The ultimate goal of American foreign policy should be “ending tyranny in our world.” That’s what former President George W. Bush said in his second inaugural address. And he wasn’t the first president to tout American democracy as the panacea for the world’s injustices. In the wake of the Spanish-American War, President William McKinley rationalized the annexation of the Philippines with a promise to ensure the “full measure of individual rights and liberties which is the heritage of free peoples” for the Filipinos. Before World War I, President Woodrow Wilson’s foreign policy was a feigned balancing act between the right to self-determination and the spread of democracy—he almost invariably prioritized democratization over self-determination. When Wilson identified making the world “safe for democracy” as the main goal of the United States’ entry into World War I, he solidified the tradition of American moral imperialism that survives to this day.
With this history in mind, it’s not surprising that we usually consider the democratization mandate in terms of U.S. military or diplomatic intervention in foreign countries. But the first case of the Supreme Court’s October term last week highlighted an alternative route for the fulfillment of the moral bent of U.S. foreign policy: the Alien Tort Statute. Enacted as a part of the Judiciary Act of 1789, presumably to ensure the safety of American diplomats and merchants abroad, the statute gives foreign citizens the right to bring suit in district court for violations of the “law of nations or a treaty of the United States” that occurred in a foreign country. In the 1980 landmark case of Filártiga v. Peña-Irala, two Paraguayan nationals living in the U.S. sued a former Paraguayan inspector general (who was also living in the U.S.) for the torture and murder of the plaintiff’s 17-year-old son. The Second Circuit Court of Appeals held that torture was a violation of the law of nations, and therefore constituted an actionable claim under the Alien Tort Statute. The case set the precedent for U.S. federal courts to adjudicate tortious acts committed by non-Americans across the world. With this reconceptualization of the statute, judiciary entered the fray of American moral imperialism and the Ninth Circuit later extended the courts’ jurisdiction to include tortious acts committed by corporations on foreign soil.
Last week, the Supreme Court heard oral arguments on whether the Alien Tort Statute was meant to apply to claims by foreigners against foreigners for foreign conduct in the case of Kiobel v. Royal Dutch Petroleum. The plaintiffs, 12 Nigerian nationals, allege that three European oil companies helped the Nigerian military kill and torture civilians who opposed oil exploration in Nigeria. The justices contemplated several approaches to the Statute, including consultation with the State Department to determine the effects of a decision on foreign diplomatic relations, and a consideration of the availability of alternative fora, especially a forum in the country in which the alleged violation actually occurred. The Court is clearly concerned about transforming the American judiciary into the arbiter of international justice.
Particularly in the case at hand, the consideration of alternative fora seems essential. Regardless of how atrocious the alleged human rights violations are, the U.S. district courts are not subsidiaries of the International Criminal Court or the International Court of Justice. Although it is true that the oil companies do business in the United States, the allegations do not arise out of that business. Further, on a very basic level, it seems extreme to expect a Dutch company to know that it is liable in the United States and subject to U.S. interpretation of the law of nations for allegedly tortious acts committed in Nigeria against Nigerian nationals who had no connection with the U.S. at the time of the alleged human rights violations.
Royal Dutch Petroleum, the named defendant in this case, is headquartered in the Netherlands and has its registered office in London. Under Dutch law, both individuals and corporations may be criminally liable for human rights violations committed abroad. Given the defendant corporation’s intimate connection to the Netherlands (including a Royal charter granted in 1890 by King William III of the Netherlands), it can hardly claim ignorance of Dutch laws on criminal liability. The company may have committed a procedural faux pas by presenting the plaintiff’s inability to sue them as an affirmative defense, rather than as a motion to dismiss, but the Court must consider what precedent upholding liability would establish. Granted, the identification of the Dutch courts as the appropriate forum for suit might subject the Nigerian plaintiffs to significant hardship. Nevertheless, barring some legislation codifying American courts’ ability to hear claims by foreigners against foreigners for foreign conduct, the judiciary should not become the arbiter of international justice where alternative willing and suitable fora are available.
Joline Doedens is a first-year law student. Her column runs every other Monday. You can follow Joline on Twitter @jydoedens.