The Implications of the Kiobel v. Royal Dutch Petroleum Case for the Exercise of Extraterritorial Jurisdiction

Abstract

In the last few decades the Alien Tort Statute has proven a useful tool in the struggle to impose legal obligations on transnational corporations conducting their activities in developing countries. However, its usefulness has recently been significantly reduced, as its application to conduct occurring outside of the United States has been seriously challenged by the Supreme Court decision in the Kiobel case. This decision was founded on the basis of the presumption against extraterritoriality; a U.S. law provision which entails that domestic legislation does not normally apply outside of the United States' territory. This article argues that the principles of international law, rather than the presumption against extraterritoriality, would have constituted better guidance for assessing the legitimacy of the exercise of extraterritorial jurisdiction. It contends that based on these principles, the exercise of extraterritorial civil jurisdiction is legitimate when the alleged perpetrator is an American national. In addition, even where both parties are foreign, universal civil jurisdiction can be legitimately exercised when the alleged perpetrator is present on U.S. territory, provided it is limited to the same category of particularly heinous crimes of universal concern as those giving rise to universal criminal jurisdiction.