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Home Articles posted by Barrie Sander

Kiobel: The US steals the headlines in first round of supplemental briefs on universal civil jurisdiction under the Alien Tort Statute

Published on June 26, 2012        Author: 

In an earlier post, I considered the US Supreme Court’s re-argument order in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The order concerned whether US federal courts may rely on the Alien Tort Statute (“ATS”) to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?

Earlier this month, the petitioners, a group of 12 Nigerian victims of crimes against humanity, filed their supplemental opening brief on this issue. Nine amicus briefs in support of the petitioners and four amicus briefs in support of neither party were also filed with the US Supreme Court.

In this post, I discuss the amicus brief filed by the US government. The US brief raises a number of interesting issues, in particular the extent to which theUS government has changed its position in respect of the permissibility and limits of universal civil jurisdiction under the ATS, particularly in comparison with US briefs submitted in earlier ATS cases, as well as the failure of the State Department to sign the brief. After considering these issues, I offer a critique of the US brief, focusing in particular on the failure of theUS to substantiate its assertion that universal civil jurisdiction does not violate international law. I conclude by analysing the submissions put forward in other supplemental briefs in support of this assertion.

The US Supplemental Brief – A Change of Position?

The headline development from this round of filings is undoubtedly the new position set out by the US government in its supplemental brief. Contrary to its earlier support of the petitioners, the US now argues that the Supreme Court should not allow the human rights claims in Kiobel to proceed. Read the rest of this entry…

 

Kiobel: Universal Civil Jurisdiction under international Law

Published on April 26, 2012        Author: 

 Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

In an earlier post, I considered the question of corporate liability under international law in light of the case of Kiobel v Royal Dutch Petroleum (“Kiobel”), which is currently before the US Supreme Court.  Kiobel, a case brought under the Alien Tort Statute (“ATS”), concerns claims that various Shell entities (“the respondents”) planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.

It had been thought that the question of whether corporations may be sued under the ATS would be the central issue before the Supreme Court in Kiobel. However, during oral argument the Justices became preoccupied with the wider issue of the extraterritorial nature of the ATS. In particular, they focussed on the question  whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the US, i.e. abuses committed by non-US entities against non-US victims on non-US territory.  In short, is universal civil jurisdiction permissible under the ATS?  Such was the focus of the Justices on the extraterritorial reach of the ATS that on 5 March 2012, only one week after hearing oral arguments, the Supreme Court ordered briefing and re-argument on:

“[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.”

Prior to this order, almost all briefing on this issue had been submitted by the respondents and their supporters, who have argued that broad assertions of universal civil jurisdiction by US federal courts may violate international law. In this post I consider some of the counter-arguments that the petitioners and their supporters may seek to raise in response. I suggest that though reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction) may initially seem attractive, that approach is likely to fail. The strongest point that may be put in support of universal civil jurisdiction is that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well. Read the rest of this entry…

 

Kiobel: Corporate Liability under International Law

Published on April 16, 2012        Author: 

Barrie Sander has law degrees from Cambridge and Leiden, and from September 2012 will be a PhD candidate in International Law at the Graduate Institute of International and Development Studies in Geneva.

On 28 February 2012, the US Supreme Court heard oral arguments in the case of Kiobel v Royal Dutch Petroleum (“Kiobel”). The case concerns claims brought by a group of 12 Nigerians (“the petitioners”) who allege that various Shell entities (“the respondents”) planned, conspired and facilitated the government of Nigeria’s extrajudicial executions, torture and crimes against humanity in the Ogoni region of the Niger Delta between 1992 and 1995. The case was filed under the Alien Tort Statute (“ATS”), a centuries-old law that has been interpreted by the US Supreme Court to allow foreign victims of human rights abuse to seek civil remedies in US courts.

In the first of two posts on the case, I consider the question of corporate liability under international law. In the second post I will consider the question of the exercise of universal civil jurisdiction by domestic courts under international law.

Read the rest of this entry…