Death of a Statute: The Kiobel Ruling

On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims.  

In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell’s decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its human rights abuses.  

In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, and the Supreme Court granted cert. At oral argument in 2011, however, the justices asked most of their questions about another possible ground of dismissal, based on the presumption against extraterritorial application of federal law. They asked the parties to reargue the case to address that issue. 

This week the Court issued its decision on that ground. By the usual 5-4 majority, the Court said that the presumption against extraterritoriality applied and that the ATS showed no evidence that Congress intended to overcome the presumption.

There are quite a few problems with this interpretation, as bloggers at Opinio Jurishave been pointing out. In no particular order: (1) the presumption against extraterritoriality is supposed to reflect Congressional intent, but the ATS dates from 1789, long before the Supreme Court adopted the presumption; (2) since the ATS was rediscovered in 1980, in a case involving torture in Paraguay, federal courts have issued dozens of judgments involving extraterritorial activity,  without any suggestion from Congress that the courts were overstepping the bounds of the statute; (3) whenever the Court has applied the presumption in the past, it has only applied it to federal statutes, but these actions were based on federal common law (the ATS does not provide a substantive basis for claims, only an avenue to federal court); (4) even if the presumption does apply, there are strong indications that it should be overcome: (a) everyone agrees that the ATS was always intended to apply to piracy, which by definition happens extraterritorially; and (b) by its terms, the statute only allows aliens to bring claims for violation of international law, which suggests that Congress understood that such actions might well arise outside U.S. borders.

Whatever the merits or demerits of the Court’s decision, though, it is now the authoritative interpretation of the ATS. Its ripple effects will be felt for years. 

In the short term, lower courts will have to decide a deluge of motions to dismiss pending ATS claims. The majority opinion leaves open the possibility that claims may survive if they “touch and concern the territory of the United States,” but only if they do so “with sufficient force to displace the presumption.” Mere corporate presence in the United States is not enough. Most pending human rights claims against corporations won’t meet this test – and those that do will still have to face other obstacles, such as the still-out-there issue of corporate liability under international law, which the Court did not address. 

In the medium term, the plaintiffs booted from federal court will start to look for other venues. For over 30 years, the ATS has offered the hope of an effective recourse for those who have suffered human rights abuses, especially from corporations and other private actors. (Governments have so many immunities and defenses in domestic courts that it is very hard to sue them successfully.) If it is no longer available, plaintiffs’ options will be quite limited. International human rights law does not have many effective compliance mechanisms. There is no World Court of Human Rights; the UN human rights bodies are usually limited to “naming and shaming,” and regional human rights tribunals are limited in scope and often ineffective even where they have jurisdiction. 

Where will the representatives of these plaintiffs look next? Quite a few observers expect them to turn to state courts in the United States, translating claims from the language of human rights to the language of tort law. Roger Alford, for example, says that “the future of human rights in domestic courts is transnational tort litigation.”  That approach has some advantages, as he makes clear, but it also faces quite a few obstacles. Expect years of litigation before it is clear whether the former outweigh the latter. 

Finally, in the longer term, a change in the membership of the Court may result in another rebirth of the ATS. In an opinion concurring in the Kiobel judgment, Justice Breyer and the other three liberal justices set out an alternative view of the ATS, in which federal courts could hear claims if they arose on U.S. territory, were based on conduct by U.S. nationals, or “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.” This idea of a presumption against extrajurisdictionality, rather than a presumption against extraterritoriality, has quite a bit of appeal. The Breyer opinion reads as if it were written as a would-be majority holding. Given a one-seat change in the Court’s balance of power, it may someday become one.