The Supreme Court opened its new term with a case testing the lengths to which corporations can be held responsible for abuses they commit abroad and setting the tone for what could be another big victory for corporate power. And while the case before the high court doesn’t involve an American corporation, the court’s decision could impact those doing business abroad in some of the world’s most complicated regions.
In Kiobel v. Royal Dutch Pretroluem, a group of Nigerians sued the defendant oil companies under the Alien Tort Statute (ATS), alleging that the companies helped the Nigerian government stop protests by residents of the country’s Ogani region of oil exploration. The plaintiffs, Nigerian citizens who were legal residents of the United States after having been granted political asylum before the suit was filed, claim that the defendant corporations aided and abetted the Nigerian government in violating their human rights, including torture, arbitrary detention, and extrajudicial killings.
The ATS was first enacted as part of the Judiciary Act of 1789, and says that foreign citizens may bring civil suits in U.S. district courts for actions “committed in violation of the law of nations or a treaty of the United States.” Even though it’s been on the books since the dawn of our democracy, it wasn’t until 1980 that federal courts paid the ATS any attention. In Fliartiga v. Pena-Irala, the Second Circuit Court of Appeals held that the ATS gave jurisdiction over a lawsuit brought by a Paraguayan national against another Paraguayan national living in the United States for torture that occurred in Paraguay. Since that decision, victims of human rights violations that occurred overseas have tried to use the ATS to bring their own claims in U.S. courts, arguing in part that human rights law is inadequate and that the ATS provides them remedy in the United States.
According to the allegations in the Kiobel complaint, the company-backed government troops murdered, raped, and detained Nigerian residents in violation of international human rights laws. They sued the oil companies in New York federal court arguing the ATS was the vehicle for them to hold those companies accountable for the human rights abuses.
A federal court dismissed some, but not all the claims, and both sides appealed to the Second Circuit Court of Appeals. That court ruled that the ATS does not give federal courts subject matter jurisdiction over lawsuits against corporations. In a 2-to-1 split decision, the Second Circuit said that the scope of the ATS is determined not by U.S. law, which does impose liability on corporations for their bad actions, but instead by standards of international law, which does not. That means the ATS may allow non-citizens to get into court, but it doesn’t provide those non-citizens any remedy. Instead, the law interpreted by the courts to determine if those abuses would be remedied would have to come from international law.
According to the Second Circuit, “customary” international law has not established liability for corporations committing or aiding and abetting human rights violations. For the court, before a practice becomes “customary international law,” it must be engaged in repeatedly by a significant number of countries and based on the belief that their actions are legally required and not rejected by a large number of other countries. For the plaintiffs in Kiobel, that meant they could bring a case in the United States, but were out of luck because international law does not recognize corporate criminal liability the way the federal common law does in the United States.
The Supreme Court first heard the Kiobel challenge last term. There the issue before the Court was whether corporations could be held liable for such violations. After the February 2012 oral argument, however, the Court broadened the scope of the case, and directed the parties to also address whether federal courts had jurisdiction over violations committed on foreign soil regardless of whether the perpetrator was a corporation or an individual.
During those arguments several justices, including Justices Samuel Alito and Antonin Scalia, expressed concern about the ability of the ATS to reach beyond the shores of the United States. They questioned whether alien tort claims with little or no connection to the United States had any place before U.S. courts, and whether resolution of those claims in U.S. courts creates international tension or violates international law. Those questions, along with the scope of the entirety of the ATS, is before the court this term.
The dispute exposes a gap in the evolution of international law and why the ATS could be so important in filling that gap. As Stephen Wermiel explains at SCOTUSblog, since World War II there has been an increasing focus on the use of international criminal tribunals to try individuals for violations of international norms. But those venues provide no relief if corporations are behind the wrongdoing, which is in part what prompted the federal government at one time to file a brief in support of the Kiobel plaintiffs.
The Roberts Court is not likely to look kindly on the Kiobel plaintiffs. Taking off where former Chief Justice William Rehnquist left off, Chief Justice John Roberts has continued the trend of limiting access to the federal courts in general. There’s no reason to think Roberts and the other conservatives will find a compelling reason to grant access to the federal courts to Nigerians, Burmese, or other poor non-citizens complaining about corporate wrongdoing abroad, and the questions from the first Kiobel case seem to back that up.
Not surprisingly, the business community has been fighting hard against using the ATS to provide a vehicle for corporate accountability and argues that a ruling against them by the Supreme Court would open the door to threatening the sovereignty of those countries that play host to American corporate interests. And both the Netherlands and the United Kingdom, where Royal Dutch Petroleum is incorporated, filed briefs in the case arguing against the use of U.S. laws to try international law cases and couch their opposition as trying to avoid a diplomatic conflict between the States and countries where corporate interests operating in developing nations that would bristle at the idea of this kind of “legal colonialism.”
Notably, not all countries oppose the use of U.S. law to settle questions of international human rights abuses. Argentina filed an amicus brief on behalf of the Kiobel plaintiffs, arguing the ATS, while flawed, is right now the best law to respond to human rights abuses abroad and noted the ATS was among the tools used to respond to human rights violations that happened during that country’s military dictatorship.
The stakes in this case are enormous. Right now the question of how the courts of the United States can be used to enforce international law against human rights violations is unsettled at the same time that increased globalization demands a need for greater corporate accountability. When rape is a tool of political oppression and one facilitated by the presence of powerful corporate interests, the ATS and American courts can serve as the only avenue for justice for the world’s most vulnerable. And that is why human rights activists are rightly nervous that the fate of the ATS lies in the hands of the Roberts Court.