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Supreme Court Rules Foreign Human Rights Cases Can’t Be Tried in U.S.

April 17, 2013 at 12:00 AM EDT
The Supreme Court ruled against trying foreign human rights cases in U.S. courts. The justices decided that a 1789 tort statute enacted by the first Congress didn't apply to conduct outside of the U.S. Gwen Ifill talks to National Law Journal's Marcia Coyle about why the court's ruling is a huge blow for human rights activists.
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GWEN IFILL: We turn now to the Supreme Court, which ruled today that foreign nationals cannot sue U.S. corporations in human rights disputes.

Marcia Coyle of the National Law Journal joins me with more.

Start by explaining the parameters of this case. We talked about it briefly some time ago.

MARCIA COYLE, National Law Journal: OK.

Well, this started actually in 2002. Twelve Nigerian nationals brought a lawsuit in federal court here in the United States against three oil companies. They claimed that the oil company had enlisted the aid of the Nigerian military to suppress opposition to the oil company’s drilling in a region in Nigeria called the Ogoni region, and that the military had used torture, executions, and arbitrary detentions to do that.

And they brought their lawsuit under a 1789 federal law called the Alien Tort Statute, probably one of the oldest laws on the books in the United States. It was enacted by the first Congress of the United States.

GWEN IFILL: And what was that designed to do?

MARCIA COYLE: Well, it’s — there’s some debate as to really what its purpose was, but the statute is very simple.

It has one sentence that says that federal courts have jurisdiction when aliens bring claims for basically injuries caused by violations of international law or treaties.

GWEN IFILL: The court said today that didn’t apply in this case? Was it a question about, is there was really a human rights dispute or a jurisdictional one?

MARCIA COYLE: It is a human rights dispute, but it also very much involved interpretation of this very old statute.

The chief justice wrote the main opinion for the court. And he applied a canon of statutory interpretation that’s a judge-made doctrine known as a presumption against extraterritoriality. And what that means is that the court looks at a statute, and says unless it’s really clear on the face of the statute that Congress intended the law to apply to conduct that happened outside of the United States, there’s a presumption against it applying that way.

So the chief justice examined the history of the statute, the text, and the purposes, and he said there was no indication that it should apply to conduct that happened outside of the United States.

GWEN IFILL: Have there been examples in the past where this act has been used for cases like this?

MARCIA COYLE: Oh, absolutely.

In fact, it has become a major tool of human rights organizations and human rights lawyers to try to bring, in most recent years, multinational corporations into court when, as the claim was here, they have apparently worked or allegedly worked in concert with foreign military or foreign governments that engaged in human rights abuses.

And it’s been — the law itself wasn’t used much until 1980, and that’s when the Supreme Court itself found that — it upheld the law being used by Paraguayan citizens who sued a Paraguayan military officer for torture that occurred in Paraguay.

GWEN IFILL: So in not allowing it to be used that way this time, was the court — this was a blow to human rights activists, I presume?

MARCIA COYLE: Absolutely.

As I said, it’s become a major tool to bring corporations and others to justice in the United States. The court said today that it doesn’t apply to conduct that occurs abroad, outside of the United States. And so, human rights groups see this as a serious blow.

But they do see a ray of hope in some of what was written in the different opinions today.

GWEN IFILL: Well, I want to get to that in a moment, but I’m curious, unless this is the answer to that question. Is there another legal path for redress? If you still — if you are a foreign national, and you feel that somehow a U.S. corporation has wronged you in another country, other than the Alien Tort Act, is there another way?

MARCIA COYLE: There aren’t many ways.

There is a possibility that they may be able to find something under state laws in this country. But this — this is really the major tool. And it’s not just U.S. corporations. We’re talking about multinational corporations, some really foreign-based corporations that have maybe a small presence in the United States.

The chief justice said it’s not going to be sufficient that you just — that a foreign corporation has an office in the United States for you to be able to bring this suit in U.S. court. This presumption is a big bar, and you have to show that there are sufficient contacts with the United States in order to overcome that presumption.

GWEN IFILL: I assume what you were alluding to just now is the unusual unanimity of the ruling, yet not all for the same reasons.

MARCIA COYLE: No, no.

All of the justices agreed that this particular case could not go forward because it involved foreign plaintiffs, foreign defendants, and conduct that happened abroad.

Chief Justice Roberts and four other justices, Justices Kennedy, Scalia, Alito, and Thomas, all agreed with the chief’s analysis that this presumption against the law applying outside the United States was the right way to analyze it. But Justice Breyer, writing for the three remaining justices, thought that wasn’t the right way to analyze this.

He would apply the — he would say federal courts can hear these claims, one, if the defendant in the case is an American national, if the conduct occurred in the United States, but also — and this is where he really differed with the other justices — also if there was danger that the United States was going to become a safe harbor for torturers or, as he called them, the common enemy of mankind.

So he saw it as a little broader. Justice Kennedy, who agreed with the chief justice’s analysis, also wrote separately to say that he thought the opinion was cautious and left open many questions as to how to really interpret the Alien Tort Statute, and there might be a small category of cases that the court’s opinion today doesn’t cover.

GWEN IFILL: In the future.

Marcia Coyle of the National Law Journal, thank you so much.

MARCIA COYLE: My pleasure, Gwen.