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

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. The key submission is located at pp.13-14 of theUS brief which states that:

 “In this case, foreign plaintiffs are suing foreign corporate defendants for aiding and abetting a foreign sovereign’s treatment of its own citizens in its own territory, without any connection to the United States beyond the residence of the named plaintiffs in this putative class action and the corporate defendants’ presence for jurisdictional purposes. Creating a federal common-law cause of action in these circumstances would not be consistent with [the Sosa v Alvarez Machain 524 US 692 (2004)] requirement of judicial restraint.”

Several commentators have been quick to characterise the US brief as a reversal or change of position (see, for example, Julian Ku at Opinio Juris, and Trey Childress at Conflict of Laws). In this regard, several points should be noted.

First, it should be emphasised that the US supplemental brief represents only a partial change of position against the petitioners. The US continues to support the petitioners on the issue of whether corporations may in certain circumstances be sued under the ATS (on which see my earlier post here).

Second, although the US argues against the application of the ATS to the factual circumstances in Kiobel, it does not support an absolute bar on extraterritorial ATS litigation. On this point, theUS states (at p.6):

A close examination of the historical context and purposes of the ATS, the modern-day line of cases, and Congressional action suggests that there are circumstances in which it would be appropriate for a court to recognize a cause of action based on the ATS for violations of international law occurring outside the United States.” 

In this regard, the US position has softened in comparison with the Bush administration’s advancement of “a more categorical rule against extraterritoriality” (fn.11). Yet, so tightly-circumscribed is theUS position in respect of the extraterritorial scope of the ATS that this softening is likely to be of little or no consolation to human rights activists. In particular, theUS argues expressly for the application of two forms of restraint on the exercise of ATS jurisdiction:

(i)     The Supreme Court should not create a cause of action under the ATS which “challenges the actions of a foreign sovereign in its own territory” where, as in Kiobel, the defendant is a foreign corporation of a third country that allegedly aided and abetted that foreign sovereign’s conduct (p.21). This position is supported by assertions that the judiciary “lacks the expertise” of the political branches to weigh the relevant considerations in this context and that otherwise jurisdiction would be invoked by private plaintiffs without the check imposed by prosecutorial discretion (p.17).

(ii)  Where a federal common-law cause of action is created under the ATS for extraterritorial violations of international law, the Supreme Court should apply several doctrines of jurisdictional restraint, including exhaustion of local remedies, forum non conveniens, international comity, act of state, political question, and case-specific deference. These doctrines should apply “at outset of the litigation” and “with special force” (p.22).

The reliance of the US on doctrines of jurisdictional restraint is uncontroversial. In this regard, it is useful to refer to the 2004 study conducted by Professor K Lee Boyd, in which it was found that out of 92 human rights cases brought since 1980 pursuant to the ATS, the Torture Victim Protection Act and federal common law, 77.2% were dismissed or granted summary judgment at some stage on at least one of these doctrinal grounds. Interestingly, these doctrines are also mentioned as legitimate jurisdictional restrictions in the supplemental brief of the petitioners as well as several amicus briefs in support of the petitioners. Where the US differs from the petitioners is in the weight it accords to such doctrines and the application of these doctrines to the facts in Kiobel.

Finally, as has been widely reported (see, for example, the reports by Alison Frankel and Trey Childress), State Department legal adviser Harold Koh has not signed the US supplemental brief. This is significant since the State Department signed all earlier briefs in ATS cases, including the earlier brief in Kiobel. On this point, John Bellinger has noted that the State Department’s omission to sign off on the latest amicus brief seems to be a not-so-subtle message – more to the human rights community than the Supreme Court – that State did not agree with the Justice Department position”.

The US Supplemental Brief – A Critique

TheUS brief is disappointing from a human rights policy perspective.

First, the brief leaves many questions open, including whether US corporations and nationals or conduct by others which occurred within the US or on the high seas may be subject to ATS actions (p.21).

Second, it leaves the US government open to the charge of hypocrisy in terms of its foreign policy. As Marco Simons has noted (emphasis in the original):

Essentially, Obama is saying that if a foreign government abuses human rights, we can bomb them, like we did with Libya. But we can’t hold anyone accountable in court, because that would threaten international relations.”

In this regard, the US does not shy away from the foreign policy motivations behind its new position, referring in particular to the potential exposure of US officials and nationals to exercises of jurisdiction by foreign states (pp.1-2). Unfortunately, this fear is reminiscent of the motivation behind the bilateral non-surrender agreements negotiated with various States by the US under the Bush administration which provide that no US nationals or military personnel may be surrendered or transferred by the other State to the International Criminal Court for any purpose.  While many had come to expect such an approach from the previous US administration, human rights activists have come to expect more from Obama.

Finally, although the US confirms that it “does not suggest that an extraterritorial private cause of action would violate international law in this case”, it provides no justification for this position. The US merely asserts, referring to the Torture Victim Protection Act, that the Supreme Court should not “cast doubt on the propriety of the United States, through appropriate lawmaking processes, to impose civil or criminal sanctions for torture committed in a foreign country” (fn.2).

In this regard, readers of this blog will recall my previous post in which I set out two potential submissions in support of universal civil jurisdiction under public international law: first, reliance on the Lotus principle, which would require a rule prohibiting an exercise of jurisdiction (rather than one permitting jurisdiction); and second, reliance on the Opinion of Justice Breyer in Sosa v Alvarez Machain that the existence of universal criminal jurisdiction contemplates a degree of civil jurisdiction as well. I suggested that though reliance on the Lotus principle may initially appear attractive, such an approach was likely to fail. By contrast, Justice Breyer’s position is stronger, supported both by the rationale for universal jurisdiction and by several human rights instruments which oblige States to afford an effective remedy to human rights victims.

With this in mind, and since the US brief is disappointingly silent on this issue, it is useful to conclude by summarising some of the arguments put forward in support of universal civil jurisdiction in the other supplemental briefs:

(i)        Several briefs rely on the Lotus principle. The petitioners, for example, expressly note that “States are free to respond to such [human rights] violations absent specific, agreed upon limitations on State action” (p.43).  Their brief then sets out how state practice demonstrates the absence of any international law limitation on the availability of universal civil jurisdiction (pp.44-48).  Interestingly, Yale Law School Center for Global Legal Challenges, despite framing its analysis in terms of the Lotus principle, proceeds to point to international treaties and international tribunal jurisprudence (pp.17 -28) as well as state practice (pp.28-40), which indicate the emergence of a rule permitting universal civil jurisdiction.

(ii)       Several briefs refer to the Opinion of Justice Breyer in Sosa (see, for example, the briefs of Human Rights First et al. at p.8 and the Victims of the Hungarian Holocaust at pp.4-5). In addition, the brief filed on behalf of the UN Commissioner for Human Rights, Navi Pillay, submits that international law obliges States to provide an effective remedy for victims of human rights violations (pp.4 -16).

(iii)      The petitioners offer the further submission (at pp.40-41) that customary international human rights norms are erga omnes – obligations owed to all states. Since all states have “a legal interest” in the protection of such rights, any state may pursue remedies for their violation, even if the individual victims were not nationals of the complaining state and the violation did not affect any other particular interest of that state.

(iv)      Navi Pillay also offers several further submissions, namely that: corporate civil liability helps promote the international legal policy of ensuring accountability for human rights violations (pp.16-23); general principles of law support civil liability for corporations that commit serious human rights violations (pp.24-35); corporate civil liability is consistent with the principle of complemenarity between international and domestic legal regimes (pp.35-38); and corporate civil liability is consistent with the idea of orderly redress of grievances according to the rule of law (pp.38-40).

The respondent oil companies in Kiobel are due to file their briefs in August. The parties will then be given the opportunity to file reply briefs, followed by an oral hearing at some point in the Supreme Court’s next term which commences in October.

Whether the Supreme Court will be receptive to the above arguments remains to be seen. However, it is possible that, in light of the US position in its supplemental brief, the Supreme Court may be tempted to avoid this debate entirely, instead focusing solely on “whether a private right of action should be created by the courts as a matter of federal common law, a narrower constitutional law question which concerns “the allocation of responsibility among the branches of the United States Government for creation of private rights of action under U.S. law” (fn.3, US supplemental brief).

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14 Responses

  1. Jan Hessbruegge

    Dear Mr. Sander,

    In addition to the Brief to which you refer, the United Nations High Commissioner for Human Rights has recently also filed a supplemental brief in the case. That Brief sets out in great detail why international law authorizes universal jurisdiction in civil cases involving gross human rights violations, with permissible universal civil jurisdiction extending, at a minimum, as far as universal criminal jurisdiction.

    Approaching the issue also from a policy level, the High Commissioner submits that the exercise of universal civil jurisdiction over gross human rights violations and serious violations of international humanitarian law is not only permitted, it is also beneficial from a human rights perspective. In this regard, the Brief notes inter alia that if no country exercised universal civil jurisdiction, many victims would be left without any avenue to realize their human right to an effective remedy for lack of being able to demonstrate a jurisdictional link to any country but their own. On an ethical level, the Brief observes, comity is owed as much to fellow human beings who suffer from the worst atrocities as to the nations representing them.

    The full brief can be found at:

    http://www.americanbar.org/content/dam/aba/publications/supreme_court_preview/briefs/10-1491_petitioneramcunavipillayetal.authcheckdam.pdf

    Sincerely,

    Jan Hessbruegge

  2. Barrie Sander Barrie Sander

    Dear Jan

    Many thanks for bringing this to my attention. Having reviewed the brief, it does seem to be the most comprehensive so far on the issue of universal civil jurisdiction under international law. The brief tackles the issue head-on and makes for a good read.

    Two interesting points to note from my initial review:

    (1) The brief takes the Lotus principle as its starting point. It notes:

    “In other words, according to the standard set by the S.S. Lotus, if the defendants in this case want to show that the exercise of prescriptive and adjudicatory jurisdiction in relation to acts committed abroad is prohibited, they would have to demonstrate that there is both a general practice among States to refrain from exercising such jurisdiction, and that States refrain from doing so because they believe they are legally prohibited from doing so. Defendants cannot possibly satisfy this standard.” (pp.6-7)

    I agree that the defendants would struggle to meet this standard, but as noted in my earlier post, reliance on Lotus is unlikely succeed in practice.

    (2) The brief relies upon the common rationale of universal criminal and civil jurisdiction as well as the fact that civil jurisdiction is less intrusive than criminal jurisdiction to justify universal civil jurisdiction under international law. It notes:

    “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 very foundation of universal jurisdiction therefore indicates that it must apply to both the criminal punishment and the reparation aspect of a case [...] the exercise of civil jurisdiction in relation to violations abroad is inherently less intrusive vis-à-vis both foreign nations and individual defendants than the exercise of criminal jurisdiction.” (pp.26-27)

    This is essentially Justice Breyer’s argument in Sosa.

    Overall, the brief offers a useful review of state practice on this issue and is definitely worth a full read to those interested in the debate surrounding the legality of universal civil jurisdiction under international law.

    Unfortunately, I suspect the US approach may be too tempting for the US Supreme Court to ignore.

    Best

    Barrie

  3. Joshua

    Mr. Sander:

    I’m curious, were any of the theories for universal jurisdiction described in the many plaintiffs’ briefs in existence at the time of the Alien Tort Statute’s enactment in 1789?

    I fully agree with your arguments for why universal civil jurisdiction can/should exist somewhere, but doubt that an eighteenth-century legislature, no matter how wise they might have been, could contemplate the statute as encompassing something that was essentially born in the twentieth century.

  4. Joost

    Hi Barrie,

    Thank you very much for explaining to the legal advisor who wrote the brief what the brief was about.

    Kind regards,

    Joost

  5. Barrie Sander Barrie Sander

    Joshua

    Many thanks for your comment. I have left the question of what the ATS provides as a matter of US law to one side since it is a question of domestic law on which others are far more qualified to comment. I take as the starting point of this post that the ATS does provide for universal civil jurisdiction and then seek to analyse whether it is permissible under international law.

    Joost

    That was absolutely not my intention. I just wanted to pick out points from the brief that interested me and may be of interest to readers of the blog. If I gave any other impression, that was not my intention.

    Thanks both for the comments.

    Barrie

  6. H

    Mr. Sander

    Thanks for this post, it was a great summary.

    Just a quick question. You said:

    Finally, although the US confirms that it “does not suggest that an extraterritorial private cause of action would violate international law in this case”, it provides no justification for this position. The US merely asserts, referring to the Torture Victim Protection Act, that the Supreme Court should not “cast doubt on the propriety of the United States, through appropriate lawmaking processes, to impose civil or criminal sanctions for torture committed in a foreign country”

    This seems to me to be consistent with the later-in-time principle as applied between treaties and federal law. I.e. even if a federal law violates international law, the courts are required to follow the federal law instead of international law (at least, to the extent that there is no reasonable interpretation of the federal law that puts it in line with international law). If so, it wouldn’t seem necessary to invoke international law at all for this claim.

    I hope I’m not misunderstanding.

    Regards

    H

  7. Barrie Sander Barrie Sander

    H

    Thanks very much for your comment.

    Footnote 3 of the US brief, where this statement about the legality of extraterritorial jurisdiction under international law is set out, is extremely vague.

    My reading of the footnote is as follows:

    (1) The US indicates that it does not want an absolute bar on extraterritorial litigation, whether under the ATS or the TVPA. It is particularly concerned to preserve “the propriety of the United States, through appropriate lawmaking processes, to impose civil or criminal sanctions” for unlawful conduct committed in a foreign country.

    (2) The US therefore sets out several jurisdictional limiting/controlling doctrines under US domestic law which act to restrain the scope of the ATS. In doing so, the US tries to frame the relevant question for the Supreme Court in Kiobel as being one of domestic constitutional law, i.e. whether the creation of a private right of action in respect of Kiobel goes beyond the limits of these domestic jurisdictional doctrines.

    (3) According to the analysis of the US, the facts in Kiobel do go beyond the scope of what is permitted by these jurisdictional doctrines (for example, the US argues that the Supreme Court should reject jurisdiction where, as here, the defendant is a foreign corporation of a third country that allegedly aided and abetted a foreign sovereign’s conduct since such a case would necessarily involve, according to the US, an impermissible challenge to the actions of a foreign sovereign in its own territory).

    (4) In this way, the US is able to argue that recourse to domestic law is sufficient to reject jurisdiction in the present case. On this basis, the US is able to suggest that the Supreme Court need not look at the position under international law. That question can be left for another day since the present case is solely concerned with “the allocation of responsibility among the branches of the United States Government for creation of private rights of action under U.S. law”.

    Hopefully that helps clarify my reading of the US submission.

    Best

    Barrie

  8. Joshua

    Mr. Sander:

    Thanks for the reply. Quick question: if the “law of nations” referred to in the ATS means the same thing today as “customary international law,” then does that equal what is permissible under international law, or, rather, what is the custom amongst most civilized nations?

  9. Barrie Sander Barrie Sander

    Joshua

    Thanks again for the question.

    I think the position has usefully been summarised by Anthea Roberts, in her paper, Comparative international law? The role of national courts in international law (I.C.L.Q. 2011, 60(1), 57-92), which states that:

    “although the ATS on its face appears to permit tort claims for any ‘violation of the law of nations,’ the courts have interpreted this provision more restrictively, limiting it to claims based on ‘definable, universal and obligatory norms.’ This test, which is neither known under international law nor necessarily co-extensive with international legal concepts such as customary international law or jus cogens, creates a domestic filter that contorts the application of international law, thus limiting the precedential value of ATS case law in international law’s development.”

    In this way, the term “law of nations”, as interpreted by the US courts (for example in Sosa), does not mean the same thing as “customary international law”. My understanding is that it refers, according to the US courts, to something narrower: “‘definable, universal and obligatory norms.” I would have to defer to a US domestic lawyer in respect of how these terms have been interpreted in practice in the US domestic case law.

    Best

    Barrie

  10. Richard Samp

    Thanks for your thorough post. I’d like to register a partial dissent from your last comment, regarding the meaning of “law of nations” in the text of the ATS. As I read the U.S. Supreme Court’s Sosa decision, the Court viewed “law of nations” as synonimous with “customary international law.” Thus, the Court concluded that the statute provides federal courts with jurisdiction over all tort claims arising under customary international law. But, Sosa explained, although the ATS includes a broad jurisdictional grant, it says nothing about the existence of any causes of action that may be pursued in connection with the jurisdictional grant. To find an answer to that latter question, Sosa instructed federal courts to look to “federal common law.” Under U.S. law, “federal common law” is a very limited category; Sosa attempted to supply a few, nonexclusive guidelines for determining what causes of action should be recognized under federal common law. While the decision left open the scope of permissible causes of action, the Court made quite clear that that scope is far narrower than “any action that would be recognizable under ‘the law of nations’ or ‘customary international law.’” So it is not altogether fair to say (as your comment suggests) that Sosa gave a narrow reading to the term “law of nations”; it simply said that not all causes of action that are customarily understood as encompassed by the term “law of nations” are actionable under the ATS.

  11. Joshua

    Richard’s comment is in line with my reading and understanding of Sosa, as well. There would thus seem to be a split analysis: one for the causes of action (derived from the narrower test — i.e., the Blackstone archetypal test), and the other for what can realistically be viewed as within either customary international law or the provisions of (presumably self-executing) treaties that the United States has entered into.

    This would mean that whether the United States can exercise jurisdiction under the statute, it must first determine whether jurisdiction over the case would fit within either customary international law or a self-executing treaty to which the United States has entered. After this antecedent step, a United States court would then apply the narrower test to which Mr. Sander’s most recent comment referred.

  12. Barrie Sander Barrie Sander

    Thanks both for the helpful clarification. I defer to your comments on the two-stage analysis to which you both refer.

    From your comments, my understanding is that the outcome, whether one attributes it to an interpretation of the phrase “law of nations” or to the limits of the federal common law (and I defer to you both on this point), is the same i.e. under the ATS a narrower set of norms than customary international law are actionable under the ATS.

    Best

    Barrie

  13. My take on “definable” is that our courts have the competence to identify and clarify customary international law (and the phrase “international law” with respect to customary international law has been used generally interchangeably with the phrase “law of nations” since around 1813) but will only apply “definable” norms as opposed to claimed norms that have no identifiable content. In other words, the courts are looking for a norm that exists and a normative content that is “definable” in the way that one normally identifies normartive content, e.g., by identifying generally shared expectations about such content or generally shared opinio juris with respect to the norms existence and its content. of course, a norm of customary international law IS universal and obligatory (assuming that one is not addressing regional customary law). See the following re: cases addressing the proof of normative content and phrases such as “sufficiently definable” http://ssrn.com/abstract=1497122
    Cases early in U.S. history recognized that states such as the United States have a universal jurisdictional competence over violations of customary international law.

  14. Barrie Sander Barrie Sander

    Thanks to everyone for generating such an interesting debate. A new blog post has just been uploaded to the SCOTUS blog (as part of its online symposium) specifically concerning the international law aspects of Kiobel.

    The post can be accessed here: http://www.scotusblog.com/2012/07/online-kiobel-symposium-international-law-and-alien-tort-statute-litigation/

    The post discusses the binary approach adopted by some commentators, the question of corporate liability, and finally the question of universal jurisdiction.

    Best

    Barrie