The Alien Tort Statute (ATS), which allows non-U.S. citizens to bring international tort cases to trial in U.S. courts, has been quietly sitting on U.S. law books since the nation’s first Congress enacted the law in 1789. Only since 1980s, with an onslaught of human rights cases often relating to the actions of corporations, has the statue gained growing usage in domestic courts.
The Supreme Court has been grappling with the widening interpretation of the statute in the Kiobel v. Royal Dutch Petroleum case this year, a case filed by Nigerians against an oil conglomerate that allegedly held a hand in human rights abuses in the 1990s. And on Wednesday, the Supreme Court affirmed the Second Circuit Court's intention to deny extraterritorial application of the statute, drastically limiting the scope of the otherwise ambiguous legal footing available to try international human rights abuses in American courts.
This decision is a decisive signal that today’s Supreme Court envisions an end to extraterritorial application of the ATS.
On the one hand, limiting the scope of the U.S. statute can be seen as a prudent measure in an age of growing U.S. entanglement in world affairs. In its broadest interpretation, the statute could be used to try myriad cases in U.S. courts which may prove imprudent or entangling for U.S. courts. On the other hand, the Supreme Court's recent Kiobel decision helps reveal a troubling “gap” in international law.
The ATS provides U.S. district courts “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.” With such broad language, controversy over the statute’s modern usage, particularly its extraterritorial application under the principle of “universal jurisdiction,” has led to heated debates. International legal theorists have argued vehemently on either side of the question (a prominent Harvard lawyer, for example, argues that extraterritorial application violates principles of sovereignty in international law, while a leading international lawyer at Yale has been vehemently defending and encouraging extraterritorial application).
The fear remains that allowing a broad interpretation of the statute is increasingly entangling and risky for U.S. interests. The centuries-old law does not contain direct limitations which are increasingly important to define in the face of globalization and U.S. entanglement overseas. To the extent that it is not in the U.S.’ interests to over-extend its courts to try extraterritorial human rights cases based on vague statutory language, the Kiobel decision can provide necessary parameters to the practical usage of the statute moving forward.
However, Pierre Leval reminds Americans in Foreign Affairs that limiting the scope of the ATS once and for all will painfully reveal a widening “enforcement gap” in global human rights justice.
In the face of “dismal” human rights situations globally, promises from developing international laws and courts have been failing victims across the globe. The U.S. has been slow to move on questions of global justice, wary to cooperate with the International Criminal Court and various international human rights conventions. Without great-power backing, prohibitions against atrocities are “rarely enforced,” and justice from international tribunals continues to be “infrequent, slow, and inefficient.”
With the Supreme Court’s recent ruling, the U.S. must come to terms with a persisting “gap” in avenues for international human rights justice. The U.S. must recognize that helping bring human rights perpetrators to justice remains in the country's broadest interests, no matter how far away incidents take place. With the Kiobel case behind us, the best policy response moving forward would begin to turn towards strengthening the otherwise weak collection of international human rights laws and institutions, rather than using the Kiobel decision to slowly turn our backs on victims across the globe seeking justice.