The longstanding ability of human rights victims to seek legal redress in US courts for actions by foreigners in foreign lands has been dealt a major blow

In April, the US Supreme Court issued its long-awaited decision in Kiobel v Royal Dutch Petroleum, a case brought by Nigerian activists alleging that foreign oil companies were complicit in human rights abuses against members of the Ogoni tribe.

The court unanimously decided that the Alien Tort Statute (ATS), enacted in 1789, is subject to a “presumption against extraterritoriality”, and dismissed the suit.

Ever since an appeal court ruling in 1980, numerous lower US courts had read the ATS differently, allowing cases based on alleged violations of international law – including war crimes and crimes against humanity – to be heard, wherever the harms occurred, and whomever they concerned.

Plaintiffs’ attorneys targeted deep-pocketed corporations for human rights abuses that occurred outside the United States and involved non-US citizens, as both plaintiffs and defendants.

The Kiobel case has changed that status quo. “In countries around the world, there are victims of terrible human rights abuses for whom the ATS has been the only realistic way to get a day in court. Thanks to the [Kiobel] ruling, some of them will now have no means of legal recourse at all,” says Chris Albin-Lackey, senior researcher, business and human rights programme at Human Rights Watch.

ATS cases often concern sympathetic plaintiffs seeking significant damages. When faced with such lawsuits, “many ATS defendants made the business decision to settle claims”, says Jen Spaziano, litigation partner at Skadden, Arps, Slate, Meagher & Flom LLP.

Significant settlements include Doe v Unocal, in which plaintiffs sued Unocal for alleged complicity in the use of forced labour and other abuses in Burma, and Wiwa v Shell, which concerned alleged human rights violations, including torture and killing, in Nigeria.

Tort maths

The Kiobel case shuts the door on bringing future “foreign-cubed cases” – involving a foreign plaintiff and a foreign defendant, for acts committed outside the US – under the ATS. Less clear are the circumstances under which “foreign-squared cases” – involving either a US plaintiff or defendant, or including acts that may have occurred in the United States – may still proceed.

In fact, Kiobelraises the possibility that certain ATS claims could still proceed against US corporations, but be dismissed if brought against foreign corporations.

Kiobel has already affected pending cases. A federal district court in Texas has dismissed an ATS claim, finding it had “nothing to do with the United States”, notes Spaziano. “At least one plaintiff voluntarily dismissed its ATS claim and parties in many other pending cases are briefing the viability of ATS claims following the decision,” she says.

In the wake of Kiobel, lawyers will now explore other means of getting human rights victims their day in court. Claims against individuals, for example, may still be brought under another federal statute, the 1991 Torture Victim Protection Act. The Supreme Court held in a 2012 case, Mohamad v Palestinian Authority, that it does not apply to organisations (and, presumably, corporations).

Additionally, plaintiffs might also attempt to raise human rights claims under state statutes. And finally, future plaintiffs might try to present claims in local courts. “But it’s also important to keep in mind that many plaintiffs have turned to the ATS to begin with precisely because they have no realistic hope of redress through the courts in their home countries,” Albin-Lackey says.