WASHINGTON – The Supreme Court agreed Monday to consider eliminating the right of foreigners to use American courts to sue those they claim are responsible for human rights abuses abroad.
In an unusual move, the justices put off a decision in a case they heard last week asking whether businesses could be sued under a 1789 law for their alleged complicity in war crimes, killings and other atrocities that take place in foreign countries.
Instead, the court said it wants to explore the broader question of whether anyone — individuals or businesses — can be sued under the Alien Tort Statute for violations of international law that occur in other countries.
The outcome of Kiobel v. Royal Dutch Petroleum now has the potential to undo a more than 30-year-old strategy by human rights lawyers to pursue through civil lawsuits individuals who may be responsible for torture and other atrocities as well as companies with operations in countries with poor records in the area of human rights.
The Alien Tort Statute, adopted in part to deal with piracy claims, went unused for most of American history until rights lawyers dusted it off beginning in the late 1970s. The Supreme Court cautiously endorsed the use of the law in 2004, but left unanswered precisely who could be held liable and in what circumstances.
The case involves claims by 12 Nigerians against Royal Dutch Shell claiming that the oil giant aided a brutal government crackdown in the oil-rich Niger Delta in the 1990s.
Last week, several justices said they doubted the law ever was intended to apply to conduct by a foreign government against its own citizens within its own borders.
The case will be argued again in the fall.
Other cases pending in U.S. courts seek to hold accountable Chiquita Brands International for its relationship with paramilitary groups in Colombia; Exxon and Chevron for abuses in Indonesia and Nigeria, respectively; Britain-based mining company Rio Tinto for allegedly aiding the Papua New Guinea government in a civil war; and several companies for their role in old racial apartheid system in South Africa.
A half-dozen multinational companies already had urged the court to deal with the broader issue in this case. BP America, Caterpillar, Conoco Phillips, General Electric, Honeywell and International Business Machines said the court should make clear that the law does not extend abroad.
"Indeed, the history and purpose of the statute confirm that it is solely intended to provide a remedy for" foreigners who are victims of certain crimes on U.S. soil or on the high seas, Paul Clement, the lawyer for the companies, said in his Supreme Court filing.