Human-rights advocates and international scholars were understandably disappointed Wednesday morning when the United States Supreme Court refused to recognize federal jurisdiction over a high-profile tort case brought by foreign nationals, against foreign corporations, based on allegations of torture and abuse which occurred in a foreign country. Disappointed -- 'inexplicable" and "unfair" was how one of the plaintiffs' attorney characterized the ruling -- but surely not surprised.
We've known for years now that this is most definitely not a Supreme Court itching to take on torture and abuse cases; or to expand jurisdiction over or liability for corporations; or to embrace international law principles, no matter how high-minded and just those principles may be. This is instead a Court that has consistently refused to interject itself in the torture debate, persistently expanded immunity for corporations, and largely mocked any reliance on foreign law as a basis for constitutional doctrine. It's perfectly natural, isn't it, that they would narrowly interpret the federal law here so as to avoid all three such elements?
The underlying facts of Kiobel v. Royal Dutch Petroleum are tragic -- so much violence, so little accountability -- and the plaintiffs now will continue to look to other forums in which they may pursue their claims. For today, the message from America's shores is that the Alien Tort Statute, a venerable federal law that foreign plaintiffs have long relied upon to bring their causes to our courts of law, is not the international beacon of justice and accountability that it could be. Congress could promptly change that, of course, and so could the justices in some future case. They very clearly left open that possibility today in their ruling.
But that doesn't help the men and women who sought relief from American courts alleging a series of atrocities in Nigeria two decades ago. None of the nine justices in Kiobel v. Royal Dutch Petroleum voted to allow this sad case to proceed further toward trial. Each found his or her own way to shut the courthouse doors. The Court's five conservatives, led by Chief Justice John Roberts, concluded that the statute in question did not apply because it did not specifically recognize jurisdiction over "extraterritorial" cases arising on foreign soil. Here is the link to the ruling. And here is what the Chief Justice wrote:
[N]othing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach -- such violations affecting aliens can occur either within or outside the United States.
Meanwhile, the Court's liberal wing, led by Justice Stephen Breyer, was unwilling to read any such presumption against "extraterritoriality" into the law. That, I suppose, is the good news here for human-rights advocates. But these four justices still denied the plaintiffs relief. "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,''' the justice wrote. But the facts of this case, he added, still weren't enough to justify jurisdiction. From Justice Breyer:
I would find jurisdiction under this statute 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.
Then, applying the facts of this case to his own standard, Justice Breyer wrote this:
The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange. Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors. The plaintiffs are not United States nationals but nationals of other nations. The conduct at issue took place abroad. And the plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so (citation omitted by me).
As if to highlight the possibility that this ruling does not necessarily presage the meaningful end of the old jurisdictional law, as if to keep the law on life-support pending some future case, Justice Anthony Kennedy, the Court eternal swing vote and international law maven, wrote a concurrence in which he noted that "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":
Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today's case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation (citation omitted by me).
So there you have it. The human-rights community will have to settle for the evident willingness of at least five justices to keep an open mind about future cases involving the Alien Tort Statute. There are many good policy arguments for having the law broadly used to bring justice to men and women around the world. There are many good reasons to haul into U.S. courts foreign corporations like the ones in this case. But this is not a Court inclined to turn those policy choices into real remedies for victims like the poor Nigerians in this case.
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