Today is the first Monday in October, which means the United States Supreme Court is beginning a new term. The Court leads off with a second round of oral arguments in a case--Kiobel v. Royal Dutch Petroleum--that was first argued in February. The continuation of the case to a new term and the scheduling of a second session for oral arguments is unusual, but hardly unprecedented.
Kiobel is a case brought by Nigerian nationals alleging the complicity of Royal Dutch Petroleum (aka Shell), an oil company operating in the Niger Delta region of Nigeria, in serious human rights violations that included the unlawful executions of nine individuals who had protested local environmental damage caused by petroleum production. (For more on the background, see this post from last February.) The statutory authority for the suit brought by Esther Kiobel, the wife of one of those executed by the government, and others lies in a 1789 snippet of law called the Alien Tort Statute, which gives federal courts in the U.S. jurisdiction over cases involving violations of the law of nations regardless of the nationality of the plaintiff, the defendant, or the location of the alleged violation. Since 1980, when the ATS was first used to give victims of human rights violations abroad access to U.S. courts, the limits of the law have been regularly tested in federal court; Kiobel is the second ATS case to make it to the Supreme Court.
In February, the principal question before the Supreme Court was whether corporations can be held liable for human rights violations under the terms of the ATS. This is a very important question as many of the most important legal victories won by victims of human rights abuse in the last thirty years have involved settlements with or judgments against corporations for their misdeeds. Without corporate liability for human rights abuse under the ATS, an important means of securing justice will be foreclosed and corporations will be relieved of the responsibility to consider human rights in the way they conduct operations in states with weak or corrupt legal systems.
The question before the Supreme Court now is whether violations of the law of nations that occur outside the United States should be adjudicated in U.S. courts under the ATS. Critics of the ATS as currently interpreted (including the Justice Department, which filed a surprising amicus brief in June--one not signed by State Department lawyers) argue that cases involving human rights violations abroad may threaten the sovereignty of a foreign state in some circumstances. Supporters of the status quo argue that, if the scope of the ATS is restricted, "an important avenue for redress will be closed to foreign victims of human-rights abuses--and America's beacon as a leader in advancing such rights will shine less brightly," as the Christian Science Monitor puts it today.
Meanwhile, Nobel laureate Desmond Tutu, writing in USA Today, states that "if the Supreme Court sides with Shell, it would represent a terrible step backward for human rights." Arguments and analyses abound on the Internet. Kali Borkoski's excellent survey of the various stakeholders' views is available at SCOTUSblog. Click the "Alien Tort Statute" tag below for more of my own commentary on the law--and on the earlier arguments in Kiobel.