In 1906, Elihu Root, a Republican Wall Street lawyer, former senator and secretary of state, was one of the founders of the American Society of International Law and served as its first president. Under his influence the ASIL became, and has remained to this day, the premier institution of its kind in the world, promoting peace and human rights through international law.
Many other Americans have embraced Elihu Root’s vision of a United States in an interconnected world based on common values of justice and humanity. To name only a few: Woodrow Wilson, Wendell Willkie, Franklin and Eleanor Roosevelt, Philip Jessup, Myres McDougal, Jimmy Carter, retired Justice Sandra Day O’Connor and yes, Justice Anthony Kennedy.
That vision is now being sorely tested in a case pending in the U.S. Supreme Court, Kiobel v. Royal Dutch Petroleum. The named plaintiffs-petitioners in this case are Nigerian citizens residing in the United States who contend that Royal Dutch Shell PLC actively aided and abetted the Nigerian government in using rape, torture and murder in order to suppress the protest movement against the defendants-respondents’ activities in connection with oil exploration in the Ogoni region of Nigeria. The Southern District of New York dismissed some claims but allowed the case to proceed on others. In cross-appeals, the U.S. Court of Appeals for the Second Circuit dismissed the case entirely, holding sua sponte that corporations could not be sued for human rights violations under international law and that therefore the Alien Tort Statute (ATS), a 1789 law that allows aliens to sue in U.S. courts for torts in violation of the law of nations, did not apply.
The Supreme Court granted certiorari in October 2011, and Phase 1 of Kiobel was argued last February. At that hearing, it became obvious that the four conservative justices, as well as Kennedy, were interested not only in the liability of corporations for human rights violations, but in the larger question of under what circumstances, if any, the ATS could be invoked on the basis of facts occurring on foreign territory. Several days after the hearing the court issued an order for rebriefing and reargument on the question of extraterritoriality, and Phase 2 of Kiobel is scheduled to be heard on October 1.
At least two aspects of the Kiobel/ATS drama are extremely curious.
First, that in this era when judicial policy-making is considered by conservative jurists and citizens as nothing less than a cardinal sin, the question of corporate immunity for human rights crimes — the point that prompted the Supreme Court to take this case in the first place — was raised sua sponte by the two-judge majority in the Second Circuit — with no briefing or argument on that specific issue. The decision — accompanied by a strong dissent from Judge Pierre Leval — conflicted with the Second Circuit’s own implicit, if not explicit, prior support for corporate liability under the ATS, along with decisions by four other circuits over previous decades expressing the same. Indeed, following the Kiobel ruling, lengthy decisions on ATS cases in the Seventh, Ninth and D.C. circuits directly challenged the Kiobel majority’s reasoning.
Second, as Justice Ruth Bader Ginsburg effectively pointed out at the February hearing, the question of extraterritoriality was settled by the Supreme Court itself in the only previous ATS case to reach the court, Sosa v. Alvarez-Machain, in 2004. Thus, if the four conservative justices, joined, ironically, by Kennedy, the strongest advocate of international law on the court, decide, contrary to overwhelming precedent, that the ATS does not apply extraterritorially, they will either have to reverse the court’s less than a decade old decision, or give it a strangely acrobatic interpretation.
If that is the outcome, it will also signal to the world that this country’s commitment to human rights and to international law, which protects those rights, has been a passing phase. In Filártiga v. Peña-Irala, which brought the Alien Tort Statute to life in 1980 after two centuries of slumber, the same Second Circuit that now seeks to drastically restrict it declared, “[T]he torturer has become like the pirate and slave trader before him hostis humani generis, an enemy of all mankind. Our holding today, giving effect to a jurisdictional provision enacted by our First Congress, is a small but important step in the fulfillment of the ageless dream to free all people from brutal violence.”
Let us hope the Supreme Court will not be the killer of the dream.
Peter Weiss, a vice president of the Center for Constitutional Rights, was lead counsel for the plaintiffs in Filártiga v. Peña-Irala.