Litigating against human rights abuses

By Erwin Chemerinsky

The Supreme Court has restricted the ability of victim of human rights violations occurring in foreign countries to sue in federal courts, but it has not completely closed the door on such litigation. In Kiobel v. Royal Dutch Petroleum, 133 S.Ct. 1659 (April 17, 2013), the court limited the ability of federal courts to hear suits under the Alien Tort Statute (ATS). But quite importantly, Chief Justice John Roberts' majority opinion expressly recognized that there still can be suits for human rights violations so long as there are significant connections between the litigation and the U.S.

The ATS was adopted as part of the Judiciary Act of 1789. It provides "[t]he 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." For the last several decades, it has been the primary vehicle for litigation in the U.S. for human rights violations occurring elsewhere in the world.

Esther Kiobel and the other plaintiffs were residents of Ogoniland, an area of 250 square miles located in the Niger delta area of Nigeria and occupied by roughly half a million people. Shell Petroleum Development Company of Nigeria is a subsidiary of Royal Dutch Petroleum Company and Shell Transport and Trading Company, companies incorporated in the Netherlands and England. The complaint alleges that after concerned residents of Ogoniland began protesting the environmental effects of Shell Petroleum's practices, the company enlisted the Nigerian Government to violently suppress the burgeoning demonstrations.

Throughout the early 1990s, the complaint alleges, Nigerian military and police forces attacked Ogoni villages, beating, raping, killing and arresting residents, and destroying or looting property. It is alleged that Royal Dutch Petroleum, through its subsidiary, was part of human rights violations, including killings and torture.

Chief Justice Roberts, writing for a five person majority, said that there is a presumption against the extraterritorial application of federal statutes. He said that there was not a sufficiently clear indication from Congress that it meant for the ATS to apply to actions in foreign countries such as were alleged to occur here. The court declared: "The principles underlying the presumption against extraterritoriality thus constrain courts exercising their power under the ATS." The court thus affirmed the dismissal of the lawsuit.

The problem with the court's analysis is that the ATS clearly was adopted to deal with harms occurring outside the U.S. There already was a cause of action for torts occurring within the U.S.; there would have been no need for Congress to include a separate jurisdictional provision for these to be heard in federal court. The ATS is obviously about creating jurisdiction in the federal courts for torts that occur elsewhere in the world that violate treaties and the law of nations. Piracy was the paradigm example of what the ATS was meant to reach.

This was exactly the point Justice Stephen Breyer made in disagreeing with Chief Justice Roberts' reasoning. Justice Breyer explained: "The ATS, however, was enacted with 'foreign matters' in mind. The statute's text refers explicitly to 'alien[s],' 'treat[ies],' and 'the law of nations.' The statute's purpose was to address 'violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs.'"

Moreover, never before had the court applied the presumption against extraterritoriality to a jurisdictional statute, like the ATS. Always before the court's concern was with applying American substantive law to activities occurring outside the U.S.

Some commentators immediately proclaimed that the court's decision in Kiobel was the end for ATS litigation in federal courts. This seems clearly wrong, though it is uncertain as to what litigation will be permitted. At the end of his majority opinion, Chief Justice Roberts declared: "On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required."

In other words, the court says that there can be claims under the ATS for conduct in other countries if the effect on the U.S. has "sufficient force" to displace the presumption against extraterritoriality. Justice Anthony Kennedy, the fifth justice for the majority, wrote a short, enigmatic concurring opinion, declared: "The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition."

It is unclear as to what will be enough of a connection to the U.S. to overcome the presumption against extraterritoriality. In Kiobel, it was a suit for human rights violations occurring in a foreign country, by a non-U.S. company, and with the victims being non-U.S. residents. The court thus says nothing about other situations, such as where it is a U.S. company engaged in human rights violations in a foreign country. In that circumstance, the connections to the U.S. seem strong enough to overcome the presumption against extraterritoriality.

Justice Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan would allow suits "where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind." Interestingly, none of these situations for using the ATS is foreclosed by Chief Justice Roberts majority opinion. In this way, Justice Breyer's opinion can provide guidance for lower courts as to situations in which the ATS still remains viable.

Perhaps what is most missing from the Supreme Court's decision in Kiobel is an explicit recognition of the need for such litigation in American courts. There must be a remedy for egregious violations of human rights - including killing, torture and rape. Often the country where this occurs fails to provide any remedy. It thus often is a suit under the ATS in a federal court or no remedy at all. The tragedy of the court's decision in Kiobel is that it often will leave victims of horrific abuses with no remedy at all.

Erwin Chemerinsky is dean and distinguished professor of law at the University of California, Irvine School of Law. Erwin served as co-counsel, in the case discussed, Kiobel v. Royal Dutch Petroleum.

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