CounterVortex

The US Supreme Court ruled unanimously April 17 in Kiobel v. Royal Dutch Petroleum that nothing in the Alien Tort Statute of 1789 (ATS) rebuts the US presumption against extraterritoriality and that suits challenging torture and international law violations that took place overseas cannot be brought in US Court. Chief Justice John Roberts authored the majority opinion. Kiobel was held over from last term when the court decided that the parties should brief on the circumstance when the ATS should apply extraterritorially. In the new ruling the court held that extraterritorial disputes—those concerning foreign actors that violate treaties to which the US is a party—cannot be litigated in the US under the ATS, and "sufficient force" is necessary to displace that presumption. The opinion also suggested that "mere corporate presence" will not suffice to bring suit in the US:

[N]othing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches "any civil action" suggest application to torts committed abroad; it is well established that generic terms like "any" or "every" do not rebut the presumption against extraterritoriality.

The case was brought by a group of Nigerian refugees  [led by the late Ogoni leader Dr. Barinem Kiobel] against Shell and other oil companies. The refugees allege that the respondent oil companies enlisted and aided the Nigerian government in torturing and persecuting Nigerian citizens in response to protests over the environmental impacts of the companies' practices.

Although the court was unanimous, justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan concurred only in the judgment. Breyer wrote that he did not believe the case should be decided under the presumption against extraterritoriality and laid out a three-point guide for when the ATS would apply. "I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind."

From Jurist, April 17. Used with permission.

This is the latest of several recent cases in which the US courts have rejected attempts to hold coporations accountable for abuses committed in other countries. The ATS has also been invoked against US officials over human rights abuses.