Last month, the Supreme Court handed down its long-awaited decision in the case of Kiobel v. Royal Dutch Petroleum Co., ruling against a group of Nigerians who had used the United States’ Alien Tort Statute to sue an oil company that they allege aided the Nigerian government in torture and executions during the 1990s. For years, the U.S. human rights movement had made use of the ATS, which allows noncitizens to seek civil damages in U.S. courts, to seek compensation for victims of foreign atrocities. The court’s majority concluded, however, that U.S. law generally does not apply beyond U.S. borders unless Congress says otherwise, thus dealing what some feared was a grievous blow to the human rights movement. But the decision might be a blessing in disguise. The ATS never proved that useful in advancing the cause of global human rights. And now, by slamming that door, the Supreme Court’s decision could push the human rights movement to open other ones.
Congress passed the ATS in 1789, and it was largely ignored for nearly 200 years. So forgotten had the law been that in 1975, Henry Friendly, a judge on the U.S. Court of Appeals for the Second Circuit, called the statute a “legal Lohengrin” -- after the character in Arthurian literature whose origins are unknown. Even today, after intense research, little about is known about what it was for. The statute’s language makes clear that the framers intended for it to provide a forum for foreign litigants to receive compensation for violations of international law. But for what conduct, exactly? By Americans or anyone? And taking place where?
After the law spent more than a century in obscurity, the U.S. human rights movement seized on it during the Carter administration, when the idea of international human rights became famous overnight. In those years, for example, Amnesty International made a name for itself campaigning against torture, which, at the time the ATS was passed, would Filártiga v. Peña-Irala that a Paraguayan torturer counted as an “enemy of mankind” and could therefore be liable for tort damages under the statute.
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