Kiobel, the Alien Tort Statute and the common law: human rights litigation in this 'present, imperfect world.'

• Author: Webb, Owen

Abstract

In April 2013, the United States Supreme Court handed down its decision in Kiobel v Royal Dutch Petroleum, a ruling of great significance for those seeking to hold multinational corporations responsible for human rights violations in developing countries. For some time, non-US nationals have brought civil claims against corporations for violations of international law under an antiquated jurisdictional provision known as the 'Alien Tort Statute'. The success or failure of these actions has often turned on the various US District and Circuit courts' interpretations of this provision. Finally, after years of inconsistent application among lower courts, the Supreme Court in Kiobel has ruled that the Alien Tort Statute does not overcome the 'presumption against extraterritoriality', and will therefore not permit actions unless the circumstances of the case sufficiently 'touch and concern' the territorial jurisdiction of the United States. This paper considers the implications of this decision, and argues that certain questions carefully left open by the Court are likely to be answered, in the future, in further constraint of Alien Tort Statute jurisdiction. As a result, human rights plaintiffs are likely to shift their focus towards bringing common law tort claims in alternative forums. This paper explores the difficulties faced by plaintiffs seeking to do so in US state courts, Australia or the UK. If such difficulties can be overcome, however, for example through 'foreign direct liability' litigation, tort law does however provide plaintiffs with a number of advantages over the Alien Tort Statute. Indeed, history suggests that pursuing multinational corporations in common law tort may be more successful than ATS litigation has ever been in obtaining tangible redress for claimants.

I Introduction

In April, the United States Supreme Court handed down its decision in Kiobel v Royal Dutch Petroleum. (1) This case concerned the operation of 28 USC [section] 1350, a single-provision federal statute widely known as the Alien Tort Statute ('ATS*), which in its entirety provides that:

[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. (2) Famously described by Judge Friendly as a 'legal Lohengrin' (since 'no one seems to know whence it came'), (3) the ATS lay largely unused for more than 170 years following its enactment in 1789. (4) Since its rediscovery, however, it has been increasingly deployed by human rights litigants to bring US and non-US defendants, including multinational corporations, before US federal courts.

In 2011 in Sam v Rio Tinto, the Ninth Circuit held on the basis of the ATS (5) that a US court may assert jurisdiction over foreign companies for civil actions alleging violations of international law, despite the fact that the neither the plaintiff nor the defendant are US citizens, and that the alleged violations were committed abroad (a so-called 'foreign-cubed' case). Accordingly, there have been great expectations of holding irresponsible multinational corporations accountable for their misdeeds, wherever occurring, under the ATS. (6) It has even been suggested that the ATS could provide a mechanism by which major carbon emitting corporations could be haled before US courts for violations of international law. (7) The Supreme Court's decision to hear Kiobel, however, illustrated that the ATS has long caused headaches for lower courts as they attempt to apply an antiquated jurisdictional rule in the context of modern international commercial activity.

The Kiobel Court's narrow reading of the ATS makes clear that it will no longer be the powerful weapon desired by plaintiffs and human rights groups. In addition, the Court left significant questions unanswered, leaving open the possibility that it may further limit the sphere of ATS litigation in the future. In particular, the Court failed to decide whether corporations may be sued under the ATS, and did not consider: (i) whether accessorial (or aiding and abetting') liability falls within the scope of the ATS; (ii) whether a plaintiff must first exhaust all remedies in their domestic jurisdiction before bringing suit under the ATS; or (iii) whether principles of 'prescriptive comity' should be applied when considering the reach of the ATT In light of Kiobel and the prospect of unfavourable rulings on these open questions, it is likely that litigants seeking to hold multinational corporations accountable for violations of human rights abroad will now look to alternative ways and forums in which to bring suit.

Part II of this article provides a brief history of the ATS and its emergence as an increasingly important basis of suit in US courts. Part III critically considers the Supreme Court's decision in Kiobel. Part IV considers the implications of Kiobel and the various questions left unanswered by the Supreme Court's decision. Part V considers the prospect of a shift to human rights claims in common law tort, and the potential difficulties faced by plaintiffs in US state courts, Australia and the UK. Finally, Part VI considers the advantages that such a shift may have for plaintiffs, and compares the historical success of A TS claims versus human rights tort litigation.

II A Brief History of the Alien Tort Statute

The ATS is in terms jurisdictional; (8) in other words, it provides a basis of jurisdiction in federal courts. However, it does more than this, as it effectively provides non-US citizens with access to a cause of action under federal common law where that action is based on a defendant's violation of the 'law of nations'. (9) Since the history of ATS litigation has been considered exhaustively elsewhere, (10) this article provides merely a brief history to put Kiobel in the context of its precedents. Originally enacted to provide non-US plaintiffs with an action in US courts for acts of piracy, violations of safe conduct and infringements of ambassadorial rights, (11) the amorphous and expanding sphere of the 'law of nations' gave the ATS a potential breadth that has only lately become apparent, with implications for multinational corporations and those individuals (usually in developing, 'host' nations) affected by their actions.

The use of the ATS as a plaintiffs weapon began in 1980, with the landmark case of Filartiga v Pena-Irala, (12) in which two Paraguayan nationals brought an action against a former Paraguayan government official (by then domiciled in New York), alleging that the defendant had been responsible for the kidnap and torture of their family member in Paraguay in retaliation for the political activities of the victim's father. (13) The Second Circuit held that the ATS extended the jurisdiction of federal courts, enabling them to consider acts of torture (a 'violation of the law of nations') committed anywhere in the world. (14) The success of this bold and creative suit precipitated numerous cases in which the ATS was relied on as the operative jurisdictional provision.

At least initially, however, ATS-based actions were brought solely against individuals, and mostly for actions committed while in a position of state authority. (15) This changed in 2002 with the Ninth Circuit's decision in Doe v Unocal, (16) which revealed the full threat of the ATS to multinational corporations operating in developing countries. This case concerned a complaint brought under the ATS that Unocal, a US oil and gas corporation, had committed a violation of the 'law of nations' in being complicit in the Burmese military's exploitation, rape, torture and murder of villagers. For the first time, a US Circuit Court of Appeal expressly held that corporations are amenable to the exercise of jurisdiction by federal courts under the ATS. (17) Since then, numerous cases concerning corporate liability under the ATS have been considered by different Circuit Courts, and judicial views on whether corporations are amenable to suit under the ATS have differed markedly. (18) Nevertheless, numerous US District and Circuit Courts have agreed with the finding in Unocal, (19) either expressly or by assumption. (20) Many of these cases have involved foreign corporations alleged to have aided or abetted a foreign government's violations of international law; (21) that is, 'foreign-cubed' cases alleging secondary liability, with no obvious connection to US territory. (22)

In the landmark case of Sosa v A Ivarez-Machairi (23) in 2004, the Supreme Court for the first time laid down rules regarding the application of the ATS. This case involved a claim brought by an alleged member of a Mexican drug cartel, after the US Drug Enforcement Agency allegedly instructed his abduction from Mexico to the US. The Supreme Courtheld that the ATS, although in terms jurisdictional, provides a cause of action based on either treaty or a very limited category of offences defined by the 'law of nations' and recognised at federal common law. (24) In cases where there is no enforceable treaty applicable, the question for the court is whether the defendant can be said to have violated the 'law of nations' for the purposes of the ATS. If so, the ATS provides the US federal court with jurisdiction and the plaintiff with access to a cause of action at federal common law.

The Sosa Court further held that the 'law of nations' is to be defined by reference to norms of customary international law. (25) However, with a nod to the often uncertain nature of such norms, the Court held that the ATS makes actionable only those claims resting on 'a norm of international character accepted by the civilized world and defined with a specificity comparable to the features of the 18th century paradigms' of international law, (26) those '18th century' paradigms being: (i) 'violations of safe conducts'; (ii) 'offenses against ambassadors'; and...