By Kate Mitchell –
On 17 April 2013, the United States Supreme Court delivered judgment in Kiobel v Royal Dutch Petroleum. The Court held that the Alien Torts Statute (ATS) did not apply extraterritorially, shutting off an avenue previously embraced by human rights advocates for making corporations accountable for human rights abuses committed abroad.
The plaintiffs in Kiobel were Nigerian nationals from the Ogoniland area of the Niger Delta who resided in the United States. They alleged that the respondents (the Netherlands-based Royal Dutch Petroleum Company, British-based Shell and their joint Nigerian subsidiary) had aided and abetted in the commission of torture, executions and other atrocities in Ogoniland. The claim was brought under the ATS, a 1789 statute that gives US Federal Courts jurisdiction to hear claims over torts committed by aliens “in violation of the law of nations or a treaty of the United States”.
The decision of the Supreme Court was unanimous in rejecting the plaintiff’s case, although the reasoning varied between the judges. Chief Justice Roberts, with whom Scalia, Kennedy, Thomas and Alito JJ joined, held that the presumption against the law applying extraterritorially applied, and the plaintiffs had not rebutted that presumption. In their separate opinions, Justices Kennedy and Alito (the latter with whom Justice Thomas agreed) were careful to emphasise the decision was a narrow one.
The concurring judgment of Justice Breyer (with whom Ginsburg, Sotomayor and Kagan JJ joined) agreed with the Court’s conclusion, but not with its reasoning. Justice Breyer concluded that jurisdiction could be invoked under the ATS where (1) the tort is alleged to have been committed on American soil, (2) the defendant is an American national or (3) the defendant’s conduct adversely affects an important American national interest. The respondents’ “minimal and indirect American presence” meant that it would be “farfetched to believe” that the plaintiff’s claim vindicated a distinct American interest.
For decades, victims of human rights abuses committed abroad (by US and non-US companies) have brought claims under the ATS, serving as one of the few forums through which such abuses could be heard and determined judicially. Following Kiobel, this is likely to change, with the majority noting that the ATS did not make “the United States a uniquely hospitable forum for the enforcement of international norms”. The decision begs the question about whether there is any ‘hospitable forum’ that can provide access to a remedy for those alleged to have suffered at the hands of corporate actors investing abroad. Particularly when contrasted with the forums available for corporate actors to vindicate their property rights as investors (such as binding investor-state arbitration) the reality that there is now one less forum for individuals to vindicate their human rights affected by corporate investment is a cause for concern.
Kate Mitchell is an MPhil in Law Candidate at the University of Oxford. Her previous posts can be found here.