This is big news in the field of business and human rights and even if not directly relevant to Ireland, I thought it was worth a mention here. The United States Supreme Court has ruled to limit the extraterritorial effect of the Alien Tort Statute. This 200 year old law had been revived by human rights lawyers and used to take civil claims against human rights violators and major multinational companies such as Shell and Rio Tinto. The law states, in its entirety that:
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.
The Supreme Court had previously ruled that the Statute gave a cause of action in respect of acts “which violate definable, universal and obligatory norms” of international law (Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)). Lower courts had also accepted that corporations violating such norms amounting to torts were potentially liable under the Statue, irrespective of where the violations occurred. Although no claims had been fully successful in court, there were several million dollar out of court settlements made by corporations, such as by Shell in relation to executed Nigerian activist Ken Saro Wiwa.
In today’s decision in Kiobel v. Shell, the Supreme Court decided that the presumption against extraterritoriality applies to claims under the Alien Tort Statute. It held that the “petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred”. The Court explained:
… all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. […] Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.
This does much to undo the global reach that had been found in the Alien Tort Statute and while it might be welcomed by the companies’ lawyers, it seems to close off one of the few avenues that had been available to human rights litigants. Justice Kennedy’s concurring opinion suggests that the door is not completely shut, and that several questions remain open, while several of the justices did not agree with the application of the presumption against extraterritoriality, but focused instead on the lack of sufficient ties to the United States to claim jurisdiction. Even then, the threshold set in their concurring opinion would be sufficiently high to knock out most of the existing Alien Tort Statute claims.