Analysis: Human Rights

Article excerpt

Washington, DC, United States - A US Supreme Court decision to limit the sweep of a 1789 law used to fight human rights abuses worldwide left a window slightly ajar for victims to sue companies, especially US companies, accused of aiding such abuses.

"A majority of these cases are against US companies, and it still means they can be held accountable," said Jennifer Green, a University of Minnesota law professor and director of the school's human rights litigation clinic.

While the court unanimously threw out a lawsuit by 12 people from Nigeria accusing Royal Dutch Shell Plc of aiding state-sponsored torture and murder, Chief Justice John Roberts set a high bar for future cases under the Alien Tort Statute.

In an opinion joined by the other four justices on the court's conservative wing, Roberts wrote that the law was presumed to cover only violations of international law occurring in the United States. Violations elsewhere, he said, must "touch and concern" US territory "with sufficient force to displace the presumption."

Wednesday's holding likely means victory for at least one of the two companies, mining giant Rio Tinto Plc, whose Supreme Court appeal in a similar case has been pending, and could help the other, German automaker Daimler AG.

But it was unclear whether the decision would spare such US companies as Exxon Mobil Corp and Chiquita Brands International Inc from having to defend against similar claims involving their alleged misconduct.

All the companies have vigorously defended against the claims they were complicit in the alleged abuses.

In Kiobel et al v. Royal Dutch Petroleum Co et al, No. 10-1491, which upheld a 2011 ruling by a federal appeals court in New York, Roberts said a company's mere "corporate presence" in the United States was insufficient to force it to defend against an Alien Tort Statute lawsuit. The four more liberal justices on the nine-member court, led by Justice Stephen Breyer, thought the law should be available when the alleged misconduct took place in the United States, the defendant was a US national, or the misconduct "substantially and adversely" affected a US interest.

Justice Anthony Kennedy noted that the majority opinion, which he joined, left open questions about the statute's reach. Those questions could easily allow reasoning closer to Breyer's to prevail, given the right facts.

That might not be enough to save the case against Rio Tinto by some 10,000 current and former residents of the South Pacific island of Bougainville.

They contended that after workers in 1988 began to sabotage a polluting copper and gold mine, the Anglo-Australian company goaded the Papua New Guinea government to exact retribution and conspired to impose a blockade, resulting in thousands of civilian deaths by 1997.

In October 2011, the 9th US Circuit Court of Appeals in San Francisco voted 6-5 to permit the lawsuit.

But the dissenters complained that the majority exercised "unlimited authority" to decide cases from "over all the earth." After Kiobel, US courts don't have that power.

"It is obvious that the court has an agenda that is anti individual rights," Steve Berman, a lawyer for the Rio Tinto plaintiffs, said in an email, referring to the Supreme Court and Kiobel decision. "The result is not surprising." He declined to discuss the next step in the Rio Tinto case.

Daimler, meanwhile, had been accused by 22 residents of Argentina of conspiring with a military dictatorship during that country's "Dirty War" three decades ago to kidnap, torture and kill workers at a Mercedes-Benz plant near Buenos Aires. …