Does a Founding-Era statute enable foreigners to sue other foreigners in federal court for conduct that took place overseas? That was the question facing the Supreme Court yesterday when it opened its latest term with arguments in Kiobel v Royal Dutch Petroleum.
A 1789 statute, the Alien Tort Statute (ATS) states, “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The statute presumably was passed in order to allow aliens to sue in the United States for breaches concerning diplomats or merchants, and to provide a remedy against piracy. In the 1780’s, a French diplomat was assaulted in the United States, but could not sue because he was not a citizen. The incident became notorious overseas and an embarrassment for the young republic. Incidents like this, or piracy, were presumably what the words “in violation of the law of nations” referred to.
The plaintiffs in Kiobel, however, are suing Royal Dutch Petroleum, a foreign corporation, under the ATS for aiding and abetting torture that occurred in Nigeria. It seems fairly clear that a corporation aiding and abetting torture did not constitute a “violation of the law of nations” as that term was commonly understood in 1789. However, the Supreme Court’s decision in the 2004 case Sosa v. Alvarez-Machain has complicated the matter. There the court ruled that a violation of the present-day law of nations must rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the 18th century paradigm violations of the law of nations, such as piracy. Hence, under Sosa, if aiding and abetting torture were found to violate a norm of international character defined with sufficient specificity, the claim could go forward even if all parties are foreign and the conduct took place on foreign soil.
That such an interpretation of the ATS does not seem to comport with the text and the 1789 common understanding of the language of the ATS ought to be reason enough to not allow such a suit to go forward. However, letting the claim in this case go forward also would have troubling consequences. As Justice Breyer noted in a concurrence in Sosa, there is a comity issue here. The government of Country X may be upset that American courts are trying cases involving conduct that occurred in X and involves the citizens of X. It also seems American courts might often be ill-equipped to try such cases. Furthermore, however awful such conduct might be, it seems wrong that foreigner’s conduct on foreign soil is subject to American laws. Would we want Italian courts trying us for our conduct in the United States?
The Court yesterday seemed to be looking for ways to limit the scope of the ATS without explicitly overruling Sosa. After all, the court originally heard Kiobel last spring on the question of whether the ATS applies to corporations or only individuals. It asked for reargument this term, however, on the broader question of whether the ATS was meant to apply to claims by foreigners against foreigners for foreign conduct, perhaps implying a desire by the Court to limit the application of the ATS over foreign conduct. Justice Alito yesterday asked, “Why does this case belong in the courts of the United States when it has nothing to do with the United States, other than the fact that a subsidiary of the defendant has a big operation here?”
Disagreement between the justices existed yesterday, though. Some wondered if a court should ask for advice from the State Department on whether the case threatened a U.S. relationship with a foreign country. Others wondered if plaintiffs should try to sue in a foreign court with a greater connection to the case before suing in a U.S. court. This solution may be pleasing to some on a policy level, but it is unclear what basis in law it has. Why ought the ATS provide jurisdiction only after other fora are first tried, particularly given the fact that it seems on its face that the ATS does not allow these kinds of claims to be brought in U.S. courts?
It seems likely that Kiobel will produce a shift in the right direction regarding the ATS. How far a shift it will produce, however, is far from clear.