Supreme Court Hobbles Efforts to Combat Corporate Human Rights Violations Overseas

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.”

Barnes also noted that “two other concurring opinions” in Kiobel “seemed to render the opinion a less-than-crisp delineation of when the Alien Tort Statute may come into play.”

Human rights groups, such as the Center for Constitutional Rights, have argued that the ATS has been the driving force since the 1970s of human rights litigation. Baher Azmy, legal director of CCR, told Amy Goodman last fall that it appeared the high court was maneuvering once again to protect corporate concerns.

“So you have this remarkable irony,” he said, “where the Court in Citizens United suggested that corporations have First Amendment rights, but here the Court may carve out an exemption from responsibilities for corporate personhood, and that is sort of a shocking development and it could only happen in a Court that seems as it is so obsessed with corporate power.”

CCR blasted the Roberts Court for a ruling that undermines “30 years of jurisprudence to limit U.S. courts’ ability to hear cases on human rights violations committed outside the United States. In the last three decades, we have seen the Alien Tort Statute shine a light for victims seeking redress. Today’s decision moves one step closer to shutting the court room doors to victims of war crimes and torture.”

Nevertheless, CCR said the ATS might still be employed “against defendants, including corporations, whose actions ‘touch and concern the territory of the United States … with sufficient force” to try and hold them “accountable for their abuses outside the U.S. This ruling is not a grant of immunity from liability.”