Sneak Preview: What Remains of the Alien Tort Statute After Kiobel?

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By: Matteo M. Winkler

The U.S. Supreme Court held in Kiobel v. Royal Dutch Petroleum Co. (PDF), 133 S. Ct. 1659 (2013), that the Alien Tort Statute (ATS), the well-known 200-years-old statute that entitles aliens to sue before federal courts for torts committed in violation of the law of nations, does not apply extraterritorially. The Court followed the 2010 decision in Morrison v. National Australia Bank (PDF), 130 S. Ct. 2869 (2010), that excluded from the reach of U.S. courts any F-cubed actions, i.e. actions that present three foreign elements such as foreign plaintiffs, foreign defendants and facts happened in a foreign forum.

Kiobel concerned claims for damages for grave violations of human rights allegedly committed against the Ogoni community in Nigeria by the subsidiaries of the Shell group operating in the country. It was a typical F-cubed case, and the Court found it very easy to apply Morrison as leading precedent.

Kiobel’s consequences would have been modest if the ATS would not be commonly considered to play a fundamental role in creating a cultural human rights framework for multinational enterprises. If this is true, limiting its reach would significantly weaken, and ultimately vanquish, its capacity to favor the promotion of human rights at the global level.

Winkler argues differently from this general and common sense view, claiming that the ATS is not dead and buried after Kiobel. Quite the contrary, Kiobel applied only to Morrison-like actions, and therefore most ATS-based action will survive Kiobel, with much hope, and legitimate expectations for the future, for human rights advocates and lawyers.

The comment makes another point clear. In 2011 all the followers of the debate on ATS expected a ruling from the Supreme Court about the subjectivity of corporate defendants under international law. This was the question on which a great part of the litigation before lower courts was about. In Kiobel, however, the Court ordered reargument and changed the subject from corporate liability to extraterritoriality. This change actually saved a lot of ATS actions, as Winkler illustrates in his comment.

The full article will be available soon at Matteo M. Winkler: 39 N.C.J. Int'l L. & Comm. Reg. 171 (forthcoming fall 2013).

Posted by Stephen A. Moore on Wed. November 6, 2013 8:00 AM
Categories: International Human Rights, U.S. Supreme Court

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