The Supreme Court Blocks The Politicization Of International Law (Forbes.com) April 25, 2013

Sometimes the reaction to a Supreme Court decision is as telling as the opinion itself. So it is, I think, with the Court’s recent judgment in Kiobel v. Royal Dutch Petroleum Co., in which the Court decided that the Alien Tort Statute does not allow tort cases to be brought in U.S. federal courts when the actors and territories involved are outside the U.S.

At first blush, this seems like a relatively straightforward case, one of statutory interpretation and the seemingly arcane rules of legal jurisdiction. But, in fact, a human rights cottage industry had formed around this statute, such that the New York Times editorial board and Amnesty International have decried the decision as an assault on human rights, and the Chamber of Commerce saluted a welcome limitation on expensive lawsuits against corporations. It is one more example of how international law is as much about politics as it is law.

What the Supreme Court was trying to say is that the United States is not the world’s courtroom (even if it is the world’s policeman). The Alien Tort Statute, enacted as part of the Judiciary Act of 1789, permits federal courts to recognize private claims in for a limited number of international law violations. The legislative history suggests that its purpose was to open federal courts to legal claims by foreign ambassadors serving in the U.S., and the statute remained in relative obscurity for its first 171 years, being invoked only three times.

But as California Governor Jerry Brown wisely observed, “Needs very quickly turn into rights, and rights turn into laws, and laws turn into lawsuits.” And so beginning in the 1970s, nearly two hundred years after its enactment for a different purpose, creative human rights lawyers found a way to bring foreign nationals who suffered injury or loss of human rights at the hands of foreign corporate entities or government officials to bring claims in U.S. federal courts. The laws of jurisdiction normally require that cases be brought where the plaintiffs or defendants reside, or where the acts complained of occurred, where there is a direct stake in the matter and witnesses are located. But the 33 words of this old statute looked like a loophole waiting for lawyers to drive through, and those cases began to be brought. Finally, last week, the Supreme Court closed the door, saying there was nothing about this law to give it “extraterritorial application.”

In response, the New York Times editorial board reminded me why I almost never read their work anymore. The opening line of their editorial attacked the “Supreme Court’s conservatives” for dealing “a major blow” to human rights. Not until you got to the fourth paragraph did you learn that, in fact, all nine justices agreed with the basic outcome of the case, though concurring opinions were filed. So as far as the Times is concerned, this case was not really about the 33-word statute from 1789, nor its extraterritorial application to make the U.S. into the world’s courtroom for torts. It was about five conservatives out to undermine human rights. You wonder if they even bothered to read the case.

The concerns of Amnesty International and other human rights organizations were at least more thoughtful, if still more political than legal. These organizations, which are often thought to wear white hats and represent the greater good, are in fact single-issue advocates who are not as concerned with legal process as they are winning on their issues. The case at hand involved Nigerians whose rights were allegedly violated by corporations based in the Netherlands and the U.K. Their claims could be heard by courts in Nigeria, where the alleged conduct occurred, or in the countries where the corporate defendants are based. But lawyers like to “forum shop,” choosing courts that are most sympathetic to their cases and the laws of jurisdiction are rarely their concern. So this case about limiting a jurisdictional loophole became all about limiting human rights enforcement for them, even though the plaintiffs were left with perfectly good legal options.

Finally, the U.S. Chamber of Commerce viewed this as a tort reform case, protecting corporations from further expensive cases in U.S. courts. That wasn’t really the point either, since it was really about the laws of jurisdiction more than the law of torts, but they were happy to celebrate the victory.

In my view, the Court wisely exercised judicial restraint and, in an essentially unanimous decision, ruled that U.S. federal courts are not prepared to take torts cases from all over the world. But you would never have known that was the legal question or the Court’s answer from the retort by political players who surround and fuel international tort and human rights litigation.

Please click on the link to the article in Forbes.com: http://www.forbes.com/sites/daviddavenport/2013/04/25/the-supreme-court-blocks-the-politicization-of-international-law/