Graphic from The Guardian Article: Unloveable Shell: the Goddess of Oil
A version of this editorial appeared in print on April 18, 2013, on page A26 of the New York edition
The Supreme Court’s conservatives dealt a major blow Wednesday to the ability of American federal courts to hold violators of international human rights accountable. The court declared that a 1789 law called the Alien Tort Statute does not allow foreigners to sue in American courts to seek redress “for violations of the law of nations occurring outside the United States.”
In the case at issue, Kiobel v. Royal Dutch Petroleum, Nigerian citizens alleged that, from 1992 to 1995, multinational oil companies working in Nigeria aided the military dictatorship that tortured and killed protesters who fought the environmental damage caused by the oil operations. These companies did business in the United States. But Chief Justice John Roberts Jr., writing for the majority, said that even where claims of atrocities “touch and concern the territory of the United States, they must do so with sufficient force” to overcome a presumption that the statute does not apply to actions outside this country.
That presumption radically revises and undermines the way the statute has been applied for a generation. It has been limited by the types of human rights abuses it covers — but not by where they take place. The effect is to greatly narrow the statute’s reach.
The court’s four moderate liberals, in an opinion by Justice Stephen Breyer, agreed with the majority that the Kiobel case should not go forward in an American court. The conduct in this case happened abroad, Justice Breyer wrote, and “based solely upon the defendants’ minimal and indirect American presence,” it would be “far-fetched to believe” the case “helps to vindicate a distinct American interest.”
But he persuasively argued against the majority’s evisceration of the Alien Tort Statute. Under the court’s reasoning, it is likely that the 1980 federal appeals court ruling that first used the statute in a significant human rights case would have been thrown out of court. It is likely that many other cases brought by foreign nationals against foreign individuals, and against corporations since 1997, would have been thrown out, too.
In 2004, the Supreme Court ruled that the law allowed suits in federal courts by foreigners against the most abhorrent foreign violators of universally accepted rights, like torturers and perpetrators of genocide, even when the abuses took place in other countries, as long as the defendants had sufficient contact with the United States.
Congress has not tried to limit that interpretation of the statute.
Justice Breyer said suits under the law should be allowed when “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.”
The conservative majority regrettably made it much more difficult to vindicate that interest.
Justices Bar Nigerian Human Rights Case From U.S. Courts
By ADAM LIPTAK
WASHINGTON — The Supreme Court ruled on Wednesday that Nigerian plaintiffs who said foreign oil companies had been complicit in violating their human rights may not sue in American courts. The decision limited the sweep of a 1789 law that had been used to address human rights abuses abroad.
The decision was unanimous, but the justices divided along ideological lines in their reasoning.
Human rights groups said the decision was a sharp blow.
“This decision so severely limited a law that has for decades been a beacon of hope for victims of gross human rights violations,” said Elisa Massimino, president of Human Rights First. “This decision cuts a hole into the web of accountability. Human rights abusers may be rejoicing today, but this is a major setback for their victims.”
Business groups said the ruling would help put an end to baseless lawsuits.
“The U.S. Supreme Court’s decision today ensures that trial lawyers cannot continue to use the American judicial system to expose global businesses to frivolous and costly lawsuits,” said Thomas J. Donohue, president of the U.S. Chamber of Commerce.
Chief Justice John G. Roberts Jr., writing for the majority, said a general presumption against the extraterritorial application of American law barred the suit.
“All the relevant conduct took place outside the United States,” he wrote.
He added that even some minimal contact with the United States would not be sufficient to overcome the presumption. “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.”
He gave an example: “Corporations are often present in many countries, and it would reach too far to say mere corporate presence suffices.”
The case involved a joint subsidiary of the Royal Dutch Petroleum Company, based in the Netherlands, and the Shell Transport and Trading Company, based in England. The subsidiary, incorporated in Nigeria, was accused of aiding and abetting in atrocities by Nigerian military and police forces against Ogoni villagers.
After being granted asylum in the United States, several Nigerians sued the parent companies under the 1789 law, the Alien Tort Statute, which is brief and cryptic. It allows federal courts to hear “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 law was largely ignored until the 1980s, when federal courts started to apply it in international human rights cases. A 2004 Supreme Court decision, Sosa v. Álvarez-Machain, left the door open to some claims under the law, as long as they involved violations of international norms with “definite content and acceptance among civilized nations.”
Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined the majority opinion. Justice Kennedy wrote a concurrence saying that the majority had been “careful to leave open a number of significant questions.”
In a second concurrence, Justice Alito, joined by Justice Thomas, proposed an answer to one of those unanswered questions, drawing on the Sosa decision. He said that lawsuits under the law should be barred unless there was domestic conduct that violated international norms that were both specific and widely accepted.
The Supreme Court heard two arguments in the case before rendering a decision. In February 2012, it considered whether corporations may be sued under the law. Six days later, it set the case down for reargument on the broader question decided Wednesday.
Chief Justice Roberts said that United States law did not govern the world and that allowing some kinds of cases to be heard in American courts would interfere with the nation’s foreign policy. He said Canada, Germany, Switzerland and the United Kingdom had all objected to some claims under the 1789 law.
The hardest question, Chief Justice Roberts acknowledged, is whether American courts may hear cases based on piracy on the high seas, a problem that was familiar to the drafters of the 1789 law. “Pirates,” the chief justice concluded, “may be a category unto themselves.”
In a concurrence, Justice Stephen G. Breyer centered his analysis on that last question. “Who are today’s pirates?” he asked, before answering his own question. “Certainly today’s pirates include torturers and perpetrators of genocide.”
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Justice Breyer’s concurrence.
Justice Breyer said he “would not invoke the presumption against extraterritoriality.” Rather, he said, suits under the law should be allowed in one of three settings: when the conduct at issue took place in the United States; when the defendant is an American citizen; or when “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.”
Justice Breyer said that that standard had not been satisfied in the case decided Wednesday, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491. He based his conclusion on several factors: that the defendants were citizens of other nations; that they had only a minimal presence in the United States; that the conduct at issue took place abroad; and that the defendants were not accused of committing abuses directly but only of helping other foreigners to do so.
A version of this article appeared in print on April 18, 2013, on page A22 of the New York editionroyaldutchshellplc.com and its sister websites royaldutchshellgroup.com, shellenergy.website, shellnazihistory.com, royaldutchshell.website, johndonovan.website, shellnews.net and shell2004.com are all owned by John Donovan. There is also a Wikipedia article.