The U.S. Supreme Court heard oral arguments this past Monday, October 1, in Kiobel v. Royal Dutch Petroleum Co. The case presents two major questions. First, whether, under the Alien Tort Statute (ATS), federal courts can hold corporations liable for human rights claims by non-American plaintiffs for acts that violate the law of nations or treaties. Second, whether foreign plaintiffs can bring actions against foreign defendants under the ATS for harms occurring outside of the United Sates. This is the second time the Roberts Court has heard oral arguments in Kiobel; after the first hearing in February, the Court asked the parties to address the additional second question. The Court heard oral argument on this new issue on Monday.
Paul L. Hoffman, representing the plaintiffs, argued that ATS grants federal courts jurisdiction in just this type of case, where aliens have been harmed by a party in violation of international norms and U.S. treaties. The history of ATS and the Supreme Court’s precedent in Sosa v. Alvarez-Machain support extending jurisdiction when the incident in question occurs in foreign territory. Congress enacted the ATS as part of the Judiciary Act of 1789 with enforcement of certain norms, or the law of nations, in mind, Hoffman explained. Piracy and attacks on ambassadors, for example, were considered universally recognized norms, and Congress’ enactment of the ATS gave federal courts the means to enforce these kinds of norms. By extension, the plaintiffs’ allegations fit within the scope of the Alien Tort Statute.
When pressed about the implications of American courts hearing cases where all parties are aliens and the events in question occur outside of the U.S., Hoffman answered that the applicable rules of civil procedure and common law will fairly exclude many cases. For instance, when Justice Alito asked about whether jurisdiction should be granted if hearing the case in a U.S. court would have a damaging effect on foreign policy, Hoffman answered that this question should be handled by the deciding court under the political question doctrine. Another common law rule would consider whether the plaintiff has exhausted other forums, making ATS function as a sort of last resort, or as Justice Sotomayor called it, a “forum by necessity.” Regardless, Congress granted U.S. courts jurisdiction over an extraterritorial incident when it passed ATS, argued Hoffman.
The federal government, through Solicitor General Donald B. Verrilli, also participated in the oral argument on Monday. Verrilli stated the government must balance competing interests such as foreign relations, allowing U.S. companies to be subject to foreign jurisdictions, and upholding international human rights. In light of that, General Verrilli argued, when a case does not have a substantial connection to the U.S., there should be no jurisdiction. This approach would considerably narrow the ATS, and bar the Kiobel suit, but would not be as restrictive as Shell’s position.
Alliance for Justice has closely followed the Kiobel litigation, recently following guest posts by Yale Law’s Oona Hathaway and Harvard Law’s Tyler Giannini and Susan Farbstein. Additional coverage of Kiobel appears in Slate, the New York Times, USA Today, SCOTUSblog, and The Christian Science Monitor. Many of these authors, along with human rights and international law advocates, urge the Supreme Court to reaffirm America’s commitment to human rights leadership by siding with Esther Kiobel, rather than giving impunity to corporate defendants who commit abuses across the globe.