Sunday, April 21, 2013

Supreme Court decides Kiobel v. Royal Dutch Petroleum, holding Alien Tort Statute can't be applied extraterritorially

Long time readers of this blog probably remember that I have been following the decisions in Kiobel v. Royal Dutch Petroleum closely for almost two years.  (Go here and scroll down for all my posts).  This is the case that challenged the applicability of the Alien Tort Statute to corporate defendants.  After that issue was argued before the Supreme Court last term, the Court asked the parties to brief and prepare for argument on a different issue:  whether the ATS can be applied extraterritorially.  This was surprising since the issue had not been raised by the parties because, before the Supreme Court brought it up, there probably was little disagreement about that question.  For more than thirty years, since the Second Circuit’s 1980 decision in Filartiga v. Pena-Irala and the 2004 Supreme Court decision in Sosa v. Alvarez-Machain, courts have interpreted the ATS as giving rise to a remedy in US courts for international law violations.

When the Supreme Court asked the parties to prepare to argue the issue I suspected that it would decide the statute can't be applied extraterritorially thus essentially ending the ATS as we know it. In its decision, the Supreme Court rejected what was seemingly the entrenched understanding of the ATS.

Needless to say, the opinion has generated a tremendous amount of commentary, some praising it, some criticizing it.  Because I have been away from my office for days I have not had a chance to read the actual opinion, so for now I will only give you links to comments and to the opinion itself so you can reach your own conclusions.

The SCotUS blog has published a series of comments about the opinion here.  Scroll down and you will find links to a summary of the opinion and to at least five separate comments (plus articles published before the opinion was issued). 

In addition you can find articles about the opinion in Jurist (here and here), PrawfBlog (here and here), The Washington Legal Foundation (here) and the New York Times (here), which laments the opinion constitutes "a giant setback for human rights."

I agree.  Under the previous interpretation of the statute, it allowed the US federal courts to operate as an international civil tribunal where victims of international rights violations could bring their claims for damages.  No so anymore.  One of the comments published in SCotUS blog suggests the door is still open - very slightly open - for such a claim, though.  The NYT editorial suggests the opening comes from Justice Breyer' concurring opinion which said suits under the law should be allowed when “the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”  Reportedly, however, the majority opinion essentially eviscerated the statute and made it much more difficult to vindicate that interest, and, according to one author, the opinion "is wildly out of step with the rest of the federal judiciary, the direction of American law, and the concerns of the American people."

But you (and I) will have to read the opinion itself to decide for ourselves.  You can find it here.

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