Supreme Court to Hear Major Human Rights Case Again: Much More at Stake the Second Time Around

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Guest Post by TylerGiannini & Susan Farbstein

Susan Farbstein & TylerGiannini

The SupremeCourt will open its new term on Monday.  Thefirst argument it hears will be Kiobel v.Royal Dutch Petroleum Co., the most significant human rights case to reachthe Court in recent years.  Intenseinterest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world,including governments, human rights organizations, and corporations.  Kiobelis especially intriguing not only because of the human rights issues at stake,but also because it will be the Court’s second time hearing oral argument in the matter.  This is a rarity; the last example was Citizen United, the major campaignfinance case.
What are theissues?
Kiobel is an Alien Tort Statute (“ATS”) suitbased on a 1789 statute that allows non-U.S. citizens to bring civil claims inU.S. federal courts for universally recognized violations of internationallaw.  The case arises out of allegationsthat Royal Dutch/Shell was complicit in killings and other abuses by theNigerian government in the 1990s.  TheCourt first heard Kiobel last February,addressing the question of whethercorporations can be held liable under the statute.  But in an unusual move, a week later theCourt requested supplemental briefing and a second oral argument.  
At the first oralargument in February, it quickly became clear that some of the justices wereinterested in additional questions beyond corporate liability.  Specifically, they asked about whether theATS permits claims that arise out of actions that take place on foreign soil(in this case, Nigeria).  This question—whether,and when, the ATS allows such suits—was the focus of the supplemental briefingand will be addressed in the second oral argument. 
As the Petitionersand their amici have explained, thetext of the statute, as well as its history, show that the ATS does allow forcases arising on foreign soil.  It wasintended to provide a remedy for universal violations, including piracy, whichby definition occur outside the United States. For example, one of the earliest interpretations of the ATS, by AttorneyGeneral William Bradford in 1795, involved pillage and plunder committed duringa raid on the British colony of Sierra Leone.
What is atstake?
On thequestion of corporate liability, Shell’s lawyers have advocated for acategorical rule: there should be no corporate liability under the statuteunder any circumstances.  Shell’s lawyersare proposing a similarly absolutist rule on the question ofextraterritoriality: plaintiffs should never be allowed to bring ATS claims forviolations occurring outside the United States. This view is in opposition to the U.S. government’s position, and hasdrawn the attention of numerous commentators, including John Ruggie, the formerUN Special Representative on business and human rights, who views Shell’s positionas “extraordinarilyfar-reaching.”
Shell’s viewsraise the stakes of the case.  Its stanceon corporate liability departs from more than fifteen years of corporate ATSjurisprudence.  But Shell’s proposed ruleon extraterritoriality would be an even more profound reversal, departing from morethan thirty years of ATS case law. 
The firstseminal ATS case—Filártiga, consideredthe Brown v. Board of internationalhuman rights litigation in U.S. courts—launched the modern era of ATS jurisprudencein 1980.  Dolly Filártiga brought hercase in New York against the Paraguayan police official who had tortured herbrother to death.  The court’s decisionwas rooted in the notion that today’s torturers, like eighteenth centurypirates, are the enemies of all mankind. Filártiga was endorsed by theSupreme Court in its 2004 ATS decision, Sosav. Alaverez-Machain. 
The categoricalrule now advanced by Shell would close the door to remedies for plaintiffs likeDolly Filártiga, who wrote before Sosa:“I am proud to live in a country where human rights are respected, where thereis a way to bring to justice people who have committed horrible atrocities.  Now it is up to the Supreme Court to ensurethat truth will continue to triumph over terror.”  Her sentiments remain as moving today as theydid then.
What mighthappen?
As with somany cases, it is difficult to make predictions, but most commentators arefocused on Justice Anthony Kennedy as the critical swing vote.  Justice Kennedy has been a supporter ofinternational law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstancesfor well-recognized violations of international law.  At the same time, Justice Kennedy and theCourt have been notably sympathetic to corporate interests in recentyears.  After Monday, we may have abetter sense of what to expect in Kiobel. 
The Sosa Court left the door ajar to ATS suitsfor universal violations, whether piracy or genocide, whether committed outsidethe United States or within its borders.  This Court should do the same.  Survivors of torture, extrajudicial killing,crimes against humanity, and war crimes deserve the opportunity to obtainjustice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.  
TylerGiannini and Susan Farbstein are the co-directors of the International HumanRights Clinic at Harvard Law School.  They are currently co-counsel in two AlienTort Statute cases and have submitted amicuscuriae briefs in numerous others, including in support of the Petitioners inKiobel v. Royal Dutch Petroleum Co.  Gianniniserved as one of the architects of Doe v. Unocal, a precedent-settingsuit that settled in 2005.  Farbstein was a member of the legal team in Wiwav. Royal Dutch Petroleum Co., the companion case to Kiobel thatsettled in 2009.