[Updated] United States Supreme Court Take Up Case with Potentially Far-reaching Implications for International Law

UPDATE:
 
Earlier this week the United States Supreme Court made the surprising move of pushing back a judgment in Kiobel v. Royal Dutch Petroleum until its 2012-2013 term beginning in October. A decision was originally expected before June. In its order of 5 March,  the Court instructed the parties to file supplement briefs addressing and reargue “[w]hether and under what circumstances the Alien Tort Statute, 28 U.S.C §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” Originally, the Court had set for itself the parameters of a clarification of corporate liability in customary international law. This expansion into ATS extraterritoriality, or human rights violations that occur outside the US, apparently results from the dissatisfaction of the Justices regarding the 28February oral proceedings (explored below) as well as their deliberations of granting cert. in the case of Rio Tinto v. Sarei, a case that hinged on extraterritorial acts in Papua New Guinea.
 
Lyle Dennison, a reporter for SCOTUSblog, has commented:
 
It would have been legally possible for the Justices to have gone ahead, this Term, and decided whether corporations could be sued under the ATS for alleged roles in atrocities or other human rights abuses in foreign lands.  A decision against corporate liability would have made it unnecessary to decide the extraterritoriality issue.  But that would have left open whether others could be sued for such foreign wrongdoing under the ATS, and that is a broader question.  The Court has now promised to consider answering that question.
 
Further analysis on this development has been posted on Lawfareand multiple postings of Opinio Juris.
 

Among the interests of MultiRights are the relationships between domestic, regional, and international courts as well as the incorporation of international law into domestic law. The US Supreme Court ruling in Kiobel will be a significant barometer reading on the current evolution of these issues of international law.

 
 

This post has been written by Mitchell Robinson, PhD.

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