Two things America is known for—its love of lawsuits and its delight in meddling in the affairs of other countries—led to a strange form of litigation in which foreigners bring suits in U.S. courts against other foreigners, for human rights violations in foreign countries. Last week’s 9-0 Supreme Court ruling in Kiobel v. Royal Dutch Petroleum has finally put an end to this litigation. Human rights groups complain that the decision means that foreign governments and corporations will be able to violate human rights with impunity. But cases like Kiobel, in which a group of Nigerians sued a Nigerian corporation and its Dutch and British corporate parents over their role in human rights abuses in Nigeria, never led to real human rights enforcement. In more than 30 years of litigation involving hundreds of cases, hardly any money went to victims. The Supreme Court got rid of a popular but unworkable idea that U.S. courts can be used to police behavior around the world.
Like so many American legal absurdities, the story begins at the country’s founding. In 1789, the first Congress passed the law that established the federal court system. In an obscure provision, now known as the Alien Tort Statute, the law said: “The 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.” This means that foreigners can bring a lawsuit in a federal court against someone who caused harm to them where that action also violated international law.
No one knows why Congress said this. The best guess is that Congress sought to avoid frictions with foreign nations whose diplomats were harmed by Americans, and then couldn’t get a fair hearing in parochial state courts. A federal judge would more likely take account of America’s interest in maintaining good relations with foreign countries.
The ATS then entered a deep slumber. Almost two centuries later, a human rights group helped two Paraguayans bring a lawsuit under the ATS against a former Paraguayan police officer who, according to the plaintiffs, tortured and murdered a member of their family. The U.S. Court of Appeals for the Second Circuit held that the lower court could hear the case. Torture and murder are torts, and when conducted by a state official, violate international human rights law, as embodied in a group of treaties that came into force during the Cold War, which the first Congress that enacted the ATC could not have anticipated.
All three Paraguayans lived in the United States when they sued, but the police officer who was the defendant was deported and never stood trial, and could never have paid damages in any event. The larger problem illustrated by this case is that you cannot sue states, governments, heads of states, or other top officials who are typically the most responsible for human rights abuses—various laws, in various countries, give them immunity. These rules exist because no state trusts the courts of a foreign state to give its officials a fair trial. The United States, too, grants immunity to foreign officials, so that American officials will not be tried in foreign courts for ordering torture of suspected terrorists, say, or killing Pakistani civilians with hellfire missiles launched from drones.
The ATS provided a method for evading these rules, but only to go after low-level officials or former officials, who rarely live in the United States or own assets that U.S. courts can seize. With the Alien Tort Statute as their tool, human rights groups could notch up symbolic victories and talk about them to donors, but since defendants did not travel to the United States to submit to a trial, those victories existed only on paper. No witnesses testified, no documents were verified, no contestation of evidence took place before a judge—nothing that might establish the truth about disputed events or give victims satisfaction.
Then, one day, someone had the bright idea of using the ATS to sue deep-pocketed multinational corporations. While most norms of international law bind states, not private institutions, human rights groups brought in corporations by asserting that they’d aided and abetted torture and other wrongs committed by foreign governments. A rush to court followed. Plaintiffs claiming human rights abuses brought suits against companies that built gas pipelines in Indonesia, drilled oil wells in Nigeria, bottled soft drinks in Colombia, dug mines in Papua New Guinea, and sold bulldozers to the Israeli army. In all cases, the plaintiffs claimed that the corporation was complicit in human rights violations by the government or a paramilitary group.