The Supreme Court today refused to allow Nigerians to sue Dutch and other corporations in U.S. court over alleged abuses in Nigeria that occurred under the rule of Nigeria’s former military dictator. These abuses, which allegedly violated international norms, were supposedly assisted by company employees who provided Nigerian troops “with food, transportation,” etc., and allowed “the Nigerian military to use” company “property.” As the Supreme Court put it, “Nigerian nationals residing in the United States, filed suit in federal court under the Alien Tort Statute, alleging that respondents—certain Dutch, British, and Nigerian corporations—aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The ATS provides that ‘[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’”
In its decision today in Kiobel v. Royal Dutch Petroleum Co., the Supreme Court held that the statute does not reach conduct within foreign countries (as opposed to piracy on the high seas), in light of the strong presumption against extraterritorial application of U.S. law (it cited the Morrison case, in which CEI filed an amicus brief urging the Court to curb extraterritorial application of U.S. law to enrich trial lawyers at companies’ expense.). The court of appeals had dismissed the lawsuit on an alternative ground, ruling that international law only holds individuals (including corporate employees) liable, not the corporations they work for.
Letting people sue over violations of “international law” is a bad idea, since it often involves alleged violations of “customary international law” not contained in any treaty ratified by the U.S., international norms that could conflict with our own Constitution. What constitutes “customary international law” is fuzzy and politically manipulable. Left-wing lawyers take vague international treaties and interpret them as mandating their ideological wish lists, like restricting criticism of Islam and minority religions as “hate speech,” banning Mother’s Day as sexist, and mandating quota-based affirmative action. For example, the CEDAW equal-rights treaty has been construed by an international committee as requiring “redistribution of wealth,” “affirmative action,” “gender studies” classes, government-sponsored “access to rapid and easy abortion,” and “the application of quotas and numerical goals.” Never mind that most countries don’t even have affirmative action. Customary international law is interpreted by left-wing lawyers and jurists as barring sensible American practices designed to protect crime victims, like denying parole to criminals because they have repeatedly committed murder in especially hideous and premeditated ways. For example, New Zealand was pressured to end life without parole for adults who commit “the worst” murders, based on a supposed rule of “customary international law” against life imprisonment without parole. Citing Spanish law and supposed international human-rights norms, Spain now refuses to extradite terrorists who plot mass murder to the United States unless the U.S. agrees not to seek life imprisonment without parole.
Congress has passed other statutes that are more plausibly read as conferring jurisdiction over overseas human-rights abuses, like the Torture Victim Protection Act of 1991, which provides detailed definitions for extrajudicial killing and torture, specifically states who may be liable, and creates a rule of exhaustion to eliminate premature adjudication of disputes that could be resolved in the forum state. (Forcing people to be tried overseas is one of the objections against King George III cited in America’s Declaration of Independence, so the U.S. should be reluctant to force foreigners to be tried in our courts, thousands of miles from where they may live or exculpatory evidence may be located.) Clear definitions are important, because left-wing UN technocrats have misguidedly defined as “torture” a variety of commonplace, generally applicable public policies, public-health safeguards, and principles of family law. For example, the UN “special rapporteur on torture,” Argentina’s Juan E. Méndez, “seeks to define torture” to encompass “restrictions on access to abortion” and “laws requiring sex change surgery before legal sex reassignment, laws that permit a parent to lose custody of a child solely because they use drugs, and mandatory HIV testing for ‘sex workers.'” Clear definitions of what constitute violations of the “law of nations” (e.g., human-rights violations) are absent from the ATS.
In the Kiobel case, all nine Justices voted to dismiss the lawsuit. But the four liberal justices disagreed with the Court’s reasoning for doing so. Still, the Court’s unanimity in voting to dismiss the lawsuit was a surprise to some legal commentators, as Eugene Kontorovich notes.