After Kiobel: An 'Essential Step' to Displacing the Presumption Against Extraterritoriality

INTRODUCTION IN Kiobel v. Royal Dutch Petroleum Co., Nigerian nationals sued Dutch and British corporations under the Alien Tort Statute (ATS) for violating the law of nations, alleging that the corporations aided and abetted Nigerian military and police forces in, among other things, murdering, raping, and beating members of certain Nigerian villages. 1 The United States Supreme Court framed the issue as whether the ATS applied to claims made up of conduct occurring entirely outside the territory of the United States. 2 In reaching its decision, the Court held that the presumption against the extraterritorial application of U.S. laws (the presumption) applied to claims arising under the ATS and nothing in the statute rebutted that presumption. 3 Therefore, it affirmed the dismissal of the claim. 4 Before concluding its opinion, however, the Supreme Court included dictum addressing potential future ATS claims under different circumstances. 5 It explained that "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" 6 (the displacement standard). The holding in Kiobel severely undermined the ATS's role as the predominate vehicle for litigating international human rights abuses in U.S. courts. 7 It reversed a thirty-three-year history of courts applying the ATS to extraterritorial law-of-nations violations involving entirely foreign conduct and foreign parties. 8 Nevertheless, there remains a distinct - yet wholly undetermined - possibility that certain victims of international human rights abuses may still be able to use ...