The End of the Filartiga Era

Today the U.S. Supreme Court gutted the Alien Tort Statute, effectively ending a brief period in the history of American jurisprudence (a mere quarter of a century dating back to the Filartiga case) during which victims of human rights abuse who had no hope of securing justice in their homelands could seek justice in U.S. courts. In the case before the Supreme Court, Kiobel v. Royal Dutch Petroleum, all nine justices agreed that a lawsuit against a multinational oil company for its complicity in the deaths of Nigerian environmental activists should be thrown out. An opinion joined by five of the justices objected to the extraterritorial reach of the ATS in cases like Kiobel, the very feature that has made it an important tool for the promotion of international human rights law.

For more on the ruling, see the New York Times story here, an editorial from the same paper here, and the learned counsel of several experts participating in an "insta-symposium" over at Opinio Juris.

Lawyers representing Big Oil are no doubt celebrating tonight.

Kiobel: Oral Arguments, Part 2

Adam Liptak describes the second round of oral arguments in Kiobel here in today's New York Times. The actual transcript of the reargument is available here.

And Jeffrey Rosen, writing for The New Republic, makes an important point about the way Kiobel v. Royal Dutch Petroleum ties into the problem of corporate influence in a democracy, especially since the Supreme Court's Citizens United decision opened the floodgates of political contributions by corporations.

Arguing the ATS . . . Again

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.

SCOTUS and the ATS

Yesterday the U.S. Supreme Court issued a new order in the case of Kiobel v. Royal Dutch Petroleum, which was heard last Tuesday.  The order requires that new briefs be filed by both sides on this issue:  "Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, 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."  The case will be reargued in the 2012-2013 term.

This unusual step by the Court raises the possibility that cases arising under the ATS could be limited to those occurring on the territory of the United States or in nonsovereign spaces (res communis), such as the high seas.  This, in turn, would essentially mean the end of international human rights litigation in U.S. federal courts.

For more on this, see Lyle Deniston's commentary on SCOTUSblog and John Bellinger's take over at Lawfare.

More on Kiobel

This op-ed from last Sunday's Los Angeles Times speaks eloquently to the need for corporate liability in international human rights cases.  In it, Ka Hsaw Wa, the executive director of EarthRights International, describes the human rights abuses committed by Unocal and the Burmese military that prompted the Doe v. Unocal suit settled in 2005 following almost a decade of litigation.

Also, the LA Times editorial board gets it right in this editorial, which concludes, "As long as U.S. courts are open to  such [human rights] suits, there should be no distinction between individual and corporate defendants."

The Stakes in Kiobel

Next Tuesday, the U.S. Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co., a case that raises the question of corporate liability under the Alien Tort Statute for human rights violations.  As Peter Weiss, vice president of the Center for Constitutional Rights, notes in an op-ed in today's New York Times, the Supreme Court granted corporations some of the rights of individuals in Citizens United; to turn around and exempt corporations from the responsibilities that individuals have under the Alien Tort Statute would be a "startling paradox."

Meanwhile, on Friday, former State Department legal adviser John Bellinger argued in a Washington Post op-ed that the Supreme Court should uphold the Second Circuit's decision against corporate liability in ATS cases in order to avoid friction between the United States and other governments that have direct ties to corporations accused of human rights violations, like Royal Dutch/Shell.

Check back for more on Kiobel and the ATS in the next few days.