The Court in Kiobel v. Royal Dutch Petroleum Co. relied on the presumption against extraterritoriality in declining to recognize a federal cause of action for the defendants' alleged breaches of customary international law. (1) The bulk of Chief Justice Roberts's opinion for the Court defended the applicability of the presumption to the claims brought under the Alien Tort Statute (ATS). (2) As Justice Alito's concurring opinion noted, however, the Chief Justice's opinion adopted a "narrow approach" that "[left] much unanswered." (3) Similarly, Justice Kennedy's concurrence observed that the Chief Justice's opinion properly "[left] open a number of significant questions." (4) In determining what exactly the Court decided in Kiobel and what it left undecided, it is useful to distinguish several things that might be done with a presumption such as that against extraterritoriality.
Most straightforwardly, the courts apply the presumption in interpreting federal statutes. Specifically, they use the presumption in determining the applicability of the statute to claims based partially or wholly on conduct that occurred outside United States territory. On the assumption that Congress legislates with domestic conditions in mind, a court applying the presumption interprets a statute not to apply "extraterritorially" unless Congress has expressed a contrary intent.
A threshold question when a court is asked to apply the presumption against extraterritoriality is whether the presumption is applicable to the type of statute in question. With respect to certain types of statutes, application of the presumption against extraterritoriality would not advance the purposes of the presumption. I argue in Part I that the presumption should be regarded as categorically inapplicable to statutes conferring jurisdiction on the federal courts. I argue further that the majority opinion in Kiobel supports the conclusion that the presumption is inapplicable to such statutes. It is clear from the Court's opinion that it was not applying the presumption to determine the geographical scope of the ATS qua jurisdictional statute. It was instead applying the presumption to determine the geographical scope of the federal common law cause of action it had recognized in Sosa v. Alvarez-Machain.
Even when the presumption against extraterritoriality is applicable, courts will not always conclude that the statute does not apply extraterritorially. Although the courts presume that Congress meant for the statute to apply only domestically, that presumption can be rebutted or overcome. The usual way in which the presumption can be rebutted or overcome is through sufficient evidence that Congress meant for the statute to apply extraterritorially. In some cases, the Court has focused exclusively on the statute's text, suggesting that the presumption against extraterritoriality is a clear statement rule that can be overcome only by clear statutory language. (5) But, in Morrison v. National Australia Bank Ltd., the Court recognized that "context" can be taken into account as well. (6) And, in Kiobel, the Court recognized that a statute's "historical background" might also "overcome" the presumption. (7) These methods of rebutting or overcoming the presumption are discussed in Part II.
When a court finds the presumption applicable and not rebutted or overcome, it must determine whether the statute applies to the particular case before it. As the Court recognized in Morrison, a non-extraterritorial statute might reach a case based on conduct that is partly foreign and partly domestic. (8) Applying the presumption in such a case, the Court explained, requires identification of "the 'focus' of congressional concern" under the relevant statute. (9) If the statute is non-extraterritorial, the conduct that was the focus of congressional concern must have occurred in the United States. When a court determines the statute's applicability to the facts of a particular case, it might be said to be determining whether the presumption has been satisfied in the particular case. …