Sosa, Kiobel and Pirates Inc.: Defining the ‘Modern’ Parameters of the Archaic Alien Tort Statute

Abstract

This article reviews and analyses the recent United States Supreme Court case of Kiobel v. Royal Dutch Petroleum Co. and its impact on over thirty years of jurisprudential development surrounding the role of United States (‘US’) federal courts in providing redress to victims of human rights violations occurring outside the US More specifically, this article recounts the case law setting forth the modern use of the over two hundred year old Alien Torts Statute (‘ATS’) as a means of expanding on developments in the field of international human rights. This modern interpretation argues that the jurisdiction of US federal courts, as set out in the ATS, can be broadly defined to include cases for tort claims arising in the context of violations of human rights where both the perpetrators and the acts concerned were outside the US. This article then discusses how the US Supreme Court in the Kiobel decision not only closes off the use of the ATS in this context but so severely limits the jurisdiction provided under the ATS to its historical background as to make the jurisdiction provided thereunder almost meaningless under modern international law. This article also questions why the US Supreme Court went to extreme lengths to avoid addressing the original question raised in granting certiorari, namely, that of corporate liability under international law, and attempts to lay out the Court’s possible rationales for doing so. The article then concludes with a discussion of potential ways forward in light of the Court’s Kiobel decision.