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Supreme Court case tests US leadership in human rights

Today the Supreme Court will assess whether US courts can hear lawsuits that pertain to events outside the country. If the justices eventually decide 'no,' an important avenue for redress will be closed to foreign victims of human-rights abuses – and America’s beacon will shine less brightly.

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The Supreme Court is hearing the Kiobel case just as many other countries are becoming more open to the idea of accountability for human-rights violations no matter where they occur. These countries do not want such claims to go unaddressed. My research, published in the Berkeley Journal of International Law, traces the various approaches that different legal systems recently have taken, in the absence of legislation equivalent to the Alien Tort Statute.

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For example, English courts have acted creatively to provide a forum for foreign cases. Last year, Peruvian torture victims successfully settled claims in England against a mining company that is owned by a Chinese consortium. The English High Court assumed jurisdiction to review whether the English-incorporated company could have intervened to prevent the torture in Peru. Similar reasoning was used to adjudicate a case involving victims of mercury poisoning at a mine in South Africa.

Other countries have recently adopted criminal laws for corporations that govern their actions regardless of where they take place. For instance, a Dutch court convicted a businessman who sold chemicals to the government of Saddam Hussein in Iraq, which his regime used to produce chemical weapons that it deployed against the Kurds. The court stated explicitly that Dutch provisions criminalizing human rights abuses also apply to the overseas activities of companies.

The Kiobel case about events in Nigeria, of course, does not involve a US company. But even here, the world is catching up.  Courts in some of the many countries that have joined the European Convention on Human Rights have used the convention to support the adjudication of foreign human rights claims – claims that involve no ties to the adjudicating country whatsoever.

The European convention mandates the right to a fair trial. And so the Netherlands, for example, has interpreted this as a requirement to review a case brought by Palestinian and Bulgarian health workers who were tortured and jailed in Libya, ostensibly for infecting children with AIDS.

Historically, the US has provided a more favorable framework for redress than any other country. If America is to continue to project a moral example beyond its borders and demonstrate its commitment to spreading liberty, then the Supreme Court should not use Monday’s argument as an opportunity to start lagging behind the rest of the world.

Jodie A. Kirshner is an associate professor of law at the University of Cambridge in England.


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