Eric Posner on the Alien Tort Statute
Two things America is known for—its love of lawsuits and its delight in meddling in the affairs of other countries—led to a strange form of litigation in which foreigners bring suits in U.S. courts against other foreigners, for human rights violations in foreign countries. Last week’s 9-0 Supreme Court ruling in Kiobel v. Royal Dutch Petroleum has finally put an end to this litigation. Human rights groups complain that the decision means that foreign governments and corporations will be able to violate human rights with impunity. But cases like Kiobel, in which a group of Nigerians sued a Nigerian corporation and its Dutch and British corporate parents over their role in human rights abuses in Nigeria, never led to real human rights enforcement. In more than 30 years of litigation involving hundreds of cases, hardly any money went to victims. The Supreme Court got rid of a popular but unworkable idea that U.S. courts can be used to police behavior around the world.
Like so many American legal absurdities, the story begins at the country’s founding. In 1789, the first Congress passed the law that established the federal court system. In an obscure provision, now known as the Alien Tort Statute, the law said: “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.” This means that foreigners can bring a lawsuit in a federal court against someone who caused harm to them where that action also violated international law.
No one knows why Congress said this. The best guess is that Congress sought to avoid frictions with foreign nations whose diplomats were harmed by Americans, and then couldn’t get a fair hearing in parochial state courts. A federal judge would more likely take account of America’s interest in maintaining good relations with foreign countries.