Supreme Court curtails human rights enforcement

In another 5-4 decision, the Supreme Court ventured into the public policy thicket and came out on the side of defendants. In Kiobel v. Royal Dutch Petroleum, the Supreme Court held that the Alien Tort Claims Act (“ATCA”) generally no longer provides a right of action in Federal Court to address violations of human rights law when the illegal actions occur outside the United States. This is a dramatic turn of events because, for nearly 40 years, aggrieved parties in the United States have been successfully seeking redress through the Federal Courts for human rights violations – including extrajudicial killing, systematic rape, forced labor, and sustained torture – when that conduct has occurred abroad.

More recently, the ATCA has been used to pursue claims when corporations reportedly have been involved in the violation of human rights laws – including the evisceration of workplace-related protections. See, e.g., Sinaltrainal v. Coca-Cola, 256 F.Supp.2d 1345 (S.D. Fla. 2003); Estate of Rodriguez v. Drummond Co., 256 F.Supp.2d 1250 (N.D. Ala. 2003). Aggrieved parties have been effectively prosecuting such claims both at the District Court and Appellate Court levels across the United States, most notably in the landmark case against Unocal in the Ninth Circuit. In response, 5 Justices of the Supreme Court acted to limit such legal exposure in Kiobel. While writing for the majority, Chief Judge John Roberts ultimately relied on the presumption against applying Federal statutes, such as the ATCA, beyond the United States.

The Supreme Court’s opinion in Kiobel seems contrary to centuries of Supreme Court precedent, which holds that Federal Courts “are established to . . . to decide on human rights.” Fletcher v. Peck, 10 U.S. 87, 133 (1810). The opinion also appears inconsistent with clear language of the ATCA, which the inaugural Congress enacted in 1789 – as one of the nation’s first laws – to ensure that foreign-born parties can seek redress in Federal Court for “violation of the law of nations or a treaty of the United States.” In addition, the 5-Justice majority seemingly overlooks the practical reality that cases involving such egregious legal violations often cannot be pursued meaningfully in the countries where the conduct occurred. Consequently, aggrieved parties going forward likely will have legal rights without a legal remedy – something that the Supreme Court has long determined to be unacceptable. See generally Marbury v. Madison, 5 U.S. 137 (1803).

At the risk of stating the obvious, the rule of law will suffer in the absence of effective enforcement of human rights – which include protections under labor law, employment law, and civil rights law. Therefore, advocates are asserting that Kiobel does not preclude the prosecution of human rights violators when the conduct at issue has been approved or tolerated by corporate executives in the United States or the conduct has been carried out by companies based in the United States. This approach may very well may be successful before District Courts and Appellate Courts, but the political composition of the Supreme Court will probably have to change before advocates can succeed there.