Yesterday saw the delivery of the judgement in the case of Kiobel v Shell one that all those with an interest in international human rights had been anxiously awaiting. It is one of those relatively rare (in the courts) and highly significant cases where a group seeks to use a civil court in a country where a Multinational Corporation has a presence to hold the Corporation accountable for allegedly helping a compliant military to perform crimes against humanity.
The extreme significance of this case hinges on the fact that the claimants are using an 18th C. US law, the Alien Tort Statute, which had been gaining ground as a potential means to hold MNC’s responsible for their actions in a US court even when the harm concerned has happened in the jurisdiction of another Country.
Many possible outcomes have been discussed and a huge number of parties including many other multinationals and the governments (the UK and Dutch governments apparently arguing the side of their MNC) and human rights organisations had submitted ‘amicus’ opinion documents to assist the court. The outcome the finding that the ATS does not have jurisdiction outside the US (except for piracy) is disappointing for those who feel that the ATS offered an opportunity to counter the lack of accountability of MNC’s for actions they commit in countries with justice systems that are ineffective against such wealthy and powerful global entities.
see http://www.nytimes.com/2013/04/18/us/justices-bar-us-suit-in-nigerian-human-rights-case.html?_r=0
http://www.latimes.com/news/politics/la-pn-supreme-court-overseas-human-rights-20130417,0,6638680.story
Kiobel v. Shell (Photo credit: earthrightsintl)
There is a good brief summary of the majority judgement and partly dissenting opinions provided by Wessen Jazrawi on the UKHR Blog
She identifies the presumption against extraterritoriality as the focus of the opinion of the court and that they took the view that nothing in the Alien tort Statute rebutted this presumption. She also notes the importance attached to the fact that at the time of writing of the ATS there were only three principle offences against the law of nations
- violation of safe conduct
- infringement of the rights of ambassadors
- piracy
the first two are seen as having no obvious extraterritoriality and Chief Justice Roberts sought to distinguish the last as an act occurring on the high seas and so beyond any jurisdiction. That a number of countries had objected to the extraterritorial application of the ATS including the UK was raised referring to objections in
Doe v Exxon Mobile Corp. 654F 3d 11.
That this opinion showed concern that allowing this application could lead to US citizens being hauled before courts in other States for violations of the law of nations is also referred to.
That the same conclusion was reached but by a different reasoning by Justice Breyer is set out in particular the issue regarding the presumption against extraterritoriality: So that in addition to the case of an alleged act on American soil, he would find jurisdiction under the ATS
- when the defendant was an American national
- when the defendant’s conduct substantially and adversely affected an important American national interest, which included a distinct interest in preventing the US from becoming a safe harbour for a torturer or other common enemy of mankind.
and highlighted the judgement of
Sosa v Alvarez-Machain 542 US 2004 that held that federal courts had the power to fashion action for a modest number of claims that were norms of international character and specificity comparable to the three ’18th-century paradigms’. Asking who the modern pirates may be he continued to answer they are the tortures and perpetrators of genocide.
This provided a critique that the ATS was created with ‘foreign matters in mind’ and that the distinction of piracy was flawed as it happens on ships giving the territorial jurisdiction of the ensign the ship sails under. Thus Congress must have intended the statutes’ jurisdictional reach to match its underlying substantive grasp.
However, this opinion gave no jurisdiction for the case as the defendant corporations had very limited links to the US, that the plaintiffs were not American nationals and the alleged events took place abroad. Lastly it was relevant that the defendants were alleged to have helped others to commit rather than themselves directly engaged in the acts of torture and genocide.
In her comment Wessen highlights the slight hope given by the dissenting judgment of Justices Breyer, Ginsburg, Sotomayer and Kagan that there may still be limited circumstances where the ATS can provide protection to victims of human rights abuses. A similar view is found in the extensive insta-symposium on Kiobel set out on the opinio juris site
Perhaps the most comforting aspect of Wessens’ comment for a European is that there may still be opportunities for corporate accountability to be addressed in European courts (though see my posts on Montericco for the growing problems of supporting such cases). She also highlights that in a different context the ECtHR has found circumstances may exist for application of the convention outside the member states (see
Al-Skeini).
There is some reason to be positive that the Supreme Court did not follow some corporate opinions that the ATS could not have jurisdiction over MNCs at all.
Lastly I’d like to hope she will be justified in her slight optimism that the judgement in Kiobel could lead to movement towards a multi-jurisdictional treaty to govern the actions of multinationals as otherwise there seems little hope to see access to justice for those in the developing world who suffer in the name of global corporations’ interests.
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