A stake through the heart of the Alien Tort Statute

In 1821, the captain of a US warship off West Africa ordered his crew to seize a schooner, La Jeune Eugenie, for transgressing Congress’ ban on the international transport of slaves.

The French owners demanded their boat back protesting they were not subject to American law. US Supreme Court Justice Joseph Story, an ardent foe of slavery, ruled against them, but not without misgivings. What gave him pause was the idea of the US assuming the role of global policeman.

“No nation has ever yet pretended to be the custos morum (guardian of the morals) of the whole world,” he wrote.

Chief Justice John Roberts quoted these words approvingly last week as he drove a stake through the heart of the US Alien Tort Statute (ATS), or, more precisely, the interpretation of it that has encouraged lawyers for victims of injustice everywhere — from Latin America to Africa to East Asia — to treat American courts at the ultimate custodes morum.

While split 5-4 in their reasoning, Justice Roberts and his eight colleagues ruled unanimously that a federal court in New York had no business hearing Kiobel vs. Royal Dutch Petroleum, a case brought by members of Nigeria’s Ogoni community alleging Shell’s complicity with government atrocities in Nigeria’s oil patch.

This was good news for MTN. Turkcell is relying heavily on the ATS in its vendetta against the South African telcoms giant for winning Iranian business to which Turkcell feels more entitled. Less pleased is the Khulumani Support Group whose quest for apartheid reparations from Ford, IBM, Daimler and others may now be at an end.

Its origins mysterious, the ATS has been called the Lohengrin of American law. Adopted by the first Congress as part of the Judiciary Act of 1789, it states that federal 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”.

For the next 191 years, the ATS was largely forgotten. Then, in 1980, a federal appeals court in New York agreed that it conferred on a Paraguayan torture victim the right to sue his torturer in the US.

That opened the door to a slew of litigation, including, from 2002 on, efforts to obtain billions of dollars from companies all over the world for abetting apartheid. These suits were opposed by President Mbeki as an assault on South African sovereignty, but encouraged under his successor.

What Congress seemed to have had in mind in 1789, Justice Roberts wrote, were a couple of embarrassing incidents — one in 1784, the other in 1787 — in which French and Dutch envoys were subjected to indignities in the US from which the “law of nations” was supposed to protect them.

So, on its face, the ATS exists simply to clarify the legal procedure to be followed in such cases: you’re a foreign ambassador covered by treaty and international law, someone does you a harm, federal court is where you go to be made whole. Nothing in the statute says it applies in equal measure to torts committed on and off US soil.

Relying on the Supreme Court’s own precedents that no law can be enforced extraterritorially unless Congress specifically says so, Justice Roberts found that the ATS does not give federal courts jurisdiction over violations of international law committed outside the US.

“There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms,” the Chief Justice held. It was implausible, he continued, that the fledgling American republic, in desperate need of allies, would have recklessly declared itself the world’s first “custos morum”.

Debate continues on how hard the Supreme Court has shut the door on ATS cases like the apartheid reparations and MTN matters. In both the judges suspended proceedings until the Supremes ruled on Kiobel. It will be interesting to see whether they now dismiss or agree to test whatever wriggle room the decision has left.

At minimum Turkcell and Khulumani would have to persuade the courts that a substantial portion of the criminal acts they allege occurred in the US. That could be hard.

Khulumani’s Marjorie Jobson does not sound hopeful, writing on the organisation’s website: “One last hope…seems doomed to be extinguished through the triumph of corporations in asserting their power to influence the courts”.

Turkcell didn’t sound quite so ready to admit defeat, noting enigmatically that it had “already provided the US district court with a detailed description of MTN’s extensive business dealings in the US supporting personal jurisdiction.”

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