In search of limits for the Alien Tort Statute

Supreme Court Grand Chamber

In the reargument of Kiobel this week, the justices of the U.S. Supreme Court seemed to be searching for a way to limit the scope of the Alien Tort Statute.
As detailed in previous IntLawGrrls posts, Kiobel v. Royal Dutch Shell involves claims that Shell aided and abetted the Nigerian government’s commission of crimes against humanity in connection with suppressing opposition to Shell’s oil extraction operations. The plaintiffs, who received asylum in the United States and currently reside here, filed the lawsuit in federal court in New York.
The U.S. Court of Appeals for the Second Circuit held on appeal that the suit should be dismissed because a corporation (as opposed to a natural person) could not be sued under the ATS. The Supreme Court originally granted certiorari on the question of corporate liability. Shortly after the oral argument on that question in February of this year, the Court set the case down for reargument this fall, with the addition of a question on the broader question of whether the ATS applied to conduct outside the territory of the United States.
Many thought that the answer to that question was implicit in the Court’s decision in 2004 in Sosa v. Alvarez-Machain, in which the Court seemingly endorsed the line of cases that began in the 1980s with the Second Circuit’s decision in Filártiga v. Peña-Irala. Filártiga had allowed an ATS suit to go forward, against a former Paraguayan police officer living in the United States, for the torture and murder of the plaintiffs’ relative in Paraguay. The relevant portions of Sosa were joined by a 6-to-3 majority of the Court (including Justice Anthony M. Kennedy, a crucial swing vote).

Justice Kagan

The issue of the presumption against extraterritorial application of statutes was explicitly argued in the Sosa case, including in the brief of the U.S. government. Nevertheless, the Court in Sosa did not adopt that line of reasoning.
To the contrary, as Justice Elena Kagan noted in her questions during the argument this past Monday, the opinion in Sosa quotes from the Filártiga court’s declaration that

'for purposes of civil liability, the torturer has become like the pirate and slave trader before him ... an enemy of all mankind.'

Echoing this line of reasoning, Justice Stephen G. Breyer asked in this week’s argument,

Justice Breyer

'[T]he question to me is who are today's pirates. And if Hitler isn't a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today's pirate, who is?'

Some observers speculated that the Court was eager to find another ground for decision, feeling that this suit seemed a bridge too far in its attenuated connection to the United States (while the plaintiffs are resident here, the defendants are U.K. and Dutch corporations, and the conduct occurred in Nigeria), yet also feeling was reluctant to rule for Shell on the corporate liability question. That presumed reluctance would be due to the unspoken shadow of the Court's decision in Citizens United v. FEC (2010). Here's the question that ruling suggested in the context of Kiobel:

If corporations are “persons” who have First Amendment rights to spend money on political campaigns, how can it be that they are not “persons” who can be sued for committing torture and genocide?

While the issues are legally distinguishable, they might not be so received by the general public. (In fact, the cab driver who drove me away from the Court on the day of the first Kiobel argument – which I attended as co-counsel in a companion case that has since been dismissed, Mohamad v. Palestinian Authority – brought up the Citizens United analogy when he learned what the question presented in Kiobel was.)
Other, less cynical observers noted that the extraterritoriality issue had been aggressively briefed by some of the amici, and that several newer members of the Court might be eager to revisit the basic holding of Sosa.
During this week's reargument (full transcript available here):
► Shell’s lawyer, Kathleen Sullivan, argued for a categorical rule against any extraterritorial application of the ATS – a rule that would exclude Filártiga and other cases like it.
► Paul Hoffman, for the plaintiffs, argued against such a categorical rule, but emphasized the other ways – not currently before the Court – in which ATS actions could be limited, including doctrines such as personal jurisdiction, forum non conveniens, political question, and exhaustion.
► Solicitor General Donald Verrilli, arguing for the U.S. government, offered a confusing compromise solution. The government’s position seemed to boil down to an argument that Filártiga itself should remain good law, because we don’t want the United States to become a safe haven for individual torturers. But the Kiobel suit should not be allowed, this argument continued, because it involved (1) a foreign corporation (2) aiding and abetting (3) a foreign government (4) in the latter's territory. It was not at all clear which of these conditions would be either necessary or sufficient to the outcome.
The government refused to say how any other case – including past cases such as the Marcos case – should come out. This seemed to frustrate some on the bench.
Still other justices seemed frustrated by the government’s inconsistent positions on ATS suits.

Justice Scalia

The government had filed in favor of the Kiobel plaintiffs on the corporate liability issue, and had previously taken a more categorical position against extraterritoriality in Sosa. Justice Antonin Scalia went so far as to ask why the government should receive any deference at all in its articulation of the nation’s foreign policy interests. (From a separation of powers perspective, Scalia’s approach was somewhat shocking; isn’t the fact that the executive branch is elected and may change its position in light of elections precisely why the unelected judiciary is supposed to be deferential to it in matters of statutory interpretation, particularly on matters such as foreign policy where the executive has comparatively greater expertise?)
► Shell’s lawyer, Sullivan, suggested that applying a blanket rule against extraterritorial application of the ATS would be a “democracy-forcing device” to send the issue back to Congress. But Sullivan’s argument gets basic principles of statutory interpretation exactly backwards.
The principle of stare decisis applies particularly strongly in cases of statutory interpretation precisely because the legislature can change statutes that it believes the Court has wrongly interpreted. Eight years have passed since the Court interpreted the ATS to allow suits based on extraterritorial conduct in Sosa, and there is no shortage of corporate lobbyists who have pressed their woo on Congress since then. And yet Congress has left the ATS intact, apparently agreeing with the U.S. government’s current position that providing accountability for human rights abusers is consistent with U.S. foreign policy interests.
► As Hoffman noted, there are a million ways that ATS plaintiffs can and do lose, even when they have suffered grievous wrongs.
In this case, the defendants apparently failed timely to raise and pursue issues such as personal jurisdiction, forum non conveniens, political question doctrine, and exhaustion, choosing to emphasize other arguments instead. (Actually, Shell also failed to raise both the corporate liability and the extraterritoriality questions in a timely fashion – both were brought up for the first time on appeal.) Shell can clearly afford a good lawyer when it wants one, and its poor lawyering in the district court should not be rewarded with a massive and unjustified victory on appeal.

Joint session of Congress

Reasonable judicial modesty suggests that Sosa should not be overturned. If the members of Congress want to change the law to protect corporations who do business here while aiding and abetting torture in foreign lands, let’s at least make them vote for that on the record.
Isn’t that how democracy works?

Kiobel: A Preview of the Arguments

(Part 2 of a 2-part series; Part 1 is here)

This Monday, October 1, the U.S. Supreme Court will hear reargument in Kiobel v. Royal Dutch Petroleum, on the extraterritorial reach of the Alien Tort Statute. (Prior ATS posts)
Based on the merits and amicus briefs, four issues will likely consume the oral argument; specifically, the:
►  Impact of the Court's 2004 judgement in Sosa v. Alvarez Machain;
►  Presumption against extraterritoriality;
►  Status of universal civil jurisdiction under international law; and
►  Adequacy of existing abstention doctrines.

The Case for Shell
In its supplemental brief, Shell seeks a categorical bar on extraterritorial ATS litigation, one that would foreclose not only actions against corporate defendants, but also actions against individual human rights abusers.
Shell’s case rests on a core assertion that extraterritorial ATS litigation violates foreign sovereignty and international law. The argument relies on two canons of statutory construction:
► First, invoking the presumption against extraterritoriality, Shell argues that courts must not recognize ATS actions for foreign human rights abuses because the ATS does not explicitly say that it applies extraterritorially. Citing to the Court's decision in Morrison v. Australia National Bank (2010) (prior post), Shell contends that this presumption limits a court’s power to recognize a federal common law cause of action, even if the substantive norms derive from international law.
► Second, invoking the Charming Betsy canon – that an ambiguous statute should be construed not to violate international law – Shell argues that the ATS violates international law because it lacks a basis for prescriptive jurisdiction.
Notably, Shell contends that the ATS is not a valid exercise of universal jurisdiction, for the reason that states have only consented to universal criminal jurisdiction, not universal civil jurisdiction. In Shell’s view, universal civil jurisdiction is a greater invasion of sovereignty, since private litigation is not checked by prosecutorial discretion. Harvard Law Professor Jack Goldsmith’s amicus brief for Chevron forcefully argues this point:

'Under international law, a nation’s sovereignty over activities within its territory is presumptively absolute, subject to exceptions by national consent. Nations […] have not, however, consented to allow a foreign court to entertain civil causes of action on the basis of universal jurisdiction, as is done in ATS cases.'

The Case for the Kiobel Plaintiffs
In their supplemental brief, the Kiobel plaintiffs argue that Sosa already answered the question of extraterritoriality. Sosa presumed that the ATS applies to abuses overseas: it embraced Filártiga v. Peña-Irala (2d Cir. 1980), and crafted a framework to address concerns of international comity. Shell’s categorical bar nullifies this framework.
Moreover, plaintiffs argue, the presumption against extraterritoriality does not apply to jurisdictional statutes such as the ATS. Even if it did, the statute’s text and history overcome the presumption. As the legal historians brief shows, when Congress enacted the ATS, it clearly intended the law to enforce international norms like piracy, which extended beyond U.S. borders. Indeed, Attorney General Bradford’s 1795 opinion – applying the ATS to actions in Sierra Leone – confirms that the framers understood the ATS to have extraterritorial effect.
The plaintiffs also argue that the ATS’s global reach is fully consistent with international law, as follows:
► First, the ATS exercises “adjudicative jurisdiction” rather than “prescriptive jurisdiction” – the ATS does not legislate regulations and project them overseas; it simply provides a forum to adjudicate international law claims.
► Further, under the S.S. Lotus Case (Permanent Court of Justice 1927) (prior posts), one state’s exercise of jurisdiction is presumed valid, unless it violates a specific prohibitory rule. Shell fails to prove that international law prohibits providing a civil remedy for foreign human rights abuses. To the contrary, international law authorizes universal jurisdiction and obligates states to provide effective remedy.
► Moreover, as Justice Stephen G. Breyer noted in his Sosa concurrence, universal criminal jurisdiction necessarily contemplates universal civil jurisdiction, since many countries allow civil remedies alongside criminal prosecution.
As demonstrated in a brief by the Yale Law School Center for Global Legal Challenges, on which Yale Law Professor Oona A. Hathaway (right) is counsel of record, many civil law countries permit plaintiffs to initiate universal jurisdiction proceedings, much like the ATS. (A few weeks ago, a post by IntLawGrrl Vivian Grosswald Curran outlined the amicus brief she authored, which puts forward further comparative law arguments.)
The brief of U.N. High Commissioner Navi Pillay, for which Santa Clara Law Professor David Sloss is counsel of record, further elucidates:

Navi Pillay

'Retributive and compensatory justice go hand in hand. If international law allowed States to exercise universal criminal jurisdiction over gross violations, while prohibiting them from offering victims compensation for the same violations, this would cut off the second leg of the principle of effective remedy, which universal jurisdiction is meant to protect.'

The U.S. Government Walks the Line
Though it argued for the plaintiffs in Kiobel I, the U.S. government filed an amicus brief on behalf of neither party in Kiobel II.

Path from Kiobel I to Kiobel II: What’s at stake in reargument on Alien Tort Statute & extraterritoriality

(Part 1 of a 2-part series; Part 2 is here)

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.

Kiobel reprises the question of extraterritoriality.
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.

Russian high court considers extraterritorial crime

Constitutional Court of Russia

An interesting news item from St. Petersburg:
Russia's Constitutional Court heard argument Monday on a question of extraterritoriality; specifically, as stated by this Russian Legal Information Agency report,

'the question of whether Russian courts should consider criminal cases against citizens who committed crimes against their compatriots abroad.'

From this English-language report and a Russian-language item on the court's website (thanks, Google Translate!), here's what appears to be the story.
A couple years ago, 2 Russians serving aboard a Malta-flagged tanker got into a fight while the vessel was docked in Constanta, Romania. One, Sergei Krasnoperov, was injured, and on return home to Russia, he sought to initiate a criminal case, alleging intentional infliction of physical harm.
A lower court threw the suit out, for the reason that Article 32 of the Criminal Procedure Code confers on Russia's criminal courts jurisdiction only over offenses committed on Russian soil. Article 2(2) does extend jurisdiction to ships, but only to ships that fly the Russian flag.
The Constitutional Court thus will evaluate the injured complainant's argument that Criminal Procedure Code's territorial limitations violate the rights and freedoms guaranteed in the Constitution of the Russian Federation, Articles 15 (1), (4), 45(1), 46 (1), 52. That last article, for example, provides:

'The rights of victims of crimes and of abuse of office shall be protected by law. The State shall provide access to justice for them and a compensation for sustained damage.'

The case seems worth watching.
International law recognizes several justifications for a state's exercise of extraterritorial jurisdiction; in addition to various forms of territorial jurisdiction, they include the protective principle, universal jurisdiction, and active and passive personality/nationality.  At play in this case appear to be those last justifications -- an (active) national of the state is alleged to have committed a crime against another (passive) national of the state.
That Russia recognizes just one type of jurisdiction, the most traditional of the bunch, is curious. Whether the court will find that limitation unconstitutional remains to be seen.

On September 16

On this day in ...

... 1982 (30 years ago today), the BBC published reports that in the midst of civil war in Lebanon, over a thousand Palestinian refugees had been "been killed during a 24-hour rampage by Lebanese militia in West Beirut" (map credit), at the Sabra and Shatila refugee camps. Links between that Christian Phalangist militia and the Israeli government prompted a judicial inquiry in Israel; the inquiry's report led to the 1983 resignation of Ariel Sharon, then Minister of Defense (though he'd be elected Prime Minister in 2001, and would serve till a 2006 stroke, which incapacitates him to this day). Efforts by survivors to sue extraterritorially on allegations of crimes against humanity failed, as detailed by IntLawGrrls contributor Deena Hurwitz in her "Universal Jurisdiction and the Dilemmas of International Criminal Justice: The Sabra and Shatila Case in Belgium," published as a chapter in Human Rights Advocacy Stories (2009), which Deena edited along with colleagues Margaret L. Satterthwaite and Doug Ford.

(Prior September 16 posts are here, here, here, here, and here.)

In Kiobel brief, scholars provide comparative law perspective on Alien Tort Statute extraterritoriality

(credit)

Previous entries on this site have covered the Alien Tort Statute, as well as Kiobel v. Royal Dutch Petroleum Co., in which the U.S. Court of Appeals for the Second Circuit held that corporations do not have liability under the ATS.
After hearing oral argument on this issue in February 2012, the Supreme Court ordered further briefing on the issue of extraterritoriality. Oral argument has been set for Monday, October 1, the first day of the Court's 2012 Term.
For this new round of briefing and argument, I wrote the Brief of Amici Curiae Comparative Law Scholars and French Supreme Court Justice in Support of Petitioners on the Issue of Extraterritorial Jurisdiction, which treats the issue from a comparative law perspective.
I was honored that two other Int Law Grrls, Mireille Delmas-Marty, emerita holder of the Chair of Comparative Law and Internationalization of Law at the Collège de France de Paris, and Sorbonne Law Dean Hélène Ruiz-Fabri, allowed me to write in their names as well. Other signatories were George A. Bermann, Columbia's Walter Gellhorn Professor of Law and Jean Monnet Professor of  European Union Law; Olivier Dutheillet de Lamothe, member of France's Conseil d’État; Antoine Garapon, Secretary General of the Paris-based Institut des Hautes Etudes sur la Justice; Christian Joerges, Research Professor at the Law Faculty of Bremen University in Germany; and Amalia D. Kessler, Stanford's Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies.
The brief, available in full here, seeks to respond to a concern articulated by several justices at the February oral argument: namely, that the United States would be in violation of international law by allowing extraterritorial application to the ATS because it would be the only country to have recognized civil liability for grave human rights violations committed outside of the forum country.
The brief argues that universal criminal jurisdiction for jus cogens violations in civil-law nation-states is analogous to extraterritorial civil jurisdiction under the ATS.
Unwarranted similarities between “criminal” and “civil” law in both legal orders have been assumed erroneously, because both civil- and common-law systems have the same two classifications. They have significantly different meanings and functions in the different legal orders, however. Tort law in the United States is more similar in many ways to civilian criminal law than to civilian civil law:
► Civilian criminal law and United States civil law have comparable functions because of the roles of judges, prosecutors, and lawyers in the respective legal orders and societies, and because of the methods for victims to initiate legal actions in the criminal courts of civilian states, and in tort lawsuits in the United States.
Civilian judges specialize in either criminal or private law, with criminal-law judges in civilian States having a more didactic, public role than their private-law counterparts. Civilian prosecutors traditionally are nonpartisan, neutral figures. Criminal trials, which include those that arise under universal jurisdiction, are public, and organized around a concentrated, oral event. Tort trials in civilian states, on the other hand, often take place exclusively in writing, with no oral testimony, and giving the public no opportunity to witness them. Where victims in civilian states join criminal trials as civil parties, they benefit from the state’s resources and can be compensated financially. By contrast, in a tort suit, they would be barred from contingency fee arrangements and class action suits, so civil actions would not be an effective option for many.
► Conversely, the aspects of criminal trials in civilian states which render extraterritorial or universal criminal jurisdiction appropriate in those legal systems do exist in United States tort law: both are aired in public; both allow victims effective access to the court system; and both allow victims financial compensation.

Breaking News: Kiobel to be Re-Argued

SCOTUS blog just announced that Kiobel (see prior posts here) will be re-argued in June on the question of whether the Alien Tort Statute (ATS) allows for U.S. courts to hear cases involving violations of international law committed on foreign soil notwithstanding the statutory presumption against extraterritoriality.  This issue has been lurking in other ATS cases, but it was not squarely presented in the certiorari papers in Kiobel.    Apparently, in reviewing the cert petition in Rio Tinto v. Sarei (which arises out of abuses allegedly committed in Papua New Guinea, see our prior posts here), the Court took note of the issue, which is squarely presented in that case.  The Court has now ordered additional briefing in Kiobel on the question of:

Whether 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.  

Needless-to-say, a ruling that the ATS applies only to conduct committed on U.S. soil would largely gut litigation under that Statute.  Indeed, cases involving U.S. defendants have been dismissed on various grounds, including the political question and state secrets doctrines.  A finding that the ATS does not "apply" to extraterritorial conduct also seems inconsistent with the Court's own pronouncement in Sosa v. Alvarez-Machain (prior posts here).  This opinion indicates that the ATS does not involve the application of U.S. law extraterritorially; the Court was quite clear that the ATS creates no cause of action.  Rather, the Court ruled, the ATS allows for the application of international law in a U.S. forum as  a function of U.S. common law.  So, the ATS authorizes adjudicative jurisdiction rather than prescriptive jurisdiction. 

To be sure, the ATS is silent on its geographic reach.  By contrast, the TVPA is more express in this regard; it applies to a defendant acting "under actual or apparent authority, or color of law, of any foreign nation."

The Kiobel plaintiffs are to file their brief by May 3; defendants' response is due June 4.  

U.S. adjusts view on human rights law in wartime

In its recent submission to the Human Rights Committee, the United States has backed off a long-standing position: that international human rights law does not apply in a time of armed conflict when international humanitarian law applies.
The change occurs in the Fourth Periodic Report of the United States to the U.N. committee, which monitors states parties' compliance with the International Covenant on Civil and Political Rights.
As noted Saturday in our first post on the Fourth Report, the United States appeared in its submission to soften its stance vis-à-vis the question of whether a state’s human rights obligations apply when that state is operating extraterritorially.
With regard to applicability of human rights law in time of armed conflict, the change of U.S. views was express. In particular, the United States stated in the Fourth Report, at ¶ 506:

With respect to the application of the Covenant and the international law of armed conflict (also referred to as international humanitarian law or “IHL”), the United States has not taken the position that the Covenant does not apply “in time of war.” Indeed, a time of war does not suspend the operation of the Covenant to matters within its scope of application.

The United States stated that “typically” it is international humanitarian law that regulates the conduct of states in armed conflict situations, according to the doctrine of lex specialis. In the next breath, however, the U.S. submission stated at ¶ 507:

In this context, it is important to bear in mind that international human rights law and the law of armed conflict are in many respects complementary and mutually reinforcing. These two bodies of law contain many similar protections [such as the prohibition against torture].

Later, the submission noted that the choice of law question is fact-specific:

Determining the international law rule that applies to a particular action taken by a government in the context of an armed conflict is a fact-specific determination, which cannot be easily generalized, and raises especially complex issues in the context of non-international armed conflicts occurring within a State’s own territory.

These passages suggest both a more relaxed understanding of the relationship between these two bodies of law and an imperative to harmonize legal obligations when there is no direct contradiction between them.
In addition, this language suggests that it is the United States' view that there may be aspects of a state's conduct that are, in fact, governed by human rights law, even in a state of armed conflict.

U.S. ICCPR report coy on extraterritoriality

Over the holidays, the United States released its Fourth Periodic Report to the Human Rights Committee, which is charged with monitoring the 1966 International Covenant on Civil and Political Rights, to which the United States became a party in 1992. (Prior filings from the United States are available here.)
Needless-to-say, there is lots of interest in this 693-paragraph report. This and a subsequent post will focus the United States' vision of the applicability of human rights norms:
► Extraterritorially; and
► In time of armed conflict.
The first question, dealt with in this post, is the extraterritorial application of the ICCPR, and presumably other human rights obligations governed by similar scope-of-application language. (As an example, see IntLawGrrl Diane Marie Amann's 2006 ASIL Insight on the U.S. claim to this effect made before the Committee Against Torture.)
The interpretive question turns on the meaning of the second “and” in ICCPR Article 2(1), italicized below:

Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant,without distinction of any kind…

The United States has historically interpreted this provision to mean that the U.S. owes duties only to those individuals who are both within its territory and its jurisdiction. Thus, in its 2005 Periodic Report (which actually encompassed both the Second and Third Reports, as we were in arrears), the United States insisted at ¶ 130:

[T]he obligations assumed by a State Party to the International Covenant on Civil and Political Rights apply only within the territory of the State Party.

This position stayed consistent through at least 2007.
A more expansive interpretation yields the conclusion that the Convention applies to two classes:
► Persons within U.S. territory; and
► Persons within U.S. jurisdiction.
The latter would include,at a minimum, individuals within the effective but extraterritorial control of the United States. A difficulty of this position is envisioning examples of persons who would be within a state's territory, but not its jurisdiction. One option would include individuals on a portion of the territory of the state that is controlled by a rebel or insurrectionist party in a non-international armed conflict.
In ¶ 505 of its Fourth Report, the United States coyly acknowledges its prior position on this point, but also takes notice of three important legal sources setting forth the contrary view. The paragraph states in full:

Issues in prosecuting piracy

(Delighted to welcome back alumna Milena Sterio, author of a forthcoming article on maritime piracy, who contributes this guest post)

After last week in the Seychelles, where, as posted, I attended meetings with the Seychelles’ Attorney General and Supreme Court judges, I am back in the United States. I would like to take this opportunity to reflect on some of the legal issues related to Somali piracy and prosecutions in the national courts of the Seychelles.

Jurisdiction
For any nation interested in prosecuting Somali pirates, the threshold issue is jurisdiction. In other words, if a country wants to prosecute pirates, it must amend and expand its jurisdictional statute to allow for such prosecution on the broadest possible basis.
The Seychelles (flag above) has thus revised its national law to allow for the prosecution of pirates captured on the high seas. This type of universal jurisdiction allows countries like the Seychelles to prosecute acts of piracy to which they have no nexus. (Such issues also have been discussed in prior IntLawGrrls posts, available here.)
Many countries, including the Seychelles before the recent revision, have jurisdictional statutes that allow for pirate prosecutions only if the act of piracy is committed in that country’s territorial sea, extending 12 nautical miles from the country’s shore. Thus, acts of piracy committed outside of such countries’ territorial sea cannot be prosecuted in those countries’ national courts because of a basic jurisdictional shortcoming.
Mauritius, another island nation in the Indian Ocean and another potential partner in the global fight against Somali piracy, has also started to consider expanding its jurisdictional statute to allow for national prosecutions of Somali pirates. It is unclear, however, how Mauritius will revise its statute. Some reports indicate that Mauritius’ law will only allow for prosecutions of piracy acts committed in the Mauritius exclusive economic zone, a stretch of sea extending 200 nautical miles from the country’s shore. This kind of a revision would seriously limit Mauritius’ ability to prosecute Somali pirates, as acts committed on the high seas would be excluded from Mauritius’ jurisdictional reach.
In the Seychelles, it appears that jurisdiction will not pose problems, in light of the new universal jurisdiction statute that this country passed.
One issue that remains unclear is whether the Seychelles’ government will demonstrate an ongoing political willingness to support piracy prosecutions on a true universal jurisdiction model. In fact, despite the mentioned universal jurisdiction statute, the Seychelles’ authorities may prove unwilling for policy reasons to extend their courts to prosecutions of Somali pirates who have not threatened the Seychelles’ national interests in any way.
Another possible mode of jurisdiction that countries like the Seychelles may adopt in the future is the protective principle – a type of jurisdiction that allows for prosecutions of acts which threaten the national interests of the prosecuting country. While traditionally this mode of jurisdiction has been used to prosecute offenses such as treason, immigration violations, and the counterfeiting of national flags, currency, and emblems, it is possible that acts of piracy could be conceived of as violating the national interests of certain countries and thus prosecuted under this model of jurisdiction.
The advantage of using the protective principle may be in the fact that it could allow for the prosecution of acts committed in preparation of piracy – acts that do not qualify as piracy itself.
Acts that do not constitute piracy, yet nonetheless may constitute presumptive offenses, include sailing on a skiff with a boarding ladder and weapons. For this type of preparatory act, universal jurisdiction is of no help, because universal jurisdiction statutes only cover true acts of piracy and do not extend to planning and preparatory offenses. Protective principle jurisdiction, on the other hand, could be used to cover these kinds of crimes; a country like the Seychelles may successfully make the argument that the planning of a piratical act could threaten its national interests, for the reason that the act of piracy, even if committed on the high seas, could be harmful if it can be shown that pirates were about to target the country's vessels or nationals or enter its exclusive economic zone.
Using a combination of universal jurisdiction to cover true acts of piracy, with the protective principle to cover preparatory offenses, would enable countries like the Seychelles to prosecute the maximum number of piracy-related violations occurring on the high seas.

Cooperation agreements
The next issue related to the prosecution of pirates for a country like the Seychelles is the ability to prosecute Somali pirates who are detained by the naval authorities of another country. Here, the Kenya model of transfer agreements or memorandums of understanding, which I discussed in my last post, proves useful.
The Seychelles, like Kenya (flag at right), has thus concluded transfer agreements with the European Union and the United Kingdom, pursuant to which Seychelles has accepted to prosecute Somali pirates detained by the EU or UK forces on the high seas.
The Seychelles’ Attorney General informed our delegation last week that eleven successful piracy trials had already taken place in the Seychelles’ courts; in all these cases the pirates had been detained by the European Union/British forces and transferred to the Seychelles.
The pirates have been prosecuted for the offense of piracy existing under the Seychelles’ domestic criminal law.
Moreover, pirates have been prosecuted under the theory of “common intention,” a mode of joint criminal liability which allows for combined prosecutions of all pirates involved in a single piracy incident. This has enabled the Attorney General to prosecute pirates in groups of ten or eleven, as well as to charge all those involved in a piracy incident with the same offenses, irrespective of their role in the incident itself. Thus, the prosecutors in these cases did not have to prove what exact role each pirate played in the piracy incident. Rather, each pirate was charged with the act of piracy itself, and each pirate would potentially be imposed the same criminal sentence. According to the Attorney General, convicted pirates have received sentences ranging from five to twelve years of imprisonment, and several other pirates are currently detained and awaiting trial.

Conditions of confinement
The next issue that countries like the Seychelles face is prison capacity and the adequacy of detainment conditions.
The Seychelles and Kenya both have benefited from financial assistance, from major maritime nations as well as the United Nations. Thus, in the Seychelles a new prison wing has been built; this wing is “reserved” for the detention of Somali pirates and arguably coincides with international detention standards.
This in turn will preempt non-refoulement, the human rights principle that prevents states parties to major human rights treaties from transferring pirates to any place where pirates would be likely mistreated. In fact, the Seychelles has clearly demonstrated that its prosecutions are fair and neutral, and that pirates are detained pre- and post-trial in humane conditions. Capturing nations should not face non-refoulement type issues when deciding whether to transfer detained Somali pirates to the Seychelles’ authorities.

After detention
Finally, countries like the Seychelles may be faced with post-detention issues – in other words, once Somali pirates have finished serving their sentences, they may choose to apply for political asylum in the Seychelles. While nobody should be blamed for wanting to live in this tropical haven, it is reasonable for the Seychelles’ authorities to question the need to extend their country’s protection to individuals who have committed heinous offenses such as piracy. It is one thing to detain Somali pirates for a set number of years, it is quite another to offer them political asylum and the possibility to freely live in the Seychelles forever. I would be loath to discourage countries like the Seychelles from prosecuting Somali pirates, but post-detention issues remain a complex issue that the Seychelles’ authorities may have to ponder in the near future.

I look forward to blogging about Somali piracy in the future, and hope that other countries, like Mauritius (flag at left), will follow in the footsteps of the Seychelles and seriously consider opening their courthouse doors to piracy prosecutions.

Sarei v. Rio Tinto: CA9 tackles the Alien Tort Statute (again)

(Delighted to welcome back alumna Chimène Keitner, who contributes this guest post)

In the wake of U.S. Supreme Court’s cert grant in Kiobel v. Royal Dutch Petroleum, the U.S. Court of Appeals for the Ninth Circuit has issued its second en banc opinion in Sarei v. Rio Tinto, which it had earlier tried to avoid by referring the case to mediation.
No wonder: yesterday’s opinion, which addressed multiple issues raised by the parties and at least one issue that the parties did not raise, reads like a virtual catalog of contested questions surrounding the interpretation and application of this 1789 provision from the First Judiciary Act.
All this in the context of a lawsuit originally filed in the year 2000 against the Rio Tinto mining company for its alleged role in genocide, war crimes, crimes against humanity, and racial discrimination against residents of Papua New Guinea's island of Bougainville.
I previously blogged at IntLawGrrls about an “emerging circuit split” in corporate ATS cases. This split is now manifest, which no doubt accounts at least in part for the Supreme Court’s decision to tackle the threshold question of corporate liability under the ATS in Kiobel (and the distinct question of whether liability under the Torture Victim Protection Act is limited to natural persons, presented by Mohamad v. Rajoub).
The Ninth Circuit’s opinion is much more wide-ranging:
► On the question of whether corporations can ever be held liable under the ATS, seven out of eleven judges sided with Judge Pierre Leval’s concurrence in Kiobel, which answered this question in the affirmative (slip op. at 19339-41). The Ninth Circuit therefore joins the District of Columbia Circuit in Doe v. ExxonMobil, the Seventh Circuit in Flomo v. Firestone, and the Eleventh Circuit in Romero v. Drummond, in holding that corporations may be found liable under the ATS in appropriate circumstances.
Although these circuit courts have reached the same result through different reasoning, I have argued here, and more recently here, that “the attribution of individual conduct to a corporate entity for the purpose of ascribing legal liability” under the ATS is properly governed by domestic law, meaning that it is somewhat beside the point in this context to ask whether “corporations” as such can or cannot violate international law.
►As Pepperdine Law Professor Trey Childress has indicated, the same Ninth Circuit majority also held in Sarei that the adjudication of transitory torts under the Alien Tort Statute does not violate a statutory presumption against extraterritoriality (slip op. at 19334-39) (or, I might add, international law constraints on the extraterritorial application of U.S. law, since the conduct-regulating norms being applied under the ATS come from international law).
► In addition, in response to an argument raised by the dissent, the majority found that claims relating to violations of international norms that meet the test of universal acceptance set forth in Sosa v. Alvarez-Machain “arise under” federal law for Article III purposes (slip op. at 19342-51).
► Finally, although the majority left open the question of whether knowingly as opposed to purposefully aiding and abetting an international law violation would give rise to liability under the ATS (slip op. at 19373), it held that at least purposeful aiding and abetting is actionable. Judges Harry Pregerson and Johnnie B. Rawlinson wrote separately in support of a knowledge standard (slip op. at 19384-89) and are (in my view) correct in pointing out that, even if one adopts the Rome Statute for the International Criminal Court as a guide to aiding and abetting liability under international law (which is questionable), the Rome Statute does not support a higher purpose standard in the context of aiding and abetting crimes committed by groups.
All in all, it promises to be an eventful Supreme Court term for those interested in international law in U.S. courts.
In the meantime, upcoming events touching on these issues include:
► A panel on emerging issues in ATS litigation at the American Society of International Law midyear meeting at UCLA on November 4;
► A discussion of transnational tort liability for multinational corporations [] in which Hofstra Law Professor Julian Ku and I will comment on a paper by Chicago Law Professor Alan Sykes, at the Georgetown Law Journal’s Centennial Symposium on November 17; and
► The ASIL International Law in Domestic Courts Annual Interest Group Meeting at Brigham Young University Law School on December 16 (details to be posted online soon).

(cross-posted at Opinio Juris)

ECtHR Applies the Convention to UK Troops Acting in Iraq

This morning the Grand Chamber of the European Court of Human Rights handed down its long-awaited judgment in Al Skeini & Others v United Kingdom, and its partner case of Al Jedda v United Kingdom, concerning whether the United Kingdom had any liability under the Convention for the alleged deaths and detention of individuals in SE Iraq during its military campaign there. Although these cases raised a number of complex issues, I focus in this post on the decision relating to the extraterritorial application of the Convention.

Extraterritoriality and Article One

It is abundantly clear that the ECHR does not create obligations for states to the world at large; rather Article 1 provides

The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. (emphasis added)

Long standing case law of the Court makes it clear that Article 1 is a primarily territorial limitation. In other words, we are primarily concerned here with actions of member states within their own boundaries. However, there are exceptional circumstances in which the Convention can be applied extraterritorially under Article 1. We had traditionally thought of these as being somewhat simply divided into three categories. First, situations when individuals come under the control of an agent of the state acting abroad. Second, situations when individuals are within an area that is under the effective control of a state. Third, situations in which states might have a kind of oblique responsibility for actions done to an individual in a third state where his or her presence in that state can be attributed to a decision of the COE member state (hence the principle of non-refoulement, for example). All of these three exceptional situations remain undisturbed by Al Skeini.
The burning question here was what impact, if any, the much maligned concept of the espace juridique of the Convention would have on the case. This is the idea that, even where the Convention applies extraterritorially this is primarily limited to the geographical area of the Convention itself, i.e. as between members of the COE. The idea here is to ensure that there could not be any gap in protection of individuals within the COE. However, questions had arisen as to whether this concept—which readers might recall was especially prominent in the Bankovic case about NATO bombings in the Former Yugoslavia—precluded application of the Convention outside that space. Some, including me (here, for example), had argued repeatedly that it did not and that, in fact, the concept of espace juridique did not practically alter the extraterritorial scope of the Convention in any meaningful way. By my reading, that position is supported by Al Skeini:

141. The Convention is a constitutional instrument of European public order (see Loizidou v. Turkey (preliminary objections), cited above, § 75). It does not govern the actions of States not Parties to it, nor does it purport to be a means of requiring the Contracting States to impose Convention standards on other States (see Soering, cited above, § 86).

142. The Court has emphasised that, where the territory of one Convention State is occupied by the armed forces of another, the occupying State should in principle be held accountable under the Convention for breaches of human rights within the occupied territory, because to hold otherwise would be to deprive the population of that territory of the rights and freedoms hitherto enjoyed and would result in a “vacuum” of protection within the “Convention legal space” (see Loizidou (merits), cited above, §78; Banković, cited above, § 80). However, the importance of establishing the occupying State’s jurisdiction in such cases does not imply, a contrario, that jurisdiction under Article 1 of the Convention can never exist outside the territory covered by the Council of Europe Member States. The Court has not in its case-law applied any such restriction (see amongst other examples Öcalan, Issa, Al-Saadoon and Mufdhi, Medvedyev, all cited above).

Thus, the fact that Iraq is outside of the COE did not mean that there could never be extraterritorial application of the Convention to COE member states’ activities there. As the forces engaged in SE Iraq at the time had undertaken governmental functions, including that of ensuring security, the area and the people within it were under the effective control of those forces. Thus, the question then became one of attribution.

Multi National Forces and the Sticky Matter of Attribution

As is now common, the UK did not act unilaterally in Iraq. Rather it was acting as part of a Multi National Force (MNF) and so the question became this: were the actions complained of actions of UK soldiers qua UK soldiers (in which case the UK would have jurisdiction under Article 1) or were they actions of UK soldiers qua UN forces (in which case there would be no Article 1 jurisdiction)? In this respect the Court, quite sensibly, looked at the actual operation of the MNF in South-East Iraq (where the actions complained of occurred) and found, as a matter of fact, that the United Kingdom was the controlling partner in that MNF under the rules of engagement and the military organisation. The actions were, therefore, attributable to the UK notwithstanding the fact that it was operating as part of a multinational force. (Aside: for those interested in such things, the US Supreme Court’s finding of attribution in Munaf v Geren back in 2008 is very similar in form to this). Attribution receives more sustained attention in the partner case of Al-Jedda but the Court (as is to be expected) does not conflict with its approach to attribution in Al Skeini, looks at the operation of the situation on the ground (in that case a detention facility) and attributes to the United Kingdom. Para 84 of Al Jedda is instructive here:

It would appear from the opinion of Lord Bingham in the first set of proceedings brought by the applicant that it was common ground between the parties before the House of Lords that the test to be applied in order to establish attribution was that set out by the International Law Commission, in Article 5 of its draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant’s detention was not, therefore, attributable to the United Nations.

Therefore, because the situation in SE Iraq fell into the exceptional circumstances in which Article 1 allowed for the application of the Convention extra territorially (to both the state in question and the espace jurisdique of the COE) and because the actions done could be attributed to the UK, rather than the MNF, the Grand Chamber found jurisdiction.

Picture credit (Wikipedia); This summary is based on my earlier post on Human Rights in Ireland

On June 14

On this day in ...
... 2004, the U.S. Supreme Court delineated the extraterritorial reach of federal antitrust law, issuing its judgment in F. Hoffman-La Roche Ltd. v. Empagran S.A. Congress had enacted the 1982 Foreign Trade Antitrust Improvements Act to keep U.S. courts from interfering with foreign commerce, the Court reasoned; therefore, claims under the seminal antitrust law, the 1890 Sherman Act, were held not to be applicable to foreign price-fixing schemes that had no domestic effects. In his opinion for the Court, Justice Stephen Breyer (left) (photo credit), among the Court's most avid practitioners of transnational judicial dialogue, wrote:

'Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?'

(Prior June 14 posts are here, here, here, and here.)

Go On! AALS hot topic: "Cutting Edge of Extraterritoriality," featuring 2 IntLawGrrls

(Delighted to welcome back alumna Hannah Buxbaum, who contributes this Go On! guest post respecting the annual meeting of the Association of American Law Schools, which, as Rebecca Bratspies posted, begins today and includes many IntLawGrrls speakers)

Anyone attending the AALS and looking for an international-law related program to attend first thing Friday morning might try “The Cutting Edge of Extraterritoriality” (p. xxxi). This is one of the “Hot Topics” panels on late-breaking developments. The speakers are: yours truly, Hannah Buxbaum (Indiana) (left); another IntLawGrrls alumna, Chimène Keitner (California-Hastings) (middle); and our colleagues Anthony Colangelo (Southern Methodist) and Bill Dodge (California-Hastings).
The panel runs from 8:30 to 10:15 Friday morning in the Yosemite C Room on the ballroom level of the Hilton.
Here's the program description:
How far does (and should) U.S. law reach in regulating conduct or transactions that take place overseas?
This question of the “extraterritorial” application of U.S. law arises in a wide range of contexts, including the regulation of international economic markets, human rights litigation, jurisdiction over terrorist acts abroad, and the availability of constitutional protections in connection with the “war on terror.”
In its June 2010 opinion in Morrison v. National Australia Bank, which limited the application of antifraud provisions under U.S. securities law to transactions taking place in the United States, the Supreme Court articulated an unexpectedly expansive version of the “presumption against extraterritoriality,” a rule of statutory construction. Lower courts have already applied this revamped presumption to other statutes, such as RICO.
And, as IntLawGrrls posted here and here, the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. recently addressed another issue with far-reaching implications; that is, the respective roles of national and international law in defining the scope of corporate liability under the Alien Tort Statute for human rights violations abroad.
The panelists will use Morrison as the starting point to address shifting understandings of the geographic reach of American law and the role of national law in an increasingly global system.
Hope to see you there!

On November 1

On this day in ...

... 1887, U.S. Secretary of State Thomas F. Bayard (left) wrote a letter to the U.S. Ambassador to Mexico, regarding the case of one A.K. Cutting, an American who had been jailed in Mexico on charges that he had libelled a Mexican citizen in a paper published in Texas. (The letter's reprinted in full on pp. 751-57 here.) Bayard argued that U.S. citizens could not

be held under the rules of international law to answer in Mexico for an offense committed in the United States, simply because the object of that offense happens to be a citizen of Mexico.

Contending that "the penal laws of a country have no extraterritorial force," Bayard demanded indemnity for the jailed citizen and repeal of the Mexican law that had permitted his arrest. Mexico's contrary position in this Cutting Case (a controversy that gave rise to concerns that the United States might invade Mexico) amounted to an assertion of what is now known as the passive personality principle of extraterritorial jurisdiction.

(Prior November 1 posts are here, here, and here.)

Extraterritoriality in flux?

In a just-published ASIL Insight, our colleague Paul B. Stephan sees more than securities laws at stake in the recent U.S. Supreme Court trimming of extraterritoriality.

Stephan, both the John C. Jeffries, Jr., Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia, deftly detailed Justice Antonin Scalia's opinion for the 5-member majority in Morrison v. National Australia Bank Limited (June 24, 2010). (credit for below left photo) Other thought-provoking discussions of this decision were posted here, here, here, and here at Opinio Juris.

In Morrison, the Court affirmed dismissal of a lawsuit alleging civil fraud in violation of § 10(b) of the Securities and Exchange Act of 1934 and its implementing Rule 10b-5. The suit, to quote Stephan's Insight, "involved only foreign plaintiffs, securities issed by a foreign company, and transactions in those securities that took place exclusively in a foreign country." Scalia's opinion underscored that there is a presumption against extraterritoriality, one that requires "Congress to clearly indicate when it wanted its rules to apply to foreign conduct."

Stephan termed the decision "a firm and unambiguous rebuke" of the tendency by some lower courts to give securities laws greater extraterritorial reach. That pronouncement pretermits the contrary viewpoints of the 3 remaining Justices (Sonia Sotomayor did not participate): Stephen G. Breyer, in a separate opinion that suggested the suit yet might go forward under other federal statutes, concurred only in part, while John Paul Stevens and Ruth Bader Ginsburg concurred only in the judgment and not at in the majority's reasoning; indeed, their joint opinion opened with the declaration that they

would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades.

Nonetheless, the pronouncement is accurate as a matter of counting current Court noses.

As interesting as the description of the judgment is Stephan's additional observation. He rightly wrote that

one must wonder what Morrison implies about other statutes.

Particularly noted is the means by which noncitizen plaintiffs have sought relief in U.S. federal courts for torts committed in violation of the law of nations or U.S. treaties. That means, of course, is Alien Tort Statute (prior IntLawGrrls posts). Alien Tort cases have involved events in all corners of the earth. "The Justice Department in several briefs has argued that the presumption against extraterritoriality applies to this statute," Stephan wrote (citing this 1 U.S. amicus brief, which dates from the 2d term of President George W. Bush). The Insight adds that "[s]cholarly support exists" for such a position. All may be tested soon: Stephan noted that the question's presented in Talisman Energy (photo credit), an Alien Tort case involving the oil field in Sudan, which the Supreme Court has been asked to review.

Another thought jumps to mind:

Any chance that a Court cutback campaign might reach to a sector in which extraterritoriality has grown steadily, with judicial approval, in the years of the so-called wars on drugs and terror? That is, to extraterritorial criminal jurisdiction?