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.
The position of the respondents on universal civil jurisdiction
The respondents’ case appears to be based on the assumption that in order for a US federal court to have civil jurisdiction over grave human rights violations committed outside the US, it is first necessary to identify an express rule of international law permitting the assertion of such jurisdiction. Since customary international law does not support the existence of such a rule, assertions of universal civil jurisdiction by US federal courts breach international law.
This perspective is expressly affirmed in an amicus curiae brief submitted by the UK and Netherlands. These governments asserted that:
“the right of the United States or any other sovereign to create and enforce such a domestic remedy depends on it being able to satisfy the proper jurisdictional limits recognized by international law. […] The Governments believe that there is no basis under international law for a U.S. court to exercise jurisdiction against the Respondents for the conduct charged in the complaint”.
The point is also made, quite forcefully, in a brief by Chevron in which it stated that:
“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.”
It is also worth noting that this perspective is shared by the UK House of Lords. In the case of Jones v Saudi Arabia, Lord Bingham, criticising the decision of the Court of Appeal which had allowed a suit in respect of acts of torture allegedly committed by Saudi Arabian officials outside the UK, stated that:
“The court asserted what was in effect a universal tort jurisdiction in cases of official torture […], for which there was no adequate foundation in any international convention, state practice or scholarly consensus […] Despite the sympathy that one must of course feel for the claimants if their complaints are true, international law, representing the law binding on other nations and not just our own, cannot be established in this way.”
The Lotus dictum – an attractive but ultimately unpersuasive starting point for the petitioners
In response, one starting point for the petitioners could be to challenge the very assumption upon which the respondents base their case, namely that the onus is on the petitioners to identify an international legal norm permitting the assertion of universal civil jurisdiction.
For this purpose, the petitioners could argue that rather than requiring the petitioners to identify the existence of a permissive rule, international law places the onus on the respondents to identify a prohibitive rule. Pursuant to this theory, an assertion of universal civil jurisdiction by the US courts would be presumed lawful so long as a prohibitive rule of international law to the contrary had not crystallised.
It is conceded that in the Arrest Warrant case, Judges Higgins, Kooijmans and Buergenthal noted that the “very broad form of extraterritorial jurisdiction [under the ATS] […] has not attracted the approbation of States generally”. For example, in the US Supreme Court case of Sosa v Alvarez Machain (“Sosa”), the UK, Switzerland and Australia protested to the jurisdiction of the US courts, while in Kiobel, the UK, the Netherlands and Germany all submitted briefs in support of the respondents.
However, it would be open to the petitioners to point out that the assertion of broad forms of jurisdiction under the ATS has equally not attracted the criticism of States generally. For example, in Filartiga v Pena-Irala, a case concerning a claim for damages for alleged torture of a Paraguayan national by a Paraguayan police official, Paraguay did not object to the jurisdiction of the US courts. In Kiobel itself, the US government submitted a brief in support of the petitioners.
In this light, the response of States to the exercise of universal civil jurisdiction under the ATS may best be characterised as mixed, and certainly insufficiently uniform to crystallise into a prohibitive rule. With this in mind, the petitioners could assert that in the absence of such a prohibitive rule, the exercise of universal civil jurisdiction by US federal courts is lawful under international law.
The basis for this approach may be traced back to the following dictum of the Permanent Court of International Justice in the Lotus case:
“Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it [international law] leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.”
The Lotus dictum is attractive for the petitioners since it purports to place the burden of proof on the respondents to identify a prohibitive rule. Yet, for all its attractiveness, it is submitted that the Lotus dictum is ultimately unpersuasive for two reasons.
First, the Lotus approach does not reflect State practice. In particular, as noted by Lowe and Staker, in over a century of objections to exercises of universal jurisdiction, there does not appear to be a single instance of an objecting State seeking to prove the existence of a prohibitive rule forbidding assertions of universal jurisdiction:
“When States object to exercises of jurisdiction, they simply assert that the other State has ‘no right’ to exercise jurisdiction in the way that it claims. State practice is consistently based upon the premiss that it is for the State asserting some novel extraterritorial jurisdiction to prove that it is entitled to do so.”
Second, as noted by Judges Higgins, Kooijmans and Buergenthal in the Arrest Warrant case, the Lotus dictum “represents the high water mark of laissez-faire in international relations” and is therefore best considered a product of its time, which has little or no relevance to contemporary international law.
The Opinion of Justice Stephen Breyer in Sosa – a stronger starting point for the petitioners
A stronger starting point for the petitioners would be to point to the Opinion of Justice Stephen Breyer in Sosa. Justice Breyer noted that it is generally accepted that there exists “procedural agreement” amongst the international community to criminally prosecute a subset of universally condemned behaviour, including torture, genocide, crimes against humanity, and war crimes. In light of this consensus concerning universal criminal jurisdiction, Justice Breyer further noted the following:
“The fact that this procedural consensus exists suggests that recognition of universal jurisdiction in respect to a limited set of norms is consistent with principles of international comity. That is, allowing every nation’s courts to adjudicate foreign conduct involving foreign parties in such cases will not significantly threaten the practical harmony that comity principles seek to protect. That consensus concerns criminal jurisdiction, but consensus as to universal criminal jurisdiction itself suggests that universal tort jurisdiction would be no more threatening. […] That is because the criminal courts of many nations combine civil and criminal proceedings, allowing those injured by criminal conduct to be represented, and to recover damages, in the criminal proceeding itself. […] Thus, universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.”
In this passage, Justice Breyer drew on the practice of many civil law States, which permit victims of crime to attach civil claims for compensation to criminal prosecutions (so-called action civiles), to conclude that the international community’s consensus regarding universal criminal jurisdiction “necessarily contemplates a significant degree of civil tort recovery as well”. At the international level, this assertion is also supported by the fact that, pursuant to Article 75(2) of the Rome Statute, the International Criminal Court has the power to:
“make an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”
Justice Breyer’s position is also supported by two further arguments.
First, as noted by Donovan and Roberts, “[p]unishment and compensation represent two distinct, but complementary, ways of condemning past, and deterring future, wrongdoing”. In this regard, the exercise of universal civil jurisdiction is consistent with the justifications put forward for the exercise of universal criminal jurisdiction under international law. The assertion of universal criminal jurisdiction has traditionally been justified either as responding to crimes that attack the fundamental values of the international community (e.g. genocide) or where crimes would otherwise go unpunished if universal jurisdiction did not exist (e.g. piracy). As Yee has noted, in both cases the assertion of universal jurisdiction refers to the exercise of domestic jurisdiction based on a “universal concern” of the international community. The recognition of the need to respond to such universal concerns justifies the exercise of universal civil jurisdiction just as much as it justifies universal criminal jurisdiction.
Second, several instruments in the human rights field now oblige States to afford an effective remedy to human rights victims. For a full review of these instruments, I would refer readers to the brief submitted by Navi Pillay, the UN High Commissioner for Human Rights. In this regard, the growing importance of the provision of reparation as an element of the right to an effective remedy further supports the view that the international community’s acceptance of universal criminal jurisdiction should encompass a degree of universal civil jurisdiction, at least in respect of the same range of conduct.
The re-argument hearing is scheduled to take place during the court’s next term, which begins in October. Whether the US Supreme Court will be receptive to submissions in favour of universal civil jurisdiction remains to be seen.