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The Supreme Court’s unanimous decision last week to dismiss a lawsuit alleging human rights violations by Royal Dutch Shell in Nigeria is already being portrayed as a victory for big corporations over human rights victims. While the decision will allow some multinational corporations to avoid being sued in the United States for business activities overseas, the real significance of the Court’s decision is that it provides a wise example of judicial restraint and deference to the role of Congress and the President to set American foreign policy.
Since 1980, human rights activists have brought lawsuits in U.S. federal courts for acts that occur overseas, even when no U.S. citizen or company was involved. The vehicle for these extraordinary lawsuits is a tersely worded, long-ignored provision of the Judiciary Act of 1789, which appeared to grant jurisdiction to federal courts for “civil actions” by foreign nationals “in violation of the law of nations or a treaty of the United States.” Scholars continue to argue today over the historical purpose of this Alien Tort Statute (ATS).
But rediscovery of the ATS in the 1970s by human rights lawyers spurred a wave of litigation that embroiled U.S. courts in political relations with foreign nations. These lawsuits often targeted foreign officials for the policies of their governments, even when the President and Congress may have taken other steps or decided on a different policy altogether. But in the 1990s, plaintiffs’ attorneys expanded the list of targets to include large multinational corporations, alleging that they were complicit in human rights abuses by foreign governments. Global corporations, with their deep pockets and sprawling operations, sparked the imagination of plaintiffs’ lawyers who might not have spent their days worrying about international law.
Kiobel’s facts themselves illustrate this attempt to conduct a judicial foreign policy outside of the normal political process. Royal Dutch Shell operated an oil exploration and production facility in Nigeria. Local inhabitants claimed that Shell asked the Nigerian government to suppress demonstrations nearby, which resulted in the violation of their human rights. Instead of seeking redress from the Nigerian government, or persuading Congress and the President to sanction Nigeria, the inhabitants found lawyers to sue Shell – a Dutch company – in American court for crimes committed by Nigerian soldiers against Nigerian citizens in Nigeria.
Some federal judges were all-too-eager to issue high-minded rulings invoking broad principles of international law in such cases. International lawyers saw ATS lawsuits as a key tool for getting U.S. courts to interpret principles of international law in ways that the Executive branch or Congress would not necessarily have approved of. Plaintiffs rarely won enforceable judgments or meaningful settlements in ATS lawsuits, but the idea that federal courts should freely develop and enforce international legal norms made the ATS sacrosanct among international lawyers.
Universal jurisdiction is perhaps the most cherished of these international legal norms. In the vast majority of ATS cases, neither the plaintiffs nor the defendants were U.S. nationals. Nor, in most cases, did any of the alleged atrocities occur in the territory of the U.S. By allowing ATS litigation, U.S. courts were vindicating the idea that any nation may assert jurisdiction over individuals, whether or not those individuals had any connection to the U.S.
Indeed, U.S. ATS litigation went far beyond anything permitted by other countries in allowing private plaintiffs to decide whether to bring such claims, rather than limiting the authority to public prosecutors. This meant that private lawyers, and federal courts, controlled the use of U.S. power rather than, and even against the wishes of, Congress or the President.
Kiobel’s unanimous rejection of universal civil jurisdiction is thus the most significant part of its ruling. Writing for the Court, Chief Justice John Roberts held that the presumption that U.S. law does not apply to acts outside the territory of the United States should apply to ATS cases. Championed by Justice Antonin Scalia in an earlier 2010 decision involving the reach of U.S. securities laws, this rule forces Congress and not the courts to decide whether to apply U.S. law to foreign activity.
This common sense rule reserves for the political branches the crucial right to weigh the foreign policy consequences of subjecting foreign conduct to U.S. law. It also gives Congress a chance to determine whether it wants to give private plaintiffs the power to enforce such norms or keep it in its traditional home, the President and the executive branch. Indeed, when Congress has acted to punish extraterritorial activity, such as genocide, it has always reserved that enforcement power to federal prosecutors.
Although they wrote separately, the four liberal Justices also voted to dismiss the lawsuit against Shell, despite allegations of Shell’s complicity in blood-curdling atrocities. Justice Stephen Breyer would have limited ATS lawsuits to cases in the United States, involving U.S. nationals, or where the conduct at stake “substantially and adversely affects an important American national interest.” Shell’s alleged complicity in overseas atrocities did not meet this test.
All nine justices agreed that the ATS should not be interpreted to allow for universal jurisdiction. They finally ended the federal courts’ thirty-year adventure into international lawmaking by leaving the decision of whether and how to enforce foreign policy to Congress and the President. Redressing human rights atrocities abroad will continue to be an important part of U.S. policy. But the Court yesterday ensured that the control of that policy will be returned to where it belongs: our elected representatives.
Julian Ku is a professor of law at the Maurice A. Deane School of Law at Hofstra University and John Yoo is a law professor at the University of California at Berkeley and a scholar at AEI. They are the authors of Taming Globalization (Oxford U. Press 2012).
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