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

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).