US high court ruling threatens human rights suits

In a unanimous decision issued on April 17, the US Supreme Court sharply restricted the use of the 1789 Alien Tort Statute for foreign nationals to sue for human rights violations that took place outside the US. The case at issue, Kiobel v. Royal Dutch Petroleum, was brought by 12 Nigerians now living in the US; they charged that Royal Dutch Petroleum (better known as Royal Dutch Shell) and other oil companies with a presence in the US conspired with the Nigerian government to commit human rights violations against Nigerians protesting environmental damage by the companies.

Five of the justices rejected the suit on the grounds that it violated the "presumption of extraterritoriality"—that is, the principle that the US will generally not meddle in the legal affairs of other countries—and that a minor presence of a foreign corporation in the US was not enough to entitle a foreigner to sue that company in the US.

The four more liberal justices agreed to reject the case, but held that suits could be brought under the Alien Tort Statute when the alleged violations took place in the US, the defendant was a US national, or the violation "substantially and adversely" affected a US interest.

Although the decision concerned violations that occurred in Africa, the use of the 1789 statute in human rights cases has been closely associated with Latin America. The first human rights suit brought under the statute, Filártiga v. Peña–Irala (1980), involved the torture and murder of a youth in Paraguay by the Asunción police inspector general. The first Supreme Court ruling on the Alien Tort Statute, Sosa v. Alvarez-Machain (2004), dealt with the case of a Mexican doctor who was abducted to the US by a Mexican employed by the US government; the court ruled against the plaintiff, Humberto Alvarez Machain, but agreed that he had the right to bring the suit under the Alien Tort law.

Other suits filed under the law include Xuncax v. Gramajo and Ortiz v. Gramajo (both in 1991), which charged former Guatemalan defense minister Gen. Héctor Alejandro Gramajo Morales with atrocities in the 1980s; Sinaltrainal v. Coca-Cola Company (2001), which accused Coca-Cola of collaborating with death squads to kill, threaten and intimidate workers at Coca-Cola bottling plants in Colombia starting in the 1990s; and Estate of Rodríguez v. Drummond Co (2002), which charged that the Alabama-based Drummond Co. Inc. coal company was responsible for the murders of three unionists in Colombia in 2001.

Chiquita Brands International Inc is currently facing an Alien Tort Statute suit, In Re: Chiquita Brands International (2007), charging that the company colluded with Colombian paramilitaries in the killing of banana workers and political organizers. After the Kiobel decision was announced, the plaintiffs' attorney, Terry Collingsworth, told a reporter that he expects the Chiquita case to go forward despite the Supreme Court ruling. "The court has added an element to bringing these cases that requires that you demonstrate a US connection," he said. "I expect it added a step that we will be able to satisfy." But the April 17 ruling clearly is a big setback for human rights advocates. "Kiobel appears to be part of an ongoing campaign to roll the clock back to the 1950s or even earlier," Creighton Law School professor Patrick Borchers wrote on April 19. "Unless Congress steps in to fix the problem, the [Alien Tort Statute] is now close to a dead letter." (The Jurist, April 17, April 19; Thomson Reuters News & Insight, April 18)

From Weekly News Update on the Americas, April 21.