By BARBARA LEONARD
WASHINGTON (CN) – A group of refugees living in the United States cannot sue the foreign oil companies that allegedly conspired with the Nigerian government to torture them, the mostly unanimous Supreme Court ruled Wednesday.
After surviving rape, imprisonment and other brutality at the hands of Nigerian military and police in the 1990s, residents of the country’s Ogoniland won political asylum in the United States.
Prior to the violence, the Ogoni residents had allege*dly protested the oil exploration of their land being carried out by Shell Petroleum Development Co. of Nigeria, a joint subsidiary of Royal Dutch Petroleum, based in the Netherlands, and Shell Transport and Trading, based in England.
In a federal complaint they filed in New York, the refugees led by Esther Kiobel claimed that the oil giants had orchestrated the atrocities to suppress their protests. They claimed that the court had jurisdiction under the Alien Tort Statute (ATS), which covers “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.”
Before the case could be argued on its merits, however, Royal Dutch got the case tossed on procedural grounds, saying that U.S. courts had no business examining the case.
The 2nd Circuit went one step further in September 2010, holding that corporations could not be sued under the Alien Torts Statute.
The Supreme Court seemed divided on traditional lines at a hearing on Feb. 28, 2012, but it called for additional arguments and briefs a week later to address “whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, 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.”
A year and a half after taking up the case, the court affirmed dismissal on narrow grounds Wednesday, highlighting the presumption against extraterritorial application, which ensures “that United States law governs domestically but does not rule the world.”
Looking at roots of the Alien Torts Statute since its passage in 1789, the ruling notes that plaintiffs had invoked it twice in the late 18th century, and then just once more over the next 167 years.
“There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms,” Roberts wrote.
He noted that the United States had actually been “embarrassed” that its fledgling republic would have no way of providing judicial relief to foreign officials injured in the United States.”
“The ATS ensured that the United States could provide a forum for adjudicating such incidents” so that they could not lead to a war, according to the ruling.
“Nothing about this historical context suggests that Congress also intended federal common law under the ATS to provide a cause of action for conduct occurring in the territory of another sovereign,” Roberts added.
“Indeed, far from avoiding diplomatic strife, providing such a cause of action could have generated it. Recent experience bears this out.”
In 2004, the Supreme Court spoke about the parameters of the Alien Tort Statute in Sosa v. Alvarez-Machain. That ruling said an ATS case must state a violation of the law of nations with the requisite “definite content and acceptance among civilized nations.”
“The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign,” Roberts wrote.
Noting that the Alien Tort Statute is “strictly jurisdictional,” Roberts said it “does not directly regulate conduct or afford relief.”
“It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law,” he continued. “But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.
“Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do.”
Foreign policy concerns “are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign,” according to the ruling.
In a concurring opinion, Justice Anthony Kennedy emphasized that the ruling “is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute.”
There may be a future case “with allegations of serious violations of international law principles protecting persons” that is neither covered by the Torture Victim Protection Act of 1991 nor the parameters of today’s ruling, Kennedy said.
Yet another concurring opinion argued that the presumption against territorial application forecloses this case.
“As a result, a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality – and will therefore be barred – unless the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations,” Justices Samuel Alito wrote, joined by Justice Clarence Thomas.
Four justices concurred only in judgment.
“Unlike the court, I would not invoke the presumption against extraterritoriality,” Justice Stephen Breyer wrote, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. “Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind. In this case, however, the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction.” (Parentheses in original.)
Here, the plaintiffs are foreign nationals, and the sole link that the defendants have with the United States is a barely affiliated office in New York, Breyer added.
“The conduct at issue took place abroad,” the opinion states. “And the plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so.
“Under these circumstances, even if the New York office were a sufficient basis for asserting general jurisdiction, it would be farfetched to believe, based solely upon the defendants’ minimal and indirectAmerican presence, that this legal action helps to vindicate a distinct American interest, such as in not providing a safe harbor for an ‘enemy of all mankind.’ Thus I agree with the court that here it would ‘reach too far to say’ that such ‘mere corporate presence suffices.’