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Among the other important parts of the Judiciary Act of 1789, Congress includes a lesser known provision known as the Alien Tort Statute (“ATS”). The statute, less than 50 words, states: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The original meaning and purpose of the statute have been debated, but the Supreme Court of the United States, following in the judicial footsteps of the Second Circuit, has limited the statute’s application.
For almost a century, the ATS was almost never used. The 1980’s saw the ATS be applied to international human rights cases. The more recent cases concern the statute being applied against corporate defendants, usually oil or pharmaceutical companies such as Pfizer.
The case before the Supreme Court was Kiobel v. Royal Dutch Petroleum. The plaintiffs were several Nigerians, who after obtaining asylum in the U.S., sued claiming the two defendants, Royal Dutch Petroleum and Shell Transport and Trading, aided the Nigerian military and police forces in committing various atrocities against Nigerian villages.
The decision, unanimous in judgment but not reasoning, was written by Chief Justice Roberts. He stated a general presumption against extraterritorial application of American law barred the lawsuit, especially since all of the conduct took place in Nigeria. As to the question of corporations, he stated, “Corporations are often present in many countries, and it would reach too far to say mere corporate presence suffices.”
According to the Chief Justice, Canada, Germany, Switzerland, the Netherlands and the UK all objected to some claims under the law, and allowing these kinds of suits in American courts could interfere with foreign policy.
The Chief Justice did leave open the possibility of allowing the statute to be applied to piracy, especially since that problem was a concern in 1789.
In the concurring opinion, Justice Breyer acknowledged the piracy question, asking “Who are today’s pirates?…Certainly today’s pirates include torturers and perpetrators of genocide.” He further stated he would allow lawsuits under the law in three instances: 1) when the conduct took place in the U.S. 2) when the defendant is an American citizen and 3) if the conduct affects an “important American national interest” including the prevention of the United States from being a safe harbor for enemies. He further acknowledged that none of those factors were present in the case at bar.
Sources: New York Times
Supreme Court Opinion: Kiobel v. Royal Dutch Petroleum
-Should the ATS be used to sue corporations who commit crimes abroad? Or does the law attempt to make the United States the marshal of law abroad?
-Does it make a difference that the defendants here did not commit the crimes directly but allegedly only aided a foreign entity in doing so?
In my opinion, the Supreme Court was correct in declining to extend the application of the Alien Tort Statute. Although I do not condone the alleged acts committed by the corporations here, I am cognizant of the fact that the ATS was neither designed to serve as a general policing mechanism nor a broad remedial statute. In 1789, the Statute offered protection for violations of safe conducts, infringements of the rights of ambassadors, and piracy. Since then, courts have extended protection to victims of state-sponsored genocide, torture, cruel and inhuman treatment, and the like; however, the ATS had never been used to impose liability on a private, non-state party.
Given the historical context of the ATS’s usage and purport, I do not believe that it could have been or should have been used to impose liability on the corporations. It is, however, an entirely different question whether the corporations should be liable ab initio. I am of the opinion that they should be. Yet, I am also of the opinion that if the international community wants to protect individuals against torts committed by corporations then it should sit down at the negotiating table and draft a treaty. Without a treaty to govern this area of international law there can be no remedy for such torts. I propose that the international community should use the Rome Statute’s criminal model of complimentarity jurisdiction. Meaning, if the State where the tort has been allegedly committed is unwilling or unable to try the case, then an international tribunal will have jurisdiction to hear and rule on the matter.
I also think that the court in Kiobel got it right. I believe the court’s “presumption against extraterritoriality” is the correct way to apply or rather not apply the ATS. It is not really the United States’ duty to police the activities of corporations acting in foreign jurisdictions. I agree with Rocky that the ICC would be a good place to bring these actions, that way there is a more neutral body conducting such proceedings without frustrating United States foreign policy. However, as in most international law cases, jurisdiction and enforcement will be an issue. The decision of whether or not to defer judicial proceedings to the foreign state will also be a continuing issue. Countries generally do not like to concede that their judicial systems lack the resources to try their own criminals. I do believe that these corporations should be held liable but it seems that stretching the ATS would not be the appropriate way to do it.