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'Presumption Against Extraterritoriality' Bars Alien Tort Claim

By Robyn Hagan Cain | Last updated on

A group of Nigerian plaintiffs claim that Royal Dutch Petroleum Company and Shell Transport and Trading Company -- which you probably know as Shell Oil -- aided and abetted the Nigerian government in committing human rights abuses against them. Those abuses included beating, raping, and arresting people, and destroying or looting property.

The plaintiffs sued the oil company in the U.S. under the Alien Tort Statute in 2002. Eleven years later, they have officially lost their case because the presumption against extraterritoriality applies to claims under the ATS, and the statute doesn't rebut that presumption.

In 2010, the Second Circuit Court of Appeals ruled in Kiobel v. Royal Dutch Petroleum that aliens cannot bring ATS claims against foreign companies doing business overseas. Until now, it was the only federal appellate court that felt that way.

The D.C. Circuit, in John Doe VIII et al v. Exxon Mobil Corp et al, and the Ninth Circuit, Sarei v. Rio Tinto, both ruled that aliens can sue under the ATS. In Flomo v. Firestone Natural Rubber Co., the Seventh Circuit Court of Appeals criticized the Kiobel decision’s underlying premise that there is no principle of customary international law that binds a corporation as “incorrect,” and countered that “there is always a first time for litigation to enforce a norm.”

But Wednesday, after considering Kiobel in consecutive terms, the Supreme Court unanimously agreed with the Second Circuit that the Nigerian plaintiffs in the case cannot bring their claim under the Alien Tort Statute.

Chief Justice John Roberts, writing for the conservative majority, concluded that the ATS did not provide for “relief for violations of the law of nations occurring outside the United States,” The Washington Post reports.

Justice Stephen Breyer, writing for the liberal block, disagreed with Roberts’ presumption that U.S. laws don’t have extraterritorial reach, and suggested that the ATS could confer jurisdiction when the defendant’s conduct “substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.”

Unless Congress steps in to amend the ATS, the outcome in Kiobel means that victims of overseas abuses allegedly committed by American companies will be stuck litigating in foreign courts.

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