A week from today, on October 1, the U.S. Supreme Court will hear a second round of arguments in Kiobel v. Royal Dutch Petroleum, a case concerning Shell Oil’s alleged complicity in the torture and killing of environmentalists in Nigeria.
The Center for Justice and Accountability, the San Francisco-based nongovernmental organization for which I serve as Executive Director, has filed two amicus briefs on behalf of the petitioners:
► A brief on extraterritoriality; and
► A brief on corporate liability.
We've also put together a number of resources on the case, including an overview, a complete docket of all the briefs, and summaries of key amicus briefs.(IntLawGrrls' prior posts on this case are available here.) In today's post, I first recall the path by which Kiobel became a case about extraterritoriality, and then discuss how an adverse ruling on that question could foreclose valuable assistance to survivors of human rights abuses. In a post later this week, I'll preview the oral arguments set for October 1 and recap highlights from the scores of briefs that have been filed.
Kiobel as a corporate liability case
As many IntLawGrrls readers will recall, the initial question, in what we're now calling Kiobel I, was whether corporations could be sued under the Alien Tort Statute for violations of international law. (On the ATS' anniversary today, see the post below.) In the U.S. Court of Appeals for the Second Circuit, a divided panel had held in 2010 that the ATS did not permit tort actions against corporations for human rights abuses. In so doing, it invoked a novel theory that international law binds only states and individuals, not legal entities.
But on February 28 of this year, Supreme Court oral argument in Kiobel I turned to a broader question: whether victims of foreign atrocities can continue to bring ATS actions against perpetrators or accomplices present in the United States.
A week later, the Court ordered reargument on the extraterritorial reach of the ATS.
Extraterritoriality in Kiobel I
Extraterritoriality was the road not taken when the Supreme Court last visited the ATS. In Sosa v. Alvarez-Machain (2004), the question was whether the ATS was a “stillborn” jurisdictional statute, and if not, which violations were actionable. The Court held that the ATS allowed the adjudication of a narrow set of common law tort actions, derived from international law norms defined by their specificity and universal recognition. In Sosa the Supreme Court endorsed Filártiga v. Peña-Irala (1980), the landmark decision in which the Second Circuit had recognized that torture in Paraguay was actionable in federal court under the ATS.
Like Kiobel, Sosa was extraterritorial – Álvarez-Machaín was a Mexican national, kidnapped in Mexico by a former Mexican official. The Sosa Court refused to adopt a categorical bar on extraterritorial ATS suits, a bar that had been proposed in the brief of the Bush Administration. Instead, the judgment in Sosa limited the ATS’s scope to universal human rights norms – norms that were already binding in the territory of foreign states. Sosa’s framework was designed to address comity concerns in ATS litigation, and would make little sense if the ATS were limited to U.S. territory.
The issue had been argued in the alternative in the merits brief for Shell (on which former Stanford Law Dean Kathleen Sullivan (right) is counsel of record). Extraterritoriality took center stage in the amicus brief for Chevron et al., by Harvard Law Professor Jack Goldsmith, and in the amicus brief for BP et al., by and John B. Bellinger III and Paul Clement, respectively, the former State Department Legal Adviser and the former U.S. Solicitor General.
These briefs make three basic claims:
► First, that the presumption against extraterritoriality requires construing the ATS to apply only to actions arising in U.S. territory or perhaps on the high seas.
► Second, that international law does not allow courts in one country to exercise universal civil jurisdiction over offenses committed by a foreign sovereign against its own nationals, in its own territory.
► Finally, that giving the ATS extraterritorial reach causes diplomatic friction.
Those claims caught the Court’s attention.
Seconds into the oral argument of Paul Hoffman on behalf of the petitioners, Justice Anthony M. Kennedy asked whether any other country in the world
'permits its courts to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.'Noting that the case involved foreign parties and foreign conduct, Justice Samuel A. Alito, Jr. added:
'What business does a case like that have in the courts of the United States?'Chief Justice John G. Roberts, Jr. asked the corollary:
'If there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn’t it a legitimate concern that the suit itself contravenes international law?'Ruth Bader Ginsburg (left) noted:
'That sounds very much like Filártiga. And I thought that – Sosa accepted that Filártiga would be a viable action under the Tort Claims Act. So, I thought what we were talking about today . . . was, is it only individual defendants or are corporate defendants also liable?'Justice Kennedy also recognized that a bar on extraterritoriality would undermine Filártiga. Instead, he asked whether the jurisdictional contacts of individual defendants were distinguishable from those of multinational corporations:
'But I agree that we can assume that Filártiga is a binding and important precedent, it’s the Second Circuit. But in that case, the only place they could sue was in the United States. He was an individual. He was walking down the streets of New York, and the victim saw him walking down the streets of New York and brought the suit. In this case, the corporations have residences and presence in many other countries where they have much more – many more contacts than here.'Since the question of extraterritoriality had not been fully briefed, the Court called for reargument and put the case over for the fall term.
What’s at Stake in Kiobel II
CJA has represented survivors from around the world in ATS cases against perpetrators who committed heinous crimes overseas. These cases show the ATS at its best – harnessing the power of the rule of law to give victims what they were denied in their home countries: a chance to seek truth, a measure of justice, and accountability for their tormentors. The ATS has been central to a global struggle to deny safe haven to human rights abusers. As Argentina’s amicus brief notes, ATS suits gave
'international assistance for victims during the darkest days of Argentina’s dictatorship and during its transition to democracy.'Those days of international assistance could be drawing to a close. If the Supreme Court accepts Shell’s arguments, federal law will no longer recognize a civil remedy for foreign abuses like genocide, crimes against humanity, war crimes, or slavery. Already, the Supreme Court’s April 2012 ruling in Mohamad v. Palestinian Authority shielded corporations, governments, and other legal entities from liability under the Torture Victim Protection Act.
For many survivors, the ATS offers the only avenue to seek redress and hear a court of law condemn a crime under its true name: genocide or crimes against humanity. Unable to find justice at home, these survivors have looked to the U.S. courts as a last resort. After Kiobel, will they have to look elsewhere?