Death of a Statute: The Kiobel Ruling

On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims. In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell's decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its human rights abuses. In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, and the Supreme Court granted cert. At oral argument in 2011, however, the justices asked most of their questions about another possible ground of dismissal, based on the presumption against extraterritorial application of federal law. They asked the parties to reargue the case to address that issue. This week the Court issued its decision on that ground. By the usual 5-4 majority, the Court said that the presumption against extraterritoriality applied and that the ATS showed no evidence that Congress intended to overcome the presumption. There are quite a few problems with this interpretation, as bloggers at Opinio Jurishave been pointing out. In no particular order: