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Since 1789, the Alien Tort Statute (ATS) has provided federal court jurisdiction for tort suits by aliens for violations of the law of nations. Though debate certainly exists about the method by which ATS-appropriate torts are identified, the Supreme Court has acknowledged that the substantive content of ATS causes of action is derived from the law of nations. In Kiobel v. Royal Dutch Petroleum Co., the SupremeCourt justices addressed not the substance of ATS cases but the reach of that statute.
The decision in Kiobel v. Royal Dutch Petroleum Co. left open a number of questions about the scope of the Alien Tort Statute (ATS). One such question is the extent to which Kiobel ‘s holding on extraterritoriality applies to the oft-neglected final words of the ATS: “The district courts shall have original jurisdiction of 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.”What if one such treaty obliged the United States to provide a civil forum for litigation ofhumanrights violations that occurred abroad and did not involve piracy?
Transnational human rights litigation under the Alien Tort Statute (ATS) has been plagued by the overarching question of the domestic legal status of customary international law (CIL). Kiobel v. Royal Dutch Petroleum Co. is the Supreme Court's second installment on the ATS. Like Sosa v. Alvarez-Machainbefore it, Kiobel does not expressly address the domestic legal status of CIL, but it does provide clues. Those clues suggest two insights: the Court views CIL as external to U.S. law, rather than as part of federal common law, and the role of CIL in future cases may be affected less by arguments about CIL's status as federal common law than by arguments about congressional intent.
Kiobel v. Royal Dutch Petroleum Co. may be a Trojan horse. Observers who are sympathetic to the adjudication in U.S. courts of international legal norms—such as those against torture— have criticized the decision for limiting federal jurisdiction over human rights abuses abroad. Yet, despite this price, Kiobel might ultimately strengthen the foundation of international legal norms in U.S. courts. Chief Justice John Roberts's majority opinion, limiting the Alien Tort Statute (ATS) from reaching overseas, rested on the principle that one sovereign state should not usually apply its laws within the borders of another sovereign state, and that idea is a bedrock principle of international law. The majority avoided the connection to international law by dressing up the presumption against extraterritoriality in a foreign-policy rationale, but its argument does not square with the historical record, especially when it comes to piracy.
The U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. has ushered in a new era for human rights enforcement. Unanimously, the Court ended so–called foreigncubed human rights cases, that is, litigation where foreign plaintiffs sue foreign defendants for activity occurring abroad. The broadest form of universal civil jurisdiction that the Second Circuit's decision in Filártiga v.Pena–Irala once appeared to promise is over. Alien Tort Statute (ATS) litigation, while not foreclosed, has become more limited.
As a result of the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co., claims brought under the Alien Tort Statute (ATS) must “touch and concern the territory of the United States … with sufficient force” for federal courts to recognize a federal common law cause of action for violations of international law.
Anxieties about the U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. should not eclipse the fact that redress can, and at times should, be secured elsewhere. Amajor effect of Kiobel is to adjust the aperture of transnational corporate accountability away from the United States–which generally has been the default venue–and toward regional and foreign jurisdictions where violations occur or where responsible beneficiaries of the wrongdoings reside or conduct their businesses.
The U.S. Supreme Court's decision in Kiobel v. Royal Dutch Petroleum Co. limits the potential of the Alien Tort Statute (ATS) as a means of legal redress for victims of human rights abuses caused by transnational companies. Interestingly enough, almost simultaneously with the Kiobel decision by the U.S. Supreme Court, a Dutch court issued its rulings in five cases concerning Nigerian individuals, supported by a Dutch environmental nongovernmental organization (NGO), in their claims against Royal Dutch Shell (RDS), headquartered in the Netherlands, and its Nigerian subsidiary, Shell Petroleum Development Company of Nigeria, Ltd. (SPDC). These cases relate to oil spills for which the plaintiffs believed Shell should be held liable.
Many human rights activists have lamented the outcome of Kiobel v. Royal Dutch Petroleum Co. Reacting to the opinion, Human Rights Watch expressed concern that Kiobel “significantly reduce[s] the possibility that corporations can be held accountable in US courts for human rights abuses committed abroad.” The Center for Constitutional Rights issued a statement that it was “deeply troubled by the Supreme Court's decision to undercut 30 years of jurisprudence.”
Corporate accountability actions brought under the Alien Tort Statute (ATS) tend to be grounded more in hope than in expectation. While an effective publicity tool for highlighting allegations of corporate irresponsibility and a successful approach for gaining favorable settlements in a few high-profile cases, U.S. courts have generally been reluctant to use the ATS to hold global corporations accountable for their actions outside the United States.