By Joanna Kyriakakis
Imagine the following hypothetical. An Iranian company secretly supplies poison gas to the current Syrian regime in order to kill tens of thousands of Kurdish citizens. And imagine that some of the victims of the resulting gas attacks escape and seek asylum in the United States.
Imagine also that the Iranian company in question does business in the United States. Should the victims be able to sue the company in the US?
This was the scenario put by plaintiff counsel to the US Supreme Court last week during oral arguments in Kiobel v Royal Dutch Petroleum, a case that will decide the future shape of transnational human rights litigation in the US.
Esther Kiobel and her co-plaintiffs allege that the British/Dutch corporation, Shell, assisted the Nigerian military dictatorship in the 1990s to commit gross human rights violations against local environmental activists, including torture, extrajudicial executions and crimes against humanity. Victims have since been granted asylum in the US, where Shell also does business.
The case has attracted over 90 amicus briefs, including from foreign governments, economists, historians, lawyers and corporates, all of whom claim an interest in the issues at stake.
The case addresses the limits of the Alien Torts Statute (ATS) – a 1789 US law that in recent decades was dusted off by plaintiff lawyers as a tool to litigate human rights violations committed both within and without the US.
The ATS enables non-US citizens to sue in the US for violations of the “laws of nations”. At the time it was enacted, this referred to acts of piracy and attacks on diplomats. But today it encompasses a wider range of gross human rights abuses such as torture and genocide.
As described in my earlier post, previously the parties to Kiobel argued whether the ATS applies to corporations. In the wake of the Citizens United case, which had found that corporations were people for the purpose of First Amendment freedom of speech rights, this issue had captured the public imagination.
Would the US Supreme Court find that corporations were people for the purpose of rights but not for the purpose of liabilities?
But without deciding that question, the Court restored the case for argument on an even more crucial question: whether the ATS allows victims of human rights abuses committed on foreign soil to sue in US courts at all.
Or to use the example given by Justice Breyer during Monday’s hearing (who keeps providing all the tag lines for this case); if a company called “Torture Inc.” assists a foreign government in the commission of torture outside of the US, can the victims seek a remedy in the US?
As anticipated, some of the Justices were clearly uncomfortable with the potential ramifications of US Courts hearing cases like this one involving little or no substantive link to the US.
For example, Justices Alito and Kennedy pondered the possibility of the State Department objecting to an ATS suit on the grounds that it could negatively affect US foreign policy and the security of US citizens residing overseas. Justice Scalia highlighted the potential for other nations to turn the tables and preside over cases involving US corporations.
The plaintiffs sought to placate these concerns by highlighting the doctrines courts use to filter potential ATS cases. These include, among others, the principle of using a foreign court where it would be more appropriate to do so (forum non conveniens) and the question of whether a case raises political questions that are not appropriate for a court to determine.
The plaintiffs also sought to paint the picture of a changing legal landscape where more and more countries are introducing laws of a comparable kind to address the worst categories of human rights abuses around the world.
One possible outcome of the Kiobel case is that the Supreme Court will continue to allow such suits, but direct lower courts to limit their number by applying these doctrines more strictly.
Indeed, some of the Justices were inclined toward an ‘exhaustion of remedies’ doctrine, which would require plaintiffs to prove all local and international remedial options had been pursued. This might include options for litigation in the company’s home state of incorporation. To that end, it is interesting to note a new case that has been commenced against Shell in the Netherlands for serious pollution in Nigeria, which could shed light on the prospects of such suits there.
In contrast, the defence has asked the court to limit the ATS to acts committed on US soil, or alternatively to extend it only so far as the High Seas. Either finding will render the ATS a largely useless tool for those victims of corporate human rights abuses that have to date sought to use it.
Cases to date include allegations against ExxonMobil for complicity in torture, arbitrary detention, and extrajudicial killings committed by Indonesian soldiers it hired to provide security; against Unocal for the use of slave labour in Burma; and against Talisman Energy for assisting in the forced relocation of people from sites intended for oil operations in the Sudan.
The most critical tone last Monday was saved for the counsel for the US State Department. They are asking the Court to preclude cases involving aiders and abettors of foreign governments (as opposed to direct perpetrators). They do so on the basis that rulings on the conduct of foreign governments are likely to create the most significant foreign policy tensions. But the Court seemed least inclined to defer to the US position, of all those put, given the government’s change in position over the history of the litigation.
It is difficult to predict the outcome of the case but the debate last Monday suggests some problems for the defence. Whilst some of the Justices clearly favour a strong presumption against extraterritoriality, the “originalists” on the bench (like Justice Scalia) are likely to be influenced by the evidence that the framers of the ATS intended the law to apply beyond US borders. And if so, there were questions as to whether the Court could meaningfully differentiate between types of extraterritoriality.
And so we wait. While there is genuine consternation that the Court will rule that corporations cannot be held liable under the ATS or that it does not extend to events beyond the US, there is a good chance the law will not be limited in these ways.
What does seem likely is that suits for violations on foreign soil will require a stronger connection to the US or a strong claim that the US is a genuine court of last resort.