Alien Tort Statute

  • April 17, 2013

    by Jeremy Leaming

    In another victory for corporate interests, the U.S. Supreme Court limited the scope of a 224-year-old law used by human rights groups and lawyers to sue corporations over human rights violations committed overseas.

    The case involved a lawsuit leveled against Royal Dutch Petroleum, which owns Shell Oil, alleging that the company was complicit in the murder and torture of Nigerians opposed to the company’s exploration of the Niger Delta and thereby in violation of the law of nations. The Nigerian government executed many of the activists -- and their families, represented by human rights lawyers, lodged a lawsuit in federal court pursuant to the Alien Tort Statute (ATS). The 1789 federal law states that federal courts can hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

    In Kiobel v. Royal Dutch Petroleum, Chief Justice John Roberts Jr. asked the parties to address, “Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

    The question is not, Roberts wrote in the majority opinion, “whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign.”

    Roberts, joined by the high court’s other conservatives, maintained that 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.”

    The Court’s conservatives concluded the ATS does not reach extraterritoriality claims, in this case.

    “On these facts, all the relevant conduct took place outside the United States,” Roberts wrote. “And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.”

    The high court’s left-of-center justices “believed that the statute could still be used in some cases,” Robert Barnes reported for The Washington Post.

    Justice Stephen G. Breyer, Barnes highlighted, wrote that the ATS should reach conduct by corporations overseas that “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.”

  • October 1, 2012

    by Jeremy Leaming

    The U.S. Supreme Court’s first “blockbuster” case of its new term comes Oct. 10 when it will consider the constitutionality of a university’s race-conscious admissions policy. But as the high court opened the term today it entertained a case that could determine the reach of a 223-year-old law aimed at punishing those who commit human rights violations, and just how responsible corporations are for abetting or committing human rights violations.

    The Associated Press reports that after today’s oral argument in the case, the “justices appeared ready to impose new limits on lawsuits brought in U.S. Courts over human rights violations abroad.”

    The case, Kiobel v. Royal Dutch Petroleum, provides the justices the chance to describe in greater detail corporate personhood – in 2010 the Court found that corporations have First Amendment rights like individuals – and whether the Alien Tort Statute (ATS) is still a tool to hold corporations responsible for human rights violations committed outside the country.

    In a segment for “Democracy Now!” host Amy Goodman described Kiobel as one that “will decide if survivors of human rights violations in foreign countries can bring lawsuits against corporations in the U.S. courts.” (See entire segment here or watch video below.)

    The case, Goodman continued, centers on a lawsuit that charges Shell’s parent company, Royal Dutch Petroleum, of “complicity in the murder and torture of Nigerian activists in the 1990s who protested the oil company’s “exploration” of the Niger Delta. Many of those activists were executed by the Nigerian government and their families are seeking to hold the oil company accountable pursuant to the ATS. 

    Baher Azmy, legal director of the Center for Constitutional Rights, told Goodman that the law has been a significant tool, if not the cornerstone, of human rights litigation for decades. Azmy noted that CCR lawyers relied on the ATS in case lodged in 1979 to help Paraguayan citizens hold a police official responsible for the murder a 17-year-old. Azmy said the ATS had been dormant for about 200 years until that case.

    Now in what he called an ominous and unusual turn, the Supreme Court could greatly hobble a major tool for punishing violators of human rights.

  • March 5, 2012

    by Nicole Flatow

    A case that started out as potentially the most significant test of corporate personhood since Citizens United v. FEC may now be decided on other grounds.

    The U.S. Supreme Court has ordered another round of arguments in Kiobel v. Shell Petroleum, this time on the question of whether the 200-year-old Alien Tort Statute applies to human rights violations that occur outside the United States.

    The ATS and another related statute, the Torture Victim Protection Act, have been used to hold corporations accountable when they commit or are complicit in human rights abuses that include genocide, war crimes and forced labor.

    The Supreme Court initially granted review of Kiobel on the question of whether the corporate entities themselves could be held accountable.

    But as Bloomberg’s Greg Stohr points out, a ruling on the broader issue of whether U.S. courts can review actions arising elsewhere would “potentially impose more sweeping limits on lawsuits, shielding corporate officers as well as the companies themselves.”

  • February 28, 2012
    Guest Post

    By Susan Farbstein and Tyler Giannini, Associate Clinical Director and Clinical Director of Harvard Law School’s Human Rights Program. Farbstein and Giannini are co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the petitioners in Kiobel v. Royal Dutch Petroleum Co.


    Today, the U.S. Supreme Court hears the most important human rights case of the term. Kiobel v. Royal Dutch Petroleum Co. will determine the fate of corporate liability under the Alien Tort Statute (“ATS”), a 1789 law passed by the First Congress. The plaintiffs allege Shell’s complicity in killings and crimes against humanity committed in Nigeria during the 1990s. Now the Supreme Court must decide whether corporations who profit from human rights abuse are exempt from civil liability for these activities — even though natural persons are unquestionably liable for the same acts.

    The case has attracted a slew of amicus briefs and recent press coverage. On one side, those like John Bellinger, a former U.S. State Department Legal Advisor, argue for completely exempting corporations from suit under the ATS. On the other side are those like Ka Hsaw Wa, the Executive Director of EarthRights International, who notes the importance of these cases to survivors of corporate abuse, and Peter Weiss, the Vice President of the Center for Constitutional Rights, who rightly points out that total corporate immunity would give corporations more rights and legal protections than people.

    The debate stems from a 2010 Second Circuit Court of Appeals decision, which held that people could be sued under the ATS, but corporations could not. That ruling broke with more than a decade of jurisprudence in which numerous courts had repeatedly found or assumed that corporations could be sued under the statute.

    Mr. Bellinger asserts that because the alleged violations often take place abroad, corporate ATS cases should not be allowed in U.S. courts. Corporations, however, routinely answer in U.S. courts for their activities overseas, whether in contract cases or run-of-the-mill product liability claims. And when there is a better forum to hear a case, defendants can — and do — request that the case be moved. Yet under Mr. Bellinger’s view even when there is no alternate forum, a suit still should not be allowed to proceed here against U.S.-based corporations. He would deny survivors of human rights abuses even this last resort. 

  • February 23, 2012
    Guest Post

    By John Knox, a law professor at Wake Forest University School of Law and a member scholar at the Center for Progressive Reform. This commentary is cross-posted at CPRBlog.


    On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights. 

    For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta. The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them. Most infamously, in 1995 it executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.     

    Esther Kiobel, the widow of one of the executed men, as well as other affected Ogoni, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by the First Congress, in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law. In 2004, in Sosa v Alvarez-Machain, the Supreme Court affirmed that the ATS still provides jurisdiction for international tort claims, but it cautioned federal courts not to recognize claims “for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms” familiar when the law was enacted. As an example of such a historical paradigm, the Court cited the long-standing prohibition against piracy. 

    Foreign plaintiffs have used the ATS to accuse corporations of committing grave human rights abuses, including genocide, war crimes, and forced labor.  A few of the suits have resulted in payments, including a 2009 settlement by Shell of another claim arising from its Nigerian operations. In 2010, however, the Second Circuit Court of Appeals rejected Esther Kiobel’s claim on the sweeping ground that corporations could never be liable for violations of customary international law, because customary international law never imposes any obligations on corporations. In short order, the Seventh, Ninth, and D.C. Circuits rejected the Second Circuit decision, holding that plaintiffs can sue corporations under the Alien Tort Statute. 

    Last fall, the Supreme Court granted certiorari to review the Second Circuit decision. Its ruling will be its first ATS decision since Sosa, and it will determine whether the many other pending ATS suits against corporations may continue. It’s possible that the Court will decide the case on grounds that allow it to avoid addressing corporate duties under international law. But if the Supreme Court does take on international law, as seems likely, what should it decide? Is the Second Circuit correct that international norms do not prohibit corporate abuses of human rights?