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On Tuesday the Supreme Court ruled that victims of torture, arbitrary executions, and other human rights abuses in foreign countries could not seek justice in U.S. courts. The ruling in Kiobel v. Royal Dutch Petroleum halted a widely watched case brought by a group of Nigerians, which alleged that in the 1990s Shell Oil was complicit in the torture and murder of protesters at the company’s operations in the impoverished but oil rich Ogoni region. The Supreme Court held unanimously that the “presumption against extraterritoriality” applies to Alien Tort Statute cases, meaning that foreigners cannot use U.S. courts to seek justice against foreigners for crimes committed on the soil and in the territory of foreign nations.
Since the 1980s, when a landmark case opened the door for such claims, the Alien Tort Statute (ATS) has been used by victims of human rights abuses worldwide to seek redress in the United States for egregious human rights violations when justice would not otherwise be available through regular channels in domestic courts. Over the past 20 years, ATS defendants have included companies accused of colluding with authoritarian governments to enslave or murder local citizens. The most notable victory for human rights came in 2005, when Unocal agreed to settle a case brought by Burmese villagers, who claimed that Unocal used forced labor to construct a major gas pipeline (stretching through Myanmar into Thailand), and turned a blind eye as the notorious military junta raped and murdered local people to force them to clear the way for the pipeline.
While unsurprising from a legal standpoint, the recent Supreme Court ruling brings into sharp focus one of the most pressing policy challenges of our time: in an increasingly integrated global economy, where transnational investors and companies have profound effects on the lives of people around the world for both good and ill, how can the human rights of marginalized communities be protected from violations by powerful rogue and unaccountable actors?
Where domestic courts can be relied upon to fairly enforce the rule of law and protect the rights of all citizens, justice can be sought and served through regular channels within capital-importing countries. But the problem is acute when corrupt or autocratic governments do not protect the rights of their least powerful citizens, deliberately colluding with foreign investors to advance policies that further the interests of elites at enormous human costs. Autocratic oil producing countries like Equatorial Guinea and Sudan are particularly likely to conspire with foreign companies to exploit oil reserves regardless of the human consequences. And although many companies are increasingly making important efforts to safeguard human rights, the rising role of new transnational investors from countries like China who reject such human rights protections is compounding the problem.
Unfortunately, given the Supreme Court’s ruling on Tuesday, human rights accountability in the global economy remains elusive.