English: The Supreme Court of the United State...

In a previous post on the Kiobel case, I discussed the potential for foreigners to file human rights suits against American multinational corporation in American courts using the Alien Tort Claims Statute. For over 30 years, human rights litigators have been looking to the ATS as one of their most powerful legal tools in bringing cases on behalf of non-Americans that would otherwise not be litigable in the U.S. Previously, the Justice Department had supported the Supreme Court’s openness to trying the case against Shell brought by the family members of a judge summarily executed by the Nigerian government as part of the Ogoni Nine.

Just recently however, the Justice Department filed an amicus curiae brief on the case, which will be heard on October 1, apparently reversing its support. The brief argues that the ATS is inappropriate for Kiobel and any other cases involving foreign corporations accused of complicity in human rights violations with a foreign government outside of the United States. It concluded that any Court of Appeals’ decision recognizing the “federal cause of action under the ATS based on actions occurring within the territory of a foreign sovereign” should be affirmed, and any judgment that a “corporation can be a proper defendant in a suit under the ATS” should be reversed.

It must be a complicated path for the Justice Department, State Department, and Department of Commerce to navigate together, each having varying stakes in the outcome of ATS-based litigation. Interestingly, the Justice Department alone filed the brief.

For another interesting point of view, see this Reuters Editorial from a few weeks ago. For more information on the ATS, see: http://harvardhumanrights.wordpress.com/criminal-justice-in-latin-america/alien-tort-statute/