WASHINGTON — The UK government is deeply engaged in a prolonged campaign in U.S. courts to stop a trend there of expanding their legal reach globally.   The latest effort is unfolding even now as official Britain is urging the U.S. Supreme Court to rule that one of America’s oldest laws – the Alien Tort Statute, enacted in 1789 – does not extend beyond U.S. territory.

Joined by the Netherlands government, and alongside the European Commission, the UK government has twice entered a human rights case from Nigeria – Kiobel, et al. v Royal Dutch Petroleum, et al. – that tests the scope of the 1789 law.  The legal dispute can be traced back to the era of the American colonies’ separation from Britain.

The UK and Dutch governments are interested in that case partly because of its profound legal implications for enforcing international law, but also because two business companies – one Dutch, one English — are the targets of a lawsuit by 12 Nigerians claiming atrocities in the Ogoni region of the Niger Delta between 1992 and 1995.

The lawsuit, filed in 2002, contended that two holding companies – Royal Dutch Petroleum, a Dutch company based in The Hague, and Shell Transport and Trading Company, an English company based in London – aided and abetted the Nigerian army in repressing Nigerians who were resisting oil exploration activities in the Niger Delta.

As the Kiobel reached the Supreme Court last year, lower federal courts were divided on whether a corporation could be sued under the Alien Tort Statute in U.S. courts.

The Statute, passed by the first U.S. Congress in the then-new national government, was prompted in part by the so-called “Marbois incident” in 1784, when a Frenchman assaulted a French diplomat in Philadelphia.  Because the prior colonial government in America had no authority to provide protection for diplomats, Congress responded by passing the ATS. 

The law gives federal trial courts the authority to rule on a lawsuit filed by a non-citizen who claims to have been harmed by a violation of “the law of nations” or a U.S. treaty. It does not detail what claims can be made, leaving that to lower courts to decide.

The law remained on the books almost totally unused for nearly two centuries, but has had a significant revival since a federal appeals court in 1981 gave it new life, leading to a wave of lawsuits in American courts seeking money damages for alleged human rights abuses. 

The Supreme Court had agreed last year to decide whether corporations could be sued under ATS.   While that was under review, the UK and Dutch governments filed a brief urging the Court to rule that corporations – as a matter of international law generally – could not be sued outside of their own country. 

The two governments, however, used that brief to register a broad complaint about the trend toward more ATS claims in American courts in what have come to be called “foreign-cubed” cases – that is, foreigners suing a foreign entity for actions on foreign soil.

The brief (prepared by a Washington law firm, with input from Iain Macleod, legal adviser to the UK’s Foreign and Commonwealth Office) told the Court that the two governments have been asserting “over a long period of time their opposition to overly broad assertions of extraterritorial civil jurisdiction” arising out of those kinds of claims.

They added that this position was “based on their concern that such exercises of jurisdiction are contrary to international law and create a substantial risk of jurisdictional conflicts.” Although condemning human rights violations that had occurred anywhere, the governments argued that it was the responsibility of national governments to deal with such incidents on their own soil.

In addition, the brief said the two governments “remain deeply concerned about the failure by some United States courts to take account of the jurisdictional constraints under international law when construing the ATS.”

After the Supreme Court held oral arguments in the Kiobel case last February, the Court decided not to rule on the corporate liability issue at this stage. Instead, it ordered a new round of briefs on the question of whether the ATS lacked extraterritorial application, especially for foreign-cubed cases.

A new round of briefing followed, and again the UK and Dutch governments filed a brief raising the same concerns as before. Harking back to the 1800s and the days of the great Chief Justice, John Marshall, the new brief said that ever since Marshall’s “early decisions involving international shipping disputes, this Court has recognized that international law places important limitations of the ability of the U.S. to exercise jurisdiction over overseas individuals and situations…These basic principles are as important today as they were in the era when the ATA was enacted, and they have an importance that goes beyond the mere adjudication of a particular dispute.”

The Supreme Court held a new oral argument on the case on the opening day of its new Term, October 1. From indications at the argument, it appeared that a majority of the Court was skeptical of both expansive ATS jurisdiction, and of arguments that the ATS should be pared down almost to non-existence.  

A final decision is expected by the end of the Court term, next June. If the Court rules that the Kiobel lawsuit, as such, is not barred under ATS, it presumably would then decide whether an ATS lawsuit can target a corporation.

For further articles by Lyle Denniston, see SCOTUSblog here.

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