Kiobel v Royal Dutch Petroleum: Does the Alien Tort Statute Reach Human Rights Violations Occurring Abroad?

January 30, 2013

shell oil flaringEditor’s note: This month, law students have the chance to weigh in on how the court should rule in Kiobel v Royal Dutch Petroleum by entering the ABA Section of International Law’s Rona R. Mears Student Writing Competition & Scholarship Awards. The winners will receive their award directly from Associate Justice Antonin Scalia during a United States Supreme Court evening reception on Thursday, April 25, 2013 during the ABA International Section Spring 2013 Meeting.

Previous blog posts discussed the human rights atrocities that gave rise to this case, including the torture and execution of Nigerian citizens, allegedly with the complicity of multinational oil companies. Prior posts also addressed a key legal issue in the case: whether under the Alien Tort Statute (ATS) corporations can be held accountable for international human rights violations.

Shortly after oral argument on the corporate liability issue, the Supreme Court ordered the parties to submit additional briefing addressing:

“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.”

Kiobel Families Urge the Court to Adhere to Precedent

The Kiobel families argued that the Court already answered the question of whether the ATS reaches conduct occurring abroad in Sosa v. Alvarez-Machain). Although Sosa held that the conduct at issue – short-term detention originating in Mexico- did not violate international norms, Sosa, according the families, recognized that conduct outside the US could give rise to an ATS claim. The families also pointed to the ATS text, namely the specific application of the statute to aliens with no stated territorial limits. Moreover, the families argued that the international law violations recognized when the statute was enacted in 1789, including piracy, would likely occur outside the US.  They also maintained that a 1795 Attorney General opinion applied the ATS to an attack by French nationals in Sierra Leone. In sum, the families contended that the question of whether the ATS applies to conduct occurring outside the US is well-settled.

The families further assured the Court that applying the ATS to conduct abroad would not lead to a wave of ATS lawsuits because courts have safeguards to ferret out inappropriate cases, such as:

  • The constitutional requirement that the court must have personal jurisdiction over the parties
  • The discretion to dismiss a case under forum non-conveniens
  • The discretion to abstain from exercising jurisdiction under international comity doctrine

Defendants Argue for a Restrictive Interpretation of the ATS

Defendants contended that the Court should apply a presumption against extraterritorial application of the ATS. Defendants point to the ATS text’s lack of a territorial statement as, contrary to plaintiffs’ assertions, evidence that it is intended to apply only to conduct within the US. Moreover, defendants contended reading the ATS to confer jurisdiction over “foreign cubed cases”- cases involving foreign conduct, foreign plaintiffs, and foreign defendants – would itself violate international law.

The Government and Other Amici Weigh In

The US government initially filed an amicus brief arguing that corporations could be held liable under the ATS and the families should be permitted to proceed in US courts.  In connection with the supplemental briefing, the US departed from its prior position and argued that cases involving the conduct of a foreign sovereign in its own territory, where the defendant is a foreign corporation accused of aiding and abetting the sovereign, are outside the ATS. All other categories of ATS cases should be addressed by courts on a case-by-case basis after receiving advice from the State and Justice Departments.

Amici supporting the positions of the families included human rights groups, international law scholars, families of September 11 terrorist attack victims, and one government, Argentina.

A significant number of multinational corporations, governments, and former State Department officials filed amicus briefs supporting the defendants’ positions.

A decision is expected soon.