cargill, Inc. (Cargill)—aided and abetted child
slavery by partnering with and purchasing cocoa from those farms. Although the actual forced
labor occurred overseas, the alleged victims argued that the companies aided and abetted the slave
labor from inside the United States by making decisions from U.S. corporate offices to support
the farms.
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. The Court
reasoned that decision-making from within U.S. headquarters was too “common” or “generic” a
corporate function to connect the claim to the United States. While the Supreme Court in Nestlé
ruled against the alleged victims on extraterritoriality grounds, the majority did not adopt the
defendants’ broader argument that no corporation—foreign or domestic—can be held liable for
ATS claims; rather, in concurring opinions, five Justices advanced the view that the ATS applies
to domestic corporations to the same extent as natural persons.
The Supreme Court’s repeated rulings against individuals in Sosa, Kiobel, Jesner, and now Nestlé
have led commentators to debate whether the statute remains a viable mechanism to provide
redress for human rights abuses in U.S. courts. Some observers argue Congress should amend the
ATS to extend or clarify its jurisdictional reach. Others suggest that the ATS has been an
ineffective avenue to address human rights abuses, and Congress should focus on other legislative
initiatives.
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riginally 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
O 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

1 An Act to Establish the Judicial Courts United States, 1 Stat. 73, 77 (1789) [hereinafter Judiciary Act] (“And [district
courts] shall also have cognizance, concurrent with the courts of the several States, or the circuit courts, as the case may
be, of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”).
2 While the ATS is sometimes referred to as the Alien Tort Claims Act, this terminology may be misleading because
the law was not passed as a stand-alone act. See 15 MOORE’S FEDERAL PRACTICE - CIVIL § 104.21 n.1 (2015 ed.).
3 Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 115 (2d Cir. 2010), aff’d on other grounds, 569 U.S. 108 (2013).
4 28 U.S.C. § 1350.
5 See infra § Nestlé USA, Inc. v. Doe: Extraterritoriality Revisited. The Nestlé decision involved two consolidated
cases: Nestlé USA, Inc. v. Doe, No. 19-416, 141 S. Ct. 1931, 1936 (2021) and Cargill, Inc. v. Doe, No. 19-453, 141 S.
Ct. 1931, 1936 (2021).
6 An “alien” is defined elsewhere in federal law to be “any person not a citizen or national of the United States.” 8
U.S.C. § 1101(a)(3).
7 See e.g., See, e.g., Yousuf v. Samantar, 552 F.3d 371, 375 n.1 (4th Cir. 2009) (“To the extent that any of the claims
under the ATS are being asserted by plaintiffs who are American citizens, federal subject-matter jurisdiction may be
lacking.”); Serra v. Lappin, 600 F.3d 1191, 1198 (9th Cir. 2010) (“The ATS admits no cause of action by non-aliens.”).
8 See, e.g., 18 U.S.C. § 2333 (“Any national of the United States injured in his or her person, property, or business by
reason of an act of international terrorism . . . may sue therefor in any appropriate district court of the United States”);
infra § The Torture Victim Protection Act (discussing the Torture Victim Protection Act, which provides a cause of
action to both U.S. nationals and aliens for certain claims arising from torture and extrajudicial killing).
9 Tort, BLACK’S LAW DICTIONARY (10th ed. 2014).
10 See generally Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co. , 517 F.3d 104, 116 (2d Cir. 2008)
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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

[hereinafter Agent Orange] (describing the underlying jurisdictional requirements for an ATS claim); Arthur Miller,
Alien Tort Claims Act—Further Limitations on its Application, in 14A FEDERAL PRACTICE AND PROCEDURE:
JURISDICTION AND RELATED MATTERS § 3661.1 (4th ed.2009) (collecting cases and describing basic principles under the
ATS).
11 See Agent Orange, 517 F.3d at 116 (“[T]he law of nations has become synonymous with the term ‘customary
international law[.]’”). See also Cong. Rsch. Serv., Judicial Vesting Clause, CONST. ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-1-1-1/ALDE_00001175/ (last visited Jan. 6, 2022).
12 The term “States” when capitalized in this context and in this report refers to sovereign nations rather than the
individual “states” that form the United States of America (e.g., Rhode Island, Maryland).
13 RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, §102(2) (Am. L. Inst. 1987) [hereinafter
RESTATEMENT]. Certain rules of customary international law, such as the international prohibition against slavery or
genocide, can acquire the status of jus cogens norms—peremptory rules which do not permit derogation. Id. §§ 331
cmt. e, 703 cmt. n. For more on the sources of international law and the development of customary international law
and jus cogens norms, see CRS Report RL32528, International Law and Agreements: Their Effect upon U.S. Law, by
Stephen P. Mulligan (available to congressional clients upon request).
14 See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 725 (2004).
15 542 U.S. 692 (2004).
16 See infra § The Supreme Court Addresses the Cause-of-Action Question: Sosa v. Alvarez-Machain.
17 U.S. CONST. art. III, § 1 (“The judicial power of the United States, shall be vested in one supreme Court, and in such
inferior Courts as the Congress may from time to time ordain and establish.”).
18 Judiciary Act, 1 Stat. 73, 77 (1789) (“And [district courts] shall also have cognizance, concurrent with the courts of
the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in violation
of the law of nations or a treaty of the United States.”). See also Cong. Rsch. Serv., Judicial Vesting Clause: Doctrine
and Practice, CONST. ANNOTATED, https://constitution.congress.gov/browse/essay/artIII-S1-1-1-1/ALDE_00001175/
(last visited Jan. 6, 2022).
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The Alien Tort Statute: A Primer

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

19 The original version of the ATS provided that district courts “shall also have cognizance, concurrent with the courts
of the several States, or the circuit courts, as the case may be, of all causes where an alien sues for a tort only in
violation of the law of nations or a treaty of the United States.” Judiciary Act, 1 Stat. at 77. In addition to ATS-based
jurisdiction, Section 9 of the Judiciary Act gave federal district courts authority to hear certain criminal cases, admiralty
cases, and common law suits brought by the U.S. government and suits against certain diplomats. Id. at 76-77.
20 Revised Statutes tit. 13, ch. 3, § 563, para. 16 (1873) (“The district courts shall have jurisdiction as follows: … Of all
suits brought by any alien for a tort ‘only’ in violation of the law of nations, or of a treaty of the United States.”). The
1873 version of the ATS placed the word “only” in single quotation marks, but the legislative record does not provide
an explanation for this change. The 1873 recodification of the ATS placed the provision in the section establishing
concurrent jurisdiction with state courts, and thus the express reference to concurrent jurisdiction “with the courts of the
several States” from the 1789 version was removed as unnecessary. See William R. Casto, The Federal Courts
Protective Jurisdiction Over Torts Committed in Violation of the Law of Nations, in THE ALIEN TORT CLAIMS ACT: AN
ANALYTICAL ANTHOLOGY 119 & n.4 (1999) [hereinafter ACTA ANTHOLOGY].
21 Act of March 3, 1911, 36 Stat. 1087, 1093 (1911) (providing district courts with jurisdiction over “all suits brought
by any alien for a tort only, in violation of the laws of nations or of a treaty of the United States.”). The single
quotations marks were removed from the word “only” and a comma was inserted following that word, but there is no
discussion of the reason for the changes in the legislative history.
22 Act of June 25, 1948, 62 Stat. 869, 934 (1948) (codified in 28 U.S.C. § 1350). In the current version of the ATS, the
phrase “civil action” was reported to have been substituted for the term “suits” to comport with the terminology used in
modern Federal Rules of Civil Procedure. See H.R. Rep. No. 308, 80-308, at 124 (1947). In addition, the phrase “An
alien” was substituted for “any alien[,]” and the word “committed” was inserted prior to “in violation of the law of
nations.” Compare 28 U.S.C. § 1350 with 36 Stat. at 1093.
23 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1390 (2018).
24 For further discussion of the United States’ difficulties in the realm of foreign affairs under the Articles of
Confederation, see Sosa v. Alvarez-Machain, 542 U.S. 692, 715-19 (2004); Anthony J. Bellia Jr. & Bradford R. Clark,
The Alien Tort Statute and the Law of Nations, 78 U. CHI. L. REV. 445, 466-507 (2011).
25 See Sosa, 542 U.S. at 715-16 (discussing the history of the Alien Tort Statute).
26 Although some commentators use the terms interchangeably, the term “Confederation Congress” in this report refers
to the congressional body convened under the Articles of Confederation between 1781 and 1789, and the term
“Continental Congress” refers to the federal, congressional body that met during the Revolutionary War prior to the
adoption of the Articles of Confederation. See Gregory E. Maggs, A Concise Guide to the Articles of Confederation as
a Source for Determining the Original Meaning of the Constitution, 85 GEO. WASH. L. REv. 397, 401–03 (2017).
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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

27 See Bellia & Clark, supra note 24, at 495-96 (quoting 21 JOURNALS OF THE CONTINENTAL CONGRESS 1136-37 (GPO
1912)). See also Sosa, 542 U.S. at 716 (discussing the Confederation Congress’s efforts related to state regulation and
criminalization of international law).
28 See Sosa, 542 U.S. at 716. The text of the Connecticut law is reprinted in Bellia & Clark, supra note 24, at 552 n.
298.
29 See, e.g., EMMERICH DE VATTEL, THE LAW OF NATIONS, OR PRINCIPLES OF THE LAW OF NATIONS, APPLIED TO THE
CONDUCT AND AFFAIRS OF NATIONS AND SOVEREIGNS bk. 2, CH. 6, § 77, at 300 (Liberty Fund ed. 2008) (originally
published 1758) [hereinafter LAW OF NATIONS] (“The sovereign who refuses to cause a reparation to be made of the
damage caused by his subject, or to punish the guilty, or, in short, to deliver him up, renders himself in some measure
an accomplice in the injury, and becomes responsible for it.”);1 JEAN JACQUES BURLAMAQUI, THE PRINCIPLES OF
NATURAL AND POLITIC LAW 353 (Bumstead 4th ed 1792) (Thomas Nugent, trans) (originally published 1748) (“A
sovereign, who knowing the crimes of his subjects, as for example, that they practise piracy on strangers; and being
also able and obliged to hinder it, does not hinder it, renders himself criminal, because he has consented to the bad
action, the commission of which he has permitted, and consequently furnished a just reason of war.”). For scholarly
discussion on nations’ international law obligation to provide redress, see Bellia & Clark, supra note 24, at 466-94.
30 See Letter from James Madison to James Monroe, (Nov. 27, 1784), https://founders.archives.gov/documents/
Madison/01-08-02-0083 (“Nothing seems to be more difficult under our new Governments, than to impress on the
attention of our Legislatures a due sense of those duties which spring from our relation to foreign nations.”); THE
FEDERALIST NO. 80 (Alexander Hamilton) (“[T]he peace of the WHOLE ought not to be left at the disposal of a PART.
The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for
an injury ought ever to be accompanied with the faculty of preventing it.”).
31 U.S. CONST. art. III, § 2 (vesting the Supreme Court with jurisdiction over “all Cases affecting Ambassadors, other
public ministers and Consuls”); Judiciary Act, 1 Stat. 73, 80 § 13 (1789) (detailing which suits involving diplomats
shall be brought in the Supreme Court and which may be brought in lower federal courts).
32 U.S. CONST. art. III, § 2 (extending federal judicial power to “all Cases of admiralty and maritime Jurisdiction”);
Judiciary Act, 1 Stat. at 76-77 § 9 (“[T]he district courts . . . shall also have exclusive original cognizance of all civil
causes of admiralty and maritime jurisdiction[.]”).
33 U.S. CONST. art. III, § 2 (extending federal judicial power to “Controversies . . . between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects”); Judiciary Act, 1 Stat. at 78 § 11 (providing for alienage jurisdiction
to federal courts under a $500 amount in controversy requirement).
34 See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1406 (2018); Sosa v. Alvarez-Machain, 542 U.S. 692, 716-17
(2004).
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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

35 See Sosa, 542 U.S. at 716-17. See also Respublica v. De Longchamps, 1 Dall. 111, 111 (O. T. Phila. 1784); Alfred
Rosenthal, The Marbois-Longchamps Affair, 63 PA. MAG. OF HIS. & BIOG. 294 (1939).
36 Longchamps is said to have escaped after persuading Philadelphia police officials to allow him to return home to
change his clothes before a preliminary court appearance. Rosenthal, supra note 35, at 295.
37 See Kiobel v. Royal Dutch Petro. Co., 569 U.S. 108, 120 (2013).
38 See Respublica, 1 Dall. at 111.
39 See CURTIS A. BRADLEY, INTERNATIONAL LAW IN THE U.S. LEGAL SYSTEM 205 (2d ed. 2015).
40 Sosa, 542 U.S. at 717 n.11 (quoting 28 JOURNALS OF THE CONTINENTAL CONGRESS 314 (G. Hunt. ed. 1912)).
41 See Kiobel, 569 U.S. at 120-121.
42 Report of Secretary for Foreign Affairs on Complaint of Minister of United Netherlands (Mar. 25,
1788), reprinted in 34 J. Cont. Cong. 109, 111 (1788). See also Sosa, 542 U.S. at 717 (discussing Jay’s communication
with the Confederation Congress).
43 See, e.g., Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1406 (2018) (Gorsuch, J., concurring in part and concurring in
the judgment) (“[E]ven if you think something in the Judiciary Act must be interpreted to address the Marbois incident,
that doesn’t mean it must be the ATS clause.”). Some argue that the Marbois and Van Berckel incidents were not likely
catalysts for the ATS given that both incidents were prosecuted as criminal (rather than civil) cases. See, e.g.,
BRADLEY, supra note 39, at 205-06. It has also been argued that, even in a civil suit, the ATS would not have been
necessary to address these incidents because the Founders and First Congress created independent jurisdictional
provisions for cases involving foreign diplomats. See supra note 31.
44 Kiobel, 569 U.S. at 123.
45 See id. at 123-24 (quoting THE FEDERALIST NO. 80, at 536 (Alexander Hamilton)). See also Sosa 542 U.S. at 715
(“An assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not
adequately redressed could rise to an issue of war.”).
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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

46 See Sosa v. Alvarez-Machain, 542 U.S. 692, 717 (2004) (“The Framers responded [to the Marbois and Van Berckel
incidents] by vesting the Supreme Court with original jurisdiction over ‘all Cases affecting Ambassadors, other public
ministers and Consuls[,]’and the First Congress followed through. The Judiciary Act reinforced this Court’s original
jurisdiction over suits brought by diplomats, created alienage jurisdiction, and, of course, included the ATS[.]”)
(internal citations omitted).
47 Taveras v. Taveraz, 477 F.3d 767, 771 (6th Cir. 2007) (“During the first 191 years of its existence, the ATS lay
effectively dormant. In fact, during the nearly two centuries after the statute’s promulgation, jurisdiction was
maintained under the ATS in only two cases.”). For analysis of early unsuccessful attempts to invoke the ATS, see
Oona Hathaway, Christopher Ewell, and Ellen Noble, Has the Alien Tort Statute Made a Difference?: A Historical,
Empirical, and Normative Assessment, 107 CORNELL L. REV. (forthcoming 2022) (manuscript at 7-8),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3927162.
48 3 F. Cas. 810, 810 (D.S.C. 1795).
49 195. F. Supp. 857 (D. Md. 1961).
50 See id. at 859. For additional discussion of cases in which litigants successfully invoked the Alien Tort Statute
between 1789 and 1980, see BRADLEY, supra note 39, at 206-07.
51 IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (2d Cir. 1975) (Friendly, J.).
52 Lohengrin, ENCYC. BRITANNICA (last visited July 6, 2021), https://www.britannica.com/topic/Lohengrin-German-
legendary-figure.
53 This report references a large number of decisions by federal appellate courts in their respective regional circuits. For
purposes of brevity, references to a particular circuit in the body of this report (e.g., the Ninth Circuit) refer to the U.S.
Court of Appeals for that circuit.
54 630 F.2d 876 (2d Cir. 1980).
55 Id. at 878.
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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.

56 See id. at 878-79.
57 See Filártiga v. Peña-Irala, 577 F. Supp. 860, 861 (E.D.N.Y. 1984) (district court dismissal on remand from the
Second Circuit discussing its prior dismissal).
58 Filártiga v. Peña-Irala, 630 F.2d 876, 880 (2d Cir. 1980).
59 See id. at 881.
60 As a federal statute, the ATS does not affect the availability of claims that litigants may have under U.S. state law or
under the laws of foreign nations.
61 See Anthony D’Amato, Preface in ATCA ANTHOLOGY, supra note 20, at vii. See also Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 116 (2d Cir. 2010), aff’d on other grounds, 569 U.S. 108 (2013) (“Since [Filártiga], the
ATS has given rise to an abundance of litigation in U.S. district courts.”); Balintulo v. Daimler AG, 727 F.3d 174, 179
(2d Cir. 2013) (describing the ATS as “a statute, passed in 1789, that was rediscovered and revitalized by the courts in
recent decades to permit aliens to sue for alleged serious violations of human rights occurring abroad.”); Stephen J.
Schnably, The Transformation of Human Rights Litigation: The Alien Tort Statute, the Anti-Terrorism Act, and JASTA,
24 U. MIAMI INT’L & COMP. L. REV. 285, 290 (2017) (“What struck many commentators about [Filártiga] was that it
involved events with seemingly no relation to U.S. actors or territory[.]”); Ingrid Wuerth, Kiobel v. Royal Dutch
Petroleum Co.: The Supreme Court and the Alien Tort Statute, 107 AM. J. INT’L L. 601, 601 (2013) (“Since the 1980
court of appeals decision in Filartiga v. Peña-Irala permitting a wide of range human rights cases to go forward under
the statute’s auspices, the ATS has garnered worldwide attention and has become the main engine for transnational
human rights litigation in the United States.”).
62 726 F.2d 775 (D.C. Cir. 1984) (per curiam).
63 See BRADLEY, supra note 39, at 209.
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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

64 Tel-Oren, 726 F.2d at 775 (per curiam). The district court “dismissed the action both for lack of subject matter
jurisdiction and as barred by the applicable statute of limitations.” Id.
65 See, e.g., William S. Dodge, The Historical Origins of the Alien Tort Statute: A Response to the “Originalists,” 19
HASTINGS INT’L & COMP. L. REV. 221, 237-43 (1996).
66 Tel-Oren, 726 F.2d at 801 (Bork, J., concurring). (“[I]t is essential that there be an explicit grant of a cause of action
before a private plaintiff be allowed to enforce principles of international law in a federal tribunal.”).
67 See id. at 800-17.
68 Id. at 778. (Edwards, J., concurring).
69 Judge Edwards argued that a claim for torture required official state action, and, because the Palestinian Liberation
Organization was not recognized as a state under international law, the torture claim necessarily failed. See id. at 791-
96
70 Id. at 795-96.
71 See id. at 823–27. For more background on the political question doctrine, see CRS Report R43834, The Political
Question Doctrine: Justiciability and Separation of Powers, by Jared P. Cole (available to congressional clients upon
request).
72 542 U.S. 692 (2004).
73 See infra § The Supreme Court Addresses the Cause-of-Action Question: Sosa v. Alvarez-Machain.
74 Torture Victim Protection Act, Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified in 28 U.S.C. § 1350 note).
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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

75 H.R. REP. NO. 102-367, pt. 1, at 3, 4 (1991).
76 Id. at 3.
77 Compare Pub. L. No. 102-256, § 2(a) (“An individual who under actual or apparent authority, or color of law, of any
foreign nation [commits torture or an extrajudicial killing] shall, in a civil action, be liable for damages[.]”), with 28
U.S.C. § 1350 (providing that “district courts shall have original jurisdiction” over certain civil actions).
78 See 28 U.S.C. § 1350 note (creating liability for “any individual who, under actual or apparent authority, or color of
law, of any foreign nation” subjects another individual to torture or extrajudicial killing).
79 See, e.g., Baloco ex rel. Tapia v. Drummond Co., 640 F.3d 1338, 1346 (11th Cir. 2011); Flores v. S. Peru Copper
Corp., 414 F.3d 233, 247 (2d Cir. 2003) (quoting S. REP. 102-249, at 5 (1991)).
80 See Mohamad v. Palestinian Auth., 132 S. Ct. 1702, 1710 (2012) (“The text of the TVPA convinces us that Congress
did not extend liability to organizations, sovereign or not.”).
81 See 28 U.S.C. § 1350 note.
82 See, e.g., Aldana v. Del Monte Fresh Produce, 416 F.3d 1242, 1250-51 (11th Cir. 2005).
83 See Enahoro v. Abubakar, 408 F.3d 877, 884-85 (7th Cir. 2005) (“We find that the [TVPA] does, in fact, occupy the
field. If it did not, it would be meaningless. No one would plead a cause of action under the [TVPA] and subject
himself to its requirements if he could simply plead under international law.”).
84 542 U.S. 692 (2004).
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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

85 Id. at 697.
86 See id.
87 Id. at 698.
88 504 U.S. 655 (1992).
89 See id. at 670.
90 See Sosa v. Alvarez-Machain, 542 U.S. 692, 698 (2004). See also BRADLEY, supra note 39, at 212 (discussing
background on the trial court proceedings).
91 Alvarez also filed suit under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, against the United States and the
federal officials whom he alleged to have orchestrated his seizure. Sosa, 542 U.S. at 698.
92 542 U.S. 692.
93 Sosa, 542 U.S. at 699 (quoting Alvarez-Machain v. United States, 331 F.3d 604, 611 (9th Cir. 2003)) (internal
quotations omitted).
94 See id. at 724.
95 See id. at 712-14.
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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

96 Sosa v. Alvarez-Machain 542 U.S. 692, 714-19 (2004).
97 See id. at 714-25.
98 Common law is generally understood as the “body of law derived from judicial decisions, rather than from statutes or
constitutions[.]” Common Law, BLACK’S LAW DICTIONARY (10th ed. 2014). The role of the common law in federal
courts and the interplay between international law and common law is the subject of scholarly debate that is outside the
scope of this report. See generally BRADLEY, supra note 39, at 139-58.
99 See Sosa, 542 U.S. at 721-25. Justice Scalia authored a concurring opinion, joined by two other Justices, in which he
argued that judges should not be permitted to recognize common law claims of action, and that only causes of action
created through congressional action should be permitted under the ATS. See id. at 747.
100 A safe conduct is a “privilege granted by a belligerent allowing an enemy, a neutral, or some other person to travel
within or through a designated area for a specified purpose.” Safe Conduct, BLACK’S LAW DICTIONARY (10th ed. 2014).
101 Sosa, 542 U.S. at 724.
102 See id. at 724 (“[T]hough we have found no basis to suspect Congress had any examples in mind beyond those torts
corresponding to [18th century paradigms of international law] . . . no development in the two centuries from the
enactment of § 1350 to the birth of the modern line of cases beginning with [Filártiga] has categorically precluded
federal courts from recognizing a claim under the law of nations as an element of common law[.]”).
103 Id.
104 Id. at 725.
105 Id. at 732-38.
106 See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1399 (2018) (plurality opinion); id. at 1409 (Alito, J., concurring);
id. at 1419 (Sotomayor, J., dissenting). See also CRS Legal Sidebar LSB10025, Can Corporations be Held Liable
under the Alien Tort Statute?, by Stephen P. Mulligan (discussing references to Sosa’s two-step framework during oral
argument in Jesner).
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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

107 See Sosa v. Alvarez-Machain 542 U.S. 692, 732 (2004) (quoting In re Estate of Marcos Human Rights Litigation, 25
F.3d 1467, 1475 (9th Cir. 1994)).
108 See id. at 738.
109 Id. at 728-29.
110 John B. Bellinger III, Enforcing Human Rights in U.S. Courts and Abroad: The Alien Tort Statute and Other
Approaches, 42 VAND. J. TRANSNAT’L L. 1, 2 (2009).
111 569 U.S. 108 (2013). See also Miller, supra note 10 at § 3661.3 (discussing the “dramatically narrowing effect on
the applicability of the [ATS] as a jurisdictional basis for bringing claims of human rights violations in United States
courts.”); Gwynne L. Skinner, Beyond Kiobel: Providing Access to Judicial Remedies for Violations of International
Human Rights Norms by Transnational Business in a New (Post-Kiobel) World, 46 COLUM. HUM. RTS. L. REV. 158,
265 (2014) (“Arguably the largest barrier that victims of transnational human rights abuses now face in the United
States is Kiobel[.]”); id. at 265 n.50 (collecting scholarly discussions of the narrowing impact of Kiobel on human
rights litigation).
112 Kiobel, 569 U.S. at 113-14.
113 See id. at 114 (“The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not
recognize corporate liability. . . . We granted certiorari to consider that question.”) (citation omitted). See also Petition
for Writ of Certiorari, Kiobel, 569 U.S. 108 (No. 10-1491), at i.
114 Kiobel, 569 U.S. at 114 (emphasis added).
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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

115 For more background on the presumption against extraterritoriality and other canons of statutory construction, see
CRS Report 97-59, Statutory Interpretation: General Principles and Recent Trends, at 25 (available to congressional
clients upon request).
116 Kiobel, 569 U.S. at 115 (quoting EEOC v. Arabian American Oil Co., 499 U.S. 244, 248 (1991)).
117 RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090, 2100 (2016) (quoting Smith v. United States, 507 U.S. 197,
204 n. 5 (1993)) (internal quotation marks omitted).
118 Morrison v. Nat’l Australia Bank Ltd., 561 U.S. 247, 255 (2010).
119 See Kiobel, 569 U.S. at 117-19.
120 See id. at 117-124. See also Sosa v. Alvarez-Machain, 542 U.S. 692, 717 (2004) (describing how the United States
“respond[ed] to the Marbois and Van Berckel incidents through a class of provisions that included the ATS); supra
§ The Marbois and Van Berckel Incidents.
121 Kiobel, 569 U.S. at 124.
122 Id. at 124-25 (emphasis added) (internal citation omitted).
123 See infra § Interpreting Kiobel.
124 Kiobel, 569 U.S. at 125 (Kennedy, J., concurring).
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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

125 See id. at 125-26 (Alito, J., concurring).
126 See id. at 126.
127 See id. at 127 (Breyer, J., concurring in judgment).
128 See id. at 129-132.
129 Id. at 133.
130 See id. at 133.
131 Id. at 128.
132 See supra note 111. See also Schnably, supra note 61, at 292 (describing Kiobel as a “much more serious blow”
against the ATS); Roger P. Alford, The Future of Human Rights Litigation After Kiobel, 89 NOTRE DAME L. REV. 1749,
1753 (2014) (stating that Kiobel “signals the end of the Filártiga human rights revolution.”).
133 See, e.g., Chen Gang v. Zhao Zhizhen, No. 3:04CV1146 RNC, 2013 WL 5313411, at *3 (D. Conn. Sept. 20, 2013)
(“Despite plaintiffs’ attempts to distinguish their claims from those in Kiobel, this case is also a paradigmatic ‘foreign[-
]cubed’ case.”); Oona Hathaway, Kiobel Commentary: The Door Remains Open to “Foreign Squared” Cases,
SCTOUSBLOG (Apr. 18, 2013), http://www.scotusblog.com/2013/04/kiobel-commentary-the-door-remains-open-to-
foreign-squared-cases/ (“‘Foreign cubed’ cases—cases in which there is a foreign plaintiff suing a foreign defendant
for acts committed on foreign soil—are off the table.”).
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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

134 For additional discussion of the “touch and concern” requirement, see Note, Clarifying Kiobel’s “Touch and
Concern” Test, 130 HARV. L. REV. 1902, 1902-1911 (2017); Ursula Tracy Doyle, The Evidence of Things Not Seen:
Divining Balancing Factors from Kiobel’s “Touch and Concern” Test, 66 HASTINGS L.J. 443, 455-63 (2015); John B.
Bellinger III, The Alien Tort Statute and the Morrison “Focus” Test: Still Disagreement After RJR Nabisco, LAWFARE
(Feb. 21, 2017), https://www.lawfareblog.com/alien-tort-statute-and-morrison-focus-test-still-disagreement-after-rjr-
nabisco.
135 See, e.g., Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 194-97 (5th Cir. 2017) (holding that, if the
conduct that constitutes a violation of the law of nations “occurred in a foreign country, then the case involves an
impermissible extraterritorial application regardless of any other conduct that occurred” (quoting RJR Nabisco, Inc. v.
European Cmty., 136 S. Ct. 2090, 2101 (2016))), cert. denied, 138 S. Ct. 134 (2017); Licci by Licci v. Lebanese
Canadian Bank, SAL, 834 F.3d 201, 217 (2d Cir. 2016) (“To displace the presumption against extraterritoriality, the
conduct ‘which the court has determined sufficiently touches and concerns the United States’ must also, upon
preliminary examination, state a claim for a violation of the law of nations or aiding and abetting another’s violation of
the law of nations.” (quoting Mastafa v. Chevron Corp., 770 F.3d 170, 186-87 (2d Cir. 2014))), cert. denied, 138 S. Ct.
1691 (2018); Balintulo v. Daimler AG, 727 F.3d 174, 192 (2d Cir. 2013) (holding that no ATS claim could lie when the
defendant’s conduct in the United States did not “giv[e] rise to a violation of customary international law”).
136 See Mujica v. AirScan Inc., 771 F.3d 580, 594 (9th Cir. 2014) (“[A] defendant’s U.S. citizenship or corporate status
is one factor that, in conjunction with other factors, can establish sufficient connection between an ATS claim and the
territory of the United States.”), cert. denied, 136 S. Ct. 690 (2015); Doe v. Drummond Co., 782 F.3d 576, 595-96
(11th Cir. 2015) (describing the U.S. citizenship of defendants and the allegation that the defendants funded an
organization designated by the Department of State as a Foreign Terrorist Organization as relevant to the “touch and
concern” inquiry, but insufficient on their own to displace the presumption against extraterritoriality), cert. denied, 136
S. Ct. 1168 (2016). See also Warfaa v. Ali, 811 F.3d 653, 660 (4th Cir. 2016) (“A plaintiff may rebut the presumption
in certain, narrow circumstances: when extensive United States contacts are present and the alleged conduct bears such
a strong and direct connection to the United States that it falls within Kiobel's limited “touch and concern” language.”),
cert. denied, 137 S. Ct. 2289 (2017); Al Shimari v. CACI Premier Tech., Inc., 758 F.3d 516, 528-29 (4th Cir. 2014)
(permitting ATS claims to go forward that involved American employees of a U.S. corporation, even though the
primary conduct giving rise to a violation of the law of nations—alleged torture at the Abu Ghraib prison facility in
Iraq—occurred outside the territorial jurisdiction of the United States); Jane W. v. Thomas, 354 F. Supp. 3d 630, 639
(E.D. Pa. 2018) (finding jurisdiction under the ATS for claims arising from the first Liberian civil war based, among
other things, on the “Defendant’s residence in the United States”).
137 See infra § Nestlé USA, Inc. v. Doe: Extraterritoriality Revisited.
138 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1394 (2018).
139 In re Arab Bank, PLC Alien Tort Statute Litig., 808 F.3d 144, 149 (2d Cir. 2015) (In re Arab Bank), aff’d, Jesner,
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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

138 S. Ct. at 1408.
140 Id. at 147. The organizations alleged to be responsible are the Islamic Resistance Movement (also known as Harakat
al-Muqāwama al-Islāmiyya, or Hamas), the Palestinian Islamic Jihad, the Al Aqsa Martyrs’ Brigade, and the Popular
Front for the Liberation of Palestine. Id.
141 See id. at 149-51.
142 Linde v. Arab Bank, PLC, 269 F.R.D. 186, 192 (E.D.N.Y. 2010), appeal dismissed, 703 F.3d 92 (2d Cir. 2014),
cert. denied, 134 S. Ct. 2869 (2014).
143 See Almog v. Arab Bank, PLC, No. 04-CV-556 (E.D.N.Y. filed Dec. 21, 2004); Afriat-Kurtzer v. Arab Bank, PLC,
No. 05-CV-0388 (E.D.N.Y. filed Jan. 21, 2005); Jesner v. Arab Bank, PLC, No. 06-CV-3869 (E.D.N.Y. filed Aug. 9,
2006); Lev v. Arab Bank, PLC, No. 08-CV-3251 (E.D.N.Y. filed Aug. 11, 2008); Agurenko v. Arab Bank, PLC, No.
10-CV-0626 (E.D.N.Y. filed Feb. 11, 2010).
144 See In re Arab Bank, 808 F.3d at 147.
145 See id. at 156-58.
146 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1407 (2018) (“[T]he Court holds that foreign corporations may not be
defendants in suits brought under the ATS.”).
147 See id. See also id. at 1410 (Alito, J., concurring) (“Because this case involves a foreign corporation, we have no
need to reach the question whether an alien may sue a United States corporation under the ATS.”); William S. Dodge,
Jesner v. Arab Bank: The Supreme Court Preserves the Possibility of Human Rights Suits Against U.S. Corporations,
JUST SECURITY (Apr. 26, 2018), https://www.justsecurity.org/55404/jesner-v-arab-bank-supreme-court-preserves-
possibility-human-rights-suits-u-s-corporations/ (“So while the Supreme Court dismissed the plaintiffs’ claims against
Arab Bank, the question of corporate liability in suits against U.S. corporations remains to be decided.”).
148 While five Justices in Jesner agreed that the case did not satisfy Sosa step two, the Court did not produce a majority
opinion on whether the case passed Sosa step one. Only two Justices joined the portion of Justice Kennedy’s plurality
opinion analyzing Sosa step one. See Jesner, 138 S. Ct. at 1399-1402 (Kennedy, J., with Roberts, C.J. and Thomas, J.)
(suggesting that the plaintiffs’ claims in Jesner fail under Sosa step one, but stating that there is “at least sufficient
doubt on the point” to instead resolve the case on Sosa’s second step).
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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

149 See Jesner 138. S. Ct. at 1407 (holding that “judicial caution under Sosa” step two weighs against imposing liability
on foreign corporations in ATS suits); Sosa v. Alvarez-Machain, 542 U.S. 692, 738 (2004).
150 See supra § Sosa’s Two-Step Framework.
151 Sosa, 542 U.S. at 728 (“Since many attempts by federal courts to craft remedies for the violation of new norms of
international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with
great caution.”).
152 Sosa, 542 U.S. at 725.
153 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1402 (2018).
154 Id. at 1403.
155 Id. at 1403 (“[T]he separation-of-powers concerns that counsel against courts creating private rights of action apply
with particular force in the context of the ATS.”).
156 Id. at 1402 (quoting Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017)).
157 Id. at 1406-07.
158 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1411 (2018) (quoting Brief for The Hashemite Kingdom of Jordan as
Amicus Curie Supporting Respondent at 5, Jesner, 138 S. Ct. 1386 (No. 12-1485)).
159 Id. at 1407.
160 See id. at 1393.
161 See id.
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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.

162 Id. at 1410 (Alito, J., concurring in part and concurring in the judgment).
163 Id. at 1412 (Gorsuch, J., concurring in part and concurring in the judgment).
164 See id. at 1412-19.
165 See id. at 1408 (Thomas, J., concurring).
166 See id. at 1419 (Sotomayor, J., with Ginsburg, Breyer, & Kagan, JJ., dissenting).
167 Id. at 1428.
168 See id. at 1431-32.
169 See, e.g., Chimène Keitner, ATS, RIP?, LAWFARE (Apr. 25, 2018), https://lawfareblog.com/ats-rip.
170 See, e.g., Beth Stephens, Five Things I Don’t Like About the Jesner Opinion, HUMAN RIGHTS AT HOME BLOG (Apr.
29, 2018), http://lawprofessors.typepad.com/human_rights/2018/04/five-things-i-dont-like-about-the-jesner-
decision.html.
171 See, e.g., Jan Von Hein, The Supreme Court Deals the Death Blow to US Human Rights Litigation, CONFLICT OF
LAWS (Apr. 25, 2018), http://conflictoflaws.net/2018/the-supreme-court-deals-the-death-blow-to-us-human-rights-
litigation/ (“[T]he decision is not necessarily the end of the US human rights litigation. The ATS is still applicable if
the defending corporation has its seat in the territory of the US.”).
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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

172 See Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1935 (2021).
173 See supra note 5 (noting the consolidation of the Nestlé and Cargill cases).
174 See Nestlé USA, Inc., 141 S. Ct. at 1935-36.
175 Id.
176 Id.
177 Doe v. Nestlé, S.A., 906 F.3d 1120, 1123 (9th Cir. 2018) (“Indeed, the gravamen of the complaint is that defendants
depended on—and orchestrated—a slave-based supply chain.”), opinion amended and superseded on denial of reh'g,
929 F.3d 623 (9th Cir. 2019), rev’d and remanded sub nom. Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931 (2021).
178 See supra § Extraterritoriality and the ATS: Kiobel v. Royal Dutch Petroleum.
179 Doe, 906 F.3d at 1126.
180 Id.
181 Id.
182 Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1937 (2021).
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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

183 Id.
184 Id.
185 See id. at 1936 (citing RJR Nabisco, Inc. v. European Community, 579 U.S. 325 (2016)).
186 See id.
187 See Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 124 (2013).
188 See Nestlé USA, Inc. v. Doe, 141 S. Ct. 1931, 1936 (2021) (emphasis added) (quoting RJR Nabisco, Inc., 579 U.S.
at 337).
189 For discussion of the “touch and concern” test, see supra § The Kiobel Majority.
190 Compare, e.g., Doe I v. Nestle USA, Inc., 766 F.3d 1013, 1028 (9th Cir. 2014) (“[Kiobel] . . . chose to use the
phrase ‘touch and concern’ rather than the term ‘focus’ when articulating the legal standard it did adopt.”), reh’g en
banc denied, 786 F.3d 801 (2015), cert. denied, 136 S. Ct. 798 (2016); and Al Shimari v. CACI Premier Tech., Inc.,
758 F.3d 516, 527 (4th Cir. 2014) (interpreting Kiobel’s “touch and concern” test to address the underlying “claims”
rather than the “focus” of the ATS); with Adhikari v. Kellogg Brown & Root, Inc., 845 F.3d 184, 195 (5th Cir. 2017)
(applying the “focus” analysis in an ATS case), cert. denied, 138 S. Ct. 134 (2017); and Mastafa v. Chevron Corp., 770
F.3d 170, 184 (2d Cir. 2014) (“[O]ur inquiry here involves an evaluation of the ‘territorial event[s]’ or ‘relationship[s]’
that were the ‘focus’ of the ATS.” (quoting Morrison v. National Australia Bank Ltd., 561 U.S. 247, 266 (2010))).
191 See Nestlé USA, Inc., 141 S. Ct. at 1936 (“[W]here the statute, as here, does not apply extraterritorially, plaintiffs
must establish that ‘the conduct relevant to the statute’s focus occurred in the United States.’” (quoting RJR Nabisco,
Inc., 579 U.S. at 337)).
192 See id.
193 See id.
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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

194 Id. at 1937.
195 See id. at 1937-40 (Thomas, J., plurality op.).
196 See Sosa v. Alvarez-Machain, 542 U.S. 692, 724 (2014). For discussion of safe conducts, see supra note 100.
197 Sosa, 542 U.S. at 729.
198 See id. at 725, 738. See also § Sosa’s Two-Step Framework.
199 See Nestlé USA, Inc., 141 S. Ct. at 1937 (Thomas, J., plurality op.).
200 See id. at 1940 (“Under existing precedent, then, courts in some circumstances might still apply Sosa to recognize
causes of action for the three historical torts likely on the mind of the First Congress. But as to other torts . . . courts
may not create a cause of action for those torts.”).
201 See id. at 1941 (Gorsuch, J., concurring) (“The notion that corporations are immune from suit under the ATS cannot
be reconciled with the statutory text and original understanding.”).
202 See id. at 1942-43.
203 See id. at 1944 (Sotomayor, J., concurring in part and concurring in the judgment).
204 See id. at 1947 (“Courts must, based on their interpretation of international law, identify those norms that are so
specific, universal, and obligatory that they give rise to a ‘tort’ for which Congress expects federal courts to entertain
‘causes’—or, in modern parlance, ‘civil action[s],’ 28 U.S.C. § 1350—for redress.”).
205 See id. at 1950.
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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.

206 See id. at 1950-51 (Alito, J., dissenting).
207 See supra notes 189-191.
208 See supra § The Nestlé Holding.
209 See, e.g., William S. Dodge, The Surprisingly Broad Implications of Nestlé USA, Inc. v. Doe for Human Rights
Litigation and Extraterritoriality, JUST SEC. (June 18, 2021), https://www.justsecurity.org/77012/the-surprisingly-
broad-implications-of-nestle-usa-inc-v-doe-for-human-rights-litigation-and-extraterritoriality/; John Bellinger, In Spate
of New ATS Decisions, Courts are Divided About Meaning of Kiobel’s “Touch and Concern” Standard, LAWFARE
(Sep. 28, 2014).
210 See, e.g., Dodge, supra note 209 (“Nestlé . . . mark[s] the end of the Filartiga line of ATS cases against individual
defendants whose relevant conduct occurs outside the United States.”); Lauren A. Hopkins, et al., Supreme Court
Rejects Human Rights Lawsuit Against U.S. Corporations, But Leaves Door Open for Future Claims, NAT’L L. REV.
(July 1, 2021), https://www.natlawreview.com/article/supreme-court-rejects-human-rights-lawsuit-against-us-
corporations-leaves-door-open (“Although U.S. corporations are subject to ATS liability in theory, the scope of the
ATS has been curtailed.”); Beth Van Schaak, Nestlé & Cargill v. Doe: What’s Not in the Supreme Court’s Opinions,
JUST SEC. (June 30, 2021), https://www.justsecurity.org/77120/nestle-cargill-v-doe-whats-not-in-the-supreme-courts-
opinions/ (“All told, this is clearly a defeat for these particular plaintiffs and for other plaintiffs who suffer
extraterritorial harm from conduct with no discernable U.S. nexus.”).
211 See Nestlé USA, Inc., 141 S. Ct. at 1940 (Gorsuch, J. with Alito, J., concurring) (“The notion that corporations are
immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.”); id. at 1948
n.4 (Sotomayor, J. with Breyer & Kagan, JJ., concurring in part and concurring in the judgment) (“[T]here is no reason
to insulate domestic corporations from liability for law-of-nations violations simply because they are legal rather than
natural persons.”). See also id. at 1950 (Alito, J., dissenting) (“Corporate status does not justify special immunity.”).
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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

212 See supra § Plurality, Concurring, and Dissenting Opinions in Nestlé.
213 See supra notes 199-200, 202.
214 See supra notes 203-205.
215 See supra § The Rebirth of the ATS: Filártiga v. Peña-Irala.
216 See supra §§ The Jesner Decision; The Kiobel Majority; The Sosa Holding.
217 See supra §§ The Supreme Court Addresses the Cause-of-Action Question: Sosa v. Alvarez-Machain;
Extraterritoriality and the ATS: Kiobel v. Royal Dutch Petroleum; Jesner v. Arab Bank, PLC: Barring Foreign
Corporate Liability; Nestlé USA, Inc. v. Doe: Extraterritoriality Revisited.
218 See e.g., Schnably, supra note 61, at 293 (“[T]he near-demise of the ATS and the explosive growth in anti-terrorism
legislation reflect the predominance today of a more nationalistic vision, in which the protection of U.S. nationals and
U.S. territory, and the effectiveness of U.S. foreign policy, determine the role of federal courts in human rights
litigation.”).
219 See Keitner, supra note 169 (“U.S. corporate liability technically remains untouched . . . . Claims against individual
human rights violators also remain untouched . . . .”); Hopkins, et al., supra note 210 (stating that Nestlé will still allow
some cases against corporate defendants “in theory,” but that it is not clear what types of cases); Dodge, supra note 209
(“Nestlé . . . appears to limit the ATS cause of action to claims against U.S. corporations based on conduct in the
United States that goes beyond making decisions about how to conduct operations abroad. There may be cases that fit
that description, but they are likely to be few and far between.”).
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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

Author Information

Stephen P. Mulligan

Legislative Attorney

220 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1403, 1406 (2018).
221 The ATS has been mentioned occasionally during congressional hearings primarily focused on other subjects. E.g.,
Judicial Reliance on Foreign Law: Hearing Before the H. Comm. on the Judiciary, Subcomm. on the Constitution, 112
Cong. 12 (2011) (testimony of Andrew M. Grossman, Visiting Legal Fellow, The Heritage Foundation) (discussing the
ATS as an example of a statute that requires U.S. courts to interpret and apply international law); Nomination of Harold
H. Koh to be Legal Advisor to the Department of State: Hearing Before the S. Comm. on Foreign Relations, 111 Cong.
33, 40, 52 (2009) (written questions and responses concerning changing presidential administrations’ interpretation on
the ATS); Are Foreign Libel Lawsuits Chilling Americans’ First Amendment Rights?: Hearing Before the S. Comm. on
the Judiciary, 111 Cong. 116 (2010) (statement of Sen. Arlen Specter) (comparing the scope of personal jurisdiction
available under the ATS with the Free Speech Protection Act of 2009, S. 449, 111th Cong. (2010)); Military
Commissions in Light of the Supreme Court Decision in Hamdan v. Rumseld: Hearing Before the S. Comm. on Armed
Services, 109th Cong. 284-85 (2006) (written responses of Elisa C. Massimino, Director, Human Rights First)
(discussing judicial interpretations of Common Article 3 of the Geneva Conventions in ATS litigation).
222 S. 1874, 109th Cong. § 2 (2005). The bill would have made torture, extrajudicial killing, genocide, piracy, slavery,
or slave trading actionable under the ATS. See id.
223 See, e.g., Alicia Pitts, Comment, Avoiding the Alien Tort Statute: A Call for Uniformity in State Court Human
Rights Litigation, 71 SMU L. REV. 1209, 1222-23 (2018).
224 See, e.g., Van Schaak, supra note 210.
225 See, e.g., Ziad Haider, Corporate Liability for Human Rights Abuses: Analyzing Kiobel & Alternatives to the Alien
Tort Statute, 43 GEO. J. INT’L L. 1361, 1383 (2012); Gary Clyde Hufbauer, Why Shouldn't Corporations Be Liable
Under the ATS?, 43 GEO. J. INT’L L. 1009, 1011-12 (2012).
226 See Hathaway, Ewell, & Noble, supra note 47, at 66-70.
227 See, e.g., Hopkins, et al., supra note 210; Hathaway, Ewell, & Noble, supra note 47, at 71-75.
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The Alien Tort Statute: A Primer

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