The US Supreme Court sets a precedent limiting the 'universal' jurisdiction of the Alien Torts Act.

Thursday’s Kiobel v Royal Dutch Shell ruling by the US Supreme Court provides much-needed clarification about the scope of an obscure US law utilised by a growing number of claimants from emerging economies.

The Kiobel case alleged that Shell was complicit in human rights abuses committed in Nigeria in the late 1990s, when activists protesting against the oil industry were hanged by the government. The case was unusual in seeking redress in US courts for a case involving a non-US company and non-US claimants for a crime committed in a non-US jurisdiction. How is this possible?

The Nigerian claimants referenced the Alien Tort Claims Act of 1789, which determined that if any human rights infringement occurs anywhere in the world, US courts can deal with it. Jonathan Verschuuren, environmental law expert at the Netherlands’ Tilburg University, said that the act “dates back to the start of the US, when they thought that US courts should do justice to the world. It was a very aspirational idea.”

Use of the ATC Act has been growing since the 1970s, especially from claimants in emerging countries. From apartheid-related cases against Daimler, Ford and General Motors to human rights cases against Exxon and Rio Tinto, claimants have invoked the law more than 150 times in the past 20 years. Judges are now scrutinising the Act, perhaps a fearing a wave of claims that might turn the US into a public court for the world’s grievances.

The Kiobel case seems to have put paid to that, limiting the scope of ATC. Judges agreed that Shell could not be tried. Chief Justice Roberts wrote that “all relevant conduct took place outside the United States”.

Other judges have also said that ATC applies to conduct only within the US.

While corporate lawyers see the ruling as setting a vital precedent, it may not deal a terminal blow to claimants seeking use of ATC. Du v.

Cisco, filed in 2011, is pending in the US district of Maryland. It was brought by Chinese citizens claiming Cisco technologies - including those enabling access to private internet communications and identification of anonymous bloggers - helped the Chinese Communist Party to commit torture and unlawful detention through its technologies.

Unlike the Kiobel case, Cisco is a US corporation which may allow the ATC Act to enable a case to be heard.

Another case, against Cincinnati-based Chiquita - who are accused of financing paramilitary death squads in Colombia, - might also go forward.

And non-US companies can be forced to answer a case if they have a considerable presence in the US, as is shown by Sarei v Rio Tinto.

Claimants said the Papua New Guinean government used Rio Tinto helicopters and vehicles to kill protestors in a 1988 revolt. The California district court noted that while the case concerned allegations in a non-US jurisdiction, Rio Tinto had a considerable US presence - with 47 per cent of operating assets in North America - giving the court jurisdiction.

However, only certain types of crimes categorised as ‘violations of the laws of nations’ fell within federal jurisdiction for that case: specifically, genocide and war crimes .

Other crimes, such as sexual violence of the kind alleged in one Exxon case in Indonesia were rejected by one court as being outside the remit of the ATC Act.