Cato Supreme Court Review 2012-2013 (pp. 149-185), The Cato Institute, Washington DC
37 Pages Posted: 29 Sep 2013 Last revised: 13 Nov 2013
Date Written: September 17, 2013
Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign territory, they wanted to know why Kiobel was in US courts at all. Given that parties had not been asked to brief this issue, the Court reset additional oral argument for the next term, 2012-2013.
The Court held unanimously in 2013 that there was insufficient connection to the US to warrant jurisdiction under the ATS. Unanimous in result - but the concurrences took two distinct paths to this conclusion. Five members (Chief Justice Roberts writing) applied the "presumption against extraterritoriality" - a judicially created canon of interpretation saying that, unless Congress provided clear signals intending extraterritorial application, a statute would be presumed to have none. Four members (Justice Breyer writing) applied a broader, more holistic test of jurisdictional contacts with the United States. Justice Breyer's concurrence rested not on territoriality alone, but additionally permitted jurisdiction, for example, where substantive US interests were at stake, including American values of not providing a "safe haven" for torturers and other "common enemies of mankind" (or, in the context of a civil lawsuit for tort damages, their assets).
This article is an explanation of the Kiobel decision in the broader context of the ATS. The essay (aimed at a general reader, not the specialist ATS bar) argues that, for both "majority" and "minority" concurrences in Kiobel, genuinely universal jurisdiction for human rights through the ATS is now off the table; all the Justices have embraced analysis within traditional categories of jurisdiction such as territory, nationality, etc. The retreat from what had been a much more ringing embrace of universal jurisdiction for human rights abuses, when the ATS was revived in the 1980s, represents a general recognition that ATS litigation today, or at least its trajectory, is no longer about suits for the most serious human rights abuses - torture, forced disappearances, etc. - against, for example, former government officials who could be sued for assets.
Instead, says the essay, the wave of suits against corporate actors (sometimes with US nationality but very often not) is best understood as an effort to reach ordinary, even if very serious, forms of environmental, public health, labor, etc. tort harms alleged against corporate actors which are part of the global supply chain and global commerce generally. The Court's 2003 decision in Sosa v. Alvarez-Machain required, in order to maintain an ATS case, that plaintiffs' allegations recite extraordinary violations of human rights - murder, slavery, forced labor, genocide, crimes against humanity, etc. Plaintiffs lawyers would then connect them to deep-pocketed corporate defendants by claims of aiding and abetting abusive regimes. But, in the real world of global commerce, the ATS has gradually been evolving into a vehicle to create a de facto regulatory structure for environmental, public health, labor, etc. for multinational corporations and the global supply chain - a de facto regime of global civil liability against corporate actors, but a legal regime not otherwise existing, however, in international law today. The essay calls this the "law of the hegemon" through the ATS and US courts, versus "international law."
Today's US Supreme Court (concludes the essay) shares a sense that US courts ought not to be a vehicle for creating a de facto regime of civil liability for ordinary torts in the stream of global commerce. Justice Breyer's concurrence wants to hold open mechanisms for leaving the ATS as a vehicle for the kinds of cases brought back in the earlier days - Filartiga-type claims against alleged individual torturers, etc. The Chief Justice would create a more bright-line, if clumsier, rule based on where the alleged conduct took place - though even his tougher rule would allow for the "presumption" to be overcome in a proper case. But neither seems interested today in holding out US courts as de facto civil courts for the world - and less still as de facto global courts by which to improvise a regime of international civil liability for multinational corporations.
Keywords: Alien Tort Statute, ATS, Kiobel, human rights, Filartiga, corporate liability, global supply chain, multinational corporations, hegemony, international law, Sosa, Chief Justice John Roberts, Stephen Breyer
JEL Classification: K13, K31, K32, K33
Suggested Citation: Suggested Citation
Anderson, Kenneth, Kiobel v. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism in Retreat (September 17, 2013). Cato Supreme Court Review 2012-2013 (pp. 149-185), The Cato Institute, Washington DC; American University, WCL Research Paper No. 2013-24. Available at SSRN: https://ssrn.com/abstract=2332808