Alien torts in America’s courts

Is it wise to allow foreign victims of human rights violations that take place outside the United States to sue their persecutors in U.S. courts? That question loomed over arguments in the Supreme Court last week in a case involving allegations that Shell Oil Co., a British-Dutch company, colluded in violent attacks on Nigerians opposed to oil drilling in that country. Justice Samuel A. Alito Jr. put it bluntly when he asked the plaintiffs’ lawyer: “Why does this case belong in the courts of the United States when it has nothing to do with the United States other than the fact that a subsidiary of the defendant has a big operation here?”

But the issue before the court isn’t whether such lawsuits are a good idea. (Alito clearly thinks they aren’t.) It’s whether they were authorized by Congress in a 1789 law known as the Alien Tort Statute. The answer to that question is yes, and that is how the court should rule. If Congress in the future concludes that American courts are being burdened by human rights lawsuits originating abroad — or that such suits complicate U.S. foreign policy — it can revise or repeal the law.

In the Shell case, the Nigerian plaintiffs argue that in the 1990s, the oil company “aided and abetted” a brutal government crackdown on opponents of oil drilling by providing food, money and transportation to Nigerian armed forces and by allowing company property to be used as a staging ground for attacks. The plaintiffs, now living in the United States, brought suit under the 223-year-old statute, which gives federal courts jurisdiction over “any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States.”

In 2004, the Supreme Court ruled that the long-ignored statute did, in fact, authorize lawsuits by foreign nationals for violations of international norms — such as blocking the movement of ships in international waters or denying safe passage to diplomats — that were as “specific, universal and obligatory” as the ones Congress sought to shore up in 1789. Other courts have interpreted “violation of the law of nations” to encompass torture, arbitrary detention and genocide.

In February, the justices heard arguments on whether corporations, as well as individuals, could be sued under the Alien Tort Statute. It then ordered last week’s additional argument on whether the statute applies to conduct occurring outside the United States. The first issue should be resolved in the plaintiffs’ favor because Congress didn’t limit the law’s application to individuals. A corporation like Shell, which has operations and offices in the United States, clearly should be covered by the law. As for whether the law applies to abuses that occur outside the United States, the court in 2004 suggested that it covered piracy, which obviously doesn’t occur on U.S. soil. Applying the law to cover wrongdoing in other countries is a logical extension of that policy.

Is it a wise one? Allowing U.S. courts to resolve claims arising in other countries could create problems not only for the orderly administration of justice in this country but also for U.S. foreign policy, even though judges in particular cases might choose to stop proceedings in deference to concern about diplomatic consequences. (A previous Nigerian government lodged a protest with the U.S. about the Shell lawsuit.) But a strong case can be made that U.S. courts should be available to victims of extreme human rights violations abroad when redress is impossible in foreign courts.

Even if the Nigerians prevail at the Supreme Court, their suit could be sidetracked by other objections. For example, Shell could argue that it doesn’t have a sufficient presence in the United States to trigger federal jurisdiction. But if this and similar cases do go forward, Congress will be able to judge whether they pose an undue burden on either the workings of the judicial system or the conduct of U.S. diplomacy. The court shouldn’t short-circuit that decision.