Doe v. Exxon Mobil Corp.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 25, 2011 Decided July 8, 2011

No. 09-7125

JOHN DOE VIII, ET AL.,
APPELLANTS

v.

EXXON MOBIL CORPORATION, ET AL.,
APPELLEES

Consolidated with 09-7127, 09-7134, 09-7135

Appeals from the United States District Court
for the District of Columbia
(No. 1:07-cv-01022)
(No. 1:01-cv-01357)

Agnieszka Fryszman argued the cause for appellants on
State Claims. Paul Hoffman argued the cause for appellants on
Federal Claims. With them on the briefs were Kathleen M.
Konopka, Maureen E. McOwen, Terrence P. Collingsworth, and
Piper M. Hendricks. Charles J. Ogletree Jr. and Joseph M.
Sellers entered appearances.

Marco B. Simons was on the brief for amicus curiae
EarthRights International (ERI) in support of appellants.
 2

Jennifer M. Green was on the brief for amici curiae
University of Minnesota Law School, et al. in support of
appellants.

William J. Aceves was on the brief for amici curiae
International Law Scholars in support of appellants.

Muneer I. Ahmad was on the brief for amici curiae Arthur
Miller, Erwin Chemerinsky, and Professors of Federal
Jurisdiction and Legal History in support of appellants.

Sri Srinivasan argued the cause for appellees/cross-
appellants. With him on the brief were Walter Dellinger, Anton
Metlitsky, Theodore V. Wells Jr., Alex Young K. Oh, Nikhil
Singhvi, Martin J. Weinstein, and Patrick J. Conlon.

Robin S. Conrad, Alan E. Untereiner, and Mark T. Stancil
were on the brief for amicus curiae The Chamber of Commerce
of the United States of America in support of appellees.

Jeffrey A. Lamken and Robert K. Kry were on the brief for
amici curiae National Foreign Trade Council, Inc. et al. in
support of appellees.

Daniel J. Popeo and Richard A. Samp were on the brief for
amici curiae Washington Legal Foundation, et al. in support of
appellees.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS.

Opinion dissenting in part by Circuit Judge KAVANAUGH.
 3

ROGERS, Circuit Judge: Pursuant to a contract with the
Indonesian government, Exxon Mobil Corporation, a United
States corporation, and several of its wholly owned subsidiaries
(hereinafter “Exxon”) operated a large natural gas extraction and
processing facility in the Aceh province of Indonesia in
2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers
from the Aceh territory. Eleven villagers filed a complaint in
2001 alleging that Exxon’s security forces committed murder,
torture, sexual assault, battery, and false imprisonment in
violation of the Alien Tort Statute (“ATS”) and the Torture
Victim Protection Act (“TVPA”), and various common law
torts. (The Doe I complaint.) Four other Aceh villagers alleged
in 2007 that Exxon committed various common law torts. (The
Doe VIII complaint.) All plaintiffs-appellants allege that Exxon
took actions both in the United States and at its facility in the
Aceh province that resulted in their injuries. The district court
dismissed the statutory claims, see Doe I v. Exxon Mobil Corp.,
393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on
the tort claims.1 Those claims, however, were subsequently
dismissed for lack of prudential standing. See Doe VIII v. Exxon
Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs-
appellants challenge the dismissals of their complaints and
Exxon filed a cross-appeal, inter alia raising for the first time
that as a corporation it was immune from liability under the
ATS.2

1
In an interlocutory appeal filed in 2005, this court held that
it lacked jurisdiction to address Exxon’s contention that the complaint
should be dismissed pursuant to the political question doctrine and that
Exxon had failed to meet the standard for issuance of a writ of
mandamus. See Doe I v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.
2007).
2
For purposes of these appeals it is unnecessary to
distinguish between the two complaints. Plaintiffs-appellants appeal
the dismissal of the statutory claims in 2005 by Judge Oberdorfer and
 4

For the reasons that follow, we conclude that aiding and
abetting liability is well established under the ATS. We further
conclude under our precedent that this court should address
Exxon’s contention on appeal of corporate immunity and,
contrary to its view and that of the Second Circuit, we join the
Eleventh Circuit in holding that neither the text, history, nor
purpose of the ATS supports corporate immunity for torts based
on heinous conduct allegedly committed by its agents in
violation of the law of nations. We affirm the dismissal of the
TVPA claims in view of recent precedent of this court. We
conclude, however, that Exxon’s objections to justiciability are
unpersuasive and that the district court erred in ruling that
appellants lack prudential standing to bring their non-federal tort
claims and in the choice of law determination. Finally, we
conclude that Exxon’s challenge to the diversity of parties in the
Doe VIII complaint is to be resolved initially by the district
court. Therefore, we affirm the dismissal of plaintiffs-
appellants’ TVPA claims, reverse the dismissal of the ATS
claims at issue in this appeal, along with plaintiffs-appellants’
non-federal tort claims, and remand the cases to the district
court.

I.

Accepting the allegations of the complaints as true, and
construing the complaints in favor of plaintiffs-appellants, as we
must, see Warth v. Seldin, 422 U.S. 490, 501 (1975), the
plaintiffs claim that Exxon’s security forces were comprised of
members of the Indonesian military and that Exxon and its
subsidiaries, which were incorporated at the time of the filing of
the first complaint in New Jersey and Delaware, Doe I Compl.
¶¶ 17, 20, 23, retained these soldiers as guards for its natural

the dismissal of the common law torts in 2009 on prudential standing
grounds by Chief Judge Lamberth.
 5

gas facility even though Exxon was aware that the Indonesian
army had committed human rights abuses in the past, id. ¶¶
39–47; Doe I Am. Compl. ¶¶ 55–66; Doe VIII Compl. ¶¶ 39–59,
and knew that performance of the security contract would lead
to human rights violations by Indonesian soldiers against the
residents of Aceh. Doe I Compl. ¶¶ 64, 71; Doe I Am. Compl.
¶¶ 60, 66, 125; Doe VIII Compl. ¶¶ 51–53, 79. The human
rights abuses alleged included genocide, extrajudicial killing,
torture, crimes against humanity, sexual violence, and
kidnaping. Doe I Compl. ¶ 64. In addition to extrajudicial
killings of some of the plaintiffs-appellants’ husbands as part of
a “systematic campaign of extermination of the people of Aceh
by [d]efendants’ [Indonesian] security forces,” id. ¶ 65, the
plaintiffs-appellants were “beaten, burned, shocked with cattle
prods, kicked and subjected to other forms of brutality and
cruelty” amounting to torture, id. ¶ 66, as well as forcibly
removed and detained for lengthy periods of time, id. ¶ 67.
Plaintiffs-appellants claim that Exxon or its agents, by decisions
made in the United States, id. ¶¶ 30, 32–33, and at its Aceh
plant, id. ¶¶ 55–57, “committed acts that had the intent and the
effect of grossly humiliating and debasing” either them or their
deceased husbands by “forcing them to act against their will and
conscience, inciting fear and anguish, and breaking their
physical and/or moral resistance” by actions that constitute
“inhuman or degrading treatment in violation of the law of
nations.” Id. ¶ 68.

According to the complaints, these actions of the Indonesian
military could be attributed to Exxon because they were
committed by a unit dedicated only to Exxon’s Aceh facility and
Exxon had the authority “to control and direct[]” the soldiers’
actions. Id. ¶ 40. Plaintiffs-appellants claim Exxon was aware
of the atrocities committed by the Indonesian military in Aceh,
as confirmed by public reports including reports of atrocities
committed by Exxon’s dedicated unit, and that Exxon
 6

nonetheless provided logistical and material support to the
military by hiring mercenaries to provide advice, training,
intelligence, and equipment to the unit while Exxon profited
from the operation of its Aceh facility. Id. ¶¶ 39–41, 46. By
acting together with Indonesian security forces, the plaintiffs-
appellants claim that Exxon acted under color of Indonesian law.
Id.

On October 1, 2001, Exxon moved to dismiss the
complaint, and after a hearing on the motion the district court
requested the Office of Legal Adviser of the Department of State
to inform the court whether the Department deemed adjudication
of the case to affect adversely the interests of the United States.
On July 29, 2002, the Office of Legal Adviser filed a statement
of interest and attached a statement of the Indonesian
Ambassador to the United States. Thereafter, the district court
dismissed the statutory claims. It ruled that aiding and abetting
was not actionable under the ATS, Doe I, 393 F. Supp. 2d at 24,
that “sexual violence” is not sufficiently recognized as a
violation of the law of nations to be actionable under the ATS,
and that Exxon could not be liable for genocide and crimes
against humanity because adjudication of such claims would “be
an impermissible intrusion in Indonesia’s internal affairs.” Id.
at 25. Although concluding that “resolving claims of complicity
in arbitrary detention, torture, and extrajudicial killing pose[d]
less of a threat of infringing Indonesia’s sovereignty,” id., the
district court ruled that the plaintiffs could not assert such claims
against Exxon because color-of-law jurisprudence developed in
lawsuits under 42 U.S.C. § 1983 was inapplicable in view of
Sosa v. Alvarez-Machain, 542 U.S. 692 (2004). Doe I, 393 F.
Supp. 2d at 25–26. The district court also ruled that joint action
with the Indonesian military was not sufficiently alleged, but
even if it were the required inquiry would raise justiciability
concerns, and to the extent state action could be alleged under
a proximate cause theory, that theory was not sufficiently
 7

alleged in the complaint. Id. at 26–27. The district court
declined to hold, as Exxon urged, that the ATS claims must be
dismissed due to plaintiffs-appellants’ failure to exhaust
remedies in Indonesia because it was apparent that such efforts
would be futile. Id. at 24–25.

On appeal, plaintiffs-appellants challenge the dismissal of
their ATS and TVPA claims based on prohibitions of
extrajudicial killing, torture, and prolonged arbitrary detention,
but do not appeal the dismissal of their claims of genocide,
crimes against humanity, or sexual violence. They contend, and
Exxon does not dispute, that extrajudicial killing, torture, and
prolonged arbitrary detention are clearly established norms of
international law.3 They also contend, but Exxon disputes, that
the district court erred in ruling that aiding and abetting liability
is unavailable under the ATS, in view of subsequent case law in
the circuit courts of appeals, and in ruling that color-of-law
jurisprudence may not be applied in ATS cases. Responding to
Exxon’s new contention on appeal that it is entitled to corporate
immunity because customary international law does not
recognize corporate liability for human rights violations,
appellants contend that Exxon has conflated Sosa’s analysis for
norms in a manner that is inconsistent with a well-established
distinction in international law, and alternatively it has
inaccurately recounted customary international law. Appellants
maintain that corporations may be liable directly and also for
aiding and abetting under the ATS and the TVPA.

Finally, appellants challenge the dismissal of their non-
federal tort claims, contending that history demonstrates that

3
This relieves the court from the task, in which our dissenting
colleague unnecessarily engages, see Dis. Op. at 4 n.2, of identifying
the universe of international norms capable of giving rise to causes of
action in ATS lawsuits. See Oral Arg. Tr. at 64:9–12.
 8

there is no per se bar on non-resident alien standing and that
they meet the traditional zone-of-interests test for prudential
standing. Exxon maintains that appellants cannot meet the zone-
of-interests test because the alleged torts occurred on foreign
soil and that any state law claims would be subject to foreign
affairs preemption, and even if those claims survive, Indonesian
law ought to apply. Exxon also raises three justiciability
objections: the complaint should be dismissed in deference to
the foreign policy views of the Executive Branch; the claims
interfere with a peace agreement supported by the United States;
and the claims threaten international comity with Indonesia.
Exxon further maintains the Doe VIII complaint must be
dismissed for lack of diversity jurisdiction.

In Part II, we address aiding and abetting liability under the
ATS, concluding that it is well established. In Part III, we
examine Exxon’s claim of corporate immunity, concluding that
corporations can be held liable under the ATS. In Part IV, we
affirm the dismissal of appellants’ claims under the TVPA in
view of precedent issued by this court after oral argument in
these cases. In Part V, we consider Exxon’s contentions that the
complaints should be dismissed on justiciability grounds and
find them unpersuasive. In Part VI, we resolve appellants’
challenge to the dismissal of their common law claims for lack
of prudential standing, concluding that they have such standing;
we agree, however, with Exxon that the district court erred in its
choice of law determination and that Indonesian law applies
under the District of Columbia choice of law rule to appellants’
non-federal tort claims. In Part VII, we remand to the district
court questions raised by Exxon with regard to the existence of
diversity jurisdiction in Doe VIII.

We conclude that none of the four reasons offered by our
dissenting colleague for reaching a different conclusion about
the reach of the ATS withstand analysis. The dissent’s first
 9

objection relates to extraterritoriality when that issue is not
presented and, as the historical context makes clear, the ATS
reaches harm occurring outside of the United States. The
dissent’s objection to corporate liability is based on a
misstatement of the definition of customary international law
and of Supreme Court precedent, and disregards both a
fundamental distinction between causes of action based on
conduct that violates the law of nations or treaties and the
remedy under domestic law, and a source of international law.
The dissent’s third objection that the TVPA precludes the
court’s conclusions regarding the ATS is contrary to the
Supreme Court’s conclusion about the effect of the TVPA on the
ATS and inappropriately addresses an argument forfeited by
Exxon. Finally, the dissent’s justiciability objection selectively
characterizes not only the complaints but also the State
Department’s expression of interest in this litigation.

II.

The ATS stood largely dormant for nearly two centuries
after its enactment in 1789. Two district courts invoked
jurisdiction under the ATS. See Adra v. Clift, 195 F. Supp. 857
(D. Md. 1961)); Bolchos v. Darrel, 3 F. Cas. 810 (D.S.C. 1795)
(No. 1,607). The first appellate court to uphold a claim under
the ATS did so in 1980 when the Second Circuit held in
Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), that
deliberate torture perpetrated under color of official authority
violated universally accepted norms of international law on
human rights and that the ATS provided federal jurisdiction
over a claim by a resident alien against a Paraguayan official for
the death of his son in Paraguay. The Supreme Court in Sosa
described Filartiga as “the birth of the modern line of [ATS]
cases.” 542 U.S. at 724–25. Even after Filartiga, however,
courts and commentators continued to disagree as to the proper
interpretation of the ATS, resulting in the exchange between
 10

Judge Edwards and Judge Bork in Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774 (D.C. Cir. 1984). The Supreme Court
in Sosa settled this disagreement, adopting an approach
consistent with both Filartiga and Judge Edwards’ separate
opinion in Tel-Oren.

The issue in Sosa was whether a Mexican citizen (Alvarez-
Machain) could bring a claim under the ATS against Mexican
nationals hired by the U.S. Drug Enforcement Administration
(“DEA”) for an alleged violation of the law of nations arising
from his “arbitrary arrest.” DEA agents had obtained an arrest
warrant from a U.S. district court and hired Mexican nationals
(including Sosa) to abduct Alvarez-Machain and bring him to
the United States to be arrested. 542 U.S. at 698. The Supreme
Court, although concluding the ATS was “intended as
jurisdictional,” id. at 714, and “creat[ed] no new causes of
action,” id. at 724, held that “[t]he jurisdictional grant is best
read as having been enacted on the understanding that the
common law would provide a cause of action for the modest
number of international law violations with a potential for
personal liability at the time,” id. Further, the Court concluded
that “Congress has not in any relevant way amended § 1350 or
limited civil common law power by another statute.” Id. at 725.
The Court went on to observe, as we discuss in Part V, that
“there are good reasons for a restrained conception of the
discretion a federal court should exercise in considering a new
cause of action of this kind.” Id.

Upon considering the history and purpose of the ATS, the
Supreme Court instructed that “courts should require any claim
based on the present-day law of nations to rest on a norm of
international character accepted by the civilized world and
defined with a specificity comparable to the features of the
18th-century paradigms we have recognized,” id., referencing
violation of safe conducts, infringement of the rights of
 11

ambassadors, and piracy, id. at 724. The Court recognized that
“a judge deciding in reliance on an international norm will find
a substantial element of discretionary judgment in the decision,”
id. at 726, but admonished that “federal courts should not
recognize private claims under federal common law for
violations of any international law norm with less definite
content and acceptance among civilized nations than the
historical paradigms familiar when § 1350 was enacted,” id. at
732. Appellants’ aiding and abetting contention meets this test.

In dismissing appellants’ statutory claims, the district court
relied principally on In re South African Apartheid Litigation,
346 F. Supp. 2d 538, 549–51 (S.D.N.Y. 2004), which held that
private actors who did not engage in state action committed no
violation remediable under the ATS. That authority was
overruled in Khulumani v. Barclay National Bank Ltd., 504 F.3d
254 (2d Cir. 2007), aff’d for lack of en banc quorum sub nom.
Am. Isuzu Motors, Inc. v. Ntsebeza, 553 U.S. 1028 (2008); see
also Presbyterian Church of Sudan v. Talisman Energy, Inc.,
582 F.3d 244, 256 (2d Cir. 2009), cert. denied, 131 S. Ct. 79
(2010). The district court also ruled that there was no liability
for aiding and abetting under the ATS, applying the rule of
statutory construction in Central Bank of Denver v. First
Interstate Bank of Denver, 511 U.S. 164, 181–82 (1994),
superseded in part by statute, 15 U.S.C. § 78t(e), that there is no
general presumption in favor of aiding and abetting liability.
Doe I, 393 F. Supp. 2d at 24.

Appellants persuasively contend that aiding and abetting
liability exists under the ATS. Virtually every court to address
the issue, before and after Sosa, has so held, recognizing
secondary liability for violations of international law since the
founding of the Republic. Appellants cite as examples Talbot
v. Jansen, 3 U.S. (3 Dall.) 133, 167–68 (1795) (Iredell, J.), The
Amiable Nancy, 1 F. Cas. 765, 768 (C.C.D.N.Y. 1817) (No.
 12

331), and Henfield’s Case, 11 F. Cas. 1099 (C.C.D. Pa. 1793)
(No. 6,360). Further, they note that aiding and abetting liability
was a common feature of Founding-era statutes addressing
international law offenses, see Crimes Act of 1790, ch. 9, § 10,
1 Stat. 112, 114 (1790) (deeming “an accessary [sic] to . . .
piracies” anyone who “knowingly and willingly aided” piracy).
Exxon maintains, however, that there is no aiding and abetting
liability under the ATS because of the presumption against
extraterritorial application established at the time of the ATS’s
enactment, and the Supreme Court’s instruction in Central
Bank, 511 U.S. at 181–82, that although “aiding and abetting is
an ancient criminal law doctrine,” id. at 181, “when Congress
enacts a statute under which a person may sue and recover
damages from a private defendant for the defendant’s violation
of some statutory norm, there is no general presumption that the
plaintiff may also sue aiders and abettors,” id. at 182. For the
following reasons, we hold that there is no extraterritoriality bar
as Exxon suggests, that the principle of aiding and abetting
liability is well established in customary international law, and
that the mens rea and actus reus requirements are those set out
by the Nuremberg Tribunals and the international courts created
by the United Nations, which reflect the standard under federal
common law.

A.
The issue of extraterritoriality, although briefed,4 was not
decided in Sosa, and it has yet to be decided by a circuit court
of appeals. One judge of this court discussed the issue in Tel-
Oren, looking to the then-tentative draft Restatement of the
Foreign Relations Law of the United States, 726 F.2d at 781 n.7,
788 (Edwards, J., concurring), which in its final version states

4
Brief for the United States as Respondent Supporting
Petitioner 47–50, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) (No.
03-339), 2004 WL 182581.
 13

that a nation has universal jurisdiction to define and prescribe
punishment for certain egregious crimes regardless of any
territorial considerations, RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 404, and otherwise
a nation may prescribe law as to conduct occurring or having an
effect in its territory and “the activities, interests, status, or
relations of its nationals outside as well as within its territory,”
id. § 402(1)–(2); see also Sosa, 542 U.S. at 761 (Breyer, J.,
concurring) (citing RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 401(1)–(2)). The
two other judges in Tel-Oren and our recent decision in Ali
Shafi v. Palestinian Authority, ___ F.3d ___. 2011 WL 2315028
(D.C. Cir. June 14, 2011), relied on other grounds for
dismissing the ATS claims, notwithstanding that both involved
claims of harms occurring outside of the United States, as did
the claims in Sosa and Filartiga.

The Supreme Court, however, recently reaffirmed the
“presumption against extraterritoriality” in Morrison v. National
Australia Bank Ltd., 130 S. Ct. 2869 (2010), holding that
“[r]ather than guess anew in each case, we apply the
presumption in all cases, preserving a stable background against
which Congress can legislate with predictable effects.” Id. at
2881. “This principle represents a canon of construction, or a
presumption about a statute’s meaning.” Id. at 2877. “When a
statute gives no clear indication of an extraterritorial
application, it has none.” Id. at 2878.

The ATS provides in full:

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.
 14

28 U.S.C. § 1350. The ATS was enacted as part of the Judiciary
Act of 1789, ch. 20, § 9, 1 Stat. 73, 77 (1789), and its content
has not been materially amended since its enactment.5 Its terms
are “jurisdictional,” the Supreme Court held in Sosa,
“enabl[ing] federal courts to hear claims in a very limited
category defined by the law of nations and recognized at
common law.” 542 U.S. at 712. At the time of enactment of
the ATS, the Court observed, “torts in violation of the law of
nations were understood to be within the common law.” Id.
And although the Supreme Court has fundamentally altered the
breadth and understanding of federal common law since the
ATS’s enactment, see id. at 729 (citing Erie R.R. Co. v.
Tompkins, 304 U.S. 604 (1938)), the Court noted in Sosa that in

5
The ATS has been amended three times. In 1874, as part of
the first official codification of the Acts of Congress when the grants
of jurisdiction were listed, the ATS was amended to read: “The district
courts shall have jurisdiction . . . [o]f 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.” Rev. Stat. § 563 (1st ed. 1875). In the 1911
codification of the Judiciary Act, a comma was added after the phrase
“tort only” and a comma was removed after the phrase “law of
nations”; neither change appears to have had any practical effect. Act
of Mar. 3, 1911, ch. 231, § 24, 36 Stat. 1087, 1093 (1911). In the
1948 revision of the Judicial Code, the term “civil action” was
substituted for “suits” to conform with Rule 2 of the Federal Rules of
Civil Procedure, which provided that “there shall be one form of
action to be known as a ‘civil action.’” Act of June 25, 1948, ch. 646,
§ 1350, 62 Stat. 869, 934 (1948) (codified at 28 U.S.C. § 1350). The
word “committed” was added, but no party has cited a case or
scholarly work suggesting the addition has any significance or that
Congress had any particular intent in adding it. See Tel-Oren, 726
F.2d at 779 n.3 (Edwards, J., concurring). Also in the 1948 Act, the
term “any alien” reverted to “an alien,” consistent with the original
1789 language, and the word “original” was inserted before
“jurisdiction.” 62 Stat. at 934.
 15

certain areas federal common law will prevail either because of
express congressional authorization to devise a body of law, see
id. at 726 (citing Textile Workers v. Lincoln Mills of Ala., 353
U.S. 448 (1957)), or by way of judicial decision “to create
federal common law rules in interstitial areas of particular
federal interest,” id. (citing United States v. Kimbell Foods, Inc.,
440 U.S. 715, 726–27 (1979)). The Court concluded that the
ATS was enacted on the basis of a “congressional assumption”
that courts would develop common law claims “derived from
the law of nations,” thus ensuring that any common lawmaking
authority as to actionable conduct would, at least, be cabined by
the law of nations. Id. at 731 n.19.

Citing Morrison, Exxon contends that a “strong
presumption . . . against extending [federal statutes] to
encompass conduct in foreign territory” militates against
recognizing a common law aiding and abetting claim based on
human rights violations committed in a foreign country.
Appellees’ Br. 37. Exxon posits a novel form of the canon, for
it appears beyond debate that piracy is contemplated by the
ATS, see Sosa, 542 U.S. at 719; Tel-Oren, 726 F.2d at 779
(Edwards, J., concurring) (citing 4 BLACKSTONE’S
COMMENTARIES *67); id. at 813–14 (Bork, J., concurring), and
piracy can occur outside of the territorial bounds of the United
States, see generally United States v. Hasan, 747 F. Supp. 2d
599 (E.D. Va. 2010), and, the Supreme Court has held, also
within the territorial waters of another nation, see United States
v. Furlong, 18 U.S. (5 Wheat.) 184, 200–01 (1820). Morrison
and other Supreme Court cases hold, in contrast to Exxon’s
canon, “that legislation of Congress, unless a contrary intent
appears, is meant to apply only within the territorial jurisdiction
of the United States.” 130 S. Ct. at 2877 (quoting EEOC v.
Arabian Am. Oil Co. (“ARAMCO”), 499 U.S. 244, 248 (1991));
see also Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949);
Blackmer v. United States, 284 U.S. 421, 437 (1932); United
 16

States v. Bowman, 260 U.S. 94, 98–99 (1922). It is at least
arguable that none of the modern cases cited by Exxon (and our
dissenting colleague, Dis. Op. at 7–10) interpret statutes having
obvious extraterritorial reach, as the dissent concedes is true of
the ATS, see Dis. Op. at 14–15.

“This principle [of a presumption against extraterritorial
reach of a statute] represents a canon of construction . . . rather
than a limit upon Congress’s power to legislate.” Morrison, 130
S. Ct. at 2877. Exxon’s characterization of the presumption
against extraterritoriality is incomplete at best, stating the
presumption is “against extending [federal statutes] to
encompass conduct in foreign territory.” Appellees’ Br. 37.
Exxon has cited no authority supporting the existence of a
presumption that a statute applies to the high seas (e.g., piracy)
but not to foreign territory; indeed, Exxon cites two Supreme
Court cases supporting the contrary: The Apollon, 22 U.S. (9
Wheat.) 362, 370 (1824), and Rose v. Himely, 8 U.S. (4 Cranch)
241, 279 (1808). In The Apollon the Court held that “[t]he laws
of no nation can justly extend beyond its own territories, except
so far as regards its own citizens,” 22 U.S. at 370 (emphasis
added), and in Rose v. Himely “that the legislation of every
country is territorial; that beyond its own territory, it can only
affect its own subjects or citizens,” 8 U.S. at 279 (emphasis
added).6 To the extent Exxon maintains that the ATS is only

6
In Rose v. Himely the Court went on to hold that “a seizure
of a person not a subject, or of a vessel not belonging to a subject,
made on the high seas, for the breach of a municipal regulation, is an
act which the sovereign cannot authorize,” 8 U.S. at 279, indicating
that the background principle at work at the time was one where
extraterritoriality was based on a national sovereignty principle rather
than a special high-seas exception. Such a principle remains a part of
international law today. See RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 402(2); Sosa, 542 U.S. at
 17

partially extraterritorial, it advocates a novel canon of statutory
construction, and not one of the settled “background canons of
interpretation of which Congress is presumptively aware” when
it legislates. Lockhart v. United States, 546 U.S. 142, 148
(2005).

Our dissenting colleague would bifurcate the canon by
requiring a separate query with respect to the high seas and
foreign countries. The dissent posits that because piracy by
definition occurs on the high seas, application of the canon
against extraterritoriality — as that canon has been consistently
defined by the Supreme Court for over two hundred years —
creates a statutory outcome that is at odds with congressional
intent that the ATS grant federal courts jurisdiction over aliens’
piracy-related torts. Dis. Op. at 14–16. Finding the existing
canon of no avail, the dissent mutates both the canon and the
precedent into a new canon that produces the desired result. To
the extent that a canon of construction draws its persuasiveness
in large measure from the fact that Congress is “presumptively
aware,” Lockhart, 546 U.S. at 148, of such canons of
outstanding vintage when it legislates and thus “preserv[es] a
stable background against which Congress can legislate with
predictable effects,” Morrison, 130 S. Ct. at 2878, a newly
minted canon fashioned in a dissenting opinion more than two
hundred years after the First Congress provides no such
benefit.7

761 (Breyer, J., concurring).
7
To the extent a presumption existed at the time of the First
Congress, it differed materially from that suggested by Exxon and the
dissent. Appellees’ Br. 37; Dis. Op. at 7–9. In Furlong, the Supreme
Court interpreted the reach of the piracy and other provisions in the
Crimes Act of 1790. 18 U.S. at 200. Stating that a court ought to
consider the statute by “reference to the punishing powers” of
 18

Further, a technical but nonetheless important point sheds
light on Exxon’s contentions: appellants are not asking this
court to apply the ATS itself extraterritorially. In Sosa, the
Supreme Court held that the ATS is a jurisdictional statute that
provides U.S. district courts with jurisdiction over civil actions
brought by aliens seeking relief for torts committed in violation
of the law of nations, and does not itself create causes of action.
542 U.S. at 713–14; 28 U.S.C. § 1350. As a jurisdictional
statute, it would apply extraterritorially only if Congress were
to establish U.S. district courts in foreign countries. To say that
a court is applying the ATS extraterritorially when it hears an
action such as appellants have brought makes no more sense

Congress and then apply a “reasonable presumption” that Congress
did not intend to exceed those powers, and conversely that “general
words . . . ought not . . . be restricted so as to exclude any cases within
their natural meaning,” the Court held that “it was reasonable to
conclude[] that Congress intended to legislate, unless [the] express
language shall preclude that conclusion.” Id. at 196. The powers of
Congress applied in Furlong were those identified in The Apollon, 22
U.S. at 370, and Rose v. Himely, 8 U.S. at 279, namely that Congress
may legislate with respect to acts within U.S. territory and with respect
to its own citizens. Thus, in Furlong, the Court affirmed the
convictions for piracy of two U.S. citizens under the 1790 Act where
the crimes had been committed in the territorial waters of Portugal,
i.e., in a roadstead near the islands of Boa Vista and Maio, off the
western coast of Africa. 18 U.S. at 200–01; see also U.S. DEP’T OF
STATE, BACKGROUND NOTE: CAPE V ERDE, available at
http://www.state.gov/r/pa/ei/bgn/2835.htm (last visited June 21,
2011); John H. Knox, A Presumption Against Extrajurisdictionality,
104 AM. J. INT’L L. 351, 364 (2010). The dissent argues that
“[c]haracteristically [piracy] has been regarded as an offense of the
open seas,” Dis. Op. at 16 n.8 (quoting Edwin D. Dickinson, Is the
Crime of Piracy Obsolete?, 38 HARV. L. REV. 334, 336–37 (1925)),
but in Furlong the Supreme Court has made patently clear that the
First Congress intended the term “high seas” to include at least some
territory of foreign states, see 18 U.S. at 200–01.
 19

than saying that a court is applying 28 U.S.C. § 1331, the
federal question statute, extraterritorially when it hears a TVPA
claim brought by a U.S. citizen based on torture in a foreign
country.

Thus, the question here is not whether the ATS applies
extraterritorially but is instead whether the common law causes
of action that federal courts recognize in ATS lawsuits may
extend to harm to aliens occurring in foreign countries. One
might hope to resolve this question by considering whether the
First Congress would have understood federal courts to have the
authority to recognize such causes of action. Unfortunately, the
historical record with respect to this question is sparse and has
been characterized as ambiguous. The authority most on point
is a 1795 legal opinion by U.S. Attorney General William
Bradford. See Breach of Neutrality, 1 Op. Att’y Gen. 57
(1795). In the midst of the war between Britain and France that
followed the French Revolution, U.S. citizens participated in a
French privateer fleet’s attack and plunder of the British colony
of Sierra Leone in 1794. See id. at 58.8 Responding to a protest
from the British Ambassador, Attorney General Bradford
expressed “some doubt” as to whether the U.S. citizens could be
prosecuted in U.S. courts. See id. at 58–59. But Bradford had
“no doubt that the company or individuals who ha[d] been
injured by the[] acts of hostility ha[d] a remedy by a civil suit in
the courts of the United States” since Congress in the ATS had
granted federal courts “jurisdiction . . . in all cases where an

8
See also William R. Casto, The Federal Courts’ Protective
Jurisdiction over Torts Committed in Violation of the Law of Nations,
18 CONN. L. REV. 467, 502–03 (1986) (hereinafter “Casto, Law of
Nations”) (citing CHRISTOPHER FYFE, A HISTORY OF SIERRA LEONE,
59–61 (1962)), cited by the Supreme Court in Sosa, 542 U.S. at 713,
717, 718, 719 n.13, 721.
 20

alien sues for a tort only, in violation of the laws of nations, or
a treaty of the United States.” Id. at 59 (emphasis in original).

Bradford’s opinion, however, is not a model of clarity. The
paragraph containing Bradford’s discussion of the ATS opens
by stating, “So far . . . as the transactions complained of
originated or took place in a foreign country, they are not within
the cognizance of our courts . . . .” Id. at 58. In context, this
statement might be best read as applying only to the scope of
the U.S. courts’ criminal jurisdiction. The majority in the
Second Circuit, however, interpreted the statement more
broadly, citing it as support for the proposition that at the time
of its enactment, the ATS was not understood to grant federal
courts jurisdiction over international law violations committed
within the territorial jurisdiction of foreign nations but “only for
the actions taken by Americans on the high seas.” See Kiobel
v. Royal Dutch Petroleum Co., 621 F.3d 111, 142 n.44 (2d Cir.
2010).9 In Sosa the Supreme Court viewed the Attorney

9
The cases on which Exxon relies, which seek to invoke
early piracy cases for the proposition of non-extraterritoriality, are
inapposite. For instance, in United States v. Palmer, 16 U.S. (3
Wheat.) 610 (1818), the Supreme Court interpreted the Crimes Act of
1790 not to extend to situations where a non-citizen attacked a vessel
under foreign flag bearing citizens of a foreign state. Exxon fails,
however, to account for United States v. Klintock, 18 U.S. (5 Wheat.)
144 (1820), where the Supreme Court backed away from Palmer,
stating that although Palmer could be “understood to indicate the
opinion that the whole act must be limited in its operation to offences
committed by, or upon, the citizens of the United States,” that issue
was not before the Court in Palmer. Id. at 152. The Court held that
so long as the piracy was committed by persons on board a vessel not
“belonging to the subjects of any foreign power . . . in possession of
a crew acting in defiance of all law, and acknowledging obedience to
no government whatever,” id., or in other words, a vessel having no
nationality, the piracy provisions of the Crimes Act of 1790 would
 21

General’s opinion as “clear that a federal court was open for the
prosecution of a tort action growing out of the episode,” 542
U.S. at 721, but noted uncertainty about whether Bradford
assumed there had been a violation of a treaty and concluded
that “it appears likely Bradford understood the ATS to provide
jurisdiction over what must have amounted to common law
causes of action,” id.

Extraterritorial application of the ATS would reflect the
contemporaneous understanding that, by the time of the
Judiciary Act of 1789, a transitory tort action arising out of
activities beyond the forum state’s territorial limits could be
tried in the forum state. See Stoddard v. Bird, 1 Kirby 65, 68

reach the conduct. This “description happens to fit pirates to a tee.”
Eugene Kontorovich, The “Define and Punish” Clause and the Limits
of Universal Jurisdiction, 103 NW. U. L. REV. 149, 189 (2009) (citing
4 BLACKSTONE’S COMMENTARIES *71). Further, Exxon fails to
address developments in response to Palmer, namely that in 1819
Congress amended the Crimes Act of 1790 to provide:

That if any person or persons whatsoever, shall, on the high
seas, commit the crime of piracy, as defined by the law of
nations, . . . every such offender or offenders shall . . . be
punished with death.

Act of March 3, 1819, ch. 77, § 5, 3 Stat. 510 (1819) (emphasis
added). The 1819 Act was indefinitely extended, Act of May 15,
1820, ch. 113, § 2, 3 Stat. 600 (1820), and the crime of piracy today
is “nearly identical,” Hasan, 747 F. Supp. 2d at 614 (citing 18 U.S.C.
§ 1651 and, inter alia, United States v. Corrie, 25 F. Cas. 658, 663
(C.C.D.S.C. 1860) (No. 14,869)). Other cases, such as The Apollon,
22 U.S. at 370, and Rose v. Himely, 8 U.S. at 279, on which Exxon (a
U.S. citizen) relies, and the prize court cases on which amici
Washington Legal Foundation and Allied Educational Foundation
rely, do not advance their extraterritorial objection.
 22

(Conn. Super. Ct. 1786) (Ellsworth, J.); Mostyn v. Fabrigas,
(1774) 98 Eng. Rep. 1021 (K.B.) 1025–26; Casto, Law of
Nations, supra note 8, at 503–04 & n.205. It also would reflect
an understanding that a violation of the law of nations could
occur within the territorial jurisdiction of a foreign country and
be civilly remediable in the United States courts. As early as
1781, Lord Mansfield held in Lindo v. Rodney, 2 Doug. 614
(K.B.), reprinted in Le Caux v. Eden, (1781) 99 Eng. Rep. 375
(K.B.), that “[b]y the law of nations, and treaties, every nation
is answerable to the other for all injuries done, by sea or land,
or in fresh waters, or in port,” id. at 389 n.1, and that “every
reason which created a Prize Court as to things taken upon the
high seas, holds equally when they are thus taken at land,” id.,
citing treaties as old as 1498, id. at 389, and parliamentary acts
from the reign of King George II, id. at 392. Congress adopted
this definition of “piracy” in the Act of May 15, 1820, ch. 3,
§ 3, 3 Stat. 600 (1820).

Chancellor Kent, “the great commentator on American
law,” Holy Trinity Church v. United States, 143 U.S. 457, 470
(1892), and then “the country’s foremost legal scholar,”
Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 278 n.13
(1977), in “his landmark work,” Sun Oil Co. v. Wortman, 486
U.S. 717, 726 (1988), described both Lindo and the piracy
statute as “only declaratory of the law of nations.” 1 JAMES
KENT, COMMENTARIES ON AMERICAN LAW 189 (New York 8th
ed. 1854) (hereinafter “KENT’S COMMENTARIES”). The Crimes
Act of 1790 had similarly contemplated violations of the law
against piracy committed on land.10 Id. at 187–89. The dissent,

10
The Crimes Act of 1790 provided punishment for

every person who shall, either upon the land or the seas,
knowingly and wittingly aid and assist, procure, command,
counsel, or advise any person or persons, to do or commit . . .
 23

in maintaining that the ATS ought to apply wherever piracy can
occur, see Dis. Op. at 14–16, makes no attempt to reconcile its
view with early definitions of piracy that are not limited to the
high seas.

True, the 1790 Act did not provide for primary liability for
actions taken on the land of another nation, instead providing
punishment as a principal only for crimes of piracy committed
“upon the high seas, or in any river, basin or bay, out of the
jurisdiction of any particular [U.S.] state,” ch. 9, § 8, 1 Stat. at
113–14; Furlong, 18 U.S. at 200–01. Moreover, amici suggest
that the provisions were never invoked by prosecutors in cases
involving actions taken within the territory of another nation,
Brief of Washington Legal Foundation and Allied Educational
Foundation as Amici Curiae in Support of Defendants-
Appellees (“Wash. Legal Found. Br.”) 11 n.8, although the facts
of Furlong, see supra note 7, weaken this point. Consequently,
the historical record, clear on the notion that U.S. courts at the
nation’s founding could exercise jurisdiction over at least some
international law violations committed beyond our domestic
shores and in the territorial waters of another nation, Furlong,
18 U.S. at 200–01, is nonetheless ambiguous regarding whether

piracy . . . on the seas, [and that] all and every such person so
as aforesaid, aiding, assisting, procuring, commanding,
counselling [sic] or advising the same, either upon the land
or the sea, shall be, and they are hereby declared, deemed and
adjudged to be accessary [sic] to such piracies before the fact,
and every such person being thereof convicted shall suffer
death.”

§ 10, 1 Stat. at 114 (emphasis added).
 24

jurisdiction could be exercised over law of nations violations
occurring on the land of another nation.11

To the extent the historical record is inconclusive, two
modern developments convince us that it is entirely appropriate
to permit appellants to proceed with their aiding and abetting
claims even though much of the conduct relating to the
international law violations alleged in their complaint occurred
in Indonesia. First, modern ATS litigation has primarily
focused on atrocities committed in foreign countries, and
Congress in enacting the TVPA expressly endorsed federal
courts’ exercise of jurisdiction over such lawsuits. The Report
of the Senate Committee on the Judiciary states that the “TVPA
would establish an unambiguous basis for a cause of action that
has been successfully maintained” in ATS lawsuits such as
Filartiga, explaining that in that case “two citizens of Paraguay
alleged that a former Paraguayan inspector general of police had
tortured and killed a member of their family in Paraguay.” S.
REP. NO. 102-249, at 4 (1991).12 The TVPA thus “enhance[d]

11
The complaints at issue concern aiding and abetting
liability where at least some of the conduct causing harm to the
plaintiffs in Indonesia occurred in the United States. The district
court, in denying in part Exxon’s motion for summary judgment on
the non-federal tort claims, found that the plaintiffs had presented
sufficient evidence of corporate control within the United States to go
to trial. Doe I v. Exxon Mobil Corp., 573 F. Supp. 2d 16, 31–32
(D.D.C. 2008).
12
The Legal Advisor of the State Department supported
adjudication of the claims in Filartiga, participating as amicus curiae
and stating that:

The . . . international law of human rights . . . endows
individuals with the right to invoke international law, in a
competent forum and under appropriate circumstances. . . . As
 25

the remedy already available under” the ATS by extending that
civil remedy also to U.S. citizens who may have been tortured
abroad. Id. at 5. Expressing approval for the ATS, the Senate
Committee report thus noted that “[c]onsequently, that statute
should remain intact.” Id. The Report of the House Committee
on the Judiciary is to the same effect. See H.R. REP. NO. 102-
367, at 3 (1991). Second, although the United States argued in
Sosa that the ATS in no way “applies to alleged torts, such as
the one [at issue in Sosa – arbitrary detention], that occur
outside of the United States,” Brief for United States at 8, Sosa,
542 U.S. 692 (2004) (No. 03-339); see also id. at 46–50; Reply
Brief for United States at 19–20, Sosa, 542 U.S. 692 (2004)
(No. 03-339), no Justice indicated agreement with the United
States’ position, cf. Sosa, 542 U.S. at 762–63 (Breyer, J.,
concurring). Given Congress’s ratification of ATS lawsuits
involving foreign conduct and the Supreme Court’s failure to
disapprove of such lawsuits in Sosa, we conclude that the
extraterritoriality canon does not bar appellants from seeking
relief based on Exxon’s alleged aiding and abetting of
international law violations committed in Indonesia.

The arguments of our dissenting colleague offer no basis
for a contrary conclusion. First, the dissent notes that injuries
of the sort alleged here, by aliens occurring abroad, could be
remedied “by foreign sovereigns under their countries’ laws.”
Dis. Op. at 12. Perhaps so, but the unchallenged finding by the

a result, in nations such as the United States where
international law is part of the law of the land, an individual’s
human rights are in certain cases directly enforceable in
domestic courts.

Memorandum for the United States as Amicus Curiae at 20, Filartiga
v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (No. 79-6090), reprinted
in 19 I.L.M. 585, 602–03 (1980).
 26

district court is that the plaintiffs could not litigate their claims
in Indonesia, even assuming, as Exxon argued before the district
court, that international law required exhaustion of local
remedies, because they had demonstrated such efforts would be
futile, an exception to prudential exhaustion. Doe I, 393 F.
Supp. 2d at 25 (citing Hammontree v. NLRB, 925 F.2d 1486,
1517 (D.C. Cir. 1991); Rasoulzadeh v. Assoc. Press, 574 F.
Supp. 854, 861 (S.D.N.Y. 1983), aff’d without op. 767 F.2d 908
(2d Cir. 1985)). In Sosa, the Supreme Court referenced the
exhaustion argument by amicus European Commission but
noted that it need not reach the question although stating it
“would certainly consider this requirement in an appropriate
case.” 542 U.S. at 733 n.21. Since then the only circuit to
address the question concluded that “certain ATS claims are
appropriately considered for exhaustion under both domestic
prudential standards and core principles of international law,”
Sarei v. Rio Tinto, PLC, 550 F.3d 822, 824 (9th Cir. 2008) (en
banc), noting that “[u]nder international law, ordinarily a state
is not required to consider a claim by another state for an injury
to its national until that person has exhausted domestic
remedies, unless such remedies are clearly sham or inadequate,
or their application is unreasonably prolonged,” id. at 829
(quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
OF THE UNITED STATES § 713 cmt. f, and citing id. § 703 cmt. d,
and Interhandel (Switz. v. U.S.), 1959 I.C.J. 6, 26 (Mar. 29));
the Ninth Circuit also recognized the futility exception applied
by the district court here, id. at 830. Because Exxon has not
challenged the district court’s finding of futility, this court has
no occasion to decide the question. To the extent Exxon
suggests subsequent events in Indonesia may have rendered the
finding outdated, that issue may be addressed on remand, see
infra Part V.C.13

13
The dissent’s satisfaction with foreign domestic remedies
and use of extradition, Dis. Op. at 12 n.5, 14 n.7, undoes the First
 27

Second, in deeming “very odd” that the First Congress
would be interested in protecting “a Frenchman injured in
London,” Dis. Op. at 12, the dissent ignores that the calculus
can change where a U.S. citizen is a cause of the harm.14 E.g.,
The Apollon, 22 U.S. 362; Furlong, 18 U.S. at 200–01; Rose, 8
U.S. 241. “Congress in prescribing standards of conduct for
American citizens may project the impact of its laws beyond the
territorial boundaries of the United States,” Steele v. Bulova
Watch Co., 344 U.S. 280, 282–83 (1952), especially where a
defendant engaged in acts here that “were essential steps in the
course of business consummated abroad,” id. at 287. The
Supreme Court has not found an extraterritorial bar when a
federal statute provided for criminal or civil liability for a

Congress’s decision that federal courts should be empowered to
provide a remedy for aliens suffering torts in violation of the law of
nations. Relying on foreign domestic remedies, the dissent assumes
such harms occur in the territory of the offended country and not in
the territory of a third disinterested country. Furthermore, neither
party nor amici describe the status of extradition treaties prior to the
passage of the Judiciary Act of 1789. By way of example, the Jay
Treaty with the United Kingdom permitted extradition only in cases
of murder and forgery, see Treaty of Amity, Commerce, and
Navigation, U.S.-Gr. Brit., art. XXVII, Nov. 19, 1794, 8 Stat. 116,
129, and appeared to exclude violations of the law of nations such as
piracy, see id. art. XX, 8 Stat. at 126–27.
14
The objections in some respects echo the minority views
in the Senate Committee report accompanying the TVPA, which
expressed concerns about “over-extendind[ing] Congress’s
constitutional authority” in that statute. S. REP. NO. 102-249, at 13.
But the dissent ignores the fact that both the minority and the majority
views agreed no such concern existed in a case where the “connection
to the United States . . . is clear,” id. at 14, as in Verlinden B.V. v.
Central Bank of Nigeria, 461 U.S. 480 (1983), where a foreign
defendant used a U.S. corporation as an instrumentality of a breach of
contract, id.
 28

scheme devised and executed in the United States intended to
inflict harm abroad, e.g., to a Frenchman in London.15 See
Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d
909, 921–22 (D.C. Cir. 1984); cf. Pasquantino v. United States,
544 U.S. 349, 371–72 (2005). Here, appellants claim that
Exxon engaged in acts in the United States that were part and
parcel of the harm they suffered. Considering the identity of the
person causing harm to the Frenchman in London further
illuminates the First Congress’s intent. After all,

where the individuals of any state violate this general
law [of nations], it is then the interest as well as duty
of the government, under which they live, to
animadvert upon them with a becoming severity, that
the peace of the world may be maintained. For in vain
would nations, in their collective capacity, observe
these universal rules, if private subjects were at liberty
to break them at their own discretion, and involve the
two states in a war. It is therefore incumbent upon the
nation injured, first, to demand satisfaction and justice
to be done on the offender, by the state to which he
belongs; and, if that be refused or neglected, the

15
The dissent finds fault with this citation of Steele and
Pasquantino, misinterpreting their citation. The court is not, as the
dissent suggests, reading Steele “to permit application of a
nonextraterritorial statute whenever conduct in the United States
contributes to a violation abroad,” Morrison, 130 S. Ct. at 2886 n.11
(emphasis supplied). Dis. Op. at 8 n.4. Rather, the court starts with
the ATS text and history and concludes that the ATS, like the statute
at issue in Steele, grants federal courts jurisdiction over at least some
forms of extraterritorial conduct. The court cites Pasquantino only as
support for the proposition that where, as here, plaintiffs may
ultimately prove that Exxon provided substantial practical assistance,
see infra Part II.C, from its offices in the United States, jurisdiction
over extraterritorial harm is all the more appropriate.
 29

sovereign then avows himself an accomplice or abettor
of his subject’s crime, and draws upon his community
the calamities of foreign war.

4 BLACKSTONE’S COMMENTARIES *67–68. Blackstone’s
representation that a foreign country could deem the United
States an “accomplice or abettor,” id. at *68, of a violation of
the law of nations if it does not censure a U.S. citizen who has
violated that law makes the First Congress’s judgment hardly
“odd” at all.

B.
The rule of statutory construction set forth in Central Bank
does not preclude recognition of aiding and abetting liability for
claims under the ATS. In Central Bank, the Supreme Court held
that although § 10(b) of the Securities and Exchange Act, 15
U.S.C. § 78j, did not prohibit aiding and abetting liability, “the
private plaintiff may not bring a 10b-5 suit against a defendant
for acts not prohibited by the text of § 10(b),” 511 U.S. at 173.
The Court declined to create a presumption against aiding and
abetting liability, but instructed that when Congress enacts a
statute, there is no presumption in favor of aiding and abetting
liability. Id. at 182. Our conclusion that there is aiding and
abetting liability under the ATS is not based on a presumption
in favor of aiding and abetting liability.

The ATS provides jurisdiction for the federal courts to hear
lawsuits regarding torts “committed in violation of the law of
nations.” 28 U.S.C. § 1350. Congress thus directed that the
courts derive the rule of law from the law of nations, and that
law extends responsibility for conduct violating its norms to
aiders and abettors. The “Supreme Court’s instruction in
Central Bank that ‘when Congress enacts a statute under which
a person may sue and recover damages from a private defendant
for the defendant’s violation of some statutory norm, there is no
 30

general presumption that the plaintiff may also sue aiders and
abettors,’ is thus inapposite.” Khulumani, 504 F.3d at 282
(Katzmann, J., concurring) (quoting Central Bank, 511 U.S. at
182) (internal citation omitted); see also id. at 288 n.5 (Hall, J.,
concurring); William R. Casto, The New Federal Common Law
of Tort Remedies for Violations of International Law, 37
RUTGERS L.J. 635, 650 (2006) (hereinafter “Casto, Federal
Common Law”).
Ample authority supports the conclusion that the First
Congress considered aiding and abetting itself to be a violation
of the law of nations. All three branches of government had
addressed the subject and were in accord. Congress in 1790
enacted a piracy law providing for aiding and abetting liability.
Crimes Act of 1790, § 10, 1 Stat. at 114. President George
Washington, in response to the state of hostilities in Europe
following the French Revolution, issued the Proclamation of
Neutrality in 1793, warning “the citizens of the United States
carefully to avoid all acts and proceedings” that would
contravene that neutrality and “mak[ing] known that” citizens
would render themselves “liable to punishment or forfeiture
under the law of nations by committing, aiding, or abetting
hostilities against any” power involved in the general conflict
“or by carrying to any of them those articles which are deemed
contraband by the modern usage of nations.” Proclamation No.
3 (1793), reprinted in 11 Stat. 753 (1859) (emphasis added). So
too, the 1795 opinion of Attorney General Bradford stated that
civil recovery could be had in federal court against U.S. citizens
who “aided and abetted” the French privateer fleet in its plunder
of Sierra Leone. 1 U.S. Op. Att’y Gen. at 58; see also Sosa, 542
U.S. at 721. An early decision of the Supreme Court upheld
aiding and abetting liability for the unlawful capture of a neutral
 31

ship. See Talbot, 3 U.S. at 167–68; see also Henfield’s Case, 11
F. Cas. 1099.16

Because aiding and abetting liability implicates the
character of the “specific conduct allegedly committed by the
defendants sued,” Khulumani, 504 F.3d at 269 (Katzmann, J.
concurring), adopted in Presbyterian Church of Sudan, 582 F.3d
at 258, the conduct must represent a violation of an international

16
Henfield’s Case involved a U.S. citizen accused of illegally
enlisting with a French privateer. Chief Justice John Jay, sitting on
circuit, instructed the grand jury that: (1) “the laws of the United
States” consisted of treaties, the law of nations, and the Constitution
and statutes of the United States, 11 F. Cas. at 1100–01; (2)
“circumstances and considerations now unite in urging the people of
the United States to be particularly exact and circumspect in observing
the obligation of treaties, and the laws of nations, which . . . form a
very important part of the laws of our nation,” id. at 1102; (3)
President Washington’s proclamation had been “exactly consistent
with and declaratory of . . . the law of nations,” id.; (4) if a nation
“let[s] loose the reins of [its] subjects against foreign nations, these
will behave in the same manner to [it],” id. at 1103; and (5) those
“who commit, aid, or abet hostilities against” the European nations in
violation of neutrality must be punished, id. at 1104 (emphasis added),
and “[w]hat acts amount to committing, or aiding, or abetting
hostilities, must be determined by the laws and approved practice of
nations, and by the treaties and other laws of the United States relative
to such cases,” id. (emphasis added). The grand jury charge was
apparently published to explain the effect of the 1793 Proclamation at
home and abroad. See Casto, Law of Nations, supra note 8, at 502 &
n.193 (citing Ralph Lerner, The Supreme Court as Republican
Schoolmaster, 1967 SUP. CT. REV. 127; FRANCIS WHARTON, STATE
TRIALS OF THE UNITED STATES DURING THE ADMINISTRATIONS OF
WASHINGTON AND ADAMS (hereinafter “WHARTON’S STATE TRIALS”)
49 n.* (1849); JULIUS GOEBEL, JR., HISTORY OF THE SUPREME COURT
OF THE UNITED STATES, ANTECEDENTS AND BEGINNINGS TO 1801, at
623–24 (1971)).
 32

law norm with at least as “definite content and acceptance
among civilized nations [as] the historical paradigms familiar”
in 1789, Sosa, 542 U.S. at 732. To the extent the district court
in Doe I, 393 F. Supp. 2d at 24, concluded that aiding and
abetting liability would be an “‘innovative interpretation[ ]’ of
the Alien Tort Statute” that could result in “collateral
consequences and possible foreign relations repercussions,” the
Second Circuit has since held that there can be aiding and
abetting liability under the ATS, see Presbyterian Church of
Sudan, 582 F.3d at 258–59; Khulumani, 504 F.3d at 260 (per
curiam). The Eleventh Circuit has also held that aiding and
abetting liability is available under the ATS. See Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1258 n.5 (11th Cir. 2009);
Romero v. Drummond Co., Inc., 552 F.3d 1303, 1315 (11th Cir.
2008); Aldana v. Del Monte Fresh Produce N.A., 416 F.3d 1242,
1248 (11th Cir. 2005). Both courts reached this conclusion upon
looking to customary international law, see Presbyterian Church
of Sudan, 582 F.3d at 258; Aldana, 416 F.3d at 1247–48, to
which we now turn.

Decisions of the courts established by the U.N. Security
Council, the International Military Tribunal at Nuremberg
established in the Agreement for the Prosecution and
Punishment of the Major War Criminals of the European Axis,
Aug. 8, 1945, U.N.T.S. 280 (hereinafter “London Charter”), and
the several Nuremberg tribunals are recognized as an
authoritative source of customary international law. See, e.g.,
Flores v. S. Peru Copper Corp., 414 F.3d 233, 244 n.18 (2d Cir.
2003); United States v. Yousef, 327 F.3d 56, 105 nn.39–40 (2d
Cir. 2003); cf. Hamdan v. Rumsfeld, 548 U.S. 557, 610 & n.40
(2006); Princz v. Federal Republic of Germany, 26 F.3d 1166,
1174 (D.C. Cir. 1994), cert. denied, 513 U.S. 1121 (1995). See
generally Theodor Meron, Reflections on the Prosecution of
War Crimes by International Tribunals, 100 AM. J. INT’L L. 551,
559 (2006). The General Assembly of the United Nations has
 33

unanimously affirmed the principles of international law
recognized by the London Charter and the Nuremberg tribunals.
See Affirmation of the Principles of International Law
Recognized by the Charter of the Nürnberg Tribunal, G.A. Res.
95(I), U.N. Doc. A/236 (Dec. 11, 1946) (“Nuremberg Principles
Resolution I”). Exxon does not dispute that the London Charter
and the cases prosecuted thereunder constitute sources of
customary international law.

“[C]riminal responsibility of those who aid and abet
violations of international law” has been “accepted as one of the
core principles of the post-World War II war crimes trials.”
Khulumani, 504 F.3d at 273 (Katzmann, J., concurring). The
London Charter extended responsibility for crimes to
“accomplices participating in the formulation or execution of a
common plan or conspiracy to commit” any of the crimes triable
by the Tribunal. London Charter art. 6, 82 U.N.T.S. 282. At the
direction of the U.N. General Assembly, the International Law
Commission (“ILC”) in 1950 formulated “principles recognized
in the Charter . . . and in the judgment of the Tribunal,” as a
codification of certain legal principles applied by the Nuremberg
tribunals. See Nuremberg Principles Resolution I; see also
Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber
Judgement, ¶ 526 (Sept. 2, 1998); Prosecutor v. Milosevic, Case
No. IT-02-54, Trial Chamber Decision on Preliminary Motions,
¶¶ 29–30 (Nov. 8, 2001). Principle VII provided that
“[c]omplicity in the commission of a crime against peace, a war
crime, or a crime against humanity . . . is a crime under
international law.” ILC, Principles of International Law
Recognized in the Charter of the Nürnberg Tribunal and in the
Judgment of the Tribunal, G.A.O.R., 5th session, Supp. No. 12,
U.N. Doc. A/1316, Principle VII (1950) (“ILC Principles”).
Implementing the London Charter, the joint Allied body
coordinating the governance of postwar Germany promulgated
Control Council Law No. 10 to impose criminal liability on
 34

whomever was “an accessory to the commission of any such
crime or ordered or abetted the same.” Allied Control Council
Law No. 10, art. II, § 2 (Dec. 20, 1945) (“Control Council Law
No. 10”), in 1 ENACTMENTS AND APPROVED PAPERS OF THE
CONTROL COUNCIL AND COORDINATING COMMITTEE 306 (1945)
(“ENACTMENTS”); see Khulumani, 504 F.3d at 272 (Katzmann,
J., concurring); Flick v. Johnson, 174 F.2d 983, 985–86 (D.C.
Cir. 1949).

The U.N. Security Council resolutions establishing the
International Criminal Tribunal for the Former Yugoslavia
(“ICTY”) and the International Criminal Tribunal for Rwanda
(“ICTR”) likewise imposed liability on any “person who
planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution” of a crime.
Statute of the International Criminal Tribunal for the Former
Yugoslavia, art. 7, U.N. Doc. S/25704 annex (May 3, 1993)
(“ICTY Statute”), adopted in S.C. Res. 827, U.N. Doc.
S/RES/827 (May 25, 1993); Statute of the International Criminal
Tribunal for Rwanda, art. 6, S.C. Res. 955, U.N. Doc.
S/RES/955 annex (Nov. 8, 1994) (“ICTR Statute”). The
Secretary General of the United Nations explained that “in
assigning to the International Tribunal the task of prosecuting
persons responsible for serious violations of international
humanitarian law, the Security Council would not be creating or
purporting to ‘legislate’ that law. Rather, the International
Tribunal would have the task of applying existing international
humanitarian law.” Report of the Secretary-General Pursuant to
Paragraph 2 of Security Council Resolution 808, ¶ 29, U.N. Doc.
S/25704 (May 3, 1993) (“Sec’y General ICTY Report”). The
ICTY’s jurisdiction was limited to “rules of international
humanitarian law which are beyond any doubt part of customary
[international] law.” Id. ¶ 34; see Khulumani, 504 F.3d at 275
(Katzmann, J., concurring) (citing Prosecutor v. Furundzija,
Case No. IT-95-17/1 Trial Chamber Judgement, ¶¶ 249, 275
 35

(Dec. 10, 1998); Prosecutor v. Tadic, Case No. IT-94-1-T, Trial
Chamber Opinion and Judgement, ¶¶ 689–92, 730, 735, 738
(May 7, 1997)). The ICTY emphasized that it was required to
determine “the objective basis for such individual responsibility
as a matter of customary international law . . . since the
International Tribunal is only empowered to apply international
humanitarian law that is ‘beyond any doubt customary law.’”
Tadic, Trial Chamber Opinion and Judgement, ¶ 662 (quoting
Sec’y General ICTY Report ¶ 34). The ICTR has a similar
mandate to that of the ICTY but also encompasses several
treaties. See Report of the Secretary-General Pursuant to
Paragraph 5 of the Security Council Resolution 955, ¶ 12, U.N.
Doc. S/1995/134 (Feb. 13, 1995).

Federal courts have, in turn, relied on international criminal
law norms in establishing the content of the law of nations. See,
e.g., Khulumani, 504 F.3d at 270 (Katzmann, J., concurring);
Kadic, 70 F.3d at 241–43; see also Sosa, 542 U.S. at 762–63
(Breyer, J., concurring).17 These authorities and sources confirm
that aiding and abetting liability is clearly established in the law
of nations and consequently such liability is available under the
ATS.

17
As the Seventh Circuit has pointed out:

Crimes and torts frequently overlap. In particular, most
crimes that cause definite losses to ascertainable victims are
also torts: the crime of theft is the tort of conversion; the
crime of assault is the tort of battery . . . . [In] a much earlier
era of Anglo-American law, . . . criminal and tort
proceedings were not clearly distinguished.

United States v. Bach, 172 F.3d 520, 523 (7th Cir. 1999) (citing, inter
alia, David J. Seipp, The Distinction Between Crime and Tort in the
Early Common Law, 76 B.U. L. REV. 59, 81 (1996)).
 36

C.
The question remains what intent must be proved for aiding
and abetting liability under the ATS. Appellants suggest that the
federal common law standard for aiding and abetting —
knowing assistance that has a substantial effect on the
commission of the human rights violation — is well established
and that the standard under customary international law is
essentially the same. Exxon urges the court to follow the
Second Circuit in Presbyterian Church of Sudan, 582 F.3d at
259, by requiring proof that the defendant acted with the purpose
of committing the alleged human rights violation, maintaining
that “[i]f a federal common law aiding and abetting cause of
action is to be recognized under the ATS, then Sosa requires that
the scope of the federal common law rule derive from
international law.” Appellees’ Br. 40.

In Sosa, the Supreme Court stated that the ATS’s
“jurisdictional grant is best read as having been enacted on the
understanding that the common law would provide a cause of
action.” 542 U.S. at 724. From this statement appellants draw
the conclusion that federal common law provides the standard
for aiding and abetting liability. Judge Edwards similarly
observed in Tel-Oren, 726 F.2d at 777–78, that “the law of
nations never has been perceived to create or define the civil
actions to be made available by each member of the community
of nations; by consensus, the states leave that determination to
their respective municipal laws.” Appellants also cite the United
States’ amicus brief in the Second Circuit urging that the
“validity of a federal-common-law claim under Sosa should
generally be treated as a merits question, with the ATS
conferring subject-matter jurisdiction so long as the allegations
of a violation of customary international law are not plainly
insubstantial.” Brief for the United States as Amicus Curiae at
20, Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009) (Nos.
05-48630-cv & 05-6768-cv). Appellants suggest that “[t]he
 37

application of domestic common law standards is essential
because international law does not ordinarily provide for the
means of its own enforcement in domestic courts,” Appellants’
Br. 33, and in their view, the Supreme Court in Sosa, 542 U.S.
at 731, “endorsed Judge Edwards’ view that domestic rules
govern the litigation of ATS claims in U.S. courts,” Appellants’
Br. 33–34.

The history of the ATS examined by the Supreme Court in
Sosa, 542 U.S. at 731, indicated the First Congress’s
understanding that federal common law would supply the rules
in ATS cases. Amici law professors in Sosa noted that when the
ATS was enacted there was no clear distinction between
common law and customary international law. See Brief of
Professors of Federal Jurisdiction and Legal History as Amici
Curiae in Support of Respondents, Sosa v. Alvarez-Machain,
542 U.S. 692 (2004) (No. 03-339), reprinted in 28 HASTINGS
INT’L & COMP. L. REV. 99, 109 (2004) (“Sosa Legal History
Amicus Br.”). Courts routinely treated causes of action arising
under international law as they did other common law torts – by
applying general common law principles. See, e.g., Talbot, 3
U.S. (3 Dall.) at 155–58 (Paterson, J.); id. at 161 (Iredell, J.); id.
at 169 (Rutledge, C.J.); United States v. Benner, 24 F. Cas. 1084,
1087 (C.C.E.D. Pa. 1830) (No. 14,568). Appellants maintain
that the application of common law rules to ATS cases is
consistent with the way in which federal courts implement other
federal statutes. See, e.g., United States v. Kimbell Foods, Inc.,
440 U.S. 715, 727 (1979); see also Tex. Indus., Inc. v. Radcliff
Materials, Inc., 451 U.S. 630, 641 (1981). The Eleventh Circuit
has adopted this approach, holding that a knowledge standard
applies because that is the standard under federal common law.
See Cabello v. Fernandez-Larios, 402 F.3d 1148, 1157–60 (11th
Cir. 2005); cf. Doe v. Islamic Salvation Front, 257 F. Supp. 2d
115, 120 n.12 (D.D.C. 2003).
 38

That a particular cause of action cognizable under the ATS
is to be recognized as a federal common law claim, however,
does not identify the source of law to which the court must look
for a standard. The Supreme Court in Sosa mandated that courts
recognize only “a narrow set of common law actions derived
from the law of nations.” 542 U.S. at 721. In so doing, a court
must identify a norm for conduct of no less “definite content and
acceptance among civilized nations than the historical paradigms
familiar when § 1350 was enacted,” id. at 732, to which the
international community expresses approbation or
disapprobation.18 Aiding and abetting liability, while
supplemental to some other alleged tort liability, is based on
conduct distinct from the conduct of the principal actor.
Consistent with Sosa, the question is whether the international
community would express definite disapprobation toward aiding
and abetting conduct only when based on a particular standard.
The court therefore looks to customary international law to
determine the standard for assessing aiding and abetting liability,
much as we did in addressing availability of aiding and abetting
liability itself. Important sources are the international tribunals

18
“A norm prescribes or permits a certain human behavior,”
HANS KELSEN, PRINCIPLES OF INTERNATIONAL LAW 6 (1966); it
determines what “ought” to happen or, the meaning of conduct, that
is, whether one ought or ought not engage in particular behavior,
HANS KELSEN, GENERAL THEORY OF NORMS 2 (1991). International
law embraces the concept of a peremptory norm, one that is “accepted
and recognized by the international community of states as a whole
and from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the
same character.” Art. 53, Vienna Convention on the Law of Treaties,
May 23, 1969, 1155 U.N.T.S. 331; see also RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 102 cmt. k; 1
OPPENHEIM’S INTERNATIONAL LAW § 2 (Sir Robert Jennings & Sir
Arthur Watts, eds., 9th ed. 1996); Prosper Weil, Towards Relative
Normativity in International Law, 77 AM. J. INT’L L. 413, 421 (1983).
 39

mandated by their charter to apply only customary international
law. Two such tribunals, the International Criminal Tribunals
for the Former Yugoslavia and Rwanda, are considered
authoritative sources of customary international law. See, e.g.,
Hamdan, 548 U.S. at 611 n.40; Abagninin v. AMVAC Chem.
Corp., 545 F.3d 733, 739 (9th Cir. 2008); Ford ex rel. Estate of
Ford v. Garcia, 289 F.3d 1283, 1293 (11th Cir. 2002). They
have declared the knowledge standard suffices under customary
international law.19

The ICTY, in addressing whether the accomplice20 must
“share the mens rea of the principal or whether mere
knowledge” will suffice, concluded that “the latter will suffice.”
Furundzija, Trial Chamber Judgement, ¶ 236. It is not necessary
that the aider and abettor “shares the mens rea of the perpetrator,
in the sense of positive intention to commit the crime,” provided
he “ha[s] knowledge that his actions will assist the perpetrator

19
The knowledge standard appears to conform with the
standard for aiding and abetting liability in many other countries,
including France, Germany, England, Canada, Australia, and
Switzerland. See Krstic, Appeals Judgement, ¶¶ 140–41; Brief of
Amici Curiae International Law Scholars in Support of Plaintiffs-
Appellants Seeking Reversal (“Int’l Law Scholars Amicus Br.”)
16–17.
20
The ICTY and the ICTR opinions refer to “accomplice”
and “aiding and abetting” liability interchangeably, e.g., Furundzija,
Trial Chamber Judgement, ¶¶ 190–249, and that understanding is
reflected in the London Charter and the opinions of the Nuremberg
tribunals, see Khulumani, 504 F.3d at 272 (Katzmann, J., concurring).
 40

in the commission of the crime.” Id. ¶ 245.21 The Trial
Chamber’s judgment states:

[T]he actus reus [of aiding and abetting] consists of
practical assistance, encouragement, or moral support
which has a substantial effect on the perpetration of the
crime. The mens rea required is the knowledge that
these acts assist the commission of the offense.

Id. ¶ 249; see also id. ¶¶ 238–40, 245–46 (citing inter alia, In re
Tesch, 1 LAW REPORTS OF TRIALS OF WAR CRIMINALS 93);
Prosecutor v. Krstic, Case No. IT-98-33-A, Appeals Judgement,
¶¶ 139–41 (Apr. 19, 2004); Prosecutor v. Delalic, Case No. IT-
96-21-I, Trial Chamber Judgement, ¶¶ 325–29 (Nov. 16, 1998);
Tadic, Trial Chamber Judgement, ¶¶ 674, 692. The ICTR is in
agreement. See Prosecutor v. Ntakirutimana, Case No. ICTR-
96-13-I, Appeals Judgement, ¶ 501 (Dec. 13, 2004); Prosecutor
v. Musema, Case No. ICTR-96-13-I, Trial Chamber Judgement,
¶¶ 180–82 (Jan. 27, 2000). The parties do not suggest that the

21
The Trial Chamber in Furundzija further emphasized that
the knowledge standard:

is particularly apparent from all the cases in which persons
were convicted for having driven victims and perpetrators to
the site of an execution. In those cases the prosecution did
not prove that the driver drove for the purpose of assisting in
the killing, that is, with an intention to kill. It was the
knowledge of the criminal purpose of the executioners that
rendered the driver liable as an aider and abettor.
Consequently, if it were not proven that a driver would
reasonably have known that the purpose of the trip was an
unlawful execution, he would be acquitted.

Id.
 41

approach of the ICTY and the ICTR is inconsistent with the
federal standard for aiding and abetting liability.

In Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983),
which the Supreme Court described as “a comprehensive
opinion on the subject [of aiding and abetting],” Central Bank,
511 U.S. at 181, this court defined the scope of aiding and
abetting for tort liability in the civil context as follows:

(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall
illegal or tortious activity at the time that he provides
the assistance; (3) the defendant must knowingly and
substantially assist the principal violation.

705 F.2d at 477 (citing, inter alia, RESTATEMENT (SECOND) OF
TORTS § 876 (1979), which provides: “For harm resulting to a
third person from the tortious conduct of another, one is subject
to liability if he . . . (b) knows that the other’s conduct
constitutes a breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself.”). In
Halberstam, the court cited five factors relevant in determining
whether the defendant’s assistance was sufficiently substantial:
“‘the nature of the act encouraged, the amount of assistance
given by the defendant, his presence or absence at the time of
the tort, his relation to the other [tortfeasor] and his state of
mind.’” Id. at 478 (alteration in original) (quoting
RESTATEMENT (SECOND) OF TORTS § 876 cmt. d). The Eleventh
Circuit has adopted the Halberstam standard in ATS and TVPA
litigation. See Cabello, 402 F.3d at 1158–59 (citing Halberstam,
705 F.2d at 481, 487). To the extent that the federal common
law and the customary international law standards do not differ,
a court may, for purposes of applying the actus reus and mens
 42

rea standards, turn to the federal common law knowledge
standard in addressing claims under the ATS.

The Second Circuit, in Presbyterian Church of Sudan, 582
F.3d at 259, nonetheless held that the aider and abettor must
share the same purpose as the principal actor, relying on the
Rome Statute of the International Criminal Court (“Rome
Statute”), July 17, 1998, 2187 U.N.T.S. 90, and United States v.
von Weizsaecker (“The Ministries Case”), in 14 TRIALS OF WAR
CRIMINALS BEFORE THE NUERNBERG MILITARY TRIBUNALS
UNDER CONTROL COUNCIL LAW NO. 10, at 308, 622 (1997)
(“TRIALS OF WAR CRIMINALS”); see also Khulumani, 504 F.3d
at 276 (Katzmann, J., concurring). Under that standard, “the
defendant (1) provides practical assistance to the principal which
has a substantial effect on the perpetration of the crime, and (2)
does so with the purpose of facilitating the commission of that
crime.” Khulumani, 504 F.3d at 277 (Katzmann, J., concurring).
The Second Circuit reasoned that whether to recognize “aiding
and abetting liability is no less significant a decision than
whether to recognize a whole new tort in the first place,”
Presbyterian Church of Sudan, 582 F.3d at 259, and consistent
with Sosa’s command about the definiteness of new norms, it
concluded from those two sources that “no such [international]
consensus exists for imposing liability on individuals who
knowingly (but not purposefully) aid and abet a violation of
international law,” id.

Although we agree with the Second Circuit’s premise that
aiding and abetting must be embodied in a norm of customary
international law, amici international law scholars point out why
its conclusion was flawed. The Rome Statute, which created the
International Criminal Court (“ICC”), is properly viewed in the
nature of a treaty and not as customary international law. See
Int’l Law Scholars Amicus Br. 19–20 (citing Rome Statute, art.
10; Leila Nadya Sadat, Custom, Codification and Some
 43

Thoughts About the Relationship Between the Two: Article 10 of
the ICC Statute, 49 DEPAUL L. REV. 909, 911 & n.11, 917
(2000); Otto Triffterer, Article 10, in COMMENTARY ON THE
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 317
(Otto Triffterer ed., 1999)). It specifically provides in Article 10
that it is not to “be interpreted as limiting or prejudicing in any
way existing or developing rules of international law.” This
acknowledges that the Rome Statute was not meant to affect or
amend existing customary international law. See Int’l Law
Scholars Amicus Br. 19. As a treaty, the Rome Statute binds
only those countries that have ratified it, see Military and
Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, ¶ 175
(June 27), and the United States has not,22 see U.S. CONST. art.
II, § 2, cl. 2; Haver v. Yaker, 76 U.S. (9 Wall.) 32, 35 (1869);
Abagninin, 545 F.3d at 738; see also Statute of the International
Court of Justice (“ICJ Statute”), June 26, 1945, art. 38(1)(a), 59
Stat. 1055, 1060, 832 U.S.T.S. 993. 23 The

22
President Clinton signed the Rome Statute stating: “I will
not, and do not recommend that my successor submit the Treaty to the
Senate for advice and consent.” White House Office of
Communications, Statement by President on Signature of the ICC
Treaty (Jan. 2, 2001), available at 2001 WL 6008. On May 6, 2002,
President Bush withdrew the signature of the United States from the
Statute. See Letter of John R. Bolton, Under Sec’y of State for Arms
Control and Int’l Sec., to Kofi Annan, Sec’y Gen. of the United
Nations (May 6, 2002). By contrast, the United States Representative
to the United Nations voted in the U.N. Security Council to create
both the ICTY and the ICTR; the votes were unanimous, except for
the vote of the representative from Rwanda against creation of the
ICTR. Laura Bingham, Strategy or Process? Closing the
International Criminal Tribunals for the Former Yugoslavia and
Rwanda, 24 BERKELEY J. INT’L L. 687, 695 (2006).
23
Article 38 of the ICJ Statute, which “embodies the
understanding of States as to what sources offer competent proof of
 44

the content of customary international law,” Flores, 414 F.3d at 251,
provides:

The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall
apply:
a. international conventions, whether general or
particular, establishing rules expressly recognized by
the contesting states;
b. international custom, as evidence of a general
practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. . . . judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of
law.

ICJ Statute, art. 38; see also RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES §§ 102(1), 103(2).

Our dissenting colleague incorrectly implies that the definition
of customary international law is synonymous with the law of nations.
Dis. Op. at 1, 26 n.10. Rather, as the ICJ Statute indicates, customary
international law is one of the sources for the law of nations. The
misconception appears also in Kiobel, 621 F.3d at 116, and Flores,
414 F.3d at 237 & n.2, where the cited authorities for treating the “law
of nations” as a synonym for “customary international law” do not
support the proposition. Nor did the Supreme Court in Sosa treat as
equivalent customary international law and the law of nations
generally. In Sosa the notion of customary international law is not
discussed until Part IV.C, where the Court addresses whether Alvarez-
Machain’s abduction and arrest could be considered a violation of an
international norm of a sufficiently specific character to be cognizable
under the ATS. 542 U.S. at 735–37. By contrast, where the Supreme
Court reaches a general conclusion it refers to “international law” or
the “law of nations” without modification. See, e.g., id. at 712, 714,
 45

ICC has recognized that the Rome Statute does not necessarily
represent customary international law. Prosecutor v. Germain
Katanga and Mathieu Ngudjolo Chui, Case No. ICC-
01/14/01/07, Decision on the Confirmation of Charges, ¶¶
507–08 (Sept. 30, 2008).24

715 (quoting The Paquette Habana, 175 U.S. 677, 686 (1900)). The
Court’s rejection of Alvarez-Machain’s claim because the defendant’s
conduct “violate[d] no norm of customary international law so well
defined as to support the creation of a federal remedy,” id. at 738,
necessarily requires for liability to exist under the ATS, a finding that
the defendant either violated a norm of customary international law or
a treaty to which the United States is a party. This follows not from
the fact that the “law of nations” is synonymous with “customary
international law.” Countless sources of international law
conclusively demonstrate otherwise, see generally LOUIS HENKIN,
RICHARD CRAWFORD PUGH & OSCAR SCHACHTER, INTERNATIONAL
LAW 51–149 (3d ed. 1993), and this court ought not assume that the
Court misstated international law, cf. Murray v. The Schooner
Charming Betsy, 8 U.S. (4 Cranch) 241, 279 (1808). Rather, in stating
that courts must engage in some form of common lawmaking subject
to “vigilant doorkeeping,” Sosa, 542 U.S. at 729, the Court
emphasized that the violation of a norm of customary international law
is a necessary condition to the recognition under federal common law
of a plaintiff’s claim. This by no means indicates that customary
international law constitutes the entire corpus of international law or
that this court, in exercising its common law authority to decide
interstitial and technical questions appurtenant to the substantive norm
of primary conduct, which is governed by customary international law,
may not look to guidance from other sources of international law.
24
Appellants direct the court to the amicus brief filed by
David J. Scheffer, former U.S. Ambassador-at-Large for War Crimes
Issues and head of the U.S. delegation involved in negotiating the
Rome Statute. Brief of David J. Scheffer, Director of the Center for
International Human Rights, as Amicus Curiae in Support of the
Issuance of a Writ of Certiorari, Presbyterian Church of Sudan v.
 46

Even were we to agree that the Rome Statute reflects
customary international law, the Second Circuit’s interpretation
in Khulumani, 504 F.3d at 276 (Katzmann, J., concurring), and
Presbyterian Church of Sudan, 582 F.3d at 259, appears
inconsistent with its provisions. Article 25(3)(c) of the Rome
Statute provides for liability if an individual, “[f]or the purpose
of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission,
including providing the means for its commission.” Rome
Statute, art. 25(3)(c) (emphasis added). Article 25(3)(d)
provides liability for an individual who “contributes to the
commission or attempted commission of such a crime by a
group of persons acting with a common purpose” where such
contribution is “intentional” and either “made with the aim of
furthering the criminal activity or criminal purpose of the group”
or “made in the knowledge of the intention of the group to
commit the crime.” Id. art. 25(3)(d) (emphasis added). Article
30 provides that “a person has intent where . . . [i]n relation to a
consequence, that person means to cause that consequence or is
aware that it will occur in the ordinary course of events.” Id. art.
30(2)(b) (emphasis added). Although the text of Article
25(3)(c) appears to require proof of “purpose,” the text of
Article 25(3)(d) requires no more than “knowledge.” Given that
Exxon is alleged to have aided and abetted the Indonesian
military forces, which in turn are alleged to have committed

Talisman Energy, Inc. (May 20, 2010) (No. 09-1262), cert. denied,
131 S. Ct. 79 (2010). Ambassador Scheffer states that the provisions
on accessorial liability were a “negotiated compromise among mostly
common law and civil law governments after years of talks leading to
the Rome Statute and [were] not finalized to express a rule of
customary law.” Id. at 3; see also id. at 7, 9–13; David J. Scheffer &
Caroline Kaeb, The Five Levels of CSR Compliance: The Resiliency
of Corporate Liability Under the Alien Tort Statute and the Case for
a Counterattack Strategy in Compliance Theory, 29 BERKELEY J.
INT’L L. 334, 348–51 (2011) (hereinafter “Scheffer & Kaeb”).
 47

violations of the law of nations against appellants, were the
Rome Statute to apply it appears that Article 25(3)(d) and its
mens rea of “knowledge” would apply. Cf. Prosecutor v.
Thomas Lubanga Dyilo, Case No. ICC/01/04-01/06, Pre-Trial
Chamber Decision on the Confirmation of Charges (Jan. 29,
2007) (applying a “knowledge” standard under Article 25(3)(a)
to international law violations by co-perpetrator). To the same
effect are decisions applying Article 30, which defines the mens
rea requirement of intent to include “knowledge,” such as
Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui,
Case No. ICC-01/14-01/07, Decision on the Confirmation of
Charges, ¶¶ 528, 530 (Sept. 30, 2008), Prosecutor v. Jean-Pierre
Bemba Gombo, ICC-01/05-01/08, Decision on the Confirmation
of Charges, ¶ 359 (June 15, 2009), and Prosecutor v. Abdallah
Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus,
ICC-02/05-03/09, Decision on the Confirmation of Charges, ¶¶
156–57 (Mar. 7, 2011). The ICTY has also observed that the
Rome Statute embraces a knowledge standard of mens rea for
aiding and abetting. See Furundzija, Trial Chamber Judgement,
¶ 243–44 & n.266.25

Finally, focusing only on The Ministries Case overlooks the
fact that in numerous decisions of the Nuremberg tribunals
defendants were convicted as aiders and abettors based on a
mens rea of knowledge and not purpose. See Int’l Law Scholars
Amicus Br. 21. Amici cite as examples United States v.
Ohlendorf, in 4 TRIALS OF WAR CRIMINALS 568–70 (defendant
“was aware that the people listed would be executed when
found”); United States v. Flick, 6 TRIALS OF WAR CRIMINALS
1217, 1222 (defendant knowingly contributed money to an
organization even though it was “unthinkable” he would
“willingly be a party” to atrocities); In re Tesch, 13 INT’L L. REP.
250 (1947) (defendant acted “with knowledge” that gas would

25
See Scheffer & Kaeb, supra note 24, at 251–57.
 48

be used to kill prisoners). See Int’l Law Scholars Amicus Br.
21. These cases are not addressed by the Second Circuit in
either Presbyterian Church of Sudan or Judge Katzmann’s
concurring opinion in Khulumani. But see Khulumani, 504 F.3d
at 290 (Hall, J., concurring).

Instead, the Second Circuit considered only one of the
decisions rendered in the multi-defendant prosecution in The
Ministries Case. In Presbyterian Church of Sudan, 582 F.3d at
251, and Khulumani, 504 F.3d at 276 (Katzmann, J.,
concurring), that court examined the case of Karl Rasche, the
Chairman of Dresdner Bank, who was acquitted of war crimes
and crimes against humanity on an aiding and abetting theory,
14 TRIALS OF WAR CRIMINALS 622, although convicted on other
charges, id. at 784. Yet in the same proceeding the Tribunal
convicted Emil Puhl, deputy to the president of the German
Reichsbank, based on the same charge and theory, where he
knowingly took part in disposing of gold, including gold teeth
and crowns and other valuables looted from Holocaust victims,
even though he did not share the intent of the Holocaust
perpetrators and did not “originate[ ] the matter [that] was
probably repugnant to him.” Id. at 621. The Tribunal concluded
that Puhl had no part in the actual extermination of concentration
camp inmates, and that it had “no doubt that he would not, even
under orders, have participated in that part of the program.” Id.
at 620–21. The distinction for the Tribunal appears to have been
not that Rasche had mere knowledge of the activities of the
German Nazis whereas Puhl had purpose; both had knowledge
only. Instead the actus reus was the critical distinction relied on
by the Tribunal.26 Rasche’s activities never went beyond his

26
The Tribunal stated, with respect to Rasche,

[t]he real question is, is it a crime to make a loan, knowing or
having good reason to believe that the borrower will us[e] the
 49

routine duties as a banker and, thus, he had not committed an
actus reus sufficient to convict. By contrast, Puhl had engaged
in activities beyond his routine banking duties in order to assist
the primary perpetrators. The Second Circuit never considered
the implications of Puhl’s conviction for the scope of aiding and

funds in financing enterprises which are employed in using
labor in violation of either national or international law?
Does he stand in any different position than one who sells
supplies or raw materials to a builder building a house,
knowing that the structure will be used for an unlawful
purpose? A bank sells money or credit in the same manner as
the merchandiser of any other commodity. It does not
become a partner in enterprise, and the interest charged is
merely the gross profit which the bank realizes from the
transaction, out of which it must deduct its business costs, and
from which it hopes to realize a net profit. Loans or sale of
commodities to be used in an unlawful enterprise may well be
condemned from a moral standpoint and reflect no credit on
the part of the lender or seller in either case, but the
transaction can hardly be said to be a crime. Our duty is to try
and punish those guilty of violating international law, and we
are not prepared to state that such loans constitute a violation
of that law, nor has our attention been drawn to any ruling to
the contrary.

Id. at 622. By contrast, with respect to Puhl, the Tribunal concluded:

His part in this transaction was not that of a mere messenger
or businessman. He went beyond the ordinary range of his
duties to give directions that the matter be handled secretly by
the appropriate departments of the bank. . . . [W]ithout doubt
he was a consenting participant in part of the execution of the
entire plan, although his participation was not a major one.

Id. at 620–21.
 50

abetting liability in reaching a conclusion about the proper
standard.

Accordingly, we hold that aiding and abetting liability is
available under the ATS because it involves a norm established
by customary international law and that the mens rea and actus
reus requirements are those established by the ICTY, the ICTR,
and the Nuremberg tribunals, whose opinions constitute
expressions of customary international law. The Rome Statute
does not constitute customary international law. Its mens rea
requirements contemplate, in any event, a “knowledge”
standard. The discussion of the aiding and abetting charge
against Rasche in The Ministries Case does not support a
“purpose” standard when considered in conjunction with the
charges against Puhl, also part of The Ministries Case, and other
cases heard at Nuremberg that establish that “knowledge”
suffices to meet the mens rea requirement for aiding and
abetting liability. The decisions of the ICTY and ICTR adopt a
“knowledge” mens rea and a showing for actus reus of acts that
have a substantial effect in bringing about the violation. For all
practical purposes, we agree with appellants that the standard
under federal common law applies inasmuch as the parties
suggest no differences between it and the standard under
customary international law.27

III.

Exxon contends, for the first time on appeal, that the ATS
does not recognize corporate liability. The district court

27
Because Exxon is subject to ATS liability on an aiding and
abetting theory, the court need not address appellants’ alternative
contention, which Exxon challenges, that Exxon is subject to ATS
liability as a state actor acting under color of Indonesian law.
 51

dismissed appellants’ ATS claims for failing adequately to plead
joint action or causation under a color of law theory of liability,
having ruled that aiding and abetting liability was unavailable.
See Doe I, 393 F. Supp. 2d at 24–27. Appellants contend that,
therefore, this court should not address Exxon’s new argument,
but they have responded to the argument on the merits and an
addendum to their reply brief contains amicus briefs on
corporate liability under the ATS that were lodged with the
Second Circuit in Kiobel v. Royal Dutch Petroleum, No. 06-
4800-cv (Oct. 14 & 15, 2010) (en banc).

A.
In urging the court to address the question of corporate
liability although it is raised for the first time on appeal, Exxon
suggests the question is “jurisdictional.” See Sosa, 542 U.S. at
712–14. Exxon’s jurisdictional theory may, however, run afoul
of Herero People’s Reparations Corp. v. Deutsche Bank, A.G.,
370 F.3d 1192 (D.C. Cir. 2004). In that case, this court held that
subject matter jurisdiction under the ATS existed where a
corporate defendant was alleged to have violated international
law, stating the question as whether the “federal common law
. . . provide[s] a private cause of action for violations of
customary international law,” id. at 1195, which mimics what
the Supreme Court concluded in Sosa, 542 U.S. at 711, 721, 731
n.19; see also Saleh v. Titan Corp., 580 F.3d 1, 14 (D.C. Cir.
2009), cert. denied, __ S. Ct. __, 2011 WL 2518834 (June 27,
2011).

It is unnecessary to decide whether Herero settles the
jurisdictional question after Sosa because, as Exxon alternatively
maintains, “[c]ourts of appeals are not rigidly limited to issues
raised in the tribunal of first instance; they have a fair measure
of discretion to determine what questions to consider and resolve
for the first time on appeal.” Roosevelt v. E.I. Du Pont de
Nemours & Co., 958 F.2d 416, 419 n.5 (D.C. Cir. 1992) (citing,
 52

inter alia, Hormel v. Helvering, 312 U.S. 552, 555–59 (1941)).
Although such review is usually confined to “exceptional
circumstances,” id., the court in Roosevelt gave as examples of
such circumstances “uncertainty in the state of the law,” id.
(citing Proctor v. State Farm Mut. Auto. Ins. Co., 675 F.2d 308,
325–26 (D.C. Cir.), cert. denied, 459 U.S. 839 (1982)), and a
“novel, important, and recurring question of federal law,” id.
(citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247,
255–57 (1981)). The issue of corporate liability under the ATS
is all of the above, and it “does not depend on any additional
facts not considered by the district court.” Id.; see also Time
Warner Entm’t Co., L.P. v. FCC, 93 F.3d 957, 974–75 (D.C. Cir.
1996). Because appellants do not suggest they are prejudiced by
not having had an opportunity to present their position on the
merits in the district court and they have fully addressed the
issue on appeal, including attaching amici briefs, and because
the question is one of law, we conclude that addressing whether
there is corporate liability under the ATS is both a fair and
efficient way to proceed inasmuch as the Doe I complaint was
filed more than a decade ago.

B.
Appellants contend that there is no basis for corporate
immunity in either the text or the history of the ATS or
international law, and that the question of corporate liability is
to be decided either pursuant to federal common law or general
principles of international law. They observe, as the Eleventh
Circuit held in Romero, 552 F.3d at 1315, that the text of the
ATS places no limit on who can be a defendant, by contrast with
who can be a plaintiff, and the phrase “any civil action”
undermines any implied limitations not contained in the text.
They also observe that the codified statute’s use of “any civil
action,” see supra note 5, does not alter its meaning, citing the
Brief of Amici Curiae Professors of Federal Jurisdiction and
Legal History in Support of Plaintiffs-Appellants Seeking
 53

Petition for Rehearing En Banc at 2 n.3, Kiobel v. Royal Dutch
Petroleum Co., __F.3d __, 2011 WL 338048 (2d Cir. Feb. 4,
2011) (No. 06-4800-cv) (“Kiobel Legal History Amicus Br.”).
Consistent with Sosa’s emphasis on history, 542 U.S. at 712–24,
appellants maintain that the textual and historical evidence
indicates that the First Congress would have considered juridical
entities such as corporations to be proper defendants under the
ATS.

Our analysis begins by recognizing that corporate liability
differs fundamentally from the conduct-governing norms at
issue in Sosa, and consequently customary international law
does not provide the rule of decision. Then we establish that
corporate liability is consistent with the purpose of the ATS,
with the understanding of agency law in 1789 and the present,
and with sources of international law. Our conclusion differs
from that of the Second Circuit in Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111 (2d Cir. 2010), reh’g en banc
denied, __ F.3d __, 2011 WL 338048 (Feb. 4, 2011), because its
analysis conflates the norms of conduct at issue in Sosa and the
rules for any remedy to be found in federal common law at issue
here; even on its own terms, its analysis misinterprets the import
of footnote 20 in Sosa and is unduly circumscribed in examining
the sources of customary international law. Finally, we
conclude that Exxon’s other arguments for corporate immunity
are unpersuasive.

1. In Sosa, the Supreme Court set forth the standard by
which federal courts derive common law causes of action for
violations of international law norms, 542 U.S. at 728–29, and
that standard is to be applied where a norm relating to the
conduct of an actor is at issue. Sosa addressed whether federal
courts should recognize under federal common law “new
cause[s] of action,” 542 U.S. at 713, 724, 725, 727, 732, or a
new common law “claim,” id. at 712, 714, 720, 725, 731 n.19,
 54

731–32, 733. The Court instructed that when “accepting a cause
of action subject to jurisdiction under § 1350,” a court “should
not recognize private claims under federal common law for
violations of any international law norm with less definite
content and acceptance among civilized nations than the
historical paradigms familiar when § 1350 was enacted.” Id. at
732. The Court also counseled a “restrained conception of the
discretion a federal court should exercise in considering a new
cause of action” of the kind urged by the plaintiff in Sosa. Id. at
725. Because the question presented in Sosa was whether the
alleged illegal arrest and brief detention (of less than 24 hours)
could support a cause of action — i.e., whether a substantive
norm of conduct existed to support the claim — the Court
looked to customary international law.

Corporate liability presents a conceptually different
question. By way of example, in legal parlance one does not
refer to the tort of “corporate battery” as a cause of action. The
cause of action is battery; agency law determines whether a
principal will pay damages for the battery committed by the
principal’s agent. Here the court may assume that individuals
acting as agents of a corporation violated substantive
international law norms. The question is whether a corporation
can be made to pay damages for the conduct of its agents in
violation of the law of nations. Sosa did not address this
question and “at best lends Delphian guidance,” Khulumani, 504
F.3d at 286 (Hall, J., concurring), on what law supplies the rules
governing “the technical accoutrements to [a cause of] action,”
Tel-Oren, 726 F.2d at 778 (Edwards, J., concurring).

Sosa instructs that the substantive content of the common
law causes of action that courts recognize in ATS cases must
have its source in customary international law. It is clear from
the fact that the law of nations, outside of certain treaties, see
Dreyfus v. Von Finck, 534 F.2d 24, 31 (2d Cir. 1976), creates no
 55

civil remedies and no private right of action that federal courts
must determine the nature of any remedy in lawsuits alleging
violations of the law of nations by reference to federal common
law rather than customary international law. Professor Louis
Henkin, a leading authority on international law, explained the
distinction:

[T]hough international law is part of the law of United
States . . . , except as otherwise provided by treaty or
by special doctrine . . . , international law establishes
rights, duties, and remedies for states against states . .
. . International law itself . . . does not require any
particular reaction to violations of law . . . . Whether
and how the United States should react to such
violations are domestic, political questions: the court
will not assume any particular reaction, remedy, or
consequence.

LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES
CONSTITUTION 245–46 (2d ed. 1996). Judge Edwards
elaborated in Tel Oren, specifically addressing ATS claims:

The law of nations . . . permits countries to meet their
international duties as they will. In some cases states
have undertaken to carry out their obligations in
agreed-upon ways, as in a United Nations Genocide
Convention, which commits states to make genocide a
crime, or in bilateral or multilateral treaties.
Otherwise, states may make available their municipal
laws in the manner they consider appropriate. As a
result, the law of nations never has been perceived to
create or define the civil actions to be made available
by each member of the community of nations; by
consensus, the states leave that determination to their
respective municipal laws. Indeed, given the existing
 56

array of legal systems within the world, a consensus
would be virtually impossible to reach — particularly
on the technical accoutrements to an action — and it is
hard even to imagine that harmony ever would
characterize this issue.

726 F.2d at 778 (Edwards, J., concurring) (citations omitted);
accord Dreyfus, 534 F.2d at 31; RESTATEMENT (THIRD) OF
FOREIGN RELATIONS LAW OF THE UNITED STATES § 906 & cmt.
b; 1 OPPENHEIM’S INTERNATIONAL LAW § 19. That the ATS
provides federal jurisdiction where the conduct at issue fits a
norm qualifying under Sosa implies that for purposes of
affording a remedy, if any, the law of the United States and not
the law of nations must provide the rule of decision in an ATS
lawsuit.

Consequently, the fact that the law of nations provides no
private right of action to sue corporations addresses the wrong
question and does not demonstrate that corporations are immune
from liability under the ATS. There is no right to sue under the
law of nations; no right to sue natural persons, juridical entities,
or states. Customary international law — defined as the
“[p]ractice of states,” RESTATEMENT (THIRD) OF FOREIGN
RELATIONS LAW OF THE UNITED STATES § 102(2) & cmt. b, i.e.,
that law “made over time by widespread practice of
governments acting from a sense of legal obligation,” LOUIS
HENKIN, HOW NATIONS BEHAVE: LAW AND FOREIGN POLICY 33
(2d ed. 1979), 1 OPPENHEIM’S INTERNATIONAL LAW § 10, and
“gradually ripening into a rule of international law,” The
Paquette Habana, 175 U.S. 677, 686 (1900); see also North Sea
Continental Shelf (Ger. v. Den.), 1969 I.C.J. 3, ¶ 77 (Feb. 20);
Asylum (Colom. v. Peru), 1950 I.C.J. 266, 276 (Nov. 20);
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE
UNITED STATES, § 102(2) & cmts. b, c, k; 1 OPPENHEIM’S
INTERNATIONAL LAW §§ 16–17; 1 CHARLES CHENEY HYDE,
 57

INTERNATIONAL LAW § 6 (1922) — does not “partake of the
prolixity of a legal code,” cf. M’Culloch v. Maryland, 17 U.S. (4
Wheat.) 316, 407 (1819). Although customary international law
provides rules for determining whether international
disapprobation attaches to certain types of conduct, such as
torture, extrajudicial killing, prolonged arbitrary detention, or
aiding and abetting the same, one could not expect, as Judge
Edwards has written, the widespread practice of states out of “a
sense of legal obligation,” to produce detailed rules of procedure
and evidence on matters like res judicata, burdens of proof, and
respondeat superior.

2. Ordinarily our statutory analysis would begin with the
text of the ATS, and end with the text if it is clear. See, e.g.,
Hawaii v. Office of Hawaiian Affairs, __ U.S. __, 129 S. Ct.
1436, 1443 (2009). Appellants have made such points as can be
made about the plain text: the phrase “any civil action” is
inclusive and unrestricted. The Supreme Court has observed
that the ATS “by its terms does not distinguish among classes
of defendants.” Argentine Republic v. Amerada Hess Shipping
Corp., 488 U.S. 428, 438 (1989). Given the brevity of the text
of the ATS and the absence of a formal legislative history,28 see
Sosa, 542 U.S. at 718–19, the court, as in Sosa, looks to the
historical context, and it suggests that the purpose of the ATS
supports the availability of corporate liability.

28
Little is known of the origins of the ATS. See Sosa, 542
U.S. at 718. The debates in the House of Representatives “contain no
reference to the” ATS, In re Estate of Ferdinand E. Marcos Human
Rights Litig., 978 F.2d 493, 498 (9th Cir. 1992), and the debates in the
Senate were not recorded, Tel-Oren, 726 F.2d at 812 (Bork, J.,
concurring); see also Sosa, 542 U.S. at 718–19; Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 104 n.10 (2d Cir. 2000).
 58

As the Supreme Court observed in Sosa, under the Articles
of Confederation, the federal government lacked authority to
remedy or prevent violations of the law of nations.29 Id. at 716.
The need to address and enforce the law of nations at the federal
level was among the concerns that motivated abandoning the
Articles and convening the Constitutional Convention. James
Madison complained:

The[ ] articles [of confederation] contain no provision
for the case of offenses against the law of nations; and
consequently leave it in the power of any indiscreet
member to embroil the Confederacy with foreign
nations.

THE FEDERALIST NO. 42, at 258, 260 (James Madison) (Henry
Cabot Lodge ed., 1888). The Continental Congress struggled
to respond to violations of the law of nations. In 1779 it wrote
to the French Minister Plenipotentiary to assure that the courts
“will cause the law of nations to be most strictly observed: that
if it shall be found, after due trial, that the owners of [ ] captured
vessels have suffered damage from the misapprehension or
violation of the rights of war and neutrality, Congress will cause
reparation to be made . . . .” 14 JOURNALS OF THE CONTINENTAL
CONGRESS 1774–1789, at 635 (Worthington Chauncey Ford ed.,
1909). The promise rang hollow; although the Articles gave the
federal courts authority over “the trial of piracies and felonies
committed on the high seas,” ARTICLES OF CONFEDERATION,
art. 9, § 1, 1 Stat. 4, 6 (1778), the courts lacked authority over
violations of the law of nations on land. In 1781, the
Continental Congress adopted a resolution that “implored the
States to vindicate rights under the law of nations,” Sosa, 542
U.S. at 716, specifically to “provide expeditious, exemplary and
adequate punishment” for violations. 21 JOURNALS OF THE

29
See Sosa Legal History Amicus Br. 102–03.
 59

CONTINENTAL CONGRESS 1774–1789, at 1136–37 (Gaillard Hunt
ed., 1912).

The 1781 resolution is acknowledged to be “the direct
precursor of the alien tort provision in the First Judiciary Act.”
Anne-Marie Burley, The Alien Tort Statute and the Judiciary Act
of 1789: A Badge of Honor, 83 AM. J. INT’L L. 461, 477 (1989);
see also William S. Dodge, The Historical Origins of the Alien
Tort Statute: A Response to the “Originalists,” 19 HASTINGS
INT’L & COMP. L REV. 221, 226–29 (1996); Casto, Law of
Nations, supra note 8, at 490–91. The resolution requested that
each state, “in words that echo Blackstone,” Sosa, 542 U.S. at
716, establish remedies for the “violation of safe conducts or
passports,” for “the commission of acts of hostility against such
as are in amity, league or truce with the United States, or who
are within the same, under a general implied safe conduct,” for
“the infractions of the immunities of ambassadors and other
public ministers,” for “infractions of treaties and conventions to
which the United States are a party,” and for “offences against
the law of nations, not contained in the foregoing enumeration.”
21 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at
1136–37. In letters to the states, the Continental Congress
pointed out that “a prince, to whom it may be hereafter
necessary to disavow any transgression of that law by a citizen
of the United States, will receive such disavowal with reluctance
and suspicion, if regular and adequate punishment shall not have
been provided against the transgressor.” Id. at 1136.30

30
In response, for example, Connecticut in 1782 enacted a
law criminalizing violations of the law of nations, as well as “any
other Infractions or Violations of, or Offenses against the known,
received and established Laws of civilized Nations, agreeable to the
Laws of this State, or the Laws of Nations,” and creating a tort remedy
for injuries caused by violation of the law of nations. ACTS AND LAWS
OF THE STATE OF CONNECTICUT, IN AMERICA 82, 83 (1784).
 60

Two examples illustrate concerns underlying the 1781
Resolution and enactment of the ATS. Sosa, 542 U.S. at
716–17. In May 1784, the Chevalier De Longchamps, a French
citizen, assaulted Francis Barbe Marbois, the French Consul
General, on a street in Philadelphia, Pennsylvania. See
Respublica v. De Longchamps, 1 U.S. (1 Dall.) 111, 111 (O.T.
Phila. 1784). The French Ambassador complained to the
Continental Congress and the Dutch Ambassador threatened to
leave the State if action was not taken. Id. (citing Casto, Law of
Nations, supra note 8, at 491–92 & n.138). Although the
Pennsylvania state court tried and convicted De Longchamps for
an offense against the law of nations, which the Court of Oyer
and Terminer termed “in its full extent, . . . part of the law of”
Pennsylvania, De Longchamps, 1 U.S. (1 Dall.) at 116, the
events laid bare the impotence of the young nation. The
Continental Congress and the Secretary of Foreign Affairs
struggled to respond to an international incident over which the
federal government had no authority.31

31
“The Marbois Affair was a national sensation that attracted
the concern of virtually every public figure in America.” Sosa Legal
History Amicus Br. 105 (quoting Casto, Law of Nations, supra note
8, at 492). The Continental Congress could only require the Secretary
for Foreign Affairs John Jay to express the Congress’s “regret” and
“lament” over the incident and explain

the difficulties that may arise on this head from the nature of
a federal union in which each State retains a distinct and
absolute sovereignity [sic] in all matters not expressly
delegated to Congress leaving to them only that of advising in
many of those cases in which other governments decree.

33 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 314
(John C. Fitzpatrick ed., 1933). The Secretary explained that

many allowances are to be made for a nation whose whole
 61

In “a reprise of the Marbois affair,” Sosa, 542 U.S. at 717,
in December 1787, during the Constitutional Convention, a New
York constable entered the house of the Dutch Ambassador and
arrested one of his domestic servants. Sosa Legal History
Amicus Br. 105; Curtis A. Bradley, The Alien Tort Statute and
Article III, 42 VA. J. INT’L L. 587, 641 (2002). The Mayor of
New York City arrested the constable, as Secretary of Foreign
Affairs John Jay requested, but he cautioned that “neither
Congress nor our internal Legislature have yet passed any act
respecting a breach of the privileges of Ambassadors” and so the
nature and degree of punishment would depend on whether the
common law would recognize the breach. Bradley, The Alien
Tort Statute and Article III, supra at 641–42 (quoting 3 DEP’T OF
STATE, THE DIPLOMATIC CORRESPONDENCE OF THE UNITED
STATES OF AMERICA 447 (1837)). Secretary Jay reported to the
Continental Congress that “the federal Government does not
appear . . . to be vested with any judicial Powers competent to
the Cognizance and Judgment of such Cases.” 34 JOURNALS OF
THE CONTINENTAL CONGRESS 1774–1789, at 111 (Roscoe R.
Hill ed., 1937).

James Madison lamented at the Constitutional Convention
that “[t]he files of Cong[ress] contain complaints already, from
almost every nation with which treaties have been formed.
Hitherto indulgence has been shewn to us. This cannot be the
permanent disposition of foreign nations.” 1 THE RECORDS OF

attention till the present period has been engaged in the
pursuit of measures which were to determine their existence
as such, even tho they should be found deficient in those wise
provisions which experience has established among older
Nations.

Id.
 62

THE FEDERAL CONVENTION OF 1787, at 316 (Max Farrand ed.,
1937) (“FARRAND’S RECORDS”) (statement of James Madison).
Opposing the New Jersey Plan to enhance the power of small
states, Madison asked: “Will it prevent those violations of the
law of nations & of Treaties which if not prevented must involve
us in the calamities of foreign wars? The tendency of the States
to [sic] these violations has been manifested in sundry
instances.” Id.32 Alexander Hamilton noted that “[t]he Union
will undoubtedly be answerable to foreign powers for the
conduct of its members,” THE FEDERALIST NO. 80, at 494, 495
(Alexander Hamilton) (Henry Cabot Lodge ed., 1888), and that
“[a]s the denial or perversion of justice by the sentences of
courts, as well as in any other manner, is with reason classed
among the just causes of war, it will follow that the federal
judiciary ought to have cognizance of all causes in which the
citizens of other countries are concerned,” id. Hamilton
emphasized that such jurisdiction was “not less essential to the
preservation of the public faith, than to the security of the public
tranquility.” Id. at 495–96.

The Judiciary Act of 1789 ensured that there would be no
gap in federal subject matter jurisdiction with regard to torts in
violation of treaties or the law of nations. It provided federal
jurisdiction for lawsuits brought by aliens for torts in violation
of the law of nations without textual limitation. By contrast, it
contained no grant of federal question jurisdiction in civil cases,
see Tel-Oren, 726 F.2d at 779 n.3 (Edwards, J., concurring), and
established diversity jurisdiction in the federal circuit courts

32
See also James Madison, Vices of the Political System of
the United States, reprinted in SELECTED WRITINGS OF JAMES
MADISON 36 (Ralph Ketcham ed., 2006); 2 DOCUMENTARY HISTORY
OF THE RATIFICATION OF THE CONSTITUTION 520 (Merrill Jensen ed.,
1976) (statement of James Wilson); 1 FARRAND’S RECORDS 24–25
(statement of Edmund Randolph), 164 (statement of James Madison).
 63

subject to a $500 amount-in-controversy requirement, ch. 20,
§ 11, 1 Stat. at 78–79. As a consequence, aliens alleging
domestic common law or international non-tort claims,
including foreign creditors seeking to collect on debts owed by
U.S. citizens, were forced into state courts unless their suit was
for $500 or more, which had the practical effect of excluding
virtually all domestic tort lawsuits from the federal courts. See
Casto, Law of Nations, supra note 8, at 497–98 & n.168,
507–08. Clearly the Judiciary Act evidences that the First
Congress knew how to limit, or deny altogether, subject matter
jurisdiction over a class of claims and declined to do so with
respect to torts in violations of the law of nations and treaties
when brought by aliens.

Exemplary of a purpose of the ATS is the case of Bolchos
v. Darrel, 3 F. Cas. 810.33 A French privateer, Bolchos, had
sailed a Spanish prize into the harbor at Charleston, South
Carolina. France was then at war with Spain and Great Britain.
The vessel had a cargo of slaves, which were the property of a
Spanish subject who had mortgaged them to a British subject,
Savage. Savage’s agent, Darrel (a person of unknown
citizenship who was in Charleston at or after the time the vessel
made landfall), seized the slaves on behalf of Savage and sold
them. Bolchos filed suit in the U.S. District Court for the
District of South Carolina demanding recompense for the slaves
“as lawful prize,” invoking the Treaty of Amity and Commerce
between France and the United States, U.S.-Fr., Feb. 6, 1778, 8
Stat. 12, which provided that “[i]t shall be lawful for the ships of
war of either party, and privateers, freely to carry whithersoever
they please, the ships and goods taken from their enemies . . . ;
nor shall such prizes be arrested or seized, when they come to
and enter the ports of either party.” Id. art. XVII. Ownership of

33
See Thomas H. Lee, The Safe-Conduct Theory of the Alien
Tort Statute, 106 COLUM. L. REV. 830, 893 (2006).
 64

the slaves turned on the validity of the seizure of the Spanish
prize by the French privateer on the high seas. The district
court’s “doubt about admiralty jurisdiction over a suit for
damages . . . was assuaged by assuming that the ATS was a
jurisdictional basis for the court’s action,” Sosa, 542 U.S. at 720,
and the district court in 1795 ruled that the treaty with France
required judgment in favor of the French privateer.

Thus prior to the Constitutional Convention, when the new
nation was at risk of losing respect abroad because it could not
respond to violations of the law of nations, the Founders and the
First Congress recognized that the inability to respond to such
violations could lead to the United States’ entanglement in
foreign conflicts when a single citizen abroad offended a foreign
power by violating the law of nations. The Bradford and
Bolchos opinions are evidence of the realities of this concern.
Attorney General Bradford could abide by the 1793
Proclamation of Neutrality by favoring neither France nor Great
Britain and prevent a U.S. citizen from entangling the United
States in the general conflict in Europe as a result of his
activities abroad, in Sierra Leone. Similarly, in Bolchos the
executive and legislative branches avoided expressing opinions
on the civil dispute between British and Spanish subjects
because the district court and the Supreme Court could
adjudicate such disputes by applying the law of nations.

The historical context, in clarifying the text and purpose of
the ATS, suggests no reason to conclude that the First Congress
was supremely concerned with the risk that natural persons
would cause the United States to be drawn into foreign
entanglements, but was content to allow formal legal
associations of individuals, i.e., corporations, to do so.34

34
“A CORPORATION [] . . . is a collection of many individuals,
united into one body, . . . and vested, by the policy of the law, with
 65

Considering as an example the facts of the Sierra Leone affair
involving a U.S. citizen abroad and Attorney General Bradford’s
1795 opinion, nothing would suggest that the First Congress
would have sought to prevent natural persons from causing
entanglements to which the United States was a party by
ransacking and plundering the holdings of the Sierra Leone
Company but been content to fight a war where the privateering
mission was funded or otherwise supported by a U.S.
corporation. Attorney General Bradford did not shy away from
the notion that the Sierra Leone Company could sue under the
ATS, never intimating that a corporation could not be a
defendant or would have to prove its capacity to sue under the
law of nations rather than the common law. 1 U.S. Op. Att’y
Gen. at 58–59. Neither did Congress shy from imposing
punishment for piracy in the early crime acts, referring to the
conduct of defendant “persons,” Crimes Act of 1790, § 10, 1
Stat. at 114; see also Act of May 15, 1820, ch. 3, § 3, 3 Stat. 600
(1820), a term referring both to individual and to corporate
entities, see 1 U.S.C. § 1 (defining “person” to include
corporations); cf. Beaston v. Farmers’ Bank of Del., 37 U.S. (12
Pet.) 102, 134 (1838). Nor did the district court in the Bolchos
case shy from applying the common law of agency (allowing
Bolchos to sue Darrel, an agent of a British citizen, Savage, who
held a mortgage from the actual owner, a Spanish subject).
Thus, the historical context offers no reason to conclude that the
First Congress sought to prevent drawing the United States into
a dispute between Great Britain and France because the
defendant who had taken ownership and sold the ship’s cargo
was a natural person and not a corporation. In the words of
amici professors of federal jurisdiction and legal history:

the capacity of acting, in several respects, as an individual, particularly
. . . of suing and being sued.” 1 STEWART KYD, A TREATISE ON THE
LAW OF CORPORATIONS 13 (1793) (emphasis in original).
 66

To remedy the problems identified in the preceding
years, the ATS provided federal courts with
jurisdiction over “all causes” in violation of the law of
nations. The text demonstrates that the ATS was not
limited to criminal conduct and did not exclude
corporate defendants. Congress was focused not on
whether the acts were criminal or the defendant’s
identity but rather on the right that had been violated (a
right under “the law of nations or a treaty of the United
States”) and the plaintiff’s identity (“an alien”).
Together, these two factors defined a class of cases
sufficiently important for Congress to grant jurisdiction
over “all causes where an alien sues for a tort only in
violation of the law of nations or a treaty of the United
States.”

Kiobel Legal History Amicus Br. 6–7 (citations omitted)
(emphasis in original).

3. Corporate immunity also would be inconsistent with the
ATS because by 1789 corporate liability in tort was an accepted
principle of tort law in the United States. As early as 1774, Lord
Mansfield held that a corporation could be liable where it failed
to keep in repair a stream in consequence of which a person was
injured. Mayor of Lynn v. Turner, (1774) 98 Eng. Rep. 980
(K.B.). Early decisions of the several states support this
proposition. In Chesnut Hill & Springhouse Turnpike Co v.
Rutter, 4 Serg. & Rawle 6 (Pa. 1818), the Pennsylvania Supreme
Court considered the question of corporate liability in detail,
citing to Mayor of Lynn as well as the Year Books from the
reigns of Henry VI, Henry VII, and Henry VIII, id. at 17–18, and
concluding that it was “beyond doubt,” id. at 18, that a
corporation could be liable for the torts of its agents. The
Supreme Judicial Court of Massachusetts similarly considered
“ancient law,” including the English Year Books relied on in
 67

Chesnut Hill, and concluded that tort actions could be
maintained against corporations. Riddle v. Proprietors of
Merrimack River Locks & Canals, 7 Mass. 169, 186 (1810); see
also Townsend v. Susquehanna Turnpike Road Co., 6 Johns. 90
(N.Y. Sup. Ct. 1810). An 1832 treatise cites Chesnut Hill in
noting that “much learning will be found [in that case] on the
subject” of corporate torts and stating that “from the earliest
times to the present day, corporations have been liable for torts.”
JOSEPH KINNICUT ANGELL & SAMUEL AMES, TREATISE ON THE
LAW OF PRIVATE CORPORATIONS AGGREGATE 222–23 & n.1
(1832).

The notion that corporations could be held liable for their
torts, therefore, would not have been surprising to the First
Congress that enacted the ATS. In Trustees of Dartmouth
College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819) (Story, J.),
the Supreme Court held that an “aggregate corporation, at
common law, is a collection of individuals, united into one
collective body, under a special name . . . possess[ing] the
capacity . . . of suing and being sued.” Id. at 667. A corporation

is, in short, an artificial person, existing in
contemplation of law, and endowed with certain
powers and franchises which, though they must be
exercised through the medium of its natural members,
are yet considered as subsisting in the corporation
itself, as distinctly as if it were a real personage.

Id. The Court observed, moreover, that “a great variety of these
corporations exist, in every country governed by the common
law.” Id. at 668; see also 1 BLACKSTONE’S COMMENTARIES
*469. In Cook County, Ill. v. United States ex rel. Chandler, 538
U.S. 119 (2003), the Court assembled sources, including a 1793
treatise on the law of corporations, see supra note 34,
demonstrating the common law understanding that a corporation
 68

is a juridical person with the capacity to sue and be sued. See
538 U.S. at 125–26. Thus it appears that the law in 1789 on
corporate liability was the same as it is today: “The general rule
of substantive law is that corporations, like individuals, are
liable for their torts.” White v. Cent. Dispensary & Emergency
Hosp., 99 F.2d 355, 358 (D.C. Cir. 1938); see also Daniels v.
Tearney, 102 U.S. 415, 420 (1880); Lyon v. Carey, 533 F.2d
649, 652–53 (D.C. Cir. 1976).

4. Neither does the law of the nations support corporate
immunity under the ATS where, for example, a corporation
operates as a front for piracy, engages in human trafficking, or
mass-produces poisons for purposes of genocide. The ICTY has
held that a crime against humanity, for example, requires acts
“instigated or directed . . . by any organization or group,” noting
the post-World War II development of customary international
law. Prosecutor v. Tadic, Case No. IT-94-1-T, Trial Chamber
Opinion and Judgement, ¶¶ 654–55 (May 7, 1997). Amici
international law scholars point to numerous international
treaties that explicitly state that juridical entities should be liable
for violations of the law of nations,35 while others do not

35
See, e.g., European Convention on the Prevention of
Terrorism, May 16, 2005, art. 10(1), C.E.T.S. No. 196 (2005);
Convention Against Transnational Organized Crime, Nov. 15, 2000,
art. 10(1), 2225 U.N.T.S. 209; Convention on Combating Bribery of
Foreign Public Officials in International Business Transactions, Dec.
17, 1997, art. 2, S. Treaty Doc. No. 105-43; Basel Convention on the
Control of Transboundary Movements of Hazardous Wasters and
Their Disposal, Mar. 22, 1989, art. 2(14), 1673 U.N.T.S. 57;
International Convention on the Suppression and Punishment of the
Crime of Apartheid, Nov. 3, 1973, art. I(2), 1015 U.N.T.S. 243; see
also Scheffer & Kaeb, supra note 24, at 359.
 69

distinguish between natural and juridical individuals.36 See Brief
of Amici Curiae International Law Scholars in Support of
Plaintiffs-Appellants-Cross-Appellees at 7–10, Kiobel v. Royal
Dutch Petroleum Co., __F.3d__ , 2011 WL 338048 (2d Cir. Feb.
4, 2011) (No. 06-4800-cv) (“Kiobel Int’l Law Scholars Br.”).
Amici also point to many authoritative actors and entities in the
United Nations’ human rights establishment concluding that
corporations are responsible for violations of the law of nations.
Id. at 10–11 (citing, for example, the U.N. Human Rights
Committee and the U.N. Committee on the Elimination of All
Forms of Racial Discrimination).

Exxon’s reliance on the Report of the Special
Representative of the Secretary-General on the Issue of Human
Rights and Transnational Corporations and Other Business
Enterprises, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007), is
misplaced. Its selective quotation from the report overlooks the
salient point. See Dis. Op. at 25. The report refers to many
states’ unwillingness to adopt domestic laws providing human
rights standards for corporations. Id. ¶ 44. But elsewhere the
report points to the “extension of responsibility for international
crimes to corporations under domestic law,” id. ¶ 22, and
specifically recognizes that the ATS provides such jurisdiction
against corporations, id. ¶¶ 23, 27.

5. Exxon nonetheless maintains that the question of
corporate liability is to be answered by looking to customary
international law and because, it asserts, that law does not
recognize corporate liability the ATS does not provide a cause
of action against it. It relies principally on the Second Circuit’s
decision in Kiobel, which concluded that corporate liability “has

36
See, e.g., Convention Relative to the Treatment of Prisoners
of War, Feb. 2, 1956, art. 3, 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S.
135.
 70

not attained a discernible, much less universal, acceptance
among nations of the world in their relations inter se.” 621 F.3d
at 145. Essentially, Exxon adopts the view of the majority in
Kiobel that (1) the moral responsibility for human rights
violations so heinous as to rise to the level of an “‘international
crime’ rest[s] solely with the individual men and women who
have perpetrated it,” id. at 119, and that (2) the absence of
corporate liability has been settled since Nuremberg when
Article 6 of the London Charter limited the military tribunal’s
jurisdiction to “individuals” and “members of organizations.”
Appellees’ Br. 28; see Kiobel, 621 F.3d at 133–34. Exxon also
suggests that the ad hoc international tribunals – the ICTY and
the ICTR – and the ICC have jurisdiction over only natural
persons and that human rights treaties codifying international
human rights norms apply only to natural persons, citing, for
example, the Genocide and Torture Conventions.37

There are a number of problems with the analysis in Kiobel.
Perhaps foremost, the Second Circuit looked to international law
to define who may be a defendant, but see Argentine Republic,

37
Exxon has waived any argument that enactment of the
TVPA preempted torture and extrajudicial killing claims under the
ATS by raising the argument only in a conclusory footnote. See
Appellees’ Br. 32 n.4. But see Dis. Op. at 28 n.11. “We need not
consider cursory arguments made only in a footnote,” Hutchins v.
District of Columbia, 188 F.3d 531, 539 n.3 (D.C. Cir. 1999) (en
banc). “‘It is not enough merely to mention a possible argument in the
most skeletal way, leaving the court to do counsel’s work.’” N.Y.
Rehab. Care Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir.
2007) (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C.
Cir. 2005)); see also FED. R. APP. P. 28(a)(9). Arguing as a policy
matter that corporate liability is “improper,” Appellees’ Br. 31–32, is
not the same as addressing whether the TVPA “occup[ies] the field,”
Sosa, 542 U.S. at 731, see also Appellees’ Br. 32 n.4; Dis. Op. at
29–30, to which Exxon devotes a single, conclusory sentence.
 71

488 U.S. at 438, in concluding that “[b]ecause corporate liability
is not recognized as a ‘specific, universal, and obligatory’ norm,
it is not a rule of customary international law that we may apply
under the ATS.” Kiobel, 621 F.3d at 145 (quoting Sosa, 542
U.S. at 732) (citation omitted). Sosa neither addressed the
question presented by Exxon’s claim of corporate immunity, nor
provided precise guidance on which body of law a court must
draw to answer questions ancillary to the cause of action itself,
such as corporate liability. See supra Part III.B.1. The Second
Circuit’s approach overlooks the key distinction between norms
of conduct and remedies discussed by Professor Henkin and
Judge Edwards and instead conflates the norms and the rules
(the technical accoutrements) for any remedy found in federal
common law. And in so doing, the majority in Kiobel, id. at
128–29 & n.31, like Exxon, misreads footnote 20 in Sosa, on
which it primarily relies, to state that “whether a particular
defendant can be sued is . . . necessarily a question about the
‘scope of liability for a violation.’” Appellees’ Br. 31 (quoting
Sosa, 542 U.S. at 732 n.20).38

In footnote 20, Sosa noted a consideration raised by a
comparison of Tel-Oren and Kadic v. Karadzic, 70 F.3d 232 (2d
Cir. 1995).39 Each case addressed whether certain forms of

38
See Scheffer & Kaeb, supra note 24, at 364–65.
39
Footnote 20 states in full:

A related consideration is whether international law extends
the scope of liability for a violation of a given norm to the
perpetrator being sued, if the defendant is a private actor such
as a corporation or individual. Compare Tel–Oren v. Libyan
Arab Republic, 726 F.2d 774, 791–795 (C.A.D.C. 1984)
(Edwards, J., concurring) (insufficient consensus in 1984 that
torture by private actors violates international law), with
Kadic v. Karadzíc, 70 F.3d 232, 239–241 (C.A.2 1995)
 72

conduct were violations of international law only when done by
a state actor, or at least under color of state law or jointly with
a state, and not when done by a private actor.40 Nothing in either
opinion suggests that either court considered a dichotomy
between a natural and a juridical person, even though Tel-Oren
involved a juridical defendant, the Palestinian Liberation
Organization. The distinction between private and state actors
exists in international law, and amici international law scholars
point out the distinction has been recognized for centuries. See
Kiobel Int’l Law Scholars Br. 7. For instance, Section 404 of
the Restatement of Foreign Relations Law defines a limited set
of international crimes that are of “universal concern” that can
be committed by an individual, such as piracy, slave-trading, and
hijacking, whereas Section 702 defines those acts that violate
international law where a state as a matter of policy engaged in
them. Compare RESTATEMENT (THIRD) OF FOREIGN RELATIONS
LAW OF THE UNITED STATES § 404, with id. § 702. Footnote 20
appears to reference this dichotomy, which was briefed before

(sufficient consensus in 1995 that genocide by private actors
violates international law).

Sosa, 542 U.S. at 732 n.20.
40
In Tel-Oren, Judge Edwards concluded in 1984 that
although torture practiced by a state violated the law of nations, there
was no then-prevailing norm of customary international law that
torture practiced by a private actor with no imprimatur of the state
constituted a violation of the law of nations. Tel-Oren, 726 F.2d at
794–95 (Edwards, J., concurring). In Kadic, the Second Circuit
concluded in 1995 that a sufficient consensus existed that genocide
violated the law of nations regardless of whether it was conducted by
a state actor or a private individual. 70 F.3d at 241–42.
 73

the Supreme Court,41 as opposed to an argument about corporate
liability, which was not. As Judge Leval pointed out in Kiobel:

Far from implying that natural persons and
corporations are treated differently for purposes of civil
liability under [the] ATS, the intended inference of the
footnote is that they are treated identically. If the
violated norm is one that international law applies only
against States, then “a private actor [ ] such as a
corporation or an individual,” who acts independently
of a State, can have no liability for violation of the law
of nations because there has been no violation of the
law of nations. On the other hand, if the conduct is of
the type classified as a violation of the norms of
international law regardless of whether done by a State
or a private actor, then “a private actor [ ] such as a
corporation or an individual,” has violated the law of
nations and is subject to liability in a suit under the
ATS. The majority’s partial quotation out of context,
interpreting the Supreme Court as distinguishing
between individuals and corporations, misunderstands
the meaning of this passage.

621 F.3d at 166 (Leval, J., concurring) (emphasis in original).

Corporate liability governs the legal consequences of a
relationship between a principal and an agent, see RESTATEMENT
(THIRD) OF AGENCY § 1.01 (2006), and for the reasons explained
by Professor Henkin and Judge Edwards, and endorsed in Sosa,
542 U.S. at 724, the technical accoutrements to the ATS cause
of action, such as corporate liability and agency law, are to be

41
See Brief of Amicus Curiae the European Commission in
Support of Neither Party at 10, Sosa v. Alvarez-Machain, 542 U.S. 692
(2004) (No. 03-339), 2004 WL 177036.
 74

drawn from federal common law, mindful that “in most cases
where a court is asked to state or formulate a common law
principle in a new context, there is a general understanding that
the law is not so much found or discovered as it is either made
or created.” Sosa, 542 U.S. at 725; see also id. at 726 (citing
Textile Workers, 353 U.S. at 456). Although Sosa may not
provide guidance on which particular body of law is to provide
answers to questions ancillary to the conduct underlying the
norm, it recognized that the tort cause of action under the ATS
is derived from federal common law, 542 U.S. at 720–21. In
other words, “[t]he position of international law on whether civil
liability should be imposed for violation of its norms is that
international law takes no position and leaves that question to
each nation to resolve.” Kiobel, 621 F.3d at 152 (Leval, J.,
concurring); see Sosa, 542 U.S. at 724.

But taking the analysis of the majority in Kiobel on its own
terms regarding the proper source of law, it overlooks a source
of international law that would tend to confirm that liability
under the ATS is properly extended to corporate defendants.
Preliminarily it is to be noted that both Exxon and the majority
in Kiobel, 621 F.3d at 133–36, emphasize that German
corporations were not put on trial before the Nuremberg
tribunals following World War II. Asserting that “[t]he absence
of corporate liability for international human rights violations
has been settled since Nuremberg,” Appellees’ Br. 28, Exxon
maintains that although the Nuremberg tribunals charged
executives of I.G. Farbenindustrie A.G. (“I.G. Farben”) with
international crimes, German corporations were not put on trial.
This, however, overlooks an important part of Nuremberg
history.

Amici Nuremberg scholars point out that the history of
Nuremberg is more nuanced than Exxon suggests. Brief of
Amici Curiae Nuremberg Scholars in Support of Plaintiffs-
 75

Appellants-Cross-Appellees’ Petition for Rehearing and for
Rehearing En Banc at 3, Kiobel v. Royal Dutch Petroleum Co.,
__ F.3d __, 2011 WL 338048 (2d Cir. Oct. 15, 2010) (No. 06-
4800-cv) (“Kiobel Nuremberg Amicus Br.”). The Allies’
program for defeated Germany at the end of the war, amici note,
“had three components: what to do with the German state upon
defeat of the Third Reich, what to do with natural persons who
committed crimes, and what to do with the German economy
and its industrial cartels.” Id. The Allies (1) partitioned
Germany into zones; (2) dismantled Nazi Germany’s industrial
assets, public and private, and created a system of reparations for
injured individuals and states; and (3) prosecuted major war
criminals under the London Charter before an international
military tribunal constituted at Nuremberg, indicting among
others six Nazi organizations, designating three as criminal.
Kiobel Nuremberg Amicus Br. 4–9. Control Council Law No.
9, ignored by Exxon and the majority in Kiobel, 621 F.3d at
134–35, directed the dissolution of I.G. Farben, and the disposal
of the assets “of what was regarded as the Allies’ principal
economic enemy.” Kiobel Nuremberg Amicus Br. 11. The
preamble to Law No. 9 proclaimed that “I.G. Farben[ ]
knowingly and prominently engaged in building up and
maintaining the German war potential.” Control Council Law
No. 9, Providing for the Seizure of Property Owned by I.G.
Farbenindustrie and the Control Thereof (Nov. 30, 1945),
reprinted in 1 ENACTMENTS 225. Thus, amici Nuremberg
scholars observe, the corporate death penalty enforced against
I.G. Farben was as much an application of customary
international law, on which Control Council Law No. 9 was
based, as the sentences imposed by the tribunals themselves: the
Allies determined that I.G. Farben had committed violations of
 76

the law of nations and therefore destroyed it. Kiobel Nuremberg
Amicus Br. 11–12.42

Moreover, the failure to charge the defunct entity with
crimes was not based on the tribunals’ view that I.G. Farben had
not committed violations of international law or that other
corporations were immune from liability:

Where private individuals, including juristic persons,
proceed to exploit the military occupancy by acquiring
private property against the will and consent of the
former owner, such action, not being expressly justified
. . . , is in violation of international law. . . . Similarly

42
Exxon implicitly suggests that because the Nuremberg era
did not produce tribunal decisions embodying disapprobation of
corporate atrocities, corporate liability under the law of nations cannot
exist or be ascertained. But the doctrine of sources of international
law treats judicial decisions as secondary evidence of the law of
nations, and the conduct of nations as primary evidence. See ICJ
Statute, art. 38; 1 KENT’S COMMENTARIES 18; BIN CHENG, GENERAL
PRINCIPLES OF LAW AS APPLIED BY INTERNATIONAL COURTS AND
TRIBUNALS 23 (2006). Exxon flips this doctrine on its head, treating
judicial decisions as primary evidence. Amici Nuremberg Scholars
point out that the Allies also dissolved and liquidated a number of
insurance companies pursuant to Control Council Law No. 57 and
seized the assets of other German corporations, in some instance to
dissolve and liquidate them, pursuant to Control Council Laws Nos.
39 and 47. Kiobel Nuremberg Amicus Br. 14 & n.23. In Control
Council Law No. 2 the Allies abolished the Nazi Party, a non-
corporate juridical entity, declared it illegal, and authorized
confiscation of its assets. Id. at 9. Other evidence indicates that
Nuremberg prosecutors concluded the prosecution of a corporation
was legally permissible. See generally Jonathan A. Bush, The
Prehistory of Corporations and Conspiracy in International Criminal
Law: What Nuremberg Really Said, 109 COLUM. L. REV. 1094 (2009).
 77

where a private individual or a juristic person becomes
a party to unlawful confiscation of public or private
property by planning and executing a well-defined
design to acquire such property permanently,
acquisition under such circumstances subsequent to the
confiscation constitutes conduct in violation of
[international law].

The Farben Case, 8 TRIALS OF WAR CRIMINALS 1132–33. The
Tribunal continued:

[W]e find that the proof establishes beyond a
reasonable doubt that offenses against property as
defined in Control Council Law No. 10 were
committed by [I.G.] Farben, and that these offenses
were connected with, and an inextricable part of the
German policy for occupied countries as above
described. . . . The action of [I.G.] Farben and its
representatives, under these circumstances, cannot be
differentiated from acts of plunder or pillage
committed by officers, soldiers, or public officials of
the German Reich.

Id. at 1140.43

43
Former Ambassador Scheffer observes, much as Judge
Leval, that the majority in Kiobel not only misinterprets footnote 20
of Sosa, see Scheffer & Kaeb, supra note 24, at 364–65, but also
“misinterprets the famous statement in the Nuremberg judgment that,
‘Crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such
crimes can the provisions of international law be enforced,’” id. at
362. He points out: “The Nuremberg judges were focusing on how to
create a new precedent in international law for prosecuting individuals
for violations of international law rather than rely only on the prior
practice in international law of holding nations responsible for such
 78

Additionally, the Kiobel majority overlooked general
principles of international law as a proper source for the content
of international law. Amici state that corporate liability is a
universal feature of the world’s legal systems and that no
domestic jurisdiction exempts legal persons from liability.
Kiobel Int’l Law Scholars Br. 12. Corporate personhood has
been recognized by the ICJ upon considering the “wealth of
practice already accumulated on the subject in municipal law,”
Barcelona Traction, Light & Power Co., 1970 I.C.J. 3, 38–39
(Feb. 20). Legal systems throughout the world recognize that
corporate legal responsibility is part and parcel of the privilege
of corporate personhood. In First National City Bank v. Banco
Para El Comercio Exterior de Cuba, 462 U.S. 611, 628–29 &
nn.19–21 (1983) (citing, inter alia, Barcelona Traction Light &
Power Co., 1970 I.C.J. at 38–39), the Supreme Court upheld a
counterclaim “aris[ing] under international law” against a Cuban
corporation for illegal expropriation, id. at 623 (citing The
Paquete Habana, 175 U.S. at 700), and observed that “the
principles governing this case are common to both international
law and federal common law, which in these circumstances is
necessarily informed both by international law principles and by
articulated congressional policies.” Id.; see Brief of Amici
Curiae Human Rights and Labor Organizations in Support of
Plaintiffs-Appellants’ Petition for Rehearing and for Rehearing

violations.” Id. “There is nothing in the Nuremberg judgment to
suggest that the Nuremberg judges made this statement to the
exclusion of either nations or corporations for purposes of civil
liability for such criminal conduct in violation of international law.”
Id. at 362–63. Additionally, he points out, “the only way that the
Nuremberg prosecutors made their cases against the corporate
executives of Farben and Krupps was to establish that these
corporations had violated international law.” Id. at 363. He
concludes: “The Kiobel majority’s contention that corporations cannot
violate international law thus flies in the face of common sense, logic,
and the reality of the evidence presented at Nuremberg.” Id.
 79

En Banc at 13–14, Kiobel v. Royal Dutch Petroleum __ F3d __,
2011 WL 338048 (2d Cir. Oct. 15, 2010) (No. 06-4800-cv)
(“Kiobel Human Rights Amicus Br.”). This understanding of
corporate personhood is directly contrary to the conclusion of
the majority in Kiobel.

Unlike the manner in which customary international law is
recognized through common practice or usage out of a sense of
legal obligation, a general principle becomes international law
by its widespread application domestically by civilized nations.44
See BIN CHENG, GENERAL PRINCIPLES OF LAW AS APPLIED BY
INTERNATIONAL COURTS AND TRIBUNALS 24 (2006); H.
LAUTERPACHT, PRIVATE LAW SOURCES AND ANALOGIES OF
INTERNATIONAL LAW 33–35 (1927); OSCAR SCHACHTER,
INTERNATIONAL LAW IN THEORY AND PRACTICE 50–55 (1991);
F.A. Mann, Reflections on a Commercial Law of Nations, 33
BRIT. Y.B.I.L. 20, 34–39 (1957). It includes “the principles of

44
General principles of international law, otherwise known
as the jus gentium, were developed by Roman jurists to provide rules
of law for the settlement of civil disputes between Roman citizens and
aliens and between aliens and aliens, because the Roman civil law
was applicable only in disputes between Roman citizens. 1
BLACKSTONE’S COMMENTARIES *44 n.8. Examples include principles
of procedure, the principle of a good-faith defense, and the principle
of res judicata, PERMANENT COURT OF INTERNATIONAL JUSTICE,
ADVISORY COMMITTEE OF JURISTS, PROCÈS-VERBAUX OF THE
PROCEEDINGS OF THE COMMITTEE JUNE 16TH-JULY 24TH, 1920, at
335, as well as statutes of limitations and laches, RESTATEMENT
(THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 102
cmt. l. See also Souffront v. La Compagnie Des Sucreries de Porto
Rico, 217 U.S. 475, 483–84 & n.† (1910); Banco Nacional de Cuba
v. Chem. Bank N.Y. Trust Co., 822 F.2d 230, 237 (2d Cir. 1987);
Effect of Awards of Compensation Made by United Nations
Administrative Tribunal, 1954 I.C.J. 47, 53 (July 13).
 80

private law administered in national courts where these are
applicable to international relations,” for

[p]rivate [domestic] law, being in general more
developed than international law, has always
constituted a sort of reserve store of principles upon
which the latter has been in the habit of drawing . . . for
the good reason that a principle which is found to be
generally accepted by civilized legal systems may
fairly be assumed to be so reasonable as to be
necessary to the maintenance of justice under any
system.

J.L. BRIERLY, THE LAW OF NATIONS 62–63 (6th ed. 1963).
International law “borrow[s] from” the principles of private law
institutions for “an indication of legal policy or principle.” Id. at
63. General principles of international law thus offer further
support that corporate responsibility for the conduct of its agents
under a principle of respondeat superior is recognized in the law
of nations.

In sum, the majority in Kiobel not only ignores the plain
text, history, and purpose of the ATS, it rests its conclusion of
corporate immunity on a misreading of footnote 20 in Sosa
while ignoring Sosa’s conclusion that federal common law
would supply the rules regarding remedies, 542 U.S. at 721–22,
inasmuch as all claims under the ATS are federal common law
claims, see Mohammed v. Rumsfeld, __ F.3d __, 2011 WL
2462851, *7–10 (D.C. Cir. June 21, 2011), and also ignoring a
source of international law providing for corporate liability in all
legal systems. In joining this approach, the dissent’s analysis
suffers from the same flaws. See Dis. Op. at 22 n.9. As Judge
Leval noted, there is an inconsistency in selectively reading
international law:
 81

Because international law generally leaves all aspects
of the issue of civil liability to individual nations, there
is no rule or custom of international law to award civil
damages in any form or context, either as to natural
persons or as to juridical ones. If the absence of a
universally accepted rule for the award of civil
damages against corporations means that U.S. courts
may not award damages against a corporation, then the
same absence of a universally accepted rule for the
award of civil damages against natural persons must
mean that U.S. courts may not award damages against
a natural person. But the majority opinion concedes (as
it must) that U.S. courts may award damages against
the corporation’s employees when a corporation
violates the rule of nations. Furthermore, our circuit
and others have for decades awarded damages, and the
Supreme Court in Sosa made clear that a damage
remedy does lie under the ATS. The majority opinion
[in Kiobel] is thus internally inconsistent and is
logically incompatible with both Second Circuit and
Supreme Court authority.

Kiobel, 621 F.3d at 152–53 (Leval, J., concurring).

6. Finally, Exxon’s two other arguments for corporate
immunity under the ATS are unpersuasive. First, Exxon
maintains that because the Supreme Court has refused to
recognize corporate liability in lawsuits brought under Bivens v.
Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
for violations of the U.S. Constitution, see Corr. Servs. Corp. v.
Malesko, 534 U.S. 61, 63 (2001), this court by analogy should
similarly hold that corporations cannot be held liable for
violations of international law in ATS lawsuits. The analogy is
flawed, however, because it ignores crucial distinctions between
Bivens suits and ATS suits. Although the private right of action
 82

recognized in Bivens lacked any statutory basis, see id. at 66–67,
the First Congress enacted the ATS with the understanding that
“the district courts would recognize private causes of action for
certain torts in violation of the law of nations,” Sosa, 542 U.S.
at 724. Because the judiciary’s exercise of common law powers
in ATS lawsuits has a firm statutory basis, unlike the Bivens line
of cases, the Supreme Court’s hesitancy “to extend Bivens
liability to any new context or new category of defendants,”
including corporations, in no way forecloses recognition of
corporate liability in ATS lawsuits. Malesko, 534 U.S. at 68.
For example, in Malesko, the Court declined to extend Bivens to
impose corporate liability because the rationale underlying
Bivens, to deter individual government officials from
committing constitutional violations, was inconsistent in that
context with corporate liability. Id. at 63. By contrast, the
deterrence rationale for the ATS extends to any actor, natural or
juridical, who might entangle the United States in an
international incident through violation of the law of nations.

Second, Exxon maintains that because Congress refrained
from creating corporate liability in the TVPA, see Mohamad v.
Rajoub, 634 F.3d 604, 606–09 (D.C. Cir. 2011), this court also
should refrain from holding that there can be corporate liability
under the ATS. In Sosa, the Supreme Court observed that “the
general practice has been to look for legislative guidance before
exercising innovative authority over substantive law.” 542 U.S.
at 726. The guidance to be gleaned from Congress’s enactment
of the TVPA is, however, slight. The legislative history of the
TVPA shows only that: (1) A precursor to the TVPA would have
imposed liability on any “person who, under actual or apparent
authority of any foreign nation” subjected any other “person to
torture or extrajudicial killing,” H.R. 1417, 100th Cong. § 2 (as
referred to the H. Comms. on Foreign Affairs and the Judiciary,
Mar. 4, 1978); (2) the House Foreign Affairs Committee
amended this predecessor bill in June 1988 to replace the word
 83

“person” with “individual” and in so doing a single Member
explained that the purpose was to make clear that the bill applies
“to individuals and not to corporations,” The Torture Victim
Protection Act: Hearing and Markup before the H. Comm. on
Foreign Affairs on H.R. 1417, 100th Cong. 87–88 (1988), see
also Brief of Amici Curiae University of Minnesota Law School
International Human Rights Clinic and Legal Scholars in
Support of Plaintiffs-Appellants-Cross-Appellees Seeking
Reversal (“U. Minn. Amicus Br.”) 13 n.2; and (3) when a later
Congress enacted the TVPA approximately four years later, the
statute continued to use the word “individual” rather than
“person,” see Bowoto v. Chevron Corp., 621 F.3d 1116, 1127
(9th Cir. 2010). This legislative history provides little guidance
on the subject of corporate liability. It does not indicate why the
House Foreign Affairs Committee in 1988 decided against
creating corporate liability in the TVPA. Neither does it indicate
whether the concerns motivating the Committee’s 1988 action
were shared by the later Congress that enacted the TVPA in
1992. See Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S.
176, 204 (1980).

In Sosa, the Supreme Court characterized the TVPA as
“supplementing” the ATS, not replacing it. 542 U.S. at 731.45
The legislative history of the TVPA is to the same effect. The
House and Senate Committee reports state that “[s]ection 1350
has other important uses and should not be replaced” by the
TVPA. S. Rep. No. 102-249, at 4 (1991); H.R. Rep. No. 102-
367, at 3 (1991), reprinted in 1992 U.S.C.C.A.N. 86. When
operating in a common law fashion, courts are guided by reason
and experience. Cf. FED. R. EVID. 501. Absent a clear
indication in either the text or the legislative history of the

45
Exxon has waived any argument that enactment of the
TVPA preempted torture and extrajudicial killing claims. See supra
note 37.
 84

TVPA that Congress reached a considered judgment that
corporations should never be held liable for violations of the law
of nations, the court applies the rule suggested by both reason
and experience — that under established principles of agency
law, corporations can be held liable in ATS lawsuits for torts
committed by their agents. To the extent our dissenting
colleague concludes that allowing aliens to sue corporations in
federal courts for aiding and abetting torture and extrajudicial
killing while “U.S. citizens may not bring such suits” is a “rather
bizarre outcome,” Dis. Op. at 33, such an argument is better
addressed to Congress inasmuch as the ATS was designed to
afford greater jurisdictional protections to aliens.46

In sum, the court concludes, guided by Sosa, that under the
ATS, domestic law, i.e., federal common law, supplies the
source of law on the question of corporate liability. The law of
the United States has been uniform since its founding that
corporations can be held liable for the torts committed by their
agents. This is confirmed in international practice, both in
treaties and in legal systems throughout the world. Given that
the law of every jurisdiction in the United States and of every
civilized nation, and the law of numerous international treaties,
provide that corporations are responsible for their torts, it would
create a bizarre anomaly to immunize corporations from liability
for the conduct of their agents in lawsuits brought for
“shockingly egregious violations of universally recognized

46
The dissent’s suggested “principle in ATS cases,” Dis. Op.
at 30, and notion of “two filters,” id., would require the court to
address an issue (TVPA preemption) that Exxon has waived, see supra
note 37. In any event, the Supreme Court observed thirteen years after
enactment of the TVPA that “Congress has not in any relevant way
amended § 1350 or limited civil common law power by another
statute.” Sosa, 542 U.S. at 725 (emphasis added).
 85

principles of international law.” Zapata v. Quinn, 707 F.2d 691
(2d Cir. 1983). The analysis of the majority in Kiobel, 621 F.3d
at 130–35, by overlooking the distinction between norms and
technical accoutrements in searching for an international law
norm of corporate liability in customary international law,
misinterpreting Sosa in several ways, and selectively ignoring
relevant customary international law, is unpersuasive. The issue
of corporate liability has remained in the background during the
thirty years since the Second Circuit decided Filartiga, 630 F.2d
876, while numerous courts have considered cases against
corporations or other juridical entities under the ATS without
any indication that the issue was in controversy, whether in
ruling that ATS cases could proceed47 or that they could not on
other grounds.48 Exxon fails to show that a different approach
is warranted now.

IV.

The TVPA provides:

47
See, e.g., Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir.
2009); Sarei v. Rio Tinto, PLC, 550 F.3d 822 (9th Cir. 2008) (en
banc); Khulumani, 504 F.3d 254 (2d Cir.); Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88 (2d Cir. 2000); Bowoto v. Chevron Corp.,
557 F. Supp. 2d 1080, 1091–1100 (N.D. Cal. 2008); John Roe I v.
Bridgestone Corp., 492 F. Supp. 2d 988, 1004–24 (S.D. Ind. 2007).
48
See, e.g., Ali Shafi, 2011 WL 2315028, at *2–8;
Presbyterian Church, 582 F.3d 244 (2d Cir.); Vietnam Ass’n for
Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104 (2d Cir.
2008); Flores v. S. Peru Copper Corp., 414 F.3d 233 (2d Cir); Beanal
v. Freeport-McMoran, Inc., 197 F.3d 161 (5th Cir. 1999); Carmichael
v. United Techs. Corp., 835 F.2d 109 (5th Cir. 1988); Iwanowa v.
Ford Motor Co., 67 F. Supp. 2d 424 (D.N.J. 1999).
 86

(a) Liability. – An individual who, under actual or
apparent authority, or color of law, of any foreign
nation –
(1) subjects an individual to torture shall, in a civil
action, be liable for damages to that individual; or
(2) subjects an individual to extrajudicial killing shall,
in a civil action, be liable for damages to the
individual’s legal representative, or to any person who
may be a claimant in an action for wrongful death.

28 U.S.C. § 1350 note § 2(a). In Mohamad, 634 F.3d 604, this
court held, after oral argument in the instant case, that
Congress’s use of the word “individual” indicated that it did not
intend for the TVPA to apply to corporations or other
organizations. Id. at 606–09; see also Bowoto, 621 F.3d at
1126–27. Accordingly, the district court did not err in
dismissing appellants’ TVPA claims. See Doe I, 393 F. Supp.
2d at 28.

As an alternative to their claim of Exxon’s direct liability
under the TVPA, appellants contend that they may sue Exxon
under the TVPA on a theory of aiding and abetting liability.
They cite In re Nofziger, 956 F.2d 287 (D.C. Cir. 1992), where
the court stated the general proposition that in a criminal case
“one may be found guilty of aiding and abetting another
individual in his violation of a statute that the aider and abettor
could not be charged personally with violating.” Id. at 290
(citing Coffin v. United States, 156 U.S. 432, 447 (1895)). They
also cite 18 U.S.C. § 2(a), which provides that any person who
aids or abets a criminal offense is punishable as a principal. See
also Standefer v. United States, 447 U.S. 10, 18 n.11 (1980).
There is a circuit split. The Eleventh Circuit has held that
private parties, including corporations, can be liable for aiding
and abetting violations of the TVPA. Aldana, 416 F.3d at
1247–48. The Ninth Circuit has held that corporations may not
 87

be held directly liable under the TVPA and that, “[e]ven
assuming the TVPA permits some form of vicarious liability, the
text limits such liability to individuals, meaning in this statute,
natural persons.” Bowoto, 621 F.3d at 1128; see also Mohamad,
634 F.3d at 608–09.

Given this court’s holding in Mohamad, there is no basis in
the statutory text for permitting vicarious corporate liability.
The authorities that appellants cite, indicating that Congress can
provide for aiding and abetting liability absent direct liability, do
not support the inference that Congress so provided in the
TVPA. Appellants point to no other provision in the TVPA that
colorably provides for such liability. Even assuming arguendo
that aiding and abetting liability is available under the TVPA,
the court’s precedent would limit such liability to natural
persons. See Mohamad, 634 F.3d at 608–09.49

V.

Exxon presents three additional arguments in contending
that appellants’ lawsuit is non-justiciable: First, the complaint
should be dismissed in deference to the foreign-policy views of
the Executive Branch. Second, adjudication of the complaint
would interfere with an international agreement supported by the
United States. Third, comity is owed to the legislative,
executive, or judicial acts of Indonesia.

49
To the extent the dissent unnecessarily addresses the issue
and concludes that there is no vicarious aiding and abetting liability
for natural persons under the TVPA, Dis. Op. at 31–32, this is
inconsistent with the Senate Judiciary Committee report, which states
that the statute permits “lawsuits against persons who ordered, abetted,
or assisted in . . . torture.” S. REP. NO. 102-249, at 8.
 88

A.
In Sosa, the Supreme Court referenced the “policy of
case-specific deference to the political branches.” 542 U.S. at
733 n.21. The Court did not elaborate, although such deference
could implicate a number of the factors identified in Baker v.
Carr, 369 U.S. 186, 217 (1962).50 The Court, however, referred
to then-pending multi-district litigation involving class action
lawsuits for damages from corporations alleged to have
participated in, or abetted, the apartheid regime that formerly
controlled South Africa. 542 U.S. at 733 n.21 (citing In re S.
Afr. Apartheid Litig., 238 F. Supp. 2d 1379 (J.P.M.L. 2002)).
South Africa objected that adjudication of the cases interfered
with its Truth and Reconciliation Commission and the United
States agreed. Id. But see infra note 56. “In such cases,” the
Court concluded, “there is a strong argument that federal courts
should give serious weight to the Executive Branch’s view of the

50
In Baker v. Carr, the Court identified six factors to guide
a court’s determination of whether a complaint presents a non-
justiciable question:

[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or [2] a lack of
judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an
initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; or [5] an unusual
need for unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question.

369 U.S. at 217.
 89

case’s impact on foreign policy.” Sosa, 542 U.S. at 733 n.21.
As the Court had elsewhere cautioned, “[m]atters relating to the
conduct of foreign relations . . . are so exclusively entrusted to
the political branches of government as to be largely immune
from judicial inquiry or interference.” Regan v. Wald, 468 U.S.
222, 242 (1984) (internal citation and quotation marks omitted);
see also Haig v. Agee, 453 U.S. 280, 292 (1981); Chicago & S.
Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948);
Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918).
Similarly, this court has stated that the “Executive’s judgment
that adjudication by a domestic court would be inimical to the
foreign policy interests of the United States is compelling and
renders [a] case non-justiciable under the political question
doctrine.” Hwang Geum Joo v. Japan, 413 F.3d 45, 52 (D.C.
Cir. 2005); see also El-Shifa Pharm. Indus. Co. v. United States,
607 F.3d 836, 840 (D.C. Cir. 2010) (en banc); Bancoult v.
McNamara, 445 F.3d 427, 435 (D.C. Cir. 2006).

By letter of July 29, 2002, the Legal Adviser of the State
Department, in response to the district court’s inquiry, filed a
statement of interest that appellants’ lawsuit “would in fact risk
a potentially serious adverse impact on significant interests of
the United States.” The letter noted, however, that the
assessment was “necessarily predictive and contingent on how
the case might unfold in the course of litigation.” The letter
emphasized that the impact on U.S. foreign policy interests
“cannot be determined with certainty.” The State Department
attached a letter of July 15, 2002 from the Indonesian
Ambassador stating that Indonesia “cannot accept” a suit against
an Indonesian government institution, and that U.S. courts
should not be adjudicating “allegation[s] of abuses of human
rights by the Indonesian military.” In a supplemental statement
of July 14, 2003, the Justice Department referenced the views
expressed in the State Department’s 2002 letter while arguing
the legal point that the ATS is merely a jurisdictional statute and
 90

that there is no private right of action under the ATS, a point
rendered moot by Sosa. By letter of July 15, 2005, the State
Department expressed “concerns” with the plaintiffs’ proposed
discovery plan of May 16, 2005 — not implemented by the
district court — which would have involved relatively broad
discovery that could extend to documents located in Indonesia.
Doe I, 473 F.3d at 347. Upon dismissing the statutory claims on
their merits, see Doe I, 393 F. Supp. 2d at 24–27, the district
court explained:

The issues and parties in this case have been tailored to
a narrow[ ] question: did U.S. corporations in their
effort to secure their pipeline in Indonesia violate U.S.
state tort law? Litigation and discovery on this issue,
if conducted with care, should alleviate the State
Department’s concerns about interfering with
Indonesia’s sovereign prerogatives while providing a
means for plaintiffs to obtain relief through their
garden-variety tort claims. It should be feasible, for
instance, for plaintiffs to perpetuate testimony and
satisfy document discovery requirements outside
Indonesia.

Id. at 29–30.51

In the prior interlocutory appeal, this court rejected Exxon’s
justiciability contention inasmuch as the State Department’s
2002 letter contained “several important qualifications.” Doe I,

51
The district court emphasized the general ambiguity of the
State Department’s 2002 letter, see Doe I, 393 F. Supp. 2d at 22–23,
and observed that a few months later it had ordered discovery to
commence on the common law claims, id. at 23. This suggests the
district court did not view the 2002 letter as presenting a justiciability
problem for either the federal statutory or the common law claims.
 91

473 F.3d at 354. “[T]he State Department’s letter [is] not [ ] an
unqualified opinion that this suit must be dismissed, but rather
[ ] a word of caution to the district court alerting it to the State
Department’s concerns.” Id. The court further noted that the
reference to “how the case might unfold in the course of
litigation” leads to the inference that “the State Department did
not necessarily expect the district court to immediately dismiss
the case in its entirety.” Id. Moreover, the court noted the
possibility that it had misinterpreted the letter, and invited the
State Department, if that were the case or if the Department had
additional concerns about the litigation, “to file further letters or
briefs with the district court expressing its views.” Id. The court
cited opinions from the Ninth and Eleventh Circuits rejecting
non-justiciability objections for ATS or common law tort
actions.52

The interlocutory appeal decided only that Exxon lacked a
“clear and indisputable” right to a writ of mandamus ordering
appellants’ common law tort claims to be dismissed under the
political question doctrine. Doe I, 473 F.3d at 357. Now this
court reviews de novo the district court’s decision to dismiss

52
This court cited Sarei v. Rio Tinto, PLC, 456 F.3d 1069
(9th Cir. 2006), vacated on other grounds, 487 F.3d 1193 (9th Cir.
2007) (en banc), where the State Department had filed a letter, stating
an ATS suit against non-state actors was, in the words of this court,
“simply a tort suit — which is constitutionally committed to the
judiciary.” Doe I, 473 F.3d at 354 (citing Sarei, 456 F.3d at 1079–82).
This court also cited Linder v. Portocarrero, 963 F.2d 332 (11th Cir.
1992), where the Eleventh Circuit concluded that the political question
doctrine ought not prevent common law tort claims arising out of the
Nicaraguan civil war from going forward, id. at 337, noting that “[t]he
fact that the issues before us arise in a politically charged context does
not convert what is essentially an ordinary tort suit into a
non-justiciable political question,” id. (quoting Klinghoffer v. S.N.C.
Achille Lauro, 937 F.2d 44 (2d Cir. 1991)).
 92

those claims. See Lin v. United States, 561 F.3d 502, 505 (D.C.
Cir. 2009). Subsequent events persuade us that the considered
analysis by this court in Doe I is correct. The Supreme Court
denied Exxon’s petition for a writ of certiorari, 554 U.S. 909
(2008), which the United States opposed. The United States
stated that “[t]he district court carefully considered concerns
identified by the United States in its submissions to that court,”
noting dismissal of the federal law claims, “all claims against a
defendant indirectly owned by the Indonesian government,” and
the “limit[] [on] discovery in a manner intended to avoid
offending Indonesia’s sovereign interests.” Brief for the United
States as Amicus Curiae, Exxon Mobil Corp. v. Doe I, 554 U.S.
909 (2008) (No. 07-81), 2008 WL 2095734, at *8.53 Further,
that “[i]n light of that procedural history and the absence of a
request by the United States that the case be dismissed in its
entirety, the court of appeals reasonably regarded petitioners’
interlocutory appeal as one from the denial of a motion to
dismiss state-law tort claims based on an assertion by private
defendants, not by the Executive, that the litigation itself would
have adverse consequences for the Nation’s foreign policy
interests and thus raised separation-of-powers concerns.” Id.,
2008 WL 2095734, at *8–9 (emphasis added). Appellants also
cite an amicus brief filed by the United States before the Second
Circuit, emphasizing that the “requirement of an explicit request
for dismissal on foreign policy grounds by the Executive Branch

53
The United States’ amicus brief before the Supreme Court
stated that district court had “carefully considered concerns identified
by the United States” and “[l]argely on the basis of those concerns”
had dismissed the federal claims. 2008 WL 2095734, at *8. Both the
district court and this court concluded, however, that the State
Department’s 2002 letter was ambiguous and the text qualifying the
State Department’s position applied to all claims. See Doe I, 473
F.3d at 354. Since appellants noted their appeals in 2009, the State
Department has not filed a statement of interest in this or the district
court.
 93

is, in our view, critical.” Brief for the United States as Amicus
Curiae at 11, Balintulo v. Daimler AG, No. 09-2778-cv (2d Cir.
Nov. 30, 2009) (emphasis in original). The Executive Branch
has made no such request in the instant cases.

This court “grant[s] substantial weight” to State Department
statements regarding factual questions that are “at the heart of
the Department’s expertise.” In re Papandreou, 139 F.3d 247,
252 & n.2 (D.C. Cir. 1998). Currently the court has no occasion
to “decide what level of deference would be owed to a letter
from the State Department that unambiguously requests that the
district court dismiss a case as a non-justiciable political
question.” Doe I, 473 F.3d at 354 (emphasis in original).
Before this court are only: (1) an ambiguous statement of
interest by the State Department in 2002 regarding the plaintiffs’
litigation, respecting both the federal statutory and non-federal
tort claims; (2) an amicus brief filed by the Solicitor General and
the State Department’s Legal Advisor emphasizing that the
statement of interest did not constitute an explicit request for
dismissal and affirming that the district court had mitigated the
concerns of the United States regarding discovery; (3) silence
from the United States in the years since the United States’
statement as amicus to the Supreme Court, notwithstanding this
court’s invitation in Doe I to file a further statement of interest;
and (4) an amicus brief filed by the United States in another
circuit emphasizing that the United States will make an explicit
request for dismissal when appropriate. Also lodged but not
filed in this court is a letter of January 24, 2011 from the
Indonesian Embassy expressing continuing objection to
plaintiffs’ lawsuits. Given the United States’ subsequent filings
— and subsequent silence — the court concludes that it did not
misinterpret the Legal Advisor’s 2002 statement of interest.54

54
The district court received expert testimony on the question
of the definitiveness or ambiguity of the 2002 statement of interest
 94

Nonetheless, insofar as the court is reviving appellants’
ATS claims (minus the defendant owned in part by the
Indonesian government and those dismissed claims not
appealed), the court recognizes the United States had previously
expressed concern. Although the court lacks a sufficiently
unambiguous and recent statement from the United States
expressing concern as would justify dismissal of the ATS claims
on justiciability grounds, if the State Department were to
reassert concerns, as it has been invited to do, this court or, upon
remand, the district court in the first instance, must assess
whether they provide grounds for dismissing the complaints or
a part thereof, particularly with regard to the ATS claims. See
Dis. Op. at 39.

B.
In August 2005, a Memorandum of Understanding Between
the Government of the Republic of Indonesia and the Free Aceh
Movement was signed as part of the Helsinki Accord. Exxon
characterizes the Memorandum as a peace treaty ending the
Aceh conflict and appellants’ claims as arising out of injuries
allegedly sustained during the civil war. By letter of February
1, 2007 to the State Department, the Indonesian Embassy
“reaffirm[ed] its position as contained in the previous
correspondence,” “highlight[ed]” the memorandum of

from Harold Hongju Koh, at the time a former Assistant Secretary of
State for Democracy, Human Rights and Labor in the Clinton
Administration and former attorney-adviser in the Office of Legal
Counsel in the Justice Department in the Reagan Administration, who
in both capacities participated in the drafting of statements of interest
of the sort at issue here. Thereafter he was Dean of the Yale Law
School and is currently the Legal Advisor of the State Department.
Dean Koh’s testimony supports the conclusion of this court in the
prior interlocutory appeal and now. See also Harold Hongju Koh,
Separating Myth from Reality About Corporate Responsibility
Litigation, 7 J. INT’L. ECON. L. 263 (2004).
 95

understanding, and concluded that adjudication of appellants’
lawsuit “could be deemed as undermining the result of the
democratic process.” Exxon suggests continuation of this
litigation would also “necessarily embody a ‘lack of respect due’
to the Executive Branch’s support of the Helsinki Accord,”
Appellees’ Br. 65 (citing Baker v. Carr, 369 U.S. at 217).

Exxon marshals paltry support for its asserted domestic
doctrine of nonjusticiability based on interference with the peace
process. It relies on the proposition that “war-related claims,
including those not explicitly addressed, are extinguished by [a]
peace settlement,” id. at 64 (quoting Burger-Fischer v. Degussa
AG, 65 F. Supp. 2d 248, 274 (D.N.J. 1999) (alteration in
original), principally pointing to Ware v. Hylton, 3 U.S. (3 Dall.)
199, 230 (1796)). In Ware v. Hylton, a British subject sought to
recover a debt confiscated by the Commonwealth of Virginia
during the War of Independence, and Justice Chase wrote that
inasmuch as “the treaty of peace abolishes the subject of the war,
and that after peace is concluded, neither the matter in dispute,
nor the conduct of either party, during the war, can ever be
revived, or brought into contest again.” Id. at 230. This
principle was applied in Hwang Geum Joo v. Japan, 413 F.3d 45
(D.C. Cir. 2005), involving claims by women who had been
abducted and forced into sexual slavery by the Japanese Army
before and during World War II; both Japan and the State
Department filed statements that treaties between Japan and
Taiwan, South Korea, the Philippines, and China, respectively,
had resolved all civil claims. Id. at 52. This court relied on the
statement of the State Department that the claims had been
extinguished by treaty. Id. at 51–52. Exxon neither cites Hwang
Geum Joo nor addresses the fact that the State Department has
expressed no opinion regarding the 2005 Memorandum of
Understanding. Instead, Exxon cites Ware and Burger-Fischer,
which involved a class action lawsuit to recover compensation
and damages in connection with forced labor under the Nazi
 96

regime. The district court concluded the civil claims had been
subsumed by remedies agreed to by the Allies and Germany
without reference to any statement by the State Department. Id.
at 279. Exxon also cites Section 902 comment i of the
Restatement of Foreign Relations Law.55

Exxon’s invocation of this doctrine founders on a
fundamental level. As demonstrated by the noted sources, the
basic principle is that a state has authority to bargain on behalf
of its citizens and, consequently, to bargain away its citizens’
civil claims. HENKIN, FOREIGN AFFAIRS AND THE
CONSTITUTION 299–300. Once an international settlement
agreement is finalized, the private claim becomes a “claim of the
state and is under the state’s control.” RESTATEMENT (THIRD)
OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 902 cmt.
i. The flaw in Exxon’s reasoning is that the Free Aceh
Movement is not, and never was, a state. Appellants
consequently challenge the characterization of the Memorandum
of Understanding as a “treaty of peace,” and it is notable that
there is no statement by the Executive Branch that supports the
characterization. The principle articulated by Justice Chase and

55
See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW
OF THE UNITED STATES § 902 cmt. i:

Like other claims for violation of an international obligation,
a state’s claim for a violation that caused injury to rights or
interests of private persons is a claim of the state and is under
the state’s control. The state may determine what individual
remedies to pursue, may abandon the claim, or settle it. The
state may merge the claim with other claims with a view to an
en bloc settlement. The claimant state may set these claims
off against claims against it by the respondent state. Any
reparation is, in principle, for the violation of the obligation
to the state, and any payment made is to the state.
 97

the Restatement is that the citizens of once-warring countries
may rely on their respective sovereigns to enforce their claims
or not, if that proves a necessity of foreign relations. Following
the conflict, citizens of each sovereign may petition their own
governments to enforce their claims. Appellants have no such
recourse because the Free Aceh Movement is not a sovereign;
Aceh’s rebellion did not result in its independence from
Indonesia. Exxon cites no authority for the extension of the
doctrine articulated in Ware to domestic agreements and the
purpose underlying the doctrine would appear to have no
applicability when the agreement is not bargained by two
independent sovereigns.

So understood, Exxon’s contention that the court must
afford respect to “the Executive Branch’s support” of the
Memorandum of Understanding, Appellees’ Br. 65, becomes no
more than an alternative approach to the case-specific deference
to the Executive Branch already discussed. The State
Department filed its only statement of interest three years before
the Memorandum of Understanding was signed, and the United
States made no reference to it in its amicus brief filed before the
Supreme Court. Thus, where Exxon’s first contention regarding
nonjusticiability was premised on ambiguity followed by
silence, Exxon’s second contention is premised on silence alone.

C.
Exxon’s invocation of the doctrine of comity, citing Hilton
v. Guyot, 159 U.S. 113 (1895), fares no better. In Hilton, the
Supreme Court instructed that:

where there has been opportunity for a full and fair trial
abroad before a court of competent jurisdiction,
conducting the trial upon regular proceedings, after due
citation or voluntary appearance of the defendant, and
under a system of jurisprudence likely to secure an
 98

impartial administration of justice between the citizens
of its own country and those of other countries, and
there is nothing to show either prejudice in the court, or
in the system of laws under which it was sitting, or
fraud in procuring the judgment, or any other special
reason why the comity of this nation should not allow
it full effect, the merits of the case should not, in an
action brought in this country upon the judgment, be
tried afresh, as on a new trial or an appeal, upon the
mere assertion of the party that the judgment was
erroneous in law or in fact.

Id. at 202–03. In other words, a foreign judgment ought to have
preclusive effect and be granted full credit and effect under the
principles of comity and international law. Id. at 206. Circuit
courts of appeals applying Hilton require adjudication of the
propriety of a foreign judicial decision, Phila. Gear Corp. v.
Phila. Gear de Mexico, S.A., 44 F.3d 187, 191 (3d Cir. 1994),
and where no proceeding has been conducted abroad, emphasize
the importance of an available foreign forum, see, e.g., Ungaro-
Benages v. Dresdner Bank AG, 379 F.3d 1227, 1238–39 (11th
Cir. 2004); Bigio v. Coca-Cola Co., 239 F.3d 440, 454 (2d Cir.
2001); Jota v. Texaco Inc., 157 F.3d 153, 160 (2d Cir. 1998).

In effect, Exxon challenges the district court’s conclusion
that, assuming without deciding that the ATS has a prudential
exhaustion requirement, see Sosa, 542 U.S. at 733 n.21, the
plaintiffs were excused from meeting the requirement because
“it is apparent here that efforts to pursue this case in Indonesia
would be futile.” Doe I, 393 F. Supp. 2d at 25. Specifically, the
district court found that the plaintiffs, in response to an affidavit
from an Indonesian Supreme Court Justice that their claims
could be litigated in Indonesia, “effectively counter that they
risk the very real possibility of reprisals, including death, if they
pursue their claims there.” Id. The only circuit court of appeals
 99

to address the question held that a prudential exhaustion
requirement does exist under international law and the ATS, but
that where “the United States ‘nexus’ is weak, courts should
carefully consider the question of exhaustion, particularly . . .
with regard to claims that do not involve matters of ‘universal
concern,’” and in so doing apply the usual domestic exhaustion
principles, including that “[t]he defendant bears the burden to
plead and justify an exhaustion requirement, including the
availability of local remedies.” Sarei, 550 F.3d at 832. The
“remedy must be available, effective, and not futile.” Id.

Exxon’s contention regarding international comity thus
appears to be an attempt to reargue the issue of prudential
exhaustion, which it has not appealed, see supra Part II.A,
without challenging the district court’s finding that efforts to
pursue the case in Indonesia would be futile. In order to invoke
this doctrine, Exxon must either point to a legal proceeding in
Indonesia involving these particular plaintiffs to which the court
must defer or at least the availability of effective and non-futile
local remedies. See Bigio, 239 F.3d at 454. Exxon has done
neither.56

56
The dissent makes a related point, asserting that although
enacted to avoid conflict with foreign nations the ATS has caused the
opposite in recent years. Dis. Op. at 12–13. Yet the examples cited
in support of this assertion do not withstand examination. As regards
the South African apartheid, the dissent states that the ATS litigation
hampered the Truth and Reconciliation Commission of South Africa.
Id. Archbishop Desmond Tutu, Chairman of the Commission,
disagreed and filed letters with the district court and the Second
Circuit urging that the claims go forward. In re S. Afr. Apartheid
Litig., 617 F. Supp. 2d 228, 276 (S.D.N.Y. 2009). Following a later
ruling by the district court, the Justice Minister of South Africa wrote
the district court that in light of the limitation to claims “based on
aiding and abetting very serious crimes, such as torture, [and]
extrajudicial killing committed in violation of international law by the
 100

VI.

The district court dismissed the common law claims for lack
of prudential standing. Doe VIII, 658 F. Supp. 2d 131.
Appellants correctly contend that there is no per se rule against
standing for non-resident aliens in federal courts and that under
a case-by-case approach, upon applying the zone-of-interests
test, they have prudential standing to bring their claims. Exxon
disputes that appellants meet the zone-of-interests test, and
alternatively maintains that the district court erred in its choice
of law analysis and that principles of federal foreign affairs
preemption dispose of appellants’ claims.

apartheid regime,” as contrasted with those corporations that “merely
did business with the apartheid government,” the court had addressed
South Africa’s concerns. Letter from J.T. Radebe, Minister of Justice
and Constitutional Development, to Hon. Shira A. Scheindlin, U.S.
Dist. Court, S. Dist. of N.Y. 1–2 (Sept. 1, 2009), quoted in Brief for
the United States as Amicus Curiae Supporting Appellees at 6–7,
Balintulo v. Daimler AG, No. 09-2778-cv (2d Cir. Nov. 30, 2009). As
regards Papua New Guinea, the Chief Secretary of the government
wrote to the district court on multiple occasions, reflecting the views
expressed by the Prime Minister to parliament, urging that the
litigation proceed. Sarei, 487 F.3d at 1199–1200. Indeed, in one
letter the Chief Secretary indicated that the only way that relations
between the United States and Papua New Guinea could be harmed
would be “if the litigation is discontinued.” Id. at 1207 n.15. The
objections by Canada in Presbyterian Church of Sudan v. Talisman
Energy, Inc., No. 01 Civ. 9882 (DLC), 2005 WL 2082846 (S.D.N.Y.
Aug. 30, 2005), and by the United Kingdom, Switzerland, and
Germany — as appended to the Brief for the United States as Amicus
Curiae in Support of Petitioners at apps. C–D, Am. Isuzu Motors, Inc.
v. Ntsbeza, 128 S. Ct. 2424 (2008) (No. 07-919) — were not to the
exercise of jurisdiction over events that took place in their countries
but to exercise of jurisdiction over corporations that were citizens of
those countries. See, e.g., id. at 7a–8a, 10a.
 101

A.
In dismissing the common law claims, the district court
relied on Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144
(D.D.C. 1976), which relied on an asserted “general rule that
non-resident aliens have no standing to sue in United States
courts.” Id. at 152. Appellants contend that neither that case nor
any subsequent case has established such a general rule, which
would be contrary to the rules of prudential standing and the
Framers’ intent. Neither Exxon nor amici supporting Exxon rely
in this court on Berlin Democratic Club or any per se rule.
Instead they maintain appellants fail to show that they fall within
the zone of interests of D.C. common law because neither the
District of Columbia nor any state of the United States has any
interest in extending its law to reach the allegations of non-
residents involving foreign individuals within the territory of a
foreign sovereign, particularly when, they assert, the claims
concern acts of that sovereign’s military during a civil war. Our
analysis begins with a review of the standard for prudential
standing and then applies that standard to appellants’ tort claims.

Exxon’s decision not to rely on Berlin Democratic Club is
well founded. The Framers intended to permit aliens, resident
or otherwise, access to federal courts: Article III of the
Constitution conferred jurisdiction in the federal courts over
lawsuits “between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.” U.S. CONST. art. III, § 2; see also
JPMorgan Chase Bank v. Traffic Stream (BVI) Infrastructure
Ltd., 536 U.S. 88, 95 (2002).57 The Judiciary Act of 1789

57
See also THE FEDERALIST NO. 80, at 494, 495, 500
(Alexander Hamilton) (Henry Cabot Lodge ed., 1888); 4 DEBATES IN
THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE
FEDERAL CONSTITUTION 546, 554 (Jonathan Elliott, ed., 1836)
(statement of James Madison); 2 id. at 492 (statement of James
Wilson); Brief for the United States as Amicus Curiae Supporting
 102

authorized the federal courts to hear cases involving an alien
defendant. Judiciary Act of 1789, ch. 20, § 11, 1 Stat. 73, 78
(1789).58 The court in Berlin Democratic Club misread Johnson
v. Eisentrager, 339 U.S. 763 (1950), which concerned the
constitutional rights of alien enemies, id. at 769, 774, 776, and
took pains to distinguish alien friends, id. at 769 & n.2. The
authorities cited in Eisentrager for the proposition that “alien
enemies resident in the country of the enemy could not maintain
an action in its courts during the period of hostilities,” id. at 776,
make clear that the Supreme Court intended only to address
claims by enemy aliens. See id. at 774 n.6, 776–77. In Rasul v.
Bush, 542 U.S. 466 (2004), the Supreme Court rejected the
notion that its precedent “categorically excludes aliens detained
in military custody outside the United States from the ‘privilege
of litigation’ in U.S. courts,” id. at 484 (quoting Al Odah v.
United States, 321 F.3d 1134, 1139 (D.C. Cir. 2003)), and stated
that “Eisentrager itself erects no bar to the exercise of
federal-court jurisdiction over [ ] habeas corpus claims” brought
under 28 U.S.C. § 2241, id. The Court quoted Disconto
Gesellschaft, in which it had stated that “[a]lien citizens, by the
policy and practice of the courts of this country, are ordinarily
permitted to resort to the courts for the redress of wrongs and the
protection of their rights,” 208 U.S. at 578, and noted that “28

Petitioner at 2, JPMorgan Chase Bank v. Traffic Stream (BVI)
Infrastructure Ltd., 536 U.S. 88 (2002) (No. 01-651), 2001 WL
34092062, at *2.
58
Every proposed version of the draft Judiciary Act provided
for alienage jurisdiction. See Brief of Amici Curiae of Arthur Miller,
Erwin Chemerinsky and Professors of Federal Jurisdiction and Legal
History in Support of Plaintiffs-Appellants-Cross-Appellees and
Reversal 13 (“Legal History Amicus Br.”) (citing Kevin R. Johnson,
Why Alienage Jurisdiction? Historical Foundations and Modern
Justification for Federal Jurisdiction over Disputes Involving
Noncitizens, 21 YALE. J. INT’L L. 1, 17 (1996)).
 103

U.S.C. § 1350 explicitly confers the privilege of suing for an
actionable ‘tort . . . committed in violation of the law of nations
or a treaty of the United States’ on aliens alone.” 542 U.S. at
484–85 (alteration in original).

To the extent the court in Berlin Democratic Club relied on
this court’s opinions, they have been qualified, if not overruled,
by subsequent Supreme Court decisions.59 In Kukatush Mining
Corp. v. SEC, 309 F.2d 647 (D.C. Cir. 1962), this court held that
a non-resident alien corporation, which transacted no business
and had no assets in the United States, lacked standing because
the court did not “ha[ve] jurisdiction of the subject res or with
the preferred rights under immigration laws.” Id. at 650. The
court acknowledged, however, “a definite trend to relax the
rigidities of the earlier cases.” Id.60 In Constructores Civiles de

59
The district court also cited Reyes v. Sec’y of Health, Educ.
& Welfare, 476 F.2d 910 (D.C. Cir. 1973), which addressed a
substantive, not a procedural question, namely whether a non-resident
alien was protected by the Due Process Clause and the applicability of
the Constitution outside of the United States. Id. at 915 & n.8. The
district court also cited Justice Douglas’s dissent in Kleindienst v.
Mandel, 408 U.S. 771 (1972), “assuming, arguendo” that persons
outside the United States lacked standing to assert a First Amendment
claim of being excluded from entry based on protected speech, id. at
772 (Douglas, J., dissenting); the dissenting opinion rested on a
substantive question, namely whether the First Amendment applied
extraterritorially, id.
60
The court in Kukatush Mining read other opinions as
limited to their facts. For instance, the court read Disconto
Gesellschaft v. Umbreit, 208 U.S. 570, 578 (1908), and Russian
Volunteer Fleet v. United States, 282 U.S. 481, 489 (1931), as
concerning the present or prior existence of a res in the United States.
See Kukatush Mining, 309 F.2d at 649–50. Similarly, this court read
Cia Mexicana De Gas S.A. v. Federal Power Commission, 167 F.2d
 104

Centroamerica, S.A. v. Hannah, 459 F.2d 1183, 1190 (D.C. Cir.
1972), this court found circuit case law muddled and, noting the
Supreme Court’s admonition that “‘[a]lien citizens, by the policy
and practice of the courts of this country, are ordinarily
permitted to resort to the courts for the redress of wrongs and the
protection of their rights,’” id. (quoting Disconto Gesellschaft,
208 U.S. at 578) (alteration in original), concluded that the
question “depends upon the circumstances,” id. The court did
not suggest a test for judging the circumstances, id., but held
there was standing in view of the plaintiff’s substantial contacts
with a federal agency in Washington, D.C., the fact that the
money at issue originated from the U.S. Treasury in
Washington, D.C., and unlike in Kukatush Mining, the plaintiff
was not an alleged wrongdoer but sued “under a statute at least
arguably enacted for its own benefit [and] also for the American
people as a private attorney general,” id. at 1191. In Berlin
Democratic Club, the district court refused to adopt an
additional exception for a non-resident alien where the res was
not within a domestic court’s territorial jurisdiction or a non-
resident alien had not applied for relief under a U.S. statute or
was not brought from abroad to be subject to a domestic
criminal prosecution. 410 F. Supp. at 152; see also id. at 153.

Before this court spoke again on the question of prudential
standing for a non-resident alien, the Supreme Court rendered a
series of decisions on prudential standing,61 ultimately adopting
the analysis in Valley Forge Christian College v. Americans

804 (5th Cir. 1948), and Estrada v. Ahrens, 296 F.2d 690 (5th Cir.
1961), as relying on idiosyncracies of administrative law. See
Kukatush Mining, 309 F.2d at 649–50.
61
E.g., Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91,
99–100 (1979); Craig v. Boren, 429 U.S. 190, 193–94 (1976); Warth
v. Seldin, 422 U.S. 490, 499–500 (1975).
 105

United for Separation of Church and State, Inc., 454 U.S. 464
(1982). In an effort to clarify the line between constitutional and
prudential standing, the Court enumerated three “prudential
principles that bear on the question of standing”: (1) “the
plaintiff generally must assert his own legal rights and interests,
and cannot rest his claim to relief on the legal rights or interests
of third parties”; (2) courts ought to refrain from “adjudicating
‘abstract questions of wide public significance’ which amount
to ‘generalized grievances,’ pervasively shared and most
appropriately addressed in the representative branches”; and (3)
the “plaintiff’s complaint [must] fall within the zone of interests
to be protected or regulated by the statute or constitutional
guarantee in question.” Id. at 474–75 (internal citations and
quotation marks omitted).

Since Valley Forge this court has imposed no special
disability on non-resident alien status in addressing standing to
bring constitutional claims. In Cardenas v. Smith, 733 F.2d 909
(D.C. Cir. 1984), the court characterized Kukatush Mining as
identifying a non-exhaustive list of situations in which a non-
resident alien may bring suit, and Constructores Civiles as
signaling a “relaxation of rigidities” in adopting a “case-by-case
analytical approach.” Id. at 916. Applying the zone-of-interests
test of Valley Forge, the court inquired whether the interest
asserted by the plaintiff “enjoys the protection of the Fourth and
Fifth Amendments,” the substantive basis for the plaintiff’s suit,
and acknowledged that “the inquiry tends to meld into the
question of whether [the plaintiff] has a cause of action to
enforce these Amendments.” Id. at 915. “It is beyond
peradventure,” the court noted, “that a foreign nonresident,
non-hostile alien may, under some circumstances, enjoy the
benefits of certain constitutional limitations imposed on United
States actions.” Id. In DKT Memorial Fund v. Agency for
International Development, 887 F.2d 275 (D.C. Cir. 1989), the
court again decided the prudential standing question based on
 106

the substantive question of the territorial reach of the
constitutional protection: the court looked at the merits of the
plaintiff’s claim to determine whether the First Amendment
protected the conduct of the non-resident aliens. Id. at 284–85.

Consequently, regardless of whether Berlin Democratic
Club was correctly decided based on authority in this circuit at
the time, this court now analyzes prudential standing on a case-
by-case basis based on the zone of interests of the law providing
the basis for the plaintiff’s cause of action. The court has not
identified any special rule governing the prudential standing of
non-resident aliens. To the extent the zone-of-interests test is
dependent on a “peek at the merits,” Emergency Coal. to Defend
Educ. Travel v. U.S. Dep’t of the Treasury, 545 F.3d 4, 11 (D.C.
Cir. 2008), the substantive question will be whether a
constitutional, statutory, or common law protection has
extraterritorial reach or reaches non-resident aliens.

B.
The test for prudential standing “is not meant to be
especially demanding,” and there “need be no indication of
[legislative] purpose to benefit the would-be plaintiff.” Clarke
v. Sec. Indus. Ass’n, 479 U.S. 388, 399 (1987). The question
whether appellants would have prudential standing under the
zone-of-interests test, assuming it applies,62 turns on what law

62
For purposes of this appeal the court assumes without
deciding that the zone-of-interests test, developed as a matter of
administrative law, see Clarke, 479 U.S. at 400 n.16, applies to a
cause of action sounding in tort. The court has described the zone-of-
interests test for administrative claims as “a gloss on the judicial
review provision of the Administrative Procedure Act.” PDK Labs.
Inc. v. DEA, 362 F.3d 783, 791 (D.C. Cir. 2004). The First Circuit has
held that prudential standing is demonstrated when a plaintiff either
satisfies the zone-of-interests test or “show[s] that the harm of which
he complains amounts to a ‘common law’ injury, such as a tort.”
 107

provides the basis for the cause of action under District of
Columbia choice of law rules, which the parties agree apply. On
cross-appeal Exxon challenges the district court’s choice of law
analysis, and our review is de novo, Felch v. Air Florida, Inc.,
866 F.2d 1521, 1523 (D.C. Cir. 1989).63

“To determine which jurisdiction’s substantive law governs
a dispute, District of Columbia courts blend a ‘governmental
interests analysis’ with a ‘most significant relationship’ test.”
Oveissi v. Islamic Republic of Iran, 573 F.3d 835, 842 (D.C. Cir.
2009) (quoting Hercules & Co., Ltd. v. Shama Rest. Corp., 566
A.2d 31, 40–41 & n.18 (D.C. 1989)). “Under the governmental
interests analysis[,] . . . [a court] must evaluate the governmental
policies underlying the applicable laws and determine which
jurisdiction’s policy would be most advanced by having its law
applied to the facts of the case under review.” Id. (quoting
Hercules, 566 A.2d at 41) (alterations in original). “To
determine which jurisdiction has the most significant
relationship to a case, a court must consider . . . : (1) ‘the place
where the injury occurred’; (2) ‘the place where the conduct

Munoz-Mendoza v. Pierce, 711 F.2d 421, 425 (1st Cir. 1983).
63
Contrary to appellants’ suggestion, the choice of law issue
is properly before the court. In the Notice of Cross-Appeal, Exxon
stated it appealed from “any . . . orders that have merged into the
[district court’s September 30, 2009] judgment.” One such order is
the district court’s choice of law ruling, which Exxon also included in
its list of rulings under review. See Exxon Mobil’s Certificate as to
Parties, Rulings, & Related Cases 3. Exxon’s intent to seek review of
the district court’s choice of law ruling “can be fairly inferred” from
its notice of appeal and its certificate of rulings under review.
LaRouche’s Comm. for a New Bretton Woods v. FEC, 439 F.3d 733,
739 (D.C. Cir. 2006). The court need not address appellants’ motion
to dismiss the cross-appeal because Exxon states it was filed only as
a precautionary measure. Appellees’ Br. 2.
 108

causing the injury occurred’; (3) ‘the domicil[e], residence,
nationality, place of incorporation and place of business of the
parties’; and (4) ‘the place where the relationship, if any,
between the parties is centered.’” Id. (quoting RESTATEMENT
(SECOND) OF CONFLICT OF LAW § 145(2) (1971)).

The District of Columbia courts follow section 145 of the
Restatement, see Rymer v. Pool, 574 A.2d 283, 286 (D.C. 1990),
a comment to which states: “When certain contacts involving a
tort are located in two or more states with identical local law
rules on the issue in question, the case will be treated for
choice-of-law purposes as if those contacts were grouped in a
single state.” RESTATEMENT (SECOND) OF CONFLICT OF LAW
§ 145, cmt. i; see also Simon v. United States, 341 F.3d 193, 198
n.3 (3d Cir. 2003). The district court concluded that there was
no conflict among the laws of the District of Columbia,
Delaware, New Jersey, and Texas, except as to the wrongful
death claim as to which the district court applied Delaware
law.64 These are the jurisdictions in which Exxon is a legal
resident and where appellants allege some of the tortious
conduct occurred. The district court, however, compared the
interest of the United States in applying District of Columbia
law to the interest of Indonesia. See Doe I v. Exxon Mobil

64
Appellants suggest that the choice of law analysis cannot
proceed because Exxon failed to demonstrate a “true conflict.”
“Where each state would have an interest in the application of its own
law to the facts, a true conflict exists and the law of the jurisdiction
with the stronger interest will apply.” In re Estate of Delaney, 819
A.2d 968, 987 (D.C. 2003) (quoting Biscoe v. Arlington Cnty., 738
F.2d 1352, 1360 (D.C. Cir. 1984)); see also Herbert v. District of
Columbia, 808 A.2d 776, 779 (D.C. 2002); Kaiser-Georgetown Cmty.
Health Plan, Inc. v. Stutsman, 491 A.2d 502, 509 (D.C. 1985).
Appellants do not suggest that Indonesia has no interest in the
application of its laws to their cases.
 109

Corp., No. Civ.A.01-1357, 2006 WL 516744, at *2 (D.D.C.
Mar. 2, 2006). But the foreign affairs interest of the United
States identified by the district court — that “the leader of the
free world[ ] has an overarching, vital interest in the safety,
prosperity, and consequences of the behavior of its citizens,
particularly its super-corporations conducting business in one or
more foreign countries,” id., does not necessarily reflect the
interests of the several states. Rather the court must compare the
interests of the three states, and the interest of the forum District
of Columbia, with the interests of Indonesia. The district court
correctly observed that such a comparison “tilt[s] in favor of
Indonesia.” Id.

“[S]ubject only to rare exceptions, the local law of the state
where conduct and injury occurred will be applied to determine
whether the actor satisfied minimum standards of acceptable
conduct and whether the interest affected by the actor’s conduct
was entitled to legal protection.” RESTATEMENT (SECOND) OF
CONFLICT OF LAWS § 145 cmt. d; see also Drs. Groover,
Christie & Merritt, P.C. v. Burke, 917 A.2d 1110, 1117 (D.C.
2007). The place of injury is accorded particular importance “in
the case of personal injuries and of injuries to tangible things.”
Washkoviak v. Student Loan Mkg. Ass’n, 900 A.2d 168, 182
(D.C. 2006) (quoting RESTATEMENT (SECOND) OF CONFLICT OF
LAWS § 145 cmt. f). The district court concluded that “[s]ome
(perhaps most) of the conduct occurred in Indonesia, although
plaintiffs argue that ExxonMobil knew about and participated,
indeed directed, from the United States the allegedly culpable
conduct to the detriment of plaintiffs.” Doe I, 2006 WL 516744,
at *1. Other than decision-making, for purposes of the non-
federal tort claims all conduct causing injury occurred in
Indonesia according to the complaint. The plaintiffs are citizens
of and reside in Indonesia. The defendants, at the time the Doe
I complaint was filed in 2001, were incorporated in the United
States: one corporate defendant had its principal place of
 110

business in Indonesia and three in various U.S. states. The
citizenship of the corporate defendant with its principal place of
business in Indonesia at the time the Doe VIII complaint was
filed in 2007 remains in dispute. The district court found that
“[t]he relationship between [Exxon] and plaintiffs is likely
centered in Indonesia.” Id.

In view of the importance that the Restatement places on the
place of injury, which District of Columbia choice of law rules
follow, RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145
cmt. d; Rymer, 574 A.2d at 286, and the fact that the remaining
factors weigh in favor of a choice of Indonesian law, we hold
that Indonesian law applies to appellants’ non-federal claims.
Exxon’s objection that Indonesian law should not apply due to
considerations of international comity concerns the content of
Indonesian law, not its applicability under District of Columbia
choice of law rules. Exxon relies on dictum in Phillips v. Eyre,
(1870) 6 L.R.Q.B. 1 at 30–31 (Eng.), for the proposition that
comity would support recognizing a general amnesty issued by
the foreign jurisdiction upon whose law the court relies. It
points to the objection of the Indonesian Embassy, which refers
to an agreement to establish a human rights court and a
commission for truth and reconciliation, but does not refer to
either the implementation of that agreement, the exclusivity of
that remedy, or amnesty for any party. None of the experts on
Indonesian law presented to the district court referred to the
remedies cited by the Embassy and their status and applicability
are uncertain.

C.
Because Indonesian law applies under District of Columbia
choice of law rules, the court need not address Exxon’s federal
preemption argument regarding District of Columbia and
Delaware law. To the extent Exxon suggested during oral
argument that appellants’ non-federal tort claims would be
 111

preempted if Indonesian law applies, the authorities it cites in its
brief are inapposite, relating to the “supremacy of the national
power in the general field of foreign affairs” and to the need to
prevent the legislatures of the states from conducting foreign
policy, Hines v. Davidowitz, 312 U.S. 52, 62–63 (1941); see also
Zschernig v. Miller, 389 U.S. 429, 440–41 (1968); Saleh, 580
F.3d at 12–13. Otherwise, the argument is forfeited because it
is not presented in Exxon’s briefs. See N.Y. Rehab. Care Mgmt.,
LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007) (quoting
Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005));
see also FED. R. APP. P. 28(a)(9).

VII.

Exxon contends that the Doe VIII complaint, which is based
on diversity jurisdiction, 28 U.S.C. § 1332, should be dismissed
for lack of complete diversity between plaintiffs and defendants.
Complete diversity requires that no two parties on opposite sides
of an action can be citizens of the same state. See Strawbridge
v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806). The diversity
statute does not confer subject matter jurisdiction over a lawsuit
between an alien on one side, and an alien and a U.S. citizen on
the other side. See Saadeh v. Farouki, 107 F.3d 52, 61 (D.C.
Cir. 1997). The Doe VIII complaint alleges that the plaintiffs are
Indonesian citizens, Doe VIII Compl. ¶¶ 6–9, and that defendant
Exxon Mobil of Indonesia (“EMOI”), is incorporated in the
Cayman Islands with its principal place of business in Indonesia.
Id. ¶ 16.

The district court did not reach Exxon’s diversity
objections. We agree with appellants that EMOI’s non-diversity
would not mandate dismissal because the district court, were it
to find that EMOI is a non-diverse party, could dismiss EMOI,
permitting appellants to proceed against Exxon Mobil
 112

Corporation. Federal Rule of Civil Procedure 21 permits
dismissal of “jurisdictional spoilers” and creates a “fiction that
[the dismissal] relates back to the date of the complaint,” In re
Lorazepam & Clorazepate Antitrust Litig., 631 F.3d 537, 542
(D.C. Cir. 2011). We therefore remand this issue to the district
court.

Accordingly, we affirm the dismissal of appellants’ TVPA
claims, we reverse the dismissal of the ATS claims at issue in
this appeal, along with the dismissal of appellants’ non-federal
tort claims, and we remand the cases to the district court.
 KAVANAUGH, Circuit Judge, dissenting in part:

Plaintiffs are Indonesian citizens who allege that they (or
their family members) were imprisoned, beaten, abused, and
in some cases killed in Indonesia by Indonesian soldiers.
Plaintiffs claim that the Indonesian soldiers violated
customary international norms against torture, extrajudicial
killing, and prolonged detention. The Indonesian soldiers
provided security for an American corporation, Exxon. In
this case, plaintiffs did not sue Indonesia or Indonesian
officials. Rather, they sued Exxon under the Alien Tort
Statute, or ATS, for aiding and abetting the Indonesian
officials’ tortious conduct.

The ATS grants federal district courts jurisdiction over
“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.” 28 U.S.C. § 1350. In cases such as this where no
U.S. treaty is involved, the substantive content of an ATS
claim is determined by reference to customary international
law, also commonly called the law of nations. See Sosa v.
Alvarez-Machain, 542 U.S. 692 (2004). Customary
international law is a kind of international common law. It is
a body of sometimes difficult-to-ascertain rules and principles
that arise informally from the general and consistent practice
of nations, and that have been recognized and enforced in
international tribunals such as the post-World War II tribunal
at Nuremberg.

In the District Court, Judge Oberdorfer dismissed
plaintiffs’ ATS claims. Doe I v. Exxon Mobil Corp., 393 F.
Supp. 2d 20, 24-27 (D.D.C. 2005). I would affirm Judge
Oberdorfer’s decision for any of four independent reasons.1

1
In addition to their ATS claims, plaintiffs have asserted
claims under the federal Torture Victim Protection Act and state
tort law. I agree with the majority opinion’s decision to affirm
 2

First, under the presumption against extraterritoriality,
the ATS does not apply to conduct that occurred in foreign
nations – such as this suit, which concerns conduct that
occurred in Indonesia. A “longstanding principle of
American law” dictates that “legislation of Congress, unless a
contrary intent appears, is meant to apply only within the
territorial jurisdiction of the United States.” EEOC v.
Arabian American Oil Co. (ARAMCO), 499 U.S. 244, 248
(1991). The presumption helps the United States avoid
conflicts with other nations, which of course have a strong
interest in policing and regulating conduct in their own
countries. The ATS contains no textual indication that it was
meant to apply to conduct in foreign countries. Moreover, the
ATS’s historical purpose was to avoid conflicts with foreign
governments. It did so by providing redress for foreign
citizens who suffered injuries within the United States or on
the high seas. As this case exemplifies – given Indonesia’s
strenuous and repeated objections to a U.S. court’s
entertaining plaintiffs’ suit – extending the ATS to conduct
that occurs in foreign countries creates rather than avoids
conflicts with foreign nations and thus runs directly counter to

dismissal of the TVPA claims. I also agree with the majority
opinion’s decision to remand the state-law claims, including for a
careful analysis of whether those claims are preempted under the
foreign affairs preemption doctrine. See American Ins. Ass’n v.
Garamendi, 539 U.S. 396, 422-23 (2003); Zschernig v. Miller, 389
U.S. 429 (1968); Hines v. Davidowitz, 312 U.S. 52 (1941); Saleh v.
Titan Corp., 580 F.3d 1, 11-12 & 12 n.8 (D.C. Cir. 2009); see also
Chamber of Commerce of the United States v. Whiting, 131 S. Ct.
1968, 1983 (2011) (describing “uniquely federal areas of
regulation” and citing Garamendi and Crosby v. Nat’l Foreign
Trade Council, 530 U.S. 363, 373-74 (2000), as examples of
federal authority over foreign affairs).
 3
both the presumption against extraterritoriality and the ATS’s
design and purpose.

Second, as the Second Circuit recently held, the ATS
does not apply to claims against corporations. See Kiobel v.
Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010). In
Sosa, the Supreme Court stated that courts in ATS cases must
determine whether customary international law “extends the
scope of liability for a violation of a given norm to the
perpetrator being sued.” 542 U.S. at 732 n.20. Customary
international law does not recognize corporate liability. That
means plaintiffs’ ATS claims against a corporation (Exxon)
cannot go forward. Moreover, the Supreme Court in Sosa
emphasized the need for judicial restraint, “great caution,”
and “vigilant doorkeeping” in ATS cases. Id. at 725-29.
Given the Supreme Court’s admonition, it would be quite odd
for a U.S. court to allow a customary international law-based
ATS claim against a corporation when no international
tribunal has allowed a customary international law claim
against a corporation.

Third, even if customary international law established
corporate liability for torture and extrajudicial killing, we still
should not allow plaintiffs’ ATS claims for those violations to
go forward because doing so would be incongruous with the
Torture Victim Protection Act. The Supreme Court has
indicated that courts should exercise judicial restraint and
interpret the open-ended language of the ATS by reference to
analogous congressionally enacted causes of action. See
Sosa, 542 U.S. at 731. Plaintiffs assert that the ATS and
customary international law give aliens a cause of action for
torture and extrajudicial killing. The analogous Torture
Victim Protection Act gives U.S. citizens a cause of action for
torture and extrajudicial killing. But the TVPA does not
allow corporate liability or aiding and abetting liability. In
 4
exercising the restraint mandated by the Supreme Court in
ATS cases, we must follow Congress’s approach to
fashioning the TVPA for U.S. citizens and similarly fashion
the ATS for aliens. Under the majority opinion’s contrary
approach, an alien can sue a corporation in a U.S. court for
aiding and abetting torture and extrajudicial killing, but a U.S.
citizen cannot sue the same corporation in the same U.S. court
for the exact same aiding and abetting of torture and
extrajudicial killing. That makes little sense and is, to put it
charitably, a strange reading of congressional intent and
Supreme Court precedent.

Fourth, the Supreme Court has required us to interpret
the open-ended language of the ATS so as to avoid conflict
with the Nation’s foreign policy – and therefore, to heed
Executive Branch statements of interest in ATS cases. See
Sosa, 542 U.S. at 733 n.21. Following Sosa, courts must
dismiss ATS cases when the Executive Branch reasonably
explains that the suit would harm U.S. foreign policy
interests. Here, the Executive Branch has repeatedly stated
that allowing these ATS claims to proceed would harm the
United States’ relationship with Indonesia – an assertion
backed up by several pointed letters that the Government of
Indonesia has submitted directly to this Court and the District
Court. The Executive Branch has explained that damage to
the United States’ relationship with Indonesia would in turn
impair American national security and foreign policy with
respect to the ongoing war against al Qaeda, a war in which
Indonesia is a key ally. Judge Oberdorfer heeded those
concerns and, in light of them, properly dismissed plaintiffs’
ATS claims.2

2
Plaintiffs base their claims on underlying customary
international law norms against torture, extrajudicial killing, and
prolonged detention. From a lower court’s perspective in an ATS
 5

Exercising the caution mandated by the Supreme Court in
ATS cases, I would dismiss the ATS claims for any of those
four independent reasons. In my judgment, permitting these
ATS claims to proceed jumps the rails of proper judicial
restraint.

case, there may be as many as seven currently cognizable
customary international law norms: what one might call the
“Blackstone three” plus the “Breyer four.” The original Blackstone
three are offenses against ambassadors, violations of safe conducts,
and piracy. Sosa, 542 U.S. at 715. The Breyer four – which Justice
Breyer identified but the Court as a whole has not yet taken a
position on – are torture, genocide, crimes against humanity, and
war crimes. Id. at 762 (Breyer, J., concurring). Because plaintiffs
assert a torture claim – which is one of the Breyer four and at this
point almost certainly has become a customary international law
norm cognizable in ATS cases against state actors at least –
plaintiffs’ suit satisfies that threshold requirement for an ATS
claim. Cf. id. at 738 (dismissing suit because no cognizable
customary international law norm alleged). For that reason, unlike
in Sosa, we must consider the various other arguments raised by
Exxon against plaintiffs’ ATS claim for torture. It seems doubtful,
however, that the other two norms asserted by plaintiffs –
extrajudicial killing and prolonged detention, which are not among
the Blackstone three or the Breyer four – would be cognizable in an
ATS suit against any defendant. Because the majority opinion is
remanding the ATS suit to the District Court, it will be up to that
court on remand to assess whether the ATS extends to claims for
extrajudicial killing and prolonged detention.
 6
I

First, I would dismiss the ATS claims because the torts
alleged here occurred in Indonesia and the ATS does not
extend to conduct that occurred in foreign lands.3

3
Somewhat surprisingly, no court of appeals has analyzed
whether the ATS applies to conduct that took place in a foreign
nation. In its recent opinion on ATS corporate liability, the Second
Circuit expressly left this question open and suggested that it “very
well could conclude that the ATS does not apply extraterritorially,
and thus we would dismiss this and the vast majority of recent ATS
suits on the ground that the violations of customary international
law alleged by plaintiffs originated or took place in a foreign
country.” Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 143
n.44 (2d Cir. 2010) (internal quotation marks omitted); see also id.
at 117 n.10. One Ninth Circuit judge who has addressed the issue
stated that the ATS should not apply to conduct that occurred on
foreign land. See Sarei v. Rio Tinto, PLC, 625 F.3d 561, 563-64
(9th Cir. 2010) (Kleinfeld, J., dissenting). In Sosa, the
extraterritoriality issue was raised, but the Court did not reach it
because the Court rejected the ATS claim on other grounds. Only
Justice Breyer alluded to the extraterritoriality issue, and he did so
only briefly. See Sosa v. Alvarez-Machain, 542 U.S. 692, 761-63
(2004) (Breyer, J., concurring).
It is true that some courts of appeals, without any analysis of
extraterritoriality, have permitted ATS suits even though the
underlying tortious conduct occurred in foreign countries. See, e.g.,
Hilao v. Estate of Marcos, 25 F.3d 1467 (9th Cir. 1994); Filartiga
v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980). We are of course not
bound by decisions of other courts of appeals. Moreover, those
cases contain no judicial analysis of the extraterritoriality question
and thus provide no persuasive arguments for accepting the
extraterritorial application of the ATS. See Arizona Christian
School Tuition Organization v. Winn, 131 S. Ct. 1436, 1448-49
(2011) (conclusion assumed sub silentio in prior cases is not
precedent). And the fact that some of those cases have been on the
books for several years does not add materially to their persuasive
 7

It is a “longstanding principle of American law ‘that
legislation of Congress, unless a contrary intent appears, is
meant to apply only within the territorial jurisdiction of the
United States.’” EEOC v. Arabian American Oil Co.
(ARAMCO), 499 U.S. 244, 248 (1991) (quoting Foley Bros.,
Inc. v. Filardo, 336 U.S. 281, 285 (1949)). Because Congress
“ordinarily legislates with respect to domestic, not foreign
matters,” courts presume that statutes do not apply to conduct
in foreign lands unless an “affirmative intention of the
Congress clearly expressed” indicates otherwise. Morrison v.
Nat’l Australia Bank Ltd., 130 S. Ct. 2869, 2877 (2010).

The presumption against extraterritoriality “serves to
protect against unintended clashes between our laws and those
of other nations which could result in international discord.”
ARAMCO, 499 U.S. at 248. The presumption avoids the
“serious risk of interference with a foreign nation’s ability
independently to regulate its own commercial affairs.” F.
Hoffmann-La Roche Ltd. v. Empagran S.A., 542 U.S. 155,
165 (2004). “Foreign conduct is generally the domain of
foreign law,” and “courts should assume that legislators take
account of the legitimate sovereign interests of other nations
when they write American laws.” Microsoft Corp. v. AT & T,
550 U.S. 437, 455 (2007) (internal quotation marks and
alteration omitted).

The presumption against extraterritoriality is focused on
the site of the conduct, not the identity of the defendant. See,
e.g., Morrison, 130 S. Ct. at 2884 (the transactions that a

force. See Milner v. Dep’t of the Navy, 131 S. Ct. 1259, 1268
(2011) (“immaterial” that an incorrect doctrine “has been
consistently relied upon and followed for 30 years” in the lower
courts).
 8
statute “seeks to regulate” must occur domestically) (internal
quotation marks omitted). That a defendant is a U.S. citizen
thus does not mitigate the force of the presumption. In
ARAMCO, for example, the Supreme Court held that Title VII
did not regulate the foreign employment practices of two
Delaware corporations. 499 U.S. at 247, 259. And in
Morrison, the Supreme Court dismissed a securities suit
against both foreign and U.S. corporations for misconduct in
connection with securities traded on foreign exchanges. 130
S. Ct. at 2875-76, 2888.4

4
The majority opinion cites Steele v. Bulova Watch Co., 344
U.S. 280 (1952), and Pasquantino v. United States, 544 U.S. 349
(2005), in claiming that “the calculus can change where a U.S.
citizen is a cause of the harm.” Maj. Op. at 27-28. But the
Supreme Court discussed both of those cases in ARAMCO and
Morrison, and the Supreme Court’s analysis does not support the
majority opinion’s use of those cases here. The Supreme Court
determined that the presumption against extraterritoriality applied
the same way in all four cases, and the defendant’s citizenship did
not affect the extraterritoriality analysis. ARAMCO and Morrison
make crystal clear that the American identity of the defendant does
not defeat the presumption against extraterritoriality. In Steele,
moreover, the statute under consideration applied to “all commerce
which may lawfully be regulated by Congress,” and that “express[]
state[ment]” in the statutory text rebutted the presumption against
extraterritoriality regardless of the identity of the defendant. See
Morrison, 130 S. Ct. at 2886 n.11; ARAMCO, 499 U.S. at 252-53.
In Pasquantino, the conduct at issue occurred entirely within the
United States, and the Supreme Court therefore did not need to give
the statute any extraterritorial effect – again, focusing on the
defendant’s conduct, not his citizenship. See Morrison, 130 S. Ct.
at 2887; Pasquantino, 544 U.S. at 371.
The Supreme Court has also ruled that the presumption against
extraterritoriality bars a suit based on foreign conduct even when a
U.S. citizen defendant took some actions in the United States
related to the foreign conduct. In ARAMCO, for example, the Title
 9

That canon of construction is deeply rooted. In 1824, for
example, the Supreme Court instructed that “however general
and comprehensive the phrases used in our municipal laws
may be, they must always be restricted in construction, to
places and persons, upon whom the Legislature have authority
and jurisdiction.” The Apollon, 22 U.S. 362, 370 (1824)
(Story, J.); see also Rose v. Himely, 8 U.S. 241, 279 (1808)
(Marshall, C.J.); Murray v. Schooner Charming Betsy, 6 U.S.
64, 118 (1804) (Marshall, C.J).

The canon remains to this day an essential part of the
Supreme Court’s jurisprudence. The Court has invoked it
repeatedly in recent years. See, e.g., Morrison, 130 S. Ct. at
2877 (2010); Small v. United States, 544 U.S. 385, 388
(2005); ARAMCO, 499 U.S. at 248 (1991).

In applying the presumption against extraterritoriality, we
“look to see whether language in the [relevant Act] gives any
indication of a congressional purpose to extend its coverage
beyond places over which the United States has sovereignty
or has some measure of legislative control.” ARAMCO, 499
U.S. at 248 (alteration in original) (internal quotation marks
omitted). “When a statute gives no clear indication of an

VII defendant – who allegedly discriminated against an employee
working in Saudi Arabia – originally hired that employee in
Houston. 499 U.S. at 247. And in Morrison, the allegedly
deceptive conduct – which affected securities transactions abroad –
occurred in Florida. 130 S. Ct. at 2883-84. As the Morrison Court
explained, “it is a rare case of prohibited extraterritorial application
that lacks all contact with the territory of the United States. But the
presumption against extraterritorial application would be a craven
watchdog indeed if it retreated to its kennel whenever some
domestic activity is involved in the case.” Id. at 2884.
 10
extraterritorial application, it has none.” Morrison, 130 S. Ct.
at 2878.

Here, the sparse text of the ATS does not support
application of the law to conduct in foreign lands. The ATS
refers to conduct committed in “violation of the law of nations
or a treaty of the United States.” To be sure, such conduct
can occur worldwide. But as the Supreme Court has
explained, the mere fact that statutory language could
plausibly apply to extraterritorial conduct does not suffice to
overcome the presumption against extraterritoriality.
Otherwise, most statutes, including most federal criminal
laws, would apply extraterritorially and cover conduct
occurring anywhere in the world. In Morrison and ARAMCO,
the Supreme Court recognized that commonsense point and
ruled that “broad jurisdictional language” and statutory
references to acts occurring in “foreign commerce” did not
suffice to overcome the presumption against
extraterritoriality. See Morrison, 130 S. Ct. at 2882
(interpreting § 10(b) of the Exchange Act); ARAMCO, 499
U.S. at 251 (interpreting Title VII); see also Small, 544 U.S.
at 389-91 (statutory phrase “convicted in any court” refers
only to convictions in domestic courts).

Nor does the ATS’s specific reference to alien plaintiffs
establish that the statute applies extraterritorially. That
language merely ensures that alien plaintiffs can sue under
customary international law for injuries suffered within the
United States. Similarly, in ARAMCO, the statute covered
aliens, but the Supreme Court said the statute did not apply to
extraterritorial conduct. See 499 U.S. at 255 (Title VII did not
apply abroad although the statute protected aliens working in
the United States).
 11
The ATS’s historical context likewise provides no basis
for rebutting the presumption against extraterritoriality.
Indeed, the ATS’s background provides affirmative evidence
reinforcing the conclusion that the statute does not apply to
conduct occurring in foreign countries.

Under the Articles of Confederation, which were in effect
from 1781 until the U.S. Constitution was ratified in 1788, the
U.S. Government lacked authority to remedy or prevent
violations of the law of nations. Two incidents during that
period involving foreigners mistreated in the United States
highlighted the problem created by this legal vacuum. In the
“Marbois Affair” of 1784, the Secretary of the French Legion,
a French ambassador of sorts, was assaulted on a street in
Philadelphia. See William R. Casto, The Federal Courts’
Protective Jurisdiction Over Torts Committed in Violation of
the Law of Nations, 18 CONN. L. REV. 467, 491-92 (1986).
And in 1787, a New York City constable entered the home of
a Dutch ambassador and arrested one of the ambassador’s
servants, violating the ambassador’s diplomatic privileges.
See id. at 494. Both torts violated a customary international
law norm – namely, infringements on the rights of
ambassadors. Yet Congress was powerless to ensure redress
for either violation of the law of nations. The impotence of
the national government in turn generated conflict with
foreign nations concerned that their citizens could not obtain
legal redress for certain injuries suffered in the United States.
See, e.g., Sosa v. Alvarez-Machain, 542 U.S. 692, 717 n.11
(2004).

After ratification of the Constitution in 1788, the First
Congress addressed this problem in 1789 by enacting the
Alien Tort Statute, which was part of Section 9 of the
Judiciary Act of 1789. See id. at 717. The statutory text
allowed aliens to sue for torts committed in violation of the
 12
law of nations or a U.S. treaty. The ATS’s primary purpose
was to ensure federal redress for incidents like the two
described above and thereby avoid unnecessary conflicts with
foreign nations. See id. at 715-20. The First Congress was
concerned about aliens who were injured in the United States
in violation of customary international law, but who had no
redress in federal court. But there is no evidence that
Congress was concerned about remedying aliens’ injuries that
occurred in foreign lands. And there is no particular reason
that Congress would have been concerned about aliens injured
in foreign lands. Remedies for such injuries could be
provided, after all, by foreign sovereigns under their
countries’ laws.5 It would be very odd to think that the
Congress of 1789 wanted to create a federal tort cause of
action enforceable in U.S. court for, say, a Frenchman injured
in London.

The purpose and background of the ATS – avoiding
conflict with foreign nations – thus reinforce the presumption
against extraterritoriality. And modern ATS litigation further
demonstrates the continuing vitality of the concerns that
undergird the presumption. The goal of the presumption
against extraterritoriality, like the goal of the ATS, is to avoid
conflict with foreign nations. But recent ATS cases based on
acts that occurred in foreign nations have often engendered
conflict with other sovereign nations, rather than avoided it.
The Government of Indonesia, for example, has strenuously

5
To be clear, the point here is not that plaintiffs must exhaust
their remedies in foreign nations’ legal systems – here, Indonesia’s
– before bringing claims under the ATS. Contra Maj. Op. at 25-26.
Rather, the point here is that a foreign sovereign can decide whether
and how to redress an injury that occurs within its territory. And
that traditional understanding of sovereignty explains why
Congress in 1789 would not choose to extend this U.S. tort law to
conduct occurring in foreign lands.
 13
and repeatedly objected to this lawsuit. The Government of
South Africa complained for six years that an extraterritorial
ATS case litigated in the Second Circuit interfered with the
operation of its post-apartheid Truth and Reconciliation
Commission. See Sosa, 542 U.S. at 733 n.21. The Canadian
government objected to an ATS suit brought against a
Canadian corporation for conduct that occurred in Sudan,
explaining that the suit interfered with Canada’s foreign
relations. See Presbyterian Church of Sudan v. Talisman
Energy, Inc., No. 01-9882, 2005 WL 2082846, at *1-2
(S.D.N.Y. Aug. 30, 2005). The Government of Papua New
Guinea objected for at least two years to an ATS suit against a
mining corporation that operated on the island, complaining
that the litigation had “potentially very serious social,
economic, legal, political and security implications” for Papua
New Guinea and would impair its relations with the United
States. See Sarei v. Rio Tinto, 487 F.3d 1193, 1199 (9th Cir.
2007), rev’d on unrelated grounds en banc, 550 F.3d 822
(2008). And several other nations – including the United
Kingdom, Switzerland, and Germany – have complained that
the ATS improperly interferes with their rights to regulate
their citizens and conduct in their own territory. See
Developments in the Law: Extraterritoriality, 124 HARV. L.
REV. 1226, 1283 (2011).6

This laundry list shows that something is palpably awry
in the modern ATS litigation juggernaut. The problem stems
in large part from extension of the ATS to conduct occurring
in foreign lands. The presumption against extraterritoriality
was designed, in part, to prevent such overreaching and
6
That is not to say that foreign governments always have
laudable motives when objecting. But that’s not the relevant issue.
The ATS and the presumption against extraterritoriality were
designed to avoid conflict with foreign nations, and modern ATS
litigation has thwarted that purpose.
 14
thereby avoid this kind of international discord. See
ARAMCO, 499 U.S. at 248. As its history reveals, the ATS
shared the same broad purpose. Stretching the ATS to cover
conduct in other countries thus has managed to flout the
purposes of both the ATS itself and the longstanding
presumption against extraterritoriality. Courts may – and
indeed, under binding Supreme Court precedent, must –
adhere to and apply the settled presumption against
extraterritoriality, and thereby avoid creating this kind of
unnecessary international discord.7

To be sure, the interaction of the ATS and the
presumption against extraterritoriality does raise one
analytical wrinkle, although it’s not presented in this case:
Does the ATS apply to conduct on the high seas – that is,
conduct neither in the territory of the United States nor in the
territory of a foreign country? I believe the better answer is
yes, and that the presumption against extraterritoriality is
overcome to that limited extent in ATS cases. The Supreme
Court noted in Sosa that piracy was one of the three causes of
action contemplated by the First Congress when it passed the
ATS. 542 U.S. at 720. “[P]iracy, by the law of nations, is
robbery upon the sea”; it cannot, as a definitional matter,
occur on U.S. soil. United States v. Smith, 18 U.S. 153, 162
(1820) (Story, J.). (The other two causes of action originally
available under the ATS – offenses against ambassadors and
violations of safe conducts – can occur in the United States.)
Because we know that Congress intended the ATS to cover
piracy and because piracy occurs on the high seas, it follows
7
To the extent an individual commits an offense abroad and
then flees to the United States as a fugitive from the foreign
nation’s legal process, the traditional international relations tool to
address that situation is extradition. At this point, of course, the
United States has extradition treaties with most other nations of the
world. See 18 U.S.C. §§ 3181-3196.
 15
that Congress intended the ATS to apply to conduct on the
high seas.

Applying the ATS to conduct on the high seas does not
pose the risk of conflicts with foreign nations that the
presumption against extraterritoriality and the ATS itself were
primarily designed to avoid. The high seas are
jurisdictionally unique. They are “the common highway of all
nations,” governed by no single sovereign. The Apollon, 22
U.S. at 371. As a result, the high seas may fall within the
jurisdiction of the federal courts even when foreign countries
and foreign territorial waters do not. See, e.g., American
Banana Co. v. United Fruit Co., 213 U.S. 347, 355-56 (1909)
(“No doubt in regions subject to no sovereign, like the high
seas, or to no law that civilized countries would recognize as
adequate, such countries may treat some relations between
their citizens as governed by their own law, and keep, to some
extent, the old notion of personal sovereignty alive. They go
further, at times, and declare that they will punish anyone,
subject or not, who shall do certain things, if they can catch
him, as in the case of pirates on the high seas.”) (internal
citations omitted); The Apollon, 22 U.S. at 371 (distinguishing
“foreign ports and territories” from “places where our
jurisdiction is complete, . . . our own waters, or . . . the
ocean”); Breach of Neutrality, 1 U.S. Op. Att’y Gen. 57, 58
(1795) (crimes committed in foreign country “are not within
the cognizance of our courts,” but “crimes committed on the
high seas are within the jurisdiction of the district and circuit
courts of the United States”).

That distinction between foreign lands and the high seas
makes good sense, particularly as applied to the ATS.
Tortious conduct that occurs in a foreign nation’s territory is
regulated by the foreign sovereign. Tortious conduct on the
high seas, by contrast, is regulated by no nation in particular.
 16
See Smith, 18 U.S. at 162 (describing “the general practice of
all nations in punishing all persons, whether natives or
foreigners, who have committed [piracy] against any persons
whatsoever, with whom they are in amity”). Although the
United States risks offending foreign nations by regulating
conduct occurring in those foreign countries, it performs
something of an international public service by supplying a
customary international law cause of action in federal court
against illegal conduct on the high seas. Cf. The Marianna
Flora, 24 U.S. 1, 40 (1825) (pirates “are, in truth, the
common enemies of all mankind”) (Story, J.). The ATS,
designed to smooth and improve the United States’ relations
with foreign nations, thus quite sensibly may be interpreted to
extend to conduct on the high seas but not to conduct in
foreign countries.8

8
The central point here is that piracy typically occurs on the
high seas, not in a nation’s territory. Moreover, extending a cause
of action to conduct on the high seas poses no risk of conflict with
foreign nations. It follows that applying the ATS to conduct on the
high seas is consistent with the goals of the ATS and the
presumption against extraterritoriality. The majority opinion says
that persons could aid or instigate piracy from foreign land or
commit piracy in foreign territorial waters. See Maj. Op. at 15, 17
n.7, 22 & n.10. The majority opinion reasons that the ATS thus
must extend to conduct on foreign land. In my view, such a
theoretical possibility is far too thin a reed to overcome the
presumption against extraterritoriality and extend the ATS to
conduct on foreign land. “Characteristically [piracy] has been
regarded as an offence of the open seas,” not in a nation’s territory.
Edwin D. Dickinson, Is the Crime of Piracy Obsolete?, 38 HARV.
L. REV. 334, 336-37 (1925); see, e.g., U.S. CONST. art. I, § 8
(“Congress shall have Power . . . To define and punish Piracies and
Felonies committed on the high Seas, and Offences against the Law
of Nations”); 4 WILLIAM BLACKSTONE, COMMENTARIES *72 (“The
offence of piracy, by common law, consists in committing those
acts of robbery and depredation upon the high seas, which, if
 17

Early cases mentioning the ATS, though few in number,
confirm that the statute applies to conduct in the United States
or on the high seas, but not to conduct in foreign nations. In
the decade after the ATS’s passage, the two reported cases
that discussed the statute dealt with conduct that occurred in
the United States or on the high seas. See Bolchos v. Darrel,
3 F. Cas. 810 (No. 1,607) (D.S.C. 1795) (ATS provides
jurisdiction when wrongful seizure occurred at U.S. port and
“original cause arose at sea”); Moxon v. The Fanny, 17 F.
Cas. 942, 948 (No. 9,895) (D. Pa. 1793) (owners of British
ship sought damages for its seizure in U.S. waters by a French
privateer; ATS does not apply because suit was not “for a tort
only”).

Attorney General Bradford’s 1795 opinion about an
incident in Sierra Leone also supports this distinction between
(i) conduct in the United States or on the high seas and (ii)
conduct in foreign lands. The Bradford opinion considered
whether the United States could criminally prosecute an

committed upon land, would have amounted to felony there.”);
Sosa, 542 U.S. at 719 (“Consider, too, that the First Congress was
attentive enough to the law of nations to recognize certain offenses
expressly as criminal, including the three mentioned by Blackstone.
See An Act for the Punishment of Certain Crimes Against the
United States, § 8, 1 Stat. 113-114 (murder or robbery, or other
capital crimes, punishable as piracy if committed on the high seas) .
. . .”) (emphasis added); id. at 749 (Scalia, J., concurring) (“That
portion of the general common law known as the law of nations
was understood to refer to the accepted practices of nations in their
dealings with one another (treatment of ambassadors, immunity of
foreign sovereigns from suit, etc.) and with actors on the high seas
hostile to all nations and beyond all their territorial jurisdictions
(pirates).”) (emphasis added).
 18
individual for acts committed on the high seas and in Sierra
Leone. The opinion also mentioned civil liability under the
ATS. The opinion is best read to say that the ATS applies to
conduct in the United States or on the high seas. It does not
say that the ATS extends to conduct in foreign lands.
Because the opinion’s meaning has been the subject of some
debate in ATS cases, compare Maj. Op. at 19-21, with Kiobel
v. Royal Dutch Petroleum Co., 621 F.3d 111, 142 n.44 (2d
Cir. 2010), I reproduce the relevant portion in its entirety
here:

So far, therefore, as the transactions complained of
originated or took place in a foreign country, they are
not within the cognizance of our courts; nor can the
actors be legally prosecuted or punished for them by the
United States. But crimes committed on the high seas
are within the jurisdiction of the district and circuit
courts of the United States; and, so far as the offence
was committed thereon, I am inclined to think that it
may be legally prosecuted in either of those courts, in
any district wherein the offenders may be found. But
some doubt rests on this point, in consequence of the
terms in which the ‘Act in addition to the act for the
punishment of certain crimes against the United States’
[the Neutrality Act of 1794] is expressed. But there can
be no doubt that the company or individuals who have
been injured by these acts of hostility have a remedy by
a civil [ATS] suit in the courts of the United States;
jurisdiction being expressly given to these courts in all
cases where an alien sues for a tort only, in violation of
the laws of nations, or a treaty of the United States; and
as such a suit may be maintained by evidence taken at a
distance, on a commission issued for that purpose, the
difficulty of obtaining redress would not be so great as
 19
in a criminal prosecution, where viva voce testimony
alone can be received as legal proof.

1 U.S. Op. Att’y Gen. at 58-59 (first and second emphases
added). When the Bradford opinion finally mentions the
ATS, it is focused on acts “committed on the high seas,” not
on acts that occurred in a foreign country. The Second Circuit
recently analyzed the Bradford opinion and reached the same
conclusion: “Attorney General Bradford circumscribes his
opinion, appearing to conclude that the Company could not
bring suit for the actions taken by the Americans in a foreign
country, but rather, could sue only for the actions taken by the
Americans on the high seas.” Kiobel, 621 F.3d at 142 n.44
(internal quotation marks omitted). To the extent an opinion
of one Attorney General matters to judicial interpretation of
the ATS, the Bradford opinion supports the view that the ATS
applies to conduct in U.S. territory and on the high seas, but it
does not support the conclusion that the ATS extends to
conduct in foreign countries.

In sum, the presumption against extraterritoriality bars
ATS suits based on conduct in foreign lands. The ATS
contains no “indication of a congressional purpose to extend
its coverage” to conduct occurring in foreign lands.
ARAMCO, 499 U.S. at 248. And the ATS’s history provides
affirmative evidence supporting its limited geographic scope.
The First Congress was, for good reason, primarily concerned
about torts against aliens that occurred within the United
States and on the high seas. Extending the ATS to conduct
that occurs in foreign countries not only violates the
presumption against extraterritoriality, but runs counter to the
ATS’s broad purpose of avoiding conflict with foreign
nations. Applying the bedrock presumption against
extraterritoriality would alleviate the serious discord with
foreign nations that has arisen in recent years as courts have
 20
extended the ATS to conduct occurring in foreign lands. I
would dismiss plaintiffs’ ATS claims – which are based on
conduct that occurred in Indonesia – because the ATS does
not apply to conduct that occurred within a foreign country.

II

Second, and in the alternative, I would dismiss plaintiffs’
ATS claims because the ATS does not apply to claims against
corporations. In cases such as this where no U.S. treaty is
involved, claims under the ATS are defined and limited by
customary international law, and customary international law
does not extend liability to corporations.

The ATS allows alien plaintiffs to bring tort claims for
violations of customary international law norms that are
“accepted by the civilized world and defined with a specificity
comparable to” the three original norms thought to be
cognizable under the ATS: offenses against ambassadors,
violations of safe conducts, and piracy. Sosa v. Alvarez-
Machain, 542 U.S. 692, 725 (2004). As the Supreme Court
directed: “Whatever the ultimate criteria for accepting a cause
of action subject to jurisdiction” under the ATS, “federal
courts should not recognize private claims under federal
common law for violations of any international law norm with
less definite content and acceptance among civilized nations
than the historical paradigms [offenses against ambassadors,
violations of safe conducts, and piracy] familiar when [the
ATS] was enacted.” Id. at 732. The Court emphasized that
courts must exercise “great caution” and “vigilant
doorkeeping” in ATS cases. Id. at 728-29.

The Supreme Court has said that we look to customary
international law not only for the substantive content of the
tort but also for the categories of defendants who may be sued.
 21
Id. at 732 n.20. This is done “on a norm-specific basis.” Ali
Shafi v. Palestinian Authority, No. 10-7024, slip op. at 14
(D.C. Cir. June 14, 2011); see also Tel-Oren v. Libyan Arab
Republic, 726 F.2d 774, 791-95 (D.C. Cir. 1984) (Edwards, J.,
concurring).

In particular, the Court in Sosa stated that customary
international law determines whether only state actors may be
liable for violating a customary international law norm (as
was the traditional approach), or whether private actors such
as corporations or private individuals also may be liable for
violating a given norm. As the Court explained, whether an
ATS claim can be brought against a corporation or a private
individual depends on “whether international law extends the
scope of liability for a violation of a given norm to the
perpetrator being sued, if the defendant is a private actor such
as a corporation or individual.” 542 U.S. at 732 n.20
(emphasis added). Later in the opinion, the Court underscored
that customary international law defines who can be sued; the
Court said that the plaintiff in Sosa needed to show that the
defendant “was acting on behalf of a government” when he
allegedly violated a norm, for otherwise the plaintiff “would
need a rule broader still” to establish ATS liability. Id. at 737
(emphasis added). Like footnote 20, that later sentence in
Sosa indicated quite clearly that customary international law
answers the question of who may be sued in ATS cases.
Justice Breyer reiterated the same point in his Sosa
concurrence: To qualify for recognition under the ATS, a
norm of international law “must extend liability to the type of
perpetrator (e.g., a private actor) the plaintiff seeks to sue.”
Id. at 760 (Breyer, J., concurring).

The Supreme Court has thus required that we look to
customary international law to determine what categories of
defendants can be liable for violating a particular norm. See
 22
Kiobel v. Royal Dutch Petroleum, 621 F.3d 111, 127-28 (2d
Cir. 2010). As applied to this case, Sosa requires us to
determine “whether international law extends the scope of
liability” for aiding and abetting torture, extrajudicial killing,
and prolonged detention “to the perpetrator being sued” –
here, a corporation. Sosa, 542 U.S. at 732 n.20.

To support an ATS claim against a corporation, it would
not be sufficient to show that customary international law
prohibits torture, extrajudicial killing, and prolonged detention
when committed by state actors. It likewise would not be
sufficient to show that customary international law recognizes
corporate liability for some violations, but not for aiding and
abetting torture, extrajudicial killing, and prolonged detention.
Rather, for plaintiffs to maintain their claims, customary
international law must impose liability against corporations
for aiding and abetting torture, extrajudicial killing, or
prolonged detention.9 It does not. In fact, customary
9
Because customary international law governs this issue,
foreign nations’ domestic laws are not relevant here, contrary to a
suggestion in the majority opinion. See Maj. Op. at 78-80. “[T]he
fact that a legal norm is found in most or even all ‘civilized nations’
does not make that norm a part of customary international law.”
Kiobel, 621 F.3d at 118. “[T]hat corporate criminal liability has
recently obtained greater acceptance in Europe – although
interesting as a matter of comparative law – does not demonstrate
that corporate liability has attained the status of a norm of
customary international law.” Id. at 141 n.43 (citing Filartiga v.
Pena-Irala, 630 F.2d 876, 888 (2d Cir. 1980), for the proposition
that customary international law consists of norms that are ‘‘of
mutual, and not merely several, concern’’) (internal citations
omitted). The Supreme Court itself underscored this point in Sosa,
holding that a claim for arbitrary detention was not cognizable
under the ATS even though the alleged detention was illegal under
Mexican law. Sosa, 542 U.S. at 736-37; see also id. at 737 n.28
(“Sosa might well have been liable under Mexican law”). In any
 23
international law does not impose liability against
corporations at all.

Customary international law generally extends liability to
states, as well as to individuals who act under color of state
law or aid and abet states. For most customary international
law norms, customary international law does not extend
liability to individuals who act independently of state
involvement. (Piracy is a prominent exception; customary
international law imposes liability on private individuals for
piracy.) Most importantly for present purposes, customary
international law does not extend liability to corporations. As
the Second Circuit accurately stated, “[t]he concept of
corporate liability for violations of customary international
law has not achieved universal recognition or acceptance as a
norm in the relations of States with each other.” Kiobel, 621
F.3d at 149; see also id. at 186 (Leval, J., concurring) (“It is
true that international law, of its own force, imposes no
liabilities on corporations or other private juridical entities.”).

A brief review of customary international law
convincingly demonstrates that, as the Second Circuit
concluded, there is no corporate liability in customary
international law, much less corporate liability for violations
of the norms alleged here.

event, there is no consensus in foreign nations’ legal systems that
corporations can be liable for violations of the kind alleged here.
See Report of the Special Representative of the Secretary-General
on the Issue of Human Rights and Transnational Corporations and
Other Business Enterprises ¶ 34, U.N. Doc. A/HRC/4/35 (Feb. 19,
2007) (“At national levels, there is enormous diversity in the scope
and content of corporate legal responsibilities regarding human
rights.”).
 24
Traditionally, legal rights and duties under international
law applied primarily to sovereign states. See 1
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF
THE UNITED STATES § 101 (1987) (Reporters’ Notes). The
Nuremberg trials following World War II “for the first time
made explicit and unambiguous” that “individuals are
responsible” for the commission of international crimes.
Robert H. Jackson, Final Report to the President Concerning
the Nurnberg War Crimes Trial, reprinted in 20 TEMP. L.Q.
338, 342 (1946). No corporations were charged or convicted
in the Nuremberg trials, however, even though many
corporate executives were individually tried. See Jonathan A.
Bush, The Prehistory of Corporations and Conspiracy in
International Criminal Law: What Nuremberg Really Said,
109 COLUM. L. REV. 1094, 1098 (2009). Although numerous
executives of the German company I.G. Farben were charged
at the U.S. military tribunal, the Tribunal stated that “the
corporate defendant, Farben, is not before the bar of this
Tribunal and cannot be subjected to criminal penalties in these
proceedings” because “corporations act through individuals.”
8 TRIALS OF WAR CRIMINALS BEFORE THE NUERNBERG
MILITARY TRIBUNALS UNDER CONTROL COUNCIL LAW NO. 10
1153 (1952). Indeed, the London Charter, which established
the International Military Tribunal at Nuremberg, provided
jurisdiction for the tribunal to “try and punish” only
“individuals or . . . members of organizations.” Agreement
for the Prosecution and Punishment of the Major War
Criminals of the European Axis art. 6, Aug. 8, 1945, 59 Stat.
1544, 82 U.N.T.S. 280; see also id. art. 9-10 (Tribunal may
declare that “the group or organization of which the individual
was a member was a criminal organization,” which
designation may serve as proof in a subsequent trial of an
individual “for membership therein.”).
 25
Every international tribunal since Nuremberg that has
enforced customary international law has followed this path,
extending liability to individuals but not to corporations. To
take the most prominent examples, the International Criminal
Tribunals for Rwanda and the former Yugoslavia have
jurisdiction only over “natural persons.” See Kiobel, 621 F.3d
at 136.

A recent U.N. Report noted the “absence of an
international accountability mechanism” for corporate
conduct. Report of the Special Representative of the
Secretary-General on the Issue of Human Rights and
Transnational Corporations and Other Business Enterprises
¶ 21, U.N. Doc. A/HRC/4/35 (Feb. 19, 2007). The U.N.
Report concluded that “States have been unwilling to adopt
binding international human rights standards for
corporations.” Id. ¶ 44. As a result, “[b]efore the current
round of cases in U.S. courts, no corporation had ever been
charged with or convicted for an international war crime or
similar offense.” Bush, Prehistory of Corporations at 1098.

The Second Circuit recently summarized the state of the
law this way:

Looking to international law, we find a jurisprudence,
first set forth in Nuremberg and repeated by every
international tribunal of which we are aware, that
offenses against the law of nations (i.e., customary
international law) for violations of human rights can be
charged against States and against individual men and
women but not against juridical persons such as
corporations. As a result, although customary
international law has sometimes extended the scope of
liability for a violation of a given norm to individuals, it
 26
has never extended the scope of liability to a
corporation.

Kiobel, 621 F.3d at 120.

In short, the content of an ATS claim is governed by
customary international law, and customary international law
does not provide liability against corporations for torture,
extrajudicial killing, or prolonged detention (or aiding and
abetting thereof). Even assuming that there were hints in
customary international law of corporate liability for certain
customary international law violations, it surely cannot be said
that corporate liability for the norms alleged in this case has
been established with the specificity and widespread
acceptance required by Sosa for ATS cases.10

Plaintiffs agree that customary international law does not
extend liability to certain categories of defendants. Plaintiffs
acknowledge, for example, that customary international law,
except with respect to certain norms such as piracy, does not

10
Although it does not explain the relevance of this point to its
analysis or conclusion in this case, the majority opinion says in
passing that the “law of nations” referred to in the ATS is distinct
from customary international law. See Maj. Op. at 43 n.23. But
courts and leading scholars equate the two terms. See, e.g., Curtis
A. Bradley, State Action and Corporate Human Rights Liability, 85
NOTRE DAME L. REV. 1823, 1824 (2010) (“For a variety of reasons,
the alleged international law violation in ATS cases is almost
always a violation of the ‘law of nations,’ also known today as
‘customary international law,’ rather than a violation of a treaty.”);
William A. Fletcher, Congressional Power Over the Jurisdiction of
Federal Courts: The Meaning of the Word “All” in Article III, 59
DUKE L.J. 929, 944 (2010) (“The law of nations was what we today
call customary international law.”). The substance and relevance of
footnote 23 of the majority opinion are thus somewhat unclear.
 27
impose liability on private individuals who act independently
of state involvement. And plaintiffs recognize that when
customary international law does not extend liability to private
individual defendants for violations of a given norm, U.S.
courts cannot allow ATS suits against private individual
defendants for violations of that customary international law
norm.

Despite acknowledging that we should follow customary
international law in determining when private parties may be
liable in ATS cases for violations of a given norm, plaintiffs
say we should not follow customary international law in
determining whether one particular category of private parties
– corporations – may be liable in ATS cases. Rather,
plaintiffs say that, notwithstanding the clear limits of
customary international law, we should feel free to fashion a
broader federal common-law rule allowing liability against
corporations in ATS cases.

Plaintiffs’ position frankly makes little sense. Either
customary international law determines which categories of
defendants may be liable under the ATS, or it does not. In
Sosa, the Supreme Court resolved that question. The Court
stated that customary international law does in fact determine
which categories of defendants may be liable in ATS cases on
a norm-by-norm basis. See 542 U.S. at 732 n.20, 737. Our
Court has said the same. See Ali Shafi, No. 10-7024, slip op.
at 13-14; Tel-Oren, 726 F.2d at 791-95 (Edwards, J.,
concurring). Applying that principle here should not be
complicated – other than for the inconvenient fact that it does
not lead to plaintiffs’ desired result with respect to corporate
liability.

The approach of plaintiffs and the majority opinion
produces a very odd result: A defendant who would not be
 28
liable in an international tribunal for violation of a particular
customary international law norm nonetheless may be liable in
a U.S. court in an ATS suit for violation of that customary
international law norm. In light of Sosa’s direction, I agree
with the Second Circuit that such a result is simply
“inconceivable.” Kiobel, 621 F.3d at 122.

In sum, customary international law does not provide
corporate liability for aiding and abetting torture, extrajudicial
killing, or prolonged detention. Therefore, plaintiffs cannot
maintain their ATS claims against Exxon, a corporation.

III

Third, and also in the alternative, even if customary
international law established corporate liability for aiding and
abetting torture and extrajudicial killing, we still should not
allow plaintiffs’ ATS claims for those violations to go forward
because doing so would be incongruous with the Torture
Victim Protection Act, 28 U.S.C. § 1350 note.11

In 1992, Congress passed and President Bush signed the
Torture Victim Protection Act. That Act supplies a civil cause
of action to American citizens, as well as aliens, for torture
and extrajudicial killing. Americans can sue under the TVPA,
just as aliens can sue under the ATS. But the TVPA does not
provide for corporate liability, and it does not provide for
aiding and abetting liability. As I will explain, because the

11
The majority opinion asserts that Exxon forfeited this claim.
See Maj. Op. at 83 n.45. But Exxon devoted a page in the text of its
brief to arguing that “[i]t would be wholly improper for courts to
create a federal common-law cause of action under the ATS
broader than the directly analogous action established by
Congress,” the TVPA. Exxon Br. at 31-32. I address that argument
here.
 29
TVPA does not provide for corporate liability or aiding and
abetting liability in suits by U.S. citizens, we should interpret
the ATS likewise not to provide for corporate liability or
aiding and abetting liability in analogous suits by aliens.12

Why should we pay attention to the limits in the TVPA’s
causes of action for torture and extrajudicial killing when
fashioning the contours of ATS causes of action for torture
and extrajudicial killing? Recall that customary international
law is notoriously vague and somewhat ill-defined. There is
no book or code that tells us the content of customary
international law; indeed, it is often unclear who is even
making customary international law. Modern customary
international law thus sometimes has a make-it-up-as-you-go-
along feel to it. See Curtis A. Bradley & Jack L. Goldsmith,
Customary International Law as Federal Common Law: A
Critique of the Modern Position, 110 HARV. L. REV. 815, 839-
41 (1997) (describing the numerous sources and rapidly
changing content of customary international law). Indeed,
even back at the Constitutional Convention, Gouverneur
Morris noted that international law principles were “often too
vague and deficient to be a rule” without implementing
legislation by the Congress. 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 615 (Max Farrand ed., rev. ed.
1937). That reality poses difficulty for U.S. courts trying to
figure out the content of customary international law for
purposes of an ATS suit. And that difficulty in turn poses a
risk that courts will be left with little more than their own
policy preferences when determining the scope of an
ATS/customary international law claim.
12
As an alternative to their aiding and abetting claim, plaintiffs
have also asserted that Exxon acted under color of Indonesian law
and was, in effect, a state actor. However, plaintiffs have failed to
argue that Exxon acted under color of law as defined by customary
international law.
 30

All of this is good reason for judicial restraint in ATS
cases. Indeed, in Sosa, the Supreme Court emphasized the
paramount need for judicial restraint, “great caution,” and
“vigilant doorkeeping” in ATS cases, and the Court outlined
several principles of restraint that must guide the Judiciary.
See Sosa v. Alvarez-Machain, 542 U.S. 692, 725-33 (2004).
For example, as discussed above in Part II of this opinion, the
Court insisted that the Judiciary recognize only those
customary international law norms that are sufficiently
definite and widely accepted.

Relevant to the present discussion, the Court also
emphasized that courts should “look for legislative guidance
before exercising innovative authority over substantive law”
in ATS cases. Id. at 726. The Court pointed out that
Congress by direct or indirect command may scale back
customary international law norms otherwise cognizable in
ATS cases. See id. at 731 (Congress may “shut the door to the
law of nations” either “explicitly, or implicitly by treaties or
statutes that occupy the field”); see also id. at 760 (Breyer, J.,
concurring) (“Congress can make clear that courts should not
recognize any such norm, through a direct or indirect
command or by occupying the field”).

What this means is that plaintiffs in ATS cases must pass
through two filters with respect to the substance of their
claims. First, they must show that their alleged claim against
the defendant is firmly grounded in customary international
law. Second, they also must show that Congress has not cast
doubt on their asserted ATS claim by direct or indirect
command.

In my view, Sosa’s emphasis on judicial restraint and on
the role of Congress dictates the following interpretive
 31
principle in ATS cases: When Congress has enacted a statute
that gives U.S. citizens a cause of action for tortious conduct
that is also a violation of customary international law, then the
statutory limits on U.S. citizens’ recovery under that statute
should presumptively apply to aliens’ recovery under the ATS
as well. That interpretive principle avoids the bizarre result
that would ensue if aliens – but not U.S. citizens – could bring
suit in U.S. court for the same injuries caused by the same
defendants.

Applying this Sosa-based interpretive principle,
corporations should not be liable in ATS cases based on
alleged torture or extrajudicial killing. The Torture Victim
Protection Act authorizes “a civil action for recovery of
damages from an individual who engages in torture or
extrajudicial killing” and who acts “under actual or apparent
authority, or color of law, of any foreign nation.” Pub. L. No.
102-256, 106 Stat. 73 (1992) (codified at 28 U.S.C. § 1350,
note) (emphasis added). As this Court recently held, the
TVPA’s text and structure establish that corporations are not
proper defendants in TVPA suits. Mohamad v. Rajoub, 634
F.3d 604, 607-08 (D.C. Cir. 2011); see also Bowoto v.
Chevron Corp., 621 F.3d 1116 (9th Cir. 2010). The word
“individual” in the TVPA carries “its ordinary meaning,”
which “encompasses only natural persons and not
corporations or other organizations.” Mohamad, 634 F.3d at
607; see also 1 U.S.C. § 1 (Dictionary Act) (the word
“person” includes “corporations, companies, associations,
firms, partnerships, societies, . . . as well as individuals”)
(emphasis added).

Under the Sosa-based interpretive principle, plaintiffs’
ATS claims for torture and extrajudicial killing are barred not
just because the TVPA provides no corporate liability, but
also because the TVPA provides no aiding and abetting
 32
liability. Plaintiffs are suing Exxon under an aiding and
abetting theory. But the text of the TVPA does not provide
for aiding and abetting liability, and the Supreme Court has
made crystal clear that there can be no civil aiding and
abetting liability unless Congress expressly provides for it.
See Central Bank of Denver, N.A. v. First Interstate Bank of
Denver, N.A., 511 U.S. 164 (1994). Because liability for
aiding and abetting torture and extrajudicial killing does not
exist under the TVPA, courts should not allow liability for
aiding and abetting torture and extrajudicial killing under the
ATS.

To be clear, the TVPA does not alter or affect the
contours of ATS suits based on customary international law
norms other than torture and extrajudicial killing. See Sosa,
542 U.S. at 728. The TVPA was not intended to generally
preempt or displace all ATS suits. See id. (TVPA’s
“legislative history includes the remark that [the ATS] should
‘remain intact to permit suits based on other norms that
already exist or may ripen in the future into rules of customary
international law’”) (quoting H.R. Rep. No. 102-367, pt. 1, p.
4 (1991)). But the TVPA does reflect a specific congressional
decision about when and under what circumstances U.S.
citizens (and aliens) may sue for torture and extrajudicial
killing. It would be odd and incongruous to disregard those
limits in defining when aliens may sue for torture and
extrajudicial killing under the ATS. Put simply, Sosa told
courts in ATS cases to look to Congress for guidance, and
Congress has specifically delineated what limits should attach
to civil suits for torture and extrajudicial killing. Consistent
with that direction in Sosa, we should follow the TVPA when
fashioning the contours of the famously vague ATS. And it
makes eminent sense to fashion the ATS so that aliens cannot
recover in U.S. court for torture and extrajudicial killing in
 33
circumstances where U.S. citizens could not recover in U.S.
court for torture and extrajudicial killing.13

The majority opinion discounts the relevance of the
TVPA to our analysis here. By doing so, however, the
majority opinion produces the rather bizarre outcome that
aliens may sue corporations in U.S. courts for aiding and
abetting torture and extrajudicial killing, but U.S. citizens may
not sue U.S. corporations for aiding and abetting torture and
extrajudicial killing. In my view, it is implausible to think
that Congress intended such a discrepancy. And it is
inconsistent with Sosa to enshrine such a discrepancy into
ATS case law. Because the TVPA does not provide corporate
liability or aiding and abetting liability for torture and
extrajudicial killing, the ATS likewise does not provide
corporate liability or aiding and abetting liability for torture
and extrajudicial killing.14

13
The TVPA was not redundant with the ATS for at least three
reasons. First, the TVPA gives a cause of action to U.S. citizens
and aliens, not just to aliens. Second, the TVPA supplies a cause of
action for extrajudicial killing, which is likely not a cognizable
customary international law violation in ATS cases because it is not
one of the Blackstone three or the Breyer four. See supra note 2.
Third, at the time the TVPA was enacted in 1992, it was unclear
whether any causes of action could be asserted under the ATS
without further congressional action. See, e.g., Tel-Oren v. Libyan
Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) (disagreement
between Judges Edwards and Bork on this issue). The TVPA
eliminated some uncertainty by definitively establishing causes of
action for torture and extrajudicial killing.
14
The TVPA provides a cause of action for torture and
extrajudicial killing. The analysis in this section thus precludes
plaintiffs’ ATS claims based on those two asserted customary
international law norms. Plaintiffs also claim a third alleged
customary international law norm – prolonged detention. The
TVPA does not speak to prolonged detention or put limits on it.
 34

IV

Fourth, and again in the alternative, I would affirm the
District Court’s dismissal of plaintiffs’ ATS claims because
the Executive Branch has reasonably explained that
adjudicating those ATS claims would harm U.S. foreign
policy interests.

In Sosa, as noted above, the Supreme Court emphasized
that lower courts must exercise judicial restraint in ATS cases.
Part of that restraint, the Court said, is “a policy of case-
specific deference to the political branches” that applies in
cases touching on the foreign relations of the United States.
Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21 (2004). In
“such cases,” the Court instructed, “there is a strong argument
that federal courts should give serious weight to the Executive
Branch’s view of the case’s impact on foreign policy.” Id.;
see also id. at 760-61 (Breyer, J., concurring) (“courts should
give ‘serious weight’ to the Executive Branch’s view of the
impact on foreign policy that permitting an ATS suit will
likely have in a given case or type of case”). The Court added
that courts considering ATS cases should be “particularly
wary of impinging on the discretion of the Legislative and
Executive Branches in managing foreign affairs.” Id. at 727.

The judicial restraint dictated by Sosa footnote 21 means
the following: When the Executive Branch reasonably

But that alleged norm is not one of the Blackstone three or the
Breyer four, and thus is not likely a customary international law
norm cognizable in ATS cases. The prolonged detention claim thus
likely fails at the threshold, as did the asserted arbitrary detention
norm in Sosa itself. See supra note 2. In any event, the prolonged
detention claim fails for any of the other three alternative reasons
set forth in Parts I, II, and IV of this opinion.
 35
explains that adjudication of a particular lawsuit would
adversely affect U.S. foreign policy interests, the court should
dismiss the lawsuit. See id. at 733 n.21; cf. Republic of
Austria v. Altmann, 541 U.S. 677, 702 (2004) (“[S]hould the
State Department choose to express its opinion on the
implications of exercising jurisdiction over particular
petitioners in connection with their alleged conduct, that
opinion might well be entitled to deference as the considered
judgment of the Executive on a particular question of foreign
policy.”); Crosby v. Nat’l Foreign Trade Council, 530 U.S.
363, 386 (2000) (regarding state legislation regulating foreign
commerce with Burma: “[R]epeated representations by the
Executive Branch supported by formal diplomatic protests and
concrete disputes are more than sufficient to demonstrate that
the state Act stands in the way of Congress’s diplomatic
objectives.”); Hwang Geum Joo v. Japan, 413 F.3d 45, 52
(D.C. Cir. 2005) (“The Executive’s judgment that adjudication
by a domestic court would be inimical to the foreign policy
interests of the United States is compelling and renders this
case nonjusticiable under the political question doctrine.”).

The theory behind Sosa footnote 21 is straightforward.
Congress created a tort cause of action for aliens based on
customary international law, a kind of international common
law. Congress did so in order to benefit America’s foreign
relations. But if an ATS suit would harm the Nation’s foreign
relations – as assessed and explained by the Department of
State or Department of Justice as representative of the
President of the United States – then the courts have no
business ignoring that statement of interest, thereby
threatening the Nation’s foreign relations and thwarting
Congress’s intent in the ATS.

Plaintiffs’ case against Exxon has been pending for a
decade, and the Executive Branch has repeatedly expressed its
 36
views on the ATS claims. The Executive has reasonably and
consistently stated that adjudication of plaintiffs’ ATS claims
would harm U.S. foreign policy interests.

In July 2002, the State Department filed a statement of
interest with the District Court stating that this case would
interfere with the U.S. Government’s foreign policy goals.
That letter explained:

[T]he Department of State believes that adjudication
of this lawsuit at this time would in fact risk a potentially
serious adverse impact on significant interests of the
United States, including interests related directly to the
on-going struggle against international terrorism. It may
also diminish our ability to work with the Government
of Indonesia (“GOI”) on a variety of important
programs, including efforts to promote human rights in
Indonesia.
....
With respect to this litigation, it is the Department’s
considered opinion that adjudication at this time could
adversely affect United States interests in two ways,
recognizing that such effects cannot be determined with
certainty. First, the GOI may respond to the litigation by
curtailing cooperation with the United States on issues
of substantial importance to the United States. Second,
the litigation’s potential effects on Indonesia’s economy
could in turn adversely affect important United States
interests.

Letter from William H. Taft, IV, Legal Adviser, Department
of State, to The Honorable Louis F. Oberdorfer, United States
District Court for the District of Columbia 1-2 (July 29, 2002)
(footnote omitted).
 37
In 2003, the Department of Justice submitted a
“Supplemental Statement of Interest” addressing some of the
legal issues raised by plaintiffs’ claims. That statement
explained that the U.S. Government’s concerns about the
litigation required that the District Court dismiss the ATS
claims:

It remains the United States’ position that adjudication
of this case would raise foreign policy and national
security concerns for the reasons articulated in the State
Department’s letter. Those concerns can be avoided by
holding, as the United States contends, that the ATS
does not create an independent right of action.

Supplemental Statement of Interest of the United States of
America at 2, Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20
(D.D.C. 2005).

In the District Court, Judge Oberdorfer paid careful
attention to the Executive Branch’s stated concerns and
dismissed plaintiffs’ ATS claims, in part to avoid
“adjudicating the actions of the Indonesian government.” Doe
I v. Exxon Mobil Corp., 393 F. Supp. 2d 20, 26-27 (D.D.C.
2005). Exxon then asked this Court to entertain an
interlocutory appeal or grant a writ of mandamus compelling
the District Court to dismiss plaintiffs’ D.C. tort claims as
well. This Court declined to do so. See Doe v. Exxon Mobil
Corp., 473 F.3d 345 (D.C. Cir. 2007). The Court’s opinion
focused on plaintiffs’ D.C. tort claims – the only issue
presented – and did not evaluate either the Executive Branch’s
statement of interest with respect to the ATS claims or the
District Court’s decision to dismiss the ATS claims.

Exxon petitioned for certiorari with respect to the D.C.
tort claims, and the Government filed an amicus brief urging
 38
the Supreme Court to deny the writ. Brief for the United
States as Amicus Curiae at 8-9, Exxon Mobil Corp. v. Doe,
554 U.S. 909 (2008) (No. 07-81). In so doing, the
Government’s brief – which was signed by the Solicitor
General and the Legal Adviser to the Department of State –
reiterated the U.S. Government’s position on the ATS claims:

 The District Court “reach[ed] the result the United
States had advocated with respect to respondents’
ATS claims” when it dismissed those claims. Id. at 8.
 “Moreover, the United States had said that its
‘concerns can be avoided by holding * * * that the
ATS does not create an independent right of action,’
and the district court responded by granting
petitioners’ motion to dismiss the ATS and TVPA
claims, which were premised on alleged violations of
international law by the Indonesian government.” Id.
at 16 (quoting Supplemental Statement of Interest of
the United States of America at 2, Doe I v. Exxon
Mobil Corp., 393 F. Supp. 2d 20).
 “[A]s a result of the district court’s rulings narrowing
the scope of respondents’ suit, the case now presents
neither of the particular situations discussed in Sosa
and Altmann. In Sosa, the Court addressed the
deference owed to the Executive Branch by the courts
in exercising their federal-common-law-making
authority under the ATS with respect to claims
alleging violations of international law. Here, the
district court dismissed respondents’ claims under the
ATS, as the United States had requested, as well as
those under the TVPA.” Id. at 17-18 (internal citation
omitted).

The U.S. Government’s amicus brief to the Supreme
Court thus plainly stated that the Executive Branch opposed
 39
the ATS claims and that the District Court correctly dismissed
plaintiffs’ ATS claims in light of the Executive Branch’s
concerns. That amicus brief was the Executive Branch’s last
statement on this lawsuit.

In sum, in 2002, 2003, and 2008, the Executive Branch
reasonably explained that the court would harm U.S. foreign
policy interests if it allowed plaintiffs’ ATS claims to proceed.
The Executive Branch has never retracted the statements.
Judge Oberdorfer followed Sosa’s instruction to give “serious
weight to the Executive Branch’s view of the case’s impact on
foreign policy,” and he dismissed the ATS claims. 542 U.S.
at 733 n.21. In light of Sosa footnote 21, I would affirm Judge
Oberdorfer’s decision.

The majority opinion disagrees. In my judgment, the
majority opinion does not give proper weight to the Executive
Branch statements about the ATS claims. To be sure, it is
possible that the Supreme Court didn’t mean what it said in
Sosa footnote 21. And it is possible that the Executive Branch
no longer believes what it said in 2002, 2003, and 2008. On
the current record, however, there can be little doubt under
Sosa footnote 21 that the Executive Branch’s clear and
consistent statements require dismissal of the ATS claims. On
remand, the District Court still can (and in my view, should)
invite the Executive Branch to state or clarify its views once
again. If the Executive Branch reiterates its objection to the
ATS claims, then the District Court should dismiss those
claims.

* * *

I respectfully dissent.