By Cynthia Banham
Until recently, the Alien Tort Statute (ATS) (28 USC § 1350) was regarded by human rights activists as a critical tool in global efforts to hold human rights violators to account.
This curious American statute, dating back to 1789, gives US district courts jurisdiction over civil actions by aliens for wrongs committed in violation of “the law of nations”. After being largely ignored for two centuries, it was rediscovered by human rights activists after the landmark 1980 case of Filártiga v. Peña-Irala. In that case, two Paraguayans successfully sued a former Paraguayan official (all three were resident in the US at the time of the lawsuit) over the torture and death of their family member in Paraguay.
But this April, the US Supreme Court in Kiobel v Royal Dutch Petroleum Co severely curtailed the application of the ATS in such cases, unanimously holding that the statute generally does not apply beyond America’s borders.
Depending on one’s point of view, the Kiobel decision represents either the gutting of a critical avenue for accountability for human rights violations, or it’s the welcome end to a popular but unworkable idea that US courts can be used to police human rights violations around the world.
What appears to be agreed, however, is that the US Supreme Court’s decision is likely to result in a drop in international human rights cases being brought in American courts. Also agreed is that the judgement leaves many unanswered questions about when the ATS can legitimately be invoked.
Kiobel involved a claim by a group of Nigerian nationals resident in the US against an oil company which they alleged aided the Nigerian government in committing torture and executions in Nigeria in the 1990s. The US Supreme Court ruled unanimously against the group, but for different reasons.
The majority decision was delivered by Chief Justice Roberts and was based on the notion of the “presumption against extraterritoriality”. This is the canon of statutory interpretation providing that when a statute gives no clear indication of an extraterritorial application, it has none.
The majority found that there was nothing in the ATS to overcome the presumption. In the current case, all of the relevant conduct took place outside the US. Furthermore, “mere corporate presence” in the US was not enough to rebut the presumption. What would suffice to displace the presumption however, the majority did not say. It also left it open to Congress to legislate away the presumption against extraterritoriality (an unlikely scenario it must be said).
Justice Breyer (with whom three other justices concurred) arrived at the same conclusion for different – and arguably more convincing – reasons.
Instead of applying the presumption against extraterritoriality, Breyer said the application of the ATS should be limited to three situations. They were: first, where the alleged tort occurred on American soil; second, when the defendant was an American national; and third, when the defendant’s conduct substantially and adversely affected an important American national interest, including an interest in preventing the US from becoming a safe harbour for a torturer or “other common enemy of mankind”. Here Breyer cited Filártiga v. Peña-Irala, which famously noted that “the torturer has become – like the pirate and slave trader before him – hostis humani generis, an enemy of all mankind”.
Breyer rejected the “presumption against extraterritoriality” argument for the compelling reason that it rests on the perception that Congress ordinarily legislates with respect to domestic not foreign matters – but clearly, the ATS was enacted with foreign matters in mind. At the time of enactment, three offences against the law of nations had been identified: violation of safe conducts, infringement of the rights of ambassadors, and piracy. Piracy, Breyer noted, normally takes place abroad.
The ramifications of the Kiobel decision will take years to play out, as human rights activists test the courts on what scenarios would meet with the new requirements set down for the application of the ATS. One thing is for sure: from now on, the statute will occupy a much less significant place when contemplating the legislative armoury available to litigants in the US looking to sue for international human rights violations such as torture.