If a detainee is killed in China, and the United States doesn’t have a pre-existing connection with the act or perpetrator, does our law have anything to say about it?
On April 18, the Supreme Court asked similar questions when it finally ruled on Kiobel v. Royal Dutch Petroleum (Shell), in a judgment that the U.S. human rights community has been anxiously awaiting.
At stake was the definition of the Alien Tort Statute, or ATS, which since the late 1970s, has been a major vehicle for global human rights claims that would otherwise go unheard. The law itself was passed by Congress in 1789.
The ATS has allowed victims of torture in Latin America, mass killings in Africa and Southeast Asia, and similar abuses worldwide to have their day in court with a chance at a fair trial—something often not available in their home countries.
Unlike international human rights tribunals, prison sentences are off the table; the ATS is a civil statute that can at best provide monetary damages and a just sentence. Still, that is far more than is otherwise available to most victims of abusive regimes.
Now, the Court has ruled, five to four, that the presumption against extraterritoriality (overseas enforceability) applies to the ATS. That means that, unless there is a “sufficient” connection with the United States, the law will no longer apply.
The definition of “sufficient” will be decided in future decisions, although cases like that against the estate of former Philippine dictator Marcos, and the Ninth Circuit case Sarei v. Rio Tinto have found that the United States has an important interest in bringing human rights abusers to justice, per se.
Different Rationales
Importantly, this was far from a cut-and-dried decision. All of the Court’s nine justices voted to dismiss the Kiobel case itself, but they issued no fewer than four different versions of the rationale for doing so.
What they all had in common was the view that ATS claims could not go forward in a “foreign cubed” case like this one (where the victim, perpetrator, and act all lacked significant U.S. connections).
But from there, the differences are striking. The conservative members of the Court, Scalia, Alito, Thomas, Roberts, and Kennedy, all signed on to the majority decision which held that there must be “sufficient force” to some U.S. connection in ATS cases.
Setting out this vague limitation, Roberts cited renowned Justice Joseph Story for the idea that “No nation has ever yet pretended to be the custos morum [moral guardian] of the whole world.”
Justice Story did some great work in the law, but as a student of history, he might have examined the way the Roman, Chinese, and British empires (among others) all basically asserted that they were exactly custodes morum of the civilized world. It might also be argued that today’s world badly needs some degree of moral custodianship.
Regardless of these concerns, Alito and Thomas separately wrote a highly distilled version of the same opinion, which would basically allow only claims for piracy or assaults on diplomats. There were no other takers among the justices for this position.
Kennedy, who is often the swing vote, as he was here, also wrote a separate opinion, saying that future cases should be allowed to demonstrate what constitutes sufficient connection with the United States. In essence, he promised fairly explicitly that the decision would not limit reasonable future claims.
Justice Breyer wrote for the four liberal-leaning members and said that he would not apply the extraterritorial presumption, but would allow any case that implicates important U.S. interests. These include, he said, preventing this country from becoming a “safe harbor” for perpetrators of human rights abuse.
‘Sufficient Force’
What is the upshot of these contrasting opinions? While no one knows exactly what sort of claims will still be found to have “sufficient force” in their ties to the United States, there will be a strong argument for any case where a U.S.-based actor participated in major ways in the challenged acts, or where the conduct itself involved the United States or its territory. The safe harbor issue raised by Breyer will also be an important question.
American courts generally try to turn all legal rules into reasonable and consistent applications. In terms of the ATS, it will be important for courts to define the details and turn the term “sufficient force” into a real, practical rule with everyday applicability. One major upcoming case that will speak to this task is Doe v. Cisco, which is being heard in California.
Brought by the Human Rights Law Foundation on behalf of Falun Gong adherents detained and tortured in China, this case alleges that the major Silicon Valley technology firm Cisco Systems Inc. actively aided and abetted in this abuse.
In particular, through the design of the “Golden Shield” Internet surveillance system, Cisco intentionally helped Communist Party authorities to track, detain, and torture individuals who otherwise would have been beyond the grasp of the Party’s security forces. There is much evidence supporting these allegations.
In the Kiobel decision, the Court ruled that “mere corporate presence” of foreign companies in the United States wouldn’t be sufficient for ATS claims, but it seemed to leave wide open claims against U.S.-based corporations, especially for actions directly furthering serious human rights abuse.
It’s likely Cisco’s eager involvement in the Falun Gong crackdown will add up to “sufficient force” under Kiobel. U.S. corporations are not legally entitled to impunity when making deals with torturers or other human rights violators.
In fact, when the Second Circuit Court of Appeals first rejected the Kiobel lawsuit, its ground for doing so was that ATS claims could not apply to corporations because there was no distinct “norm” for corporate human rights liability. That’s the (strange) argument that initially brought the case before the Supreme Court.
But the justices issued their opinion based totally on the extraterritoriality issue, showing that the ATS still holds corporations liable, wherever applicable.
In Cisco’s and analogous cases, in the Ninth Circuit, corporate liability under the ATS is well established. The Kiobel ruling, if anything, affirmed this. When it comes to U.S. corporations, at least, it seems the law will not be silent with regards to human rights abuse committed abroad.
This is an important American interest, as recognized by former President Bush, Sr., when he signed the Torture Victim Protection Act of 1991 into law, saying that “the United States must continue its vigorous efforts to bring the practice of torture and other gross abuses of human rights to an end wherever they occur.”
Far from being some abstraction, this interest is real and immediate—actions like those by Cisco implicate not just the worry over becoming a “safe harbor” for rights abusers, but rather a breeding ground.
Ryan Mitchell is a Harvard Kaufman Fellow with the Human Rights Law Foundation (hrlf.net).
