The Supreme Court on Wednesday curtailed victims’ ability to seek recourse in the United States for human rights abuses committed abroad, in a 9-0 ruling that sought to protect American corporations from being tried overseas for the same. Though all justices concluded that there was no place in American courts for an Alien Tort Statute (ATS) suit brought by a slain Nigerian activist’s widow against multinational company Shell, they seemed to agree on little else. In particular, Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence revealed sharply divergent views about the United States’ role in the global human rights landscape.
At the heart of Kiobel v. Royal Dutch Petroleum lies the claim that Shell helped Nigeria’s Sani Abacha dictatorship perpetrate a number of horrific human rights atrocities in the 1990’s. Esther Kiobel, whose husband Dr. Barinem Kiobel had served as a prominent voice for the Ogoni people in the Niger Delta, alleges that Shell recruited the dictatorship to help quell opposition after the Ogoni mobilized against the corporation’s activities in that region. Shell purportedly gave food, money, transportation and the use of property to the Nigerian military as it raped and killed its way through Ogoni villages. Dr. Barinem Kiobel was one of the local activists the military arrested and executed.
After fleeing the country and obtaining asylum in the United States, Esther Kiobel and eleven other Nigerian nationals filed an Alien Tort Statute claim in federal court against Royal Dutch Petroleum (Shell’s parent company) for aiding and abetting torture, extrajudicial killings and other crimes against humanity. The ATS was originally written in 1789 to provide a cause of action for three things: acts of piracy, violations of “safe conduct” and assaults on foreign ambassadors in the U.S. It lay largely dormant for the next two centuries, until enterprising human rights lawyers dusted the statute off and began using it to bring civil suits against retired foreign government officials suspected of violating international law (typically the torturing and killing of their countrymen). While this modern use of the ATS has been controversial–particularly in pro-business crowds that fear a landslide of ATS claims against corporations working with unsavory regimes abroad–courts have generally accepted its application to extraterritorial human rights abuses. This reading stems from two rationales: (1) the plaintiffs, who are usually asylees and other immigrants who have escaped brutal regimes elsewhere, are unlikely to receive justice in the country where the crimes were perpetrated, and (2) as a defender of human rights, the United States should send a message that such violations are unacceptable regardless of where they occurred.
The Supreme Court, however, definitively rejected this permissive interpretation yesterday, pulling back the ATS to cover only a very small subset of human rights violations committed abroad. Chief Justice John Roberts, writing the majority opinion for himself and Justices Kennedy, Scalia, Alito and Thomas, expressed concern that a far-reaching ATS would trigger conflict between the laws of the United States and other nations. Because this statute implicates foreign policy–a field that the judiciary has traditionally been very reluctant to step into–Roberts began with a “presumption against extraterritoriality,” which is a fancy way of saying that we assume Congress wanted the statute to apply only to conduct in the United States, unless it says otherwise.
The Chief Justice then looked through the text, history and the purposes of the ATS for any indication that Congress wanted the statute to apply to acts abroad (spoiler alert: he found none). While there is in fact evidence that the Congress of 1789 had intended for the ATS to cover some overseas crimes–one of the main objectives for its passage, after all, was to combat acts of piracy, which by definition take place on the seas, outside of the United States–Roberts stated that pirates “may well be a category unto themselves” because of the way they operate outside of any jurisdiction. Drawing a firm line between the stateless nature of the high seas, which lie “beyond the territorial jurisdiction of the United States or any other country,” and a sovereign territory with an established legal system such as Nigeria, the Chief Justice worried that “unwarranted judicial interference” in the legal processes of the latter would produce serious foreign policy ramifications. Thus, corporations accused of aiding human rights abuses abroad should not be “fair game” in the same way that pirates are.
Echoing Solicitor General Don Verrilli’s warnings at the oral argument about reciprocity, the Chief Justice’s opinion also reflected concerns that a favorable ruling for Kiobel could lead to Americans (both individuals and corporations) being tried in foreign courts for human rights abuses committed in the United States “or anywhere else in the world.” Furthermore, the Chief Justice soundly rejected the idea that the presumption against extraterritoriality can be overcome because the United States must act as a human rights watchdog for the world. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” He concluded that courts must assume the ATS does not apply to overseas conduct, save for a very small and nebulously-defined exception: cases where the connection to the United States has “sufficient force to displace the presumption against extraterritorial application.”
Justice Stephen Breyer, on the other hand, still believes that the United States has a role to play as an international human rights leader. Though he ultimately agreed that the United States courts are not the appropriate fora for this specific case, Breyer favors a more expansive reading of the ATS’ reach. His concurrence, which was joined by Justices Ginsburg, Kagan and Sotomayor, rejected Roberts’ presumption in favor of a “sufficient ties to the United States” test that would apply to both claims of domestic and overseas human rights abuses. American courts should be able to hear a ATS claim if one or more of three things can be shown: (1) the alleged abuse occurred on American soil, (2) the defendant is an American national, and/or (3) the defendant’s conduct implicates a “distinct American interest,” which in Breyer’s estimation would include the United States’ interest in not becoming a “safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Justice Breyer found that Kiobel’s case failed to satisfy any of these three requirements, as the alleged violations occurred in Nigeria, the parties were all foreign nationals, and Shell was not directly responsible for the torture or the killing.
Breyer’s concurrence presents a markedly more optimistic picture of the United States as a “custodian” of human rights (albeit one that may not be warranted given the unending stream of news about the United States’ use of torture post-9/11 and its continued drone strikes in the Middle East). It leaves considerably more wiggle room for ATS jurisdiction over extraterritorial claims, especially where the alleged perpetrators of violations committed abroad–the “pirates of today,” according to Breyer–have relocated to the U.S. Whereas Roberts’ diminishing of the ATS insulates Americans from human rights litigation in foreign courts but leaves the U.S. open as a haven for rights violators, Breyer’s approach reverses the incentives: it deters war criminals from escaping to the United States and sends the message that the U.S. is against acts of torture and genocide, but may leave Americans vulnerable to reciprocity overseas (as well as accusations of gross hypocrisy).
In all, the Kiobel decision comes as a huge relief for corporations, with one miniscule silver lining for human rights activists. While it will be much harder to bring foreign abuse cases in the United States courts, the Supreme Court did leave the door slightly open for future litigation on whether corporations can be liable for human rights abuses.1 This was the original, narrower question on which the lower courts had decided Esther Kiobel’s case, before a group of attorneys representing corporations other than Shell asked the Supreme Court to consider instead the far broader claim of the ATS’ applicability to all extraterritorial conduct, whether perpetrated by individuals or corporations. Chief Justice Roberts’ limitation of the ATS gave them what they wanted this time. But there may well come a day when the right case with the right facts–one with “sufficient force to displace the presumption against extraterritorial application”–will fit through that tiny sliver of space and land before the Supreme Court. A battered ATS lives to see another day, but just barely.
- Congress could also, as Roberts indicated in the majority opinion, retool the ATS or author a new statute that explicitly imposes liability on companies that have abetted atrocities abroad and have corporate presence in the United States. This seems very unlikely to happen, though. [↩]