The U.S. Supreme Court has determined that, under a presumption against extraterritorial application of U.S. statutes, the Alien Tort Statute (ATS) does not apply to conduct committed on foreign soil in violation of the law of nations or a treaty of the United States unless “the claims touch and concern the territory of the United States [and] do so with sufficient force to displace the presumption.” Kiobel v. Royal Dutch Petroleum Co., No. 10-1491 (U.S., decided April 17, 2013).
The issue arose in a lawsuit filed by U.S. residents, who were Nigerian nationals, alleging that the defendant foreign corporations “aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria.” They claimed that complaints about the environmental effects of defendants’ oil exploration and production practices in Nigeria elicited violence against local residents in the 1990s. They sought to hold the companies liable under the ATS for extrajudicial killings; crimes against humanity; torture and cruel treatment; arbitrary arrest and detention; violations of the rights to life, liberty security, and association; forced exile; and property destruction.
A federal district court dismissed all but the claims for crimes against humanity, torture and cruel treatment, and arbitrary arrest and detention, finding that the facts underlying the dismissed claims “did not give rise to a violation of the law of nations.” The Second Circuit dismissed all the claims, “reasoning that the law of nations does not recognize corporate liability.” After oral argument, the U.S. Supreme Court directed the parties to address an additional question: “Whether and under what circumstances the [ATS] allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” And the Court decided the case on the basis of its answer to the additional question.
Meanwhile, based on its ruling in Kiobel, the U.S. Supreme Court has remanded and ordered reconsideration of a Ninth Circuit Court of Appeals ruling in Rio Tinto v. Sarei, which similarly arose under the ATS with plaintiffs seeking to hold Londonbased Rio Tinto responsible for the deaths of thousands of indigenous people on the island of Bougainville, where the company took part in a consortium operating an open-pit copper mine. The Ninth Circuit allowed several parts of the lawsuit to proceed. According to a news source, global corporations faced dozens of ATS lawsuits in recent years seeking to hold them accountable for alleged human rights violations, environmental damage and labor abuses. See Bloomberg, April 22, 2013.