In an unexpected move on Monday, the Supreme Court ordered expanded arguments in the case of Kiobel v. Royal Dutch Petroleum, on appeal from the Second Circuit. The Supreme Court heard arguments in the case just last Tuesday, but less than a week later, it ordered the parties to submit new briefs on the question of extraterritoriality—that is, whether the Alien Tort Statute (“ATS”) covers violations of international law committed overseas.
In this case, multinational oil companies are alleged to have aided and abetted human rights atrocities committed against environmental activists by the Nigerian military, for which victims and victims’ surviving family members now seek compensation. The narrow question Kiobel originally presented to the Supreme Court was whether corporations can be held liable under the ATS, a statute that gives U.S. federal courts jurisdiction over civil actions by aliens for torts committed in violation of international law.
However, during last week’s oral argument, some of the justices raised questions about whether the ATS allows U.S. courts to hear lawsuits for violations of international law that occur on foreign soil. Justice Alito pointedly asked plaintiffs’ counsel Paul Hoffman, "What business does a case like this" -- a suit by foreign nationals against a foreign-based corporation for its alleged complicity in state-sponsored torture and murder in Nigeria -- "have in the courts of the United States?"
The new order to reargue broadens the question of the case to "whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of the law occurring within the territory of a sovereign other than the United States." Ironically, when the Second Circuit held that corporations were not liable under the ATS, it was reaching out to consider a question that had not been raised in the district court. The Supreme Court is now reaching out to expand the question presented even further in a manner that suggests the possible evisceration of the ATS as a means for victims of human rights abuses to seek recompense.
Jurisdiction for American courts to hear cases between foreigners based on foreign conduct is well established in legal history. The Alien Tort Statute was originally enacted as part of the 1789 Judiciary Act, and the tradition of transnational cases goes back before the Revolutionary War. If the Court ultimately decides that the ATS does not confer jurisdiction for acts that occur abroad, it will be overturning a precedent as old as our country. If the Court “merely” decides that corporations are not liable parties under the ATS, it will be allowing corporations to pursue profit no matter the human cost. There was another recent case in which the Court ordered reargument on an expanded question concerning long-standing precedent and corporate personhood. It was called Citizens United v. FEC.