Editor’s note: During the Supreme Court’s summer recess, the blog will be publishing a series of posts that explain, in non-legal terms, some of the most important cases that will be decided in the new Term that starts October 1. This is the first of those posts. It explains the case of Kiobel v. Royal Dutch Petroleum. Beginning on Monday, the blog will also be hosting a symposium on Kiobel.
America’s very first Congress, which started meeting in 1789, passed a law that has been given a new life in the Nation’s courts since the 1980s as the world searched for legal ways to deal with human rights abuses such as torture and killing that occurred around the world. At its next Term, the Supreme Court is expected to decide whether that law gives federal courts in the U.S. the authority — in essence — to reach across the seas and judge violations of international law that occur entirely in another country. If the Justices find that the law goes that far, they are then likely to decide whether corporations can be sued for such human rights violations.
The law is called the Alien Tort Statute. The word “alien” means a person who is not a U.S. citizen. Those individuals are the only ones who have a right to file a lawsuit under that law. The word “tort” means misconduct or wrongdoing for which the law provides a remedy. Under this old law, foreign nationals may sue in federal courts in the U.S. for “torts” that violate either international law or a treaty that the U.S. has signed.
Although first passed in 1789, the law was hardly used for nearly two centuries. Then, in 1980, a federal appeals court in New York City became the first to uphold a claim under the law, in a case involving alleged torture of an individual in Paraguay; the lawsuit was filed by his father. Most lawyers and professors now refer to that case as the birth of the modern series of lawsuits dealing with torture, killling or other atrocities in foreign lands. One of the more famous cases since then has been a lawsuit by South Africans against a multitude of international companies over the abuses carried out under the apartheid policy in that country.
Up to this point, the most important Supreme Court ruling on such lawsuits came in 2004, when the Justices refused to permit a case in which a Mexican citizen had sued other Mexicans who supposedly had arranged with law enforcement officials in the U.S. to abduct him and transport him to the U.S. to be tried on criminal charges. In that decision, which had the title Sosa v. Alvarez Machain, the Supreme Court included a footnote that has given rise to the most important issue still unsettled about the Alien Tort Statute.
In that footnote, the Justices raised a question of whether a private corporation could be sued for violating the law. The Court did not decide that issue, merely noting that lower federal courts had been issuing conflicting decisions on it.
In October 2011, the Supreme Court stepped into the controversy, with the aim of settling whether corporations could be the targets of ATS claims. They agreed to hear the case of Esther Kiobel, a Nigerian national, who filed the lawsuit for herself, for her late husband, Dr. Barinem Kiobel, and other Nigerians. They claimed that three international oil companies had arranged for the Nigerian government to use its military forces to put down resistance to the companies’ drilling for oil in the Ogoni region of the Niger Delta in Nigeria.
In that case, which is titled Kiobel v. Royal Dutch Petroleum, the Justices have been reviewing a decision issued in September 2010 by a federal appeals court sitting in New York City. The appeals court — the same one that had started the modern string of rulings on the 1789 law — had issued a split decision. Its majority declared that international law had not made it clear that corporations could be sued for human rights violations, even if they were serious atrocities. The Nigerians took the case on to the Supreme Court.
The Supreme Court held a hearing on it on February 28. During that hearing, some of the Justices raised a more basic legal question than the one about who could be sued: they wondered if the Alien Tort Statute actually did allow U.S. courts to hear lawsuits that were aimed at violations of international law, when those occurred entirely on foreign soil. Six days after that, the Court announced that it was postponing its review of the Kiobel case until its next Term. It told the lawyers on both sides of the case to file new written legal arguments on the issue of whether, and in what situations, the 1789 law allowed a U.S. court to permit a lawsuit for violations of international law that had occurred on the territory of a foreign nation.
This summer, the lawyers are filing those new arguments. The federal government, for example, has sent in a brief that urged the Court to rule that U.S. courts should not be entirely closed to such lawsuits, but that the Kiobel lawsuit itself should not be allowed to go ahead. Briefs will be filed opposing that view and in favor of permitting the Nigerians’ claims, and briefs will be filed contending that U.S. courts should have no role to play in monitoring such violations that occur entirely outside of the U.S.
When the Court comes back into session in October, it will schedule a new hearing, and the case will go from there. A final decision is expected some time in 2013.
There is another U.S. law — passed by Congress in 1992 — that does allow U.S. citizens to file lawsuits claiming that they or their relatives were tortured overseas. However, in a decision last April, the Justices concluded that such lawsuits could not be filed under that law against corporations, but only against human beings.