On October 1, 2012, the United States Supreme Court heard oral arguments in a case that would decide the extent to which U.S. courts can adjudicate violations of international human rights abroad. The case addresses whether individuals and corporations can be liable under U.S. law for their role in perpetrating human rights violations on foreign soil. Central to this debate is Kiobel v. Royal Dutch Petroleum, a case involving the alleged role of three foreign oil companies affiliated with Royal Dutch Shell in assisting the Nigerian government in violently suppressing environmental protestors through torture and even murder. The case was first argued in February 2012, but the Court requested that the parties return to discuss the central issue of extraterroriality. Access to U.S. courts was granted to the Kiobel plaintiffs through the Alien Tort Statute (ATS).
The ATS was passed in 1789 by the first Congress in an attempt to provide a remedy for international wrongs. Since then, the ATS has opened the doors of U.S. federal courts to non-citizens who allege violations of international law, even if the violations occurred outside the U.S. and were perpetrated by individuals with no direct connections to the U.S. The statute has been used to punish corporations for their roles in torture, extrajudicial executions, and even genocide. Companies like Exxon Mobil Corp., Rio Tinto Plc, and Nestle have been implicated under the ATS. The statute effectively opens the doors of American courtrooms to individuals with no other recourse, either in their home states or in other nations.
Critics of the ATS argue that U.S. law should not apply to conduct occurring on foreign soil by individuals with no connection to the U.S. “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection,” stated Justice Kennedy. The justices’ concerns seem to hinge on issues of jurisdiction and state sovereignty, and the lack of connections between Royal Dutch Shell and the U.S. has been a source of contention for the justices. The Court’s ruling could limit the applicability of the ATS to American corporations only and potentially, to acts committed on U.S. soil alone.
If the Court insulates companies from liability for human rights violations committed abroad, the Court could forge a new future for the conduct of global corporations. Justice Breyer posited the question during the first round of oral arguments, asking whether individuals could incorporate in order to commit human rights violations and evade liability due to their corporate status. Further, the notion that corporations are somehow separate and distinct from individuals does is not compatible with recent Supreme Court decisions like Citizens United, which recognized that corporations possess certain constitutional rights. With certain rights come responsibilities, including the responsibility to obey international law at home and abroad.
Denying relief to victims of torture, to the loved ones of murdered individuals merely because they are not American citizens, or because the acts were committed outside the U.S., sends a message that the U.S. is not entirely committed to ending violations of international human rights laws. In a time when our reputation as a nation is at its most fragile following the years plagued by torture at Guantanamo Bay and at Abu Ghraib, the U.S. should intensify its commitment and recognition to international human rights at home and abroad. Denying access to our courts, when we here hold them in such high esteem, sends the message that if it is not in our backyard nor committed by one of our own, we just don’t give a damn. Have we already forgotten the oath we have all taken as the People of the United States to establish Justice?