An intriguing reversal by the SCOTUS

This was a dramatic week for the US Supreme Court with several fascinating cases and one interesting decision.

The decision was in the case of: Kiobel v. Royal Dutch Petroleum.  Here's  scotusblog.com summarizing the case:

Plaintiffs were a group of Nigerian nationals who alleged that the Nigerian military committed human rights violations against them in the 1990s in response to local protests concerning oil exploration and production by a subsidiary of the defendants (Royal Dutch Petroleum Company and Shell Transport and Trading Company, two holding companies incorporated in the Netherlands).  After the plaintiffs obtained political asylum in the United States, they sued in federal court, alleging that the defendants had aided and abetted the atrocities by providing food, transportation, and compensation to the Nigerian military, and allowing it to use their property as a staging area for the attacks.  The plaintiffs premised jurisdiction on the ATS, an obscure jurisdictional provision that was enacted by the First Congress in 1789 and that once was described by Judge Friendly as a “legal Lohengrin” in that “no one seems to know whence it came.”  The statute provides in full: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 

The court held unanimously that the presumption against the extraterritorial application of U.S. law applies to claims under the Alien Tort Statute, and nothing in the text, history, or purposes of the statute rebuts that presumption.

The result is dramatic as it overturns a reading of a long standing law and as many commentators have opined, the question it raises whether any US company can ever be sued for violations of international laws in other countries.  The reason this is thrown open is that the opinions expressed by Roberts, Alito, Scalia and Thomas would suggest no.  The opinion penned by Breyer and joined by Ginsburg, Sotomayer and Kagan, would suggest may be.  Breyer writes that: "I would find jurisdiction under this statute where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind." 

And, Kennedy writes cryptically: "The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition."