Jonathan Herman

Supreme Court Limits Justice for Human Rights Victims

Jonathan Herman

On April 17th, 2013, the United States Supreme Court ruled in Kiobel v. Royal Dutch Petroleum (Shell) that Esther Kiobel may not proceed in her case against Shell for aiding and abetting in the torture and murder of her husband. The complete decision is available here.

The decision limits the applicability of the Alien Tort Statute for abuse that occurs outside the United States, but it does not gut the ATS completely. Certain cases can still go forward under the ATS in federal court. In Kiobel, the Court applied the “presumption against extraterritoriality” to determine that the ATS does not apply to this case.

What is the “presumption against extraterritoriality?”

The presumption against extraterritoriality is a legal doctrine that states that Courts should presume that a statute does not apply outside the United States unless it explicitly states that Congress intended for it to do so. The purpose of the presumption is to prevent U.S. courts from ruling on issues in a way that would clash with other nations’ laws, particularly with the law of the nation in which the abuse occurs.

The Court suggested that there is a way around the presumption

In Kiobel, the Court focused on the fact that in this case, all of the relevant conduct took place outside the United States. The case was brought against a Nigerian company and its Dutch parent for harm that was entirely carried out in Nigeria. The Court further noted, however, that the “presumption against extraterritoriality” could be displaced if a plaintiff brings claims that “touch and concern the territory of the United States . . . with sufficient force . . .” This leaves the door open for additional cases to come before federal courts, and human rights cases that arise outside the United States can continue to be brought before state courts. The question going forward will concern what “touch and concern . . . with sufficient force” means.

Litigation in federal court going forward

The door to bringing ATS cases in federal court remains open, within the limits of the language detailed above. Justice Kennedy noted in his concurring opinion that “the proper implementation of the presumption . . . may require some further elaboration and explanation.” Future litigation will need to test the limits of the decision.

Litigation in state court going forward

One benefit of the Alien Tort Statute was that it gave greater certainty in these cases because advocates were working within the federal judicial system. Now, cases can continue to be brought in state court. This will lead to some uncertainty, as we will now have human rights cases for extraterritorial harm brought in dozens of jurisdictions.

Litigation against corporations

The Court did not decide whether corporations are immune from liability under the ATS, even though this was one of the issues briefed before the Court, and was the question taken up by the Court over two years ago. The opinion suggested, however, that such cases can be brought. In the final paragraph of the majority opinion, Chief Justice Roberts wrote, “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” The assumption underlying this statement is that claims can be brought against corporations.