By Elspeth Hansen
The United States Supreme Court has indicated that it will question, and possibly restrict, the use of the Alien Tort Statute (ATS), 28 U.S.C. § 1350, to bring lawsuits for violations of the law of nations that take place outside the sovereign territory of the United States. The statute, first passed in 1789, provides that: “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.” After lying largely dormant for nearly 200 years, the ATS was revived in the 1980 case of Filartiga v. Pena-Irala. In Filartiga, the Second Circuit allowed Paraguayan nationals to sue a Paraguayan police officer in a U.S. court for allegedly torturing a family member in Paraguay. Since then, the ATS has been used to allow non-U.S. citizens to sue other non-U.S. citizens in U.S. court for violations of international law taking place outside of the United States. This has created a forum for litigating international human rights cases, such as a lawsuit against Serbian leader Radovan Karadzic for genocide, war crimes, and crimes against humanity. Important human rights cases frequently cannot be brought elsewhere, and actions oversees often have significant connections to the United States. However, such cases also have the potential to upset international relations by having U.S. courts appear to pass judgment on the rest of the world and by allowing these lawsuits to involve the United States in delicate situations.
Kiobel v. Royal Dutch Petroleum originally presented the narrow question of corporate immunity from such lawsuits. On March 5, the Supreme Court took the unusual step of ordering the lawyers in Kiobel to return next term with an expanded argument addressing: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
Kiobel involves residents of Nigeria who claim that between 1992 and 1995, Dutch, British, and Nigerian corporate oil companies helped the Nigerian government violently suppress a grassroots human rights and environmental justice movement that was protesting against Shell operations in the region. The plaintiffs claim that the “Nigerian military, aided and abetted by [the defendant corporations], engaged in a widespread and systemic campaign of torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings” in violation of international law.
The Second Circuit, 621 F.3d 111 (2d. Cir. 2010), found that the plaintiffs lacked subject matter jurisdiction under the ATS because they failed to allege violations of the law of nations. The court reasoned that the ATS conferred subject matter jurisdiction over a limited number of offenses defined by customary international law. It then examined customary international law and concluded that it had rejected corporate liability for international crimes and that no international tribunal had ever held a corporation liable for a violation of the law of nations. The Appellate Court thus concluded that claims against corporations failed to allege a violation of the law of nations, and therefore were not within the jurisdiction provided by the ATS.
Even before the Supreme Court ordered its expansion, Kiobel was regarded as having greater implications than simply defining who could be sued. Several commentators linked Kiobel to Citizens United, with one NY Times opinion piece claiming the decisions have triggered a “wave of outrage” from those who see them as a signal that “corporations have extensive rights but few responsibilities under American law.” Harvard Law School professor Noah Feldman opined that “[i]f corporations are people for the purpose of constitutional rights like free speech – as per the Citizens United decision – they ought to be treated as people when it comes to responsibilities as well.”
At least one observer of the February 28 oral argument concluded that the defendant corporations would likely prevail, noting that the plaintiffs appeared to have little success convincing the justices that domestic law, rather than international law, should control the question of who could be sued under the ATS. However, the oral argument also revealed that some justices felt uncomfortable hearing a case like Kiobel in U.S. courts at all. Justice Samuel Alito pressed counsel for the plaintiffs on whether any other country would allow a case where there was no connection between the events and the country, and where none of its citizens were parties. Chief Justice John G. Roberts, Jr. questioned whether allowing the suit at all might not contravene international law, given that no other country allows such suits. Later, Alito asked “what business does a case like that have in the courts of the United States?” and explicitly questioned whether there was a constitutional basis for hearing such cases.
The broader question of using the ATS to litigate human rights abuses committed abroad was directly raised in a November 2011 Supreme Court petition involving an ATS lawsuit against a corporation, Rio Tinto PLC v. Sarei. A ruling in Kiobel that corporations cannot be sued under the ATS would mean that the Court might have to address Rio Tinto in the same way, rather than reaching the broader question. By expanding Kiobel, the Court can consider the broader question, and perhaps avoid the question of corporate liability.
The outcome of the newly-expanded Kiobel case could impact the way the United States responds to international human rights abuses. Beyond the legal questions, it is worth considering how preserving or ending the practice of hearing human rights cases in U.S. courts relates to larger political and national security questions. How does the availability of a U.S. forum for international human rights cases relate to the United States’ role as a major global power or to its active involvement in state affairs worldwide? How is providing a forum for these cases different than engaging in other forms of involvement? Does it benefit our national security to provide a courtroom to litigate these abuses? Are there ways to eliminate potential drawbacks without ending all such litigation? Kiobel provides an opportunity to reassess the ways that these cases fit into the current political and national security position of the United States.