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Supreme Court to hear arguments tomorrow on whether the Alien Tort Statute applies to violations abroad

As noted in a previous post, last March, the Supreme Court ordered the reargument of Kiobel v. Royal Dutch Petroleum (Esther Kiobel is pictured above, center). That reargument will take place tomorrow, the first day of the Court’s new Term. At issue, of course, is the status of the Alien Tort Statute (ATS), 28 USC § 1350, first incorporated in the Judiciary Act of 1789. As will be recalled, the ATS provides:

The district 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.

The main question argued previously before the Court was whether a corporation was liable under the ATS. A panel of the Second Circuit had ruled that there was no such corporate liability under the ATS. But instead of ruling on that question, the Court ordered that the case be reargued, focusing on this question:“Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

As Lyle Denniston over at SCOTUSblog notes, “this case puts before the Supreme Court one of the most important and historic issues affecting international law and U.S. foreign policy.” Denniston notes:

It is a test of whether judges in the U.S., applying both American legal theory and international law norms, will have a role in holding to account those accused of carrying out atrocities in foreign lands.  Foreign governments and international business firms have weighed in against allowing U.S. judges wide-ranging authority to carry out that role, when there is no real connection to the U.S., while human rights advocates have joined in to support that role so that there is some potential remedy for such abuses beyond any remedies in international crimes tribunals.   The U.S. government is straddling a bit between the two opposing factions.

SCOTUSblog has assembled the pertinent documents relating to  the case, including the new briefs for the petitioners and respondents:

Briefs and Documents

Merits Briefs for the Petitioners

Amicus Briefs in Support of the Petitioners

Supplemental Amicus Briefs in Support of the Petitioners

Supplemental Amicus Briefs in Support of Neither Party

Merits Briefs for the Respondents

Amicus Briefs in Support of the Respondents

Supplemental Amicus Briefs in Support of the Respondents

Certiorari-stage documents

This should be a fascinating oral argument.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.