Commentary: Door still open for human rights claims after Kiobel

SCOTUSblog is pleased to have reactions to today’s opinion from supporters of both sides. This post is written by Katie Redford, the co-Founder and US Office Director of EarthRights International, which filed two amicus briefs (here and here) in support of the petitioners in this case.  

There are only a few things that are clear about today’s decision in Kiobel.  First, a lot of ink is going to be spilled trying to parse what it really means in the next few days.  And a lot of attorney hours are going to be spent in the next few years litigating the issues in the lower courts.  And of course, the Court dismissed Esther Kiobel and her fellow plaintiffs’ claims of torture, killing, and crimes against humanity, giving Shell a pass for these human rights abuses.  That result is a shame.  But for the future of human rights cases in U.S. courts against corporations or otherwise, I think it’s important to make clear exactly what the Supreme Court has done and has not done.

First, what the Court has not done is to completely wipe out the Alien Tort Statute, nor has it ruled that companies are absolved of human rights liability.  It’s clear that all the Justices believe that some cases involving abuses by corporations, even those involving injuries in foreign countries, may still be brought.

A quick read of the opinions suggests that:

• Although ATS cases are subject to a presumption against extraterritorial application, cases that sufficiently “touch and concern” the United States will go forward – this could mean any case against companies whose connection to the U.S. is more than mere corporate presence.
• Companies operating in the U.S. – and especially U.S. companies – still need to assume that they’re on the hook for human rights violations.  Today’s Kiobel decision would not have precluded EarthRights International’s lawsuit against Unocal for complicity in abuses in Burma, nor should it undermine many current pending ATS suits, such as those against the Chiquita banana company for financing paramilitary death squads in Colombia, or against U.S. companies that abetted the apartheid regime in South Africa.
• There’s no blanket immunity for corporations under the ATS. Although the Court didn’t specifically address the question of corporate liability – the original question certified to the Court – all of the opinions assume that some cases against corporations can go forward.
• Individuals who have perpetrated human rights abuses and have taken refuge in the United States, as in the landmark Filartiga case, might still be held accountable. The majority stated that “mere presence” was not enough for a foreign multinational because corporations can be present in many countries, but that’s not true for individuals.
• Cases that can no longer be brought in federal court under the ATS can still be brought in state court under other labels. Essentially, this decision will push some significant international human rights cases from federal court into state courts.

But what the Court has done is to hand down a decision that is wildly out of step with the rest of the federal judiciary, the direction of American law, and the concerns of the American people.

• Not a single federal appellate court (and only one district court, to my knowledge) has agreed with the Supreme Court’s take on ATS extraterritoriality; this argument is almost completely an invention of corporate defense lawyers and the five Justices who signed onto the majority opinion.
• In other areas of law – copyright, for example – the Court has recently affirmed that liability attaches in the U.S., even to corporate defendants who merely have presence in the United States.  The idea that human rights concerns are different – and inferior – would be laughable if it were not so tragic.
• The outrage of the American public after Citizens United should have signaled to the Court that its pro-corporate slant is unacceptable.  Instead, the Court has handed companies that are accused of complicity in human rights abuses a new, potent tool to avoid accountability, or at least to subject their victims to more costly, protracted litigation.  Criticisms that this is the most corporate court in history are going to be harder for this court to avoid.

The majority opinion, which is authored by Chief Justice Roberts and signed by Justices Scalia, Thomas, Alito, and Kennedy, holds that the presumption against extraterritoriality applies to the Alien Tort Statute.  It acknowledges that this presumption usually only applies to statutes that regulate conduct, but concludes that, for policy reasons, the presumption should apply to a jurisdictional statute such as the ATS as well.

The opinion then searches the statutory language and the historical context of the ATS and concludes Congress would not have wanted the ATS to allow U.S. federal courts to enforce international law in cases where “all the relevant conduct took place outside the United States.”  Finally, the majority holds that where claims “touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.”

The majority opinion misses, however, the substantial policy reasons that explain why Congress would have wanted the ATS to have extraterritorial reach. One of the early incidents that gave rise to the ATS, as noted by the Court, involved an assault on a French diplomat in Philadelphia. But what if that assault had occurred in London, and the attacker had fled to the U.S.? Surely the interest of the U.S. in providing a remedy would have been just as strong. It’s possible that today’s ruling could allow torturers, genocidaires, and war criminals to seek refuge or stash their ill-gotten gains here without facing liability, as they will argue that the relevant conduct all took place abroad.

In the corporate context, the majority’s reasoning overlooks the strong reasons against holding U.S. companies to a higher standard than foreign companies who do business in here.  This decision tells Shell, but probably not Chevron, that it’s off the hook for these particular abuses in Nigeria.   And it fails to explain why any company, U.S. or foreign, should get away with murder when they operate abroad.

The first problem is giving greater rights to foreign multinationals who operate in the U.S. than to domestic corporations, which could further contribute to the problem of offshoring and capital flight, as companies now have yet another reason to incorporate abroad. The second problem lies in giving U.S. companies another reason to move their operations outside the United States – abroad, they might not be subject to equal scrutiny in abetting grave human rights abuses. Neither promotes the interests of the United States.

Naturally, we believe the majority’s opinion is legally flawed.  This may be the first time that the Court has applied the presumption against extraterritoriality to a jurisdictional statute, and in a way that essentially requires a case-by-case analysis.

In the face of a very short statute and little legislative history, the majority essentially allows its own policy views to decide the meaning of the ATS. It speculates that using the ATS in foreign cases may cause friction with foreign states, ignoring the glaring fact that the ATS applies only specific and universal norms of human rights law.

The majority also ignores Justice Breyer’s conclusion that a presumption against extraterritoriality is completely inappropriate for a statute that is meant to address international law.  The ATS is used primarily to apply universal norms to torturers and genocidaires who take refuge in the United States or seek the advantages and privileges of doing business here.  This practice hardly infringes on the sovereign prerogatives of foreign countries.

The majority draws all the wrong conclusions from the language of the ATS.  First, the opinion purports to dispose of the fact that the ATS creates federal tort jurisdiction. The majority admits that tort lawsuits can typically be brought wherever a defendant is present – torts are “transitory,” such that they follow defendants across borders and can be subject to lawsuits in U.S. federal court, even if they were committed abroad.  The Court ignores the long history and universal acceptance of this concept.

And the majority considers the historical context of the ATS, but does so partially and dishonestly.  They dismiss an early Attorney General’s Opinion only by willfully muddying its clear finding that the ATS would apply to U.S. citizens’ attacks on foreign soil.

So what’s the upshot of the splintered Kiobel decision?  It’s hard to draw many firm conclusions given the vague language of the opinions, but from a policy standpoint, the outcome is perverse.  The majority opinion disadvantages U.S. companies with respect to foreign companies that do business in the U.S., as foreign multinationals will use the decision to escape liability, while domestic corporations may not be able to argue that their only connection to the U.S. is “mere corporate presence.”

The only thing that is truly clear is that today, the Supreme Court has provided fodder for another decade or more of litigation and created more business for litigators.  Companies and victims’ advocates will battle over when claims touch and concern the U.S. with sufficient force.  And even for cases involving foreign companies where the only connection to the U.S. is mere corporate presence, this decision only removes the ATS as a potential source of jurisdiction, taking these cases out of the federal forum that Congress intended to create.  So for those companies’ lawyers, we have a simple message: See you in court!