(Reuters) – The Supreme Court seemed skeptical on Monday of allowing victims of human rights abuses to sue in American courts against the foreign corporations accused of aiding in the atrocities.
But in oral arguments in one of the court’s biggest human rights cases in years, some justices suggested they might not close U.S. courts to similar claims against individuals, including those who take refuge in the United States, or to claims involving U.S. companies.
In the case, the first of the court’s new term, 12 Nigerians accused Anglo-Dutch oil company Royal Dutch Shell Plc of complicity in a violent crackdown on protesters by military ruler Sani Abacha from 1992 to 1995.
Esther Kiobel filed her suit in 2002 on behalf of victims including her husband, Barinem, who was executed in 1995.
Her case was based on a 1789 law known as the Alien Tort Statute that had been dormant for nearly two centuries before lawyers began using it in the 1980s to bring international human rights cases in U.S. courts.
The Supreme Court heard arguments in February over whether the Alien Tort Statute could apply to corporations, and later expanded the case to consider whether the law could be invoked in similar cases against anyone.
Justice Anthony Kennedy, often a swing vote, asked Kiobel’s lawyer Paul Hoffman whether there was a connection between events in Nigeria and matters “that commenced in the United States or that are closely related to the United States.”
Kennedy expressed concern that if U.S. courts were to assert jurisdiction, this could expose U.S. corporations to similar lawsuits in other countries.
Hoffman countered: “It is possible the plaintiffs could have sued in other places. They sued here because this is where they live.”
But Justice Samuel Alito questioned, as he had in February, why that was appropriate, after Hoffman agreed that British and Dutch courts could have fairly judged the Nigerian plaintiffs’ claims.
“Well, if that’s so,” Alito said, “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?”
Kathleen Sullivan, a lawyer arguing for Royal Dutch Petroleum, stressed Alito’s concern.
“This case has nothing to do with the United States,” she said. By opening U.S. courts to similar lawsuits regardless of the place of alleged misconduct, other nations might see fit to use their courts in the same manner.
Several justices questioned whether Shell’s position, supported by other companies including Coca-Cola Co and mining giant Rio Tinto Plc, might rule out the use of U.S. courts for other types of crimes, such as piracy.
Justice Sonia Sotomayor said piracy would have “without question” been considered a violation of international norms in 1789.
Sotomayor also appeared receptive to an argument by the European Commission that the United States could be the court of last resort in cases known as “foreign-cubed cases” involving actions by a foreign corporation conducted outside the United States in the aid of a foreign country.
“It seems to me like a fairly simple set of rules clearly defined and limiting the application of this statute in a way that sort of makes sense,” she told Hoffman.
More than 150 lawsuits accusing U.S. and foreign corporations of wrongdoing in more than 60 foreign countries have been filed in U.S. courts in the last two decades, according to the U.S. Chamber of Commerce.
Many companies settle to avoid costs and publicity.
The Obama administration argued that the Alien Tort Statute would not apply in foreign-cubed cases, but could apply elsewhere.
Solicitor General Donald Verrilli said limiting the law’s use would help the United States balance interests including avoiding friction with foreign companies, helping U.S. companies avoid possible liability abroad, and promoting human rights.
Justice Antonin Scalia, however, observed that prior administrations had taken more expansive views of the protection and future administrations might also adopt a different view.
A tearful Esther Kiobel attended the court session and was among 20 protesters outside the courthouse on Monday.
Now 48 and living in Dallas, she had first brought the case in 2002, two years before she said she became a U.S. citizen.
“My situation is terrible,” she said in an interview. “This country brought me here as a refugee. They saved me from being killed. That’s why we want our case here. Right now, I don’t feel safe in Nigeria.”
The Kiobel case is the first high-profile case for the court in its new nine-month term, and there was no reference to the fireworks that ended the last term, when the court in June upheld most of President Barack Obama’s health care overhaul.
Next week, the court will hear a challenge to affirmative action at the University of Texas at Austin. It is also considered likely during the current term, which ends in June, to review cases involving same sex marriage and voting rights.
Still, of the cases the court has taken so far, Pepperdine University law professor Douglas Kmiec said, “Kiobel raises perhaps the largest question of them all: the relationship between America and the world.”
The case is Kiobel v. Royal Dutch Petroleum Co, U.S. Supreme Court, No. 10-1491.
(Reporting by Jonathan Stempel; Additional reporting by Joan Biskupic and Ian Simpson; Editing by Eddie Evans)