On Wednesday, April 17, the Supreme Court of the United States decided Kiobel v. Royal Dutch Petroleum, a case that developed over years and became highly anticipated by the international human rights community. The case itself had been before the Court twice and had the potential to address many unanswered questions regarding the jurisdictional scope of the Alien Tort Statute (ATS).
Characterization of the ATS is often described as enigmatic. The reasoning behind the statute’s enactment is muddled in history, and the precise aim of its language only began to be fleshed out by American courts in the 1980’s following the landmark Second Circuit decision of Filatriga v. Peña-Irala. The Supreme Court of the United States first addressed the statute in the 2004 case of Sosa v. Alvarez-Machain, and the holding fell short of the hopes of human rights victims and advocates.
The Sosa case, for all it left unanswered, was clear in stating that not all violations of international law were actionable under the ATS. The court affirmed the proposition that the statute is merely jurisdictional, meaning that it created no independent cause of action. The cause of action must arise out of a “violation of the law of nations or a treaty of the United States.” Though violation of a treaty provision is straightforward, what constitutes a violation of the law of nations remained more elusive.
As the Sosa Court clearly sought to limit the potentially expansive scope of the ATS by narrowing the field of actionable claims under the ATS “law of nations” prong essentially to jus cogens norms. Causes of action must be based on one of the Eighteenth century paradigms mentioned by the court (safe passage, offenses to ambassadors, and piracy) or a modern equivalent. To be recognized as a modern, tortious violation of the law of nations, it must be universally recognized by civilized nations, equally binding and nonderogable to those nations, and be clearly defined through an abundance of various corroborating sources. Further, prudential considerations such as the maintenance of foreign relations, must not preclude the exercise of jurisdiction under the ATS. Though the Court did not consider any other potential limitations on ATS claims, Sosa has largely been read as if the discussed limitations were the only limitations on ATS claims.
In setting the bar for ATS jurisdiction so high, human rights advocates perhaps were too optimistic regarding future ATS cases to reach the Supreme Court. In a Seventh Circuit ATS decision, Flomo v. Firestone Natural Rubber Co., LLC, the prolific Judge Richard Posner seems to do everything he can to tactfully undermine the Supreme Court’s restrictive approach to the ATS without ruling for the plaintiff. Ruling for the plaintiff could have resulted in the Supreme Court squarely addressing the issue of whether corporate liability can be had under the ATS in the negative, a question that the Court avoided in Kiobel.
Kiobel’s reasoning is not shocking. The proposition that the presumptive doctrine against extraterritoriality applies to the ATS was hardly contentious among the justices in a unanimous decision for the judgment. The court was not at pains to conclude that the tortious injury must occur in the United States or at least substantial activities that led to the injury occurred in the United States.
Though ATS litigation was dealt a strong blow, other doors remain open. Pleading such claims in U.S. state courts, or the courts of other nations, using the laws of U.S. states or other nations, may be the new approach to the presentation of cases dealing with grave violations of human rights. Many procedural and substantive questions are left unanswered in Kiobel, and commentators are quick to point out the inherent vagueness, which will contribute to conflicting readings of the opinion. Justice Kennedy’s short and ambiguous concurrence states “the presumption against extraterritorial application may require some further elaboration and explanation.” The question of corporate liability under a corporate social responsibility in human rights angle under the ATS still remains open.
Lastly, four justices did vote for reasoning that does not concern extraterritoriality at all, but Congressional intent in passing the ATS. The role of the court, to the four Justices signing Justice Breyer’s concurrence, is how to apply those Eighteenth century concerns in modern times where the “community of nations” is increasingly recognizing many more violations of human rights norms. Though this does not amount to a majority, it demonstrate that the court could be persuaded to receive a future ATS case less restrictively.
