The US Supreme Court opened its 2012-13 term on Monday with oral argument in a case examining whether a foreign corporation can be sued in a US court for allegedly aiding and abetting human rights abuses in a foreign country.
The case marks the second time in eight years the high court has taken up an appeal involving the Alien Tort Statute (ATS), a law dating from the first Congress in 1789.
The statute allows noncitizens to sue in US courts for human rights violations and other breaches of international law. What the law doesn’t state explicitly is whether the ATS applies everywhere – or merely to wrongful conduct within the US or that is otherwise linked to the US.
The question before the court is whether to uphold a lawsuit filed by 12 Nigerian citizens against Royal Dutch Petroleum for allegedly aiding and abetting in human rights abuses by the Nigerian government and its armed forces 20 years ago.
Lawyers for the oil company argue that corporations cannot be held liable under the ATS. They are also urging the high court to declare that the ATS does not extend to conduct by foreign corporations in a foreign country.
Human rights lawyers counter that there is nothing in the text of the ATS limiting its reach.
Several justices seemed reluctant to embrace a broad reading of the statute to allow foreign corporations to be sued for alleged actions in a foreign country harming foreign citizens.
Justice Anthony Kennedy asked whether such a position might come back to haunt the US and its interests. He asked whether under the same legal principle a US corporation that committed an international law violation in the United States could be sued in any court in the world.
“Do you disagree that those are fair judicial systems where a plaintiff can get a fair shake?” he asked Mr. Hoffman.
“I don’t think that anybody disputes that the legal systems in the Netherlands or the United Kingdom are fair,” Hoffman replied.
“If that’s so,” Justice Alito continued, “then why does this case belong in the courts of the United States?”
Hoffman answered: “Our clients are here.”
“This case has nothing to do with the United States,” countered Kathleen Sullivan, a lawyer for Royal Dutch Petroleum.
“It’s Nigerian plaintiffs suing an English and Dutch company for activity alleged to have aided and abetted the Nigerian government for conduct taking place entirely within Nigeria,” she said. US law should not extend to actions within Nigeria that have no connection with the US, Ms. Sullivan said.
Not all justices opposed a broad application of the statute. Justice Stephen Breyer said the law passed in 1789 was aimed in part at allowing legal action against pirates. The question now, Justice Breyer said, is who are today’s pirates and wouldn’t the ATS apply to them wherever they may be found?
“If Hitler isn’t a pirate, who is?” he said. “If an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is?”
Sullivan replied that the United States has not agreed to the principle that its US civil lawsuits may be filed and enforced everywhere on earth.
What about torture? Breyer asked.
“The United States objected to the universal civil jurisdiction aspect of the [United Nations] convention against torture. We have never acceded to that,” Sullivan said.
She added: “The reason is that … we fear that if we say that a United States court can be open to try any accused law of nations violator anywhere in the world regardless of the place of the conduct, the other nations of the world might seek to do the same to us,” she said.
The case is Kiobel v. Royal Dutch Petroleum (10-1491). A decision is expected by the end of the term in June.