Will the Supreme Court finally trim back the Alien Tort Statute?
The New York Times reports that the case of Kiobel v. Royal Dutch Petroleum Company is back at the U.S. Supreme Court, where during oral argument, several justices asked fundamental questions about how far U.S. law reaches in its pursuit of human rights.
The case was brought by 12 Nigerians against English and Dutch oil companies alleging, according to the Times, that the companies “had been complicit in torture and executions committed by the Abacha dictatorship in Nigeria.” The lawsuit was brought under the Alien Tort Statute of 1787, which allows foreigners to file lawsuits in U.S. courts.
Justice David Souter noted in one Alien Tort Statute case that the law was passed when the American concern was mainly piracy on the high seas, and perhaps offenses against ambassadors. Today’s America is different. We are a kind of imperial power, and under this law we become the legal Rome for all sort of complaints for actions across the oceans. Looking through The Seattle Times archives, I find several stories about Alien Tort cases:
In 1993, there is a story about two Ethiopian women living in the United States who sue an Atlanta hotel bellhop who tortured them in Ethiopia 14 years before. The case was notable because lawyers said it was the first one in which accusers actually confronted a defendant in court. The women were awarded half a million dollars each but a later story said the man hadn’t paid anything.
In 2000 came a case in which Bosnian women sued Bosnian Serb leader Radovan Karadzic, and won a $745 million judgment. (The story didn't say they had collected any of it.) In another case that year, women from South Korea, Philippines, China and Taiwan sued the government of Japan for their treatment as “comfort women” during World War II.
In 2010, we had a column about a class-action suit by victims of apartheid in South Africa against IBM, Ford, General Motors and some foreign corporations that had operations there. And in 2009, Shell settled a lawsuit over complicity in the death of Nigerian activist Ken Saro-Wiwa and five others.
Some of these are compelling stories. I’m opposed to torture. I’m opposed to coerced prostitution. I’m opposed to corporate complicity in extrajudicial killings. But do these cases belong in U.S. courts if they didn't happen here?
That’s the issue now at the U.S. Supreme Court. In Kiobel , it’s alleged that Royal Dutch Shell had been complicit in torture and executions. “Complicit” is a fuzzy term. But set that aside. The victims are foreigners. And Royal Dutch Shell is not a U.S. company, despite all the Shell stations here. It's based in the United Kingdom and the Netherlands. So why is the case heard in a U.S. court?
Last February, when the case came up the first time, Justice Samuel Alito said, “There’s no connection to the United States whatsoever.”
I think I agree with Alito. Human rights are good, and I’m for them, but there has to be a place where the reach of the U.S. government ends and foreign jurisdiction begins. It's simple respect. The United States cannot claim jurisdiction over other countries in ways that we would never allow if done to us. Fealty to human rights does not justify a kind of legal imperialism.
The Alien Tort Statute 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.” That includes just about everything. But no matter how it’s written, can it reach so deeply into foreign territory?
Justice Antonin Scalia raised that question in a 2004 Alien Tort Statute case, Sosa v. Alvarez-Machain, et al. He wrote, “This court seems incapable of admitting that some matters—any matter—are none of its business.” Maybe it will admit that this time.
Achenblog by Joel Achenbach
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