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Will SCOTUS Affirm Kiobel, Deny ATS Claims?

By Robyn Hagan Cain on March 02, 2012 | Last updated on March 21, 2019

Regardless of how the Supreme Court rules in Kiobel v. Royal Dutch, the case will likely stand out in a year of big cases. A pro-plaintiff ruling would open U.S. courts to a flood of litigation under the Alien Tort Statute (ATS). A pro-defendant ruling might leave victims of human rights abuses without recourse against multinational companies.

From the outset of the Kiobel oral arguments on Wednesday, it sounded like the court would affirm Kiobel and disallow human rights claims under the ATS. SCOTUSblog notes that Justice Anthony Kennedy -- often the swing vote on the Court -- told the Kiobel attorney that his case was in jeopardy, while the remaining justices "looked notably unconvinced" by arguments that the ATS supports the Kiobel claims.

The Alien Tort Statute, which was adopted in 1789 by the first U.S. Congress, permits aliens to bring claims in federal courts for certain alleged international-law violations. It has rarely been used over the last 210 years, according to The Wall Street Journal.

The D.C. Circuit, in John Doe VIII et al v. Exxon Mobil Corp et al, and the Ninth Circuit, Sarei v. Rio Tinto, have both ruled that aliens have standing to sue under the ATS.

In the Seventh Circuit's Flomo v. Firestone Natural Rubber Co., Judge Richard Posner criticized the Kiobel decision's underlying premise that there is no principle of customary international law that binds a corporation, noting that, even in the absence of precedent for corporate international law violation sanctions, "there is always a first time for litigation to enforce a norm."

So far, only the Second Circuit -- the appellate court that decided Kiobel -- has ruled that aliens cannot bring ATS claims against foreign companies doing business overseas.

The U.S. government, as well as numerous international law and legal history scholars, and the U.N. High Commissioner for Human Rights have filed amicus briefs supporting the Kiobel plaintiffs' position. Other international law scholars, as well as several foreign governments and at least a dozen of the world's largest multinational corporations, claim the ATS isn't a vehicle for the Kiobel claims, reports The Huffington Post.

Chevron, in an amicus brief supporting Royal Dutch Petroleum, claims that extending the ATS to the Kiobel claims would create "universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection," something that no other country allows.

How should the Court rule in this case? Should the U.S. change the international law norm by hearing these cases?

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