The U.S. Supreme Court has granted certiorari in the Alien Tort Statute (ATS)1 case of Kiobel v. Royal Dutch Petroleum Co.2 to resolve whether a corporation can be a defendant in an ATS case. At the same time, the Court also granted certiorari in Mohamad v. Rajoub3 to decide a similar issue under the Torture Victim Protection Act (TVPA)4 of whether that statute permits civil actions against defendants that are not natural persons.
Currently the jurisprudence of these statutes is in chaos, particularly with respect to the ATS. (See the article “More on the Alien Tort Statute: John Doe VIII and Flomo Rulings Add to the Chaos,” available at http://www.pepperlaw.com/publications_article.aspx?ArticleKey=2183. Under the ATS, there is no certainty about who can be a plaintiff, who can be a defendant, and precisely what torts provide a basis for an ATS cause of action. Additionally, lower federal courts have reached no consensus on other basic questions about the statute, including, for example, whether there can be aiding and abetting liability, and if so, what is the required mental state. It is unknown what if any nexus an ATS case must have to the United States, or whether it can be wholly extraterritorial. (See the article “Limitations on the Jurisdiction and Reach of the Alien Tort Statute,” available at http://www.pepperlaw.com/publications_update.aspx?ArticleKey=2073.) The ATS is a piece of unfinished business despite its ancient lineage in the Judiciary Act of 1789. It is, in short, an exotic in the jurisprudence of nations.
The ATS is “unlike any other in American law and of a kind apparently unknown to any other legal system in the world.”5 There is small wonder that determining the reach of the law is so elusive, since the ATS, with its scant text, provided jurisdiction for only one case in the first 170 years of its history.
In 1980, the Second Circuit issued its landmark ruling in Filartiga v. Pena-Irala,6 which re-imagined the ATS as a basis for federal courts to address human rights abuses occurring anywhere in the world. The legacy of Filartiga is a clouded jurisprudence that has occupied the lower federal courts in sweeping historical discourses and uncomfortable adventures in discerning international law norms.
While some applaud Filartiga’s warrant for internationalism, others find risible that the First Congress possibly intended to open the federal courts to tort claims against foreign governments, their proxies and vendors for mistreatment of their own citizens in foreign lands. Many of these ATS suits arise out of violence occurring as a result of foreign political disputes and armed conflicts. As a result, the recent history of the ATS is an inconsistent search for limiting principles. Kiobel will be only the second time in the nation’s history that the Supreme Court will offer substantial guidance on the ATS.7
Kiobel v. Royal Dutch Petroleum Co.
Kiobel involved ATS claims by Nigerian citizens against Dutch, British and Nigerian corporate defendants alleging that the defendants aided and abetted violations of the law of nations by the Nigerian government in physically attacking and killing Nigerians who were resisting oil exploration in Nigeria. In a long scholarly opinion, the Second Circuit held that customary international law governs the court’s subject matter jurisdiction and that violations of the law of nations are within the scope of the ATS. 621 F. 3d at 125-45. After reviewing international law and its various sources, the court found that corporate liability “is not recognized as a ‘specific, universal and obligatory’ norm,” and therefore not a “rule of customary international law that we may apply under ATS.” Id. at 145. The Second Circuit upheld the dismissal of the complaint for lack of subject matter jurisdiction. Id. at 149.
The Second Circuit’s Kiobel opinion departed from contrary holdings by both the Eleventh and D.C. Circuits.8 To resolve this circuit split, the Supreme Court granted certiorari to decide both whether the issue of corporate liability is a merits or subject matter jurisdiction issue, and also whether corporations can be proper ATS defendants at all.
Mohamad v. Rajoub
Rajoub involved TVPA claims brought by Azzam Rahim’s sons and widow claiming that Rahim had been tortured and killed by the Palestinian Authority and the PLO in the West Bank in 1995. The defendants claimed that the TVPA permitted suit only against an individual, or natural person, and not against an organization. The court in Rajoub held that the use of “individual” in the statute refers only to a natural person, and an entity is not a proper defendant under the TVPA. In granting certiorari in Rajoub, the Supreme Court will resolve this issue, and likely also provide guidance on the relationship between causes of action under the ATS and the related TVPA.
For most, the Supreme Court’s grant of certiorari in Kiobel and Rajoub cannot have come soon enough. The ATS and, to a lesser extent the TVPA, have become potent vehicles for tort suits brought by foreign citizens for injuries in foreign lands against foreign and domestic businesses, including banks, financial services businesses, the mining and extraction industry, government contractors and pharmaceutical companies, among others. The growth of such torts suits is warmly embraced by some as another example of American exceptionalism, while being criticized by others as interfering in the internal affairs of other nations and promoting “the use of our courts to extort settlements” from corporate defendants.9
Sorting through the many issues that have been raised by the ATS and the TVPA has become burdensome to litigants and the lower federal courts alike. The task before the Court in Kiobel and Rajoub is no trivial undertaking. The justices are presented with a statute with few defining features, a seeming global embrace, and yet one with the most venerable pedigree dating to the nation’s founding.
The need to cabin the ATS finds support in the first Congress’s original purpose to avoid disruptions in our foreign relations.10 Interpreting the ATS to assert universal jurisdiction of the federal courts over international law torts — limited only by due process for defendants — invites foreign nations and their courts to return the favor. This is not just bad policy. It promotes disorder among the community of nations. Hopefully, the Court will seize the opportunity to bring much-needed clarity and impose additional limiting principles on the reach and jurisdiction of the ATS and the TVPA.