Overview
For decades now, survivors of human
rights abuses have been able to use the Alien Tort Statute (ATS) to seek
redress from those responsible for their abuse—be they individuals or
corporations—whenever their tormenters are found in the United States.
But on April 17, 2013, the Supreme Court significantly limited human rights
litigation as we know it. In a splintered decision, the Justices held
that the ATS does not apply to human rights violations committed in other
countries, unless there is a strong connection to the United States. The
Justices unanimously agreed that the mere presence of a multinational
corporation was not a clear enough connection. However, the Court left
open the issue of whether an individual perpetrator who seeks safe haven in the
United States may still be liable under the ATS.
Kiobel v. Royal Dutch Shell Petroleum
This case concerns the involvement
of multinational corporations in overseas human rights crimes. But it
raises a more basic issue: whether victims of the world's worst atrocities, who
are denied justice at home, can turn to U.S. courts as their last resort.
Brought by Nigerian refugees in the
U.S. against Shell Oil, the lawsuit accuses the Dutch/U.K. multinational
of helping the Nigerian military to systematically torture and kill
environmentalists in the 1990s. After a federal appeals court held that
corporations could not be liable for human rights abuses, the plaintiffs sought
Supreme Court review. On February 28, 2012, the Court heard oral argument
on a specific issue: whether corporations are immune from tort liability
for international law violations such as torture. (Jump
to Kiobel I).
Rather than decide that narrow
issue, the Court broadened the case. On October 1, 2012, the Court will
hear a new round of arguments on a more fundamental question: whether
survivors can continue to bring claims in U.S. courts under the ATS for human
rights abuses committed in the territory of a foreign state. (Jump
to Kiobel II).
On April 17, 2013, the U.S. Supreme
Court issued its disappointing decision, holding that the ATS does not provide
an avenue for justice for Nigerian human rights victims who were harmed when
Shell Oil assisted the Nigerian government in attacking them and their family
members. However, the splintered concurring opinions by Justices Kennedy, Alito
and Breyer leave open the possibility that companies and individuals may still
be liable for their abuses in cases with a stronger connection to the United
States.
Case History
Kiobel v. Royal Dutch Shell
Petroleum Co., No. 10-1491 (U.S. 2012) is a class
action suit filed on behalf of Nigerian residents who protested against the
environmental impacts of oil exploration in the Ogoni region of the Niger
Delta. The complaint alleges that Shell armed, financed, and conspired
with Nigerian military forces to suppress the protests. Throughout 1993
and 1994, the military systematically targeted Ogoni villages in terror
campaigns of looting, rape, murder and property destruction. This
campaign culminated in the summary execution of the Ogoni Nine, a group of
environmentalists including the famed playwright Ken Saro-Wiwa. The Ogoni
Nine were hanged to death following a conviction by a military tribunal that
was roundly condemned as an abuse of justice. The plaintiffs allege that
Shell tampered with the trial and helped to railroad the conviction of the
activists.
The plaintiffs first filed their
complaint under the Alien Tort Statute (ATS) in 2002, alleging that
Shell aided and abetted violations of the law of nations by the Nigerian
military junta. In 2006, the U.S. District Court for the Southern
District of New York dismissed several of the claims, holding that only the
claims for aiding and abetting torture, crimes against humanity, and arbitrary
detention were sufficiently defined under international law to be actionable
under the ATS. Kiobel, 456 F. Supp. 2d 457, 468 (S.D.N.Y.
2006).
Both parties appealed the decision
to the U.S. Court of Appeals for the Second Circuit. On September 17,
2010, a majority of the appeals panel (Judges Dennis Jacobs and José Cabranes)
issued a sweeping opinion—over a vigorous dissent by Judge
Pierre Leval—holding that corporations could not be sued under the ATS,
invoking a novel theory that international law does not hold corporations
liable for human rights crimes. Kiobel, 621 F.3d 11 (2d Cir. Sept. 17,
2010).
The plaintiffs brought their case to
the Supreme Court on this narrow question—whether a corporation could be sued
under the ATS for violating international law (Kiobel I). But the
Court called for reargument on a broader question: whether U.S. courts can continue
to hear ATS cases for human rights abuses committed within the borders of a
foreign nation. That issue was argued before the Court on October 1,
2012. (Kiobel II).
On February 28, 2012, the Supreme
Court heard argument on the question decided by the Second Circuit:
whether corporations are immune from tort liability for violations of
international law.
The Arguments in Kiobel I: Are Corporations
Free to Violate Human Rights Law?
The Nigerian plaintiffs, represented
by CJA co-founder Paul Hoffman, argued in their opening brief that the liability of a corporation
for the wrongful acts of its agents—be they negligence, false imprisonment, or
torture—has been a feature of all legal systems in the world, for as long as
corporations have existed. Thus, corporate liability is a general
principle of international law and unquestionably part of U.S. law.
Nothing in international law prohibits the United States from choosing to
enforce international law norms, like the prohibition on torture, against an
organization such as a corporation, in addition to its individual directors and
officers.
Shell’s brief in Kiobel I makes the
counter-argument that no international criminal tribunal has ever convicted a
corporation of torture or crimes against humanity and that human rights
treaties do not specifically say that they apply to corporations. Shell
urges the Court to reject the idea that because corporations are civil
“persons” under U.S. and international law—with rights and obligations—they can
be liable for human rights crimes, just like any flesh and blood “natural
person.” To justify this position, Shell claims that allowing
corporations to be sued for torts like slavery or genocide would inconvenience
businesses and upset international trade.
The U.S. Government's Position: No Corporate Immunity
The United States filed a brief in Kiobel I in support of the
Nigerian plaintiffs that was signed by Harold Hongju Koh, Legal Advisor to the
State Department. The government takes the position that there is no
“international-law norm . . . that distinguishes between natural and juridical
persons. Corporations (or agents acting on their behalf) can violate
those norms just as natural persons can.”
According to the State Department, international law defines the conduct that is prohibited, banning
for example, terrorism or human trafficking. But international law leaves
it to each nation-state to determine how to enforce these prohibitions.
By enacting the Alien Tort Statute, the United States has chosen to enforce
these rules through civil tort liability. And for centuries, U.S. tort
law has permitted suits against corporations. Thus, nothing in
international or U.S. law exempts a corporation from liability for grave human
rights abuses.
CJA’s Amicus Brief in Kiobel I: Survivors Have
a Right to a Remedy
CJA filed an amicus brief on behalf of Dr. Juan Romagoza
Arce, Cecilia Santos Moran, and Ken Wiwa, all survivors of human
rights violations. Our brief argues that non-natural persons should not
escape liability when they commit or facilitate human rights abuses. The
right to remedy, we note, is part of international law. States are
required to give victims of human rights abuse access to the courts and a right
to redress. To make good on this obligation, it’s vital that the United
States give survivors the right to seek reparations and accountability against
those responsible for their abuses. From the survivor’s perspective, it
matters little whether the perpetrator is an individual, a paramilitary group,
or a corporation. Immunizing organizational defendants would create
two arbitrary classes of victims—those who can seek redress, and those who
cannot. That distinction would frustrate the benefits of human rights
cases, which promote healing for torture survivors and their communities.
On March 5, 2012, in a surprising
move, the Supreme Court called for briefing and re-argument on a new issue:
“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.” Oral argument was set for October 1, 2012, the first day of the
Fall 2012 term.
Understanding the Issues: Extraterritoriality and
Human Rights Litigation
Kiobel II turns on extraterritorial jurisdiction, more commonly
called "extraterritoriality." This is the legal ability of a
government to regulate conduct beyond its territorial boundaries.
Normally, when Congress makes law, it regulates the United States, not the
entire world. But under U.S. and international law, the government can
project its law overseas in certain circumstances: when the perpetrator
or victim of a crime is a US national, or when the foreign conduct causes
effects within US territory or threatens our government. In addition,
international law gives all countries "universal jurisdiction" to
punish and provide remedies for certain offenses – like piracy or genocide –
that are universally condemned, no matter where they are committed. The
United States has several laws that exercise universal jurisdiction, from our
laws against international terrorism to the Torture
Victim Protection Act.
The Alien Tort Statute, however, is
a different sort of law. It enforces regulations created by all of the
world’s nations, not by the United States. In other words, the ATS
doesn’t tell foreigners abroad what they may or may not do. It merely
subjects foreign violators to the same international rules that govern them at
home.
Thus, the ATS applies universal
international law to human rights cases brought to our shores by the presence
of the perpetrator. Because the human rights norms enforced by the ATS
are already part of international law, they are already in force around the
world. This means there is no risk of imposing U.S. law or values on
foreign sovereigns. And since the perpetrator or his accomplice are
physically present, the United States has a compelling interest in denying them
safe haven.
The Arguments in Kiobel II: Offending Foreign
Sovereigns or Denying Safe Haven to Human Rights Abusers?
In their supplemental brief, the Nigerian plaintiffs argue
first that the Supreme Court already decided that the ATS applies to
human rights abuses committed overseas. In Sosa v.
Alvarez Machain (2004), the Court held that federal courts may
hear ATS claims based on a narrow set of international law violations
regardless of where they occur. Shell is thus asking the Court to
overrule its own precedent, a mere eight years after it was decided. Second,
when Congress enacted the ATS in 1789, it clearly intended the law to apply
beyond U.S. borders to international crimes like piracy. Third,
the global reach that Congress gave to the ATS is fully consistent with
international law. This is because the ATS is designed to enforce
prohibitions that are themselves global rules. And the ATS is not alone:
numerous countries have laws that exercise criminal and civil jurisdiction over
extraterritorial human rights crimes. Finally, a categorical rule
against extraterritorial ATS cases is unnecessary: the federal courts
already have procedural rules that allow them to limit the foreign affairs
impact of ATS suits or dismiss claims that lack merit.
Shell’s supplemental brief makes a blanket attack
on human rights litigation under the ATS. Whether the defendant is a
corporation sued for complicity, or a fugitive war criminal hiding out in the
U.S., Shell contends that our courts must not “disrespect foreign sovereignty”
by hearing a survivor’s claim of genocide or other mass atrocities. Shell
relies on two presumptions that often guide courts when interpreting
statutes that implicate foreign affairs. First, invoking the
“presumption against extraterritoriality,” Shell argues that the territorial
reach of the ATS must be limited because the statute does not explicitly say
that it applies outside the United States. Second, Shell claims
that the ATS violates international law by meddling with foreign
sovereignty. Invoking the presumption that an ambiguous federal law
should be construed not to violate international law, Shell argues that the ATS
should be limited to U.S. soil. This argument is premised on the
pre-Nuremberg idea that state sovereignty trumps individual rights.
According to Shell, a state's crimes against humanity, committed against its
own people, in its own territory, cannot be scrutinized by the courts of
another state.
The U.S. Government’s Position in Kiobel II:
Conflicted Views and a Call for Greater Executive Branch Control
Initially, the Obama Administration
supported the Kiobel plaintiffs. The government's brief in Kiobel I argued that corporations
could be liable for human rights crimes. But in Kiobel II, the
Justice Department—in an apparent split with the State Department—reversed
course and filed a brief calling for territorial limits on the ATS
that would block the case against Shell. This about-face on human rights
is highly controversial. Harold Koh, Legal Advisor to the State
Department, apparently refused to sign the Justice Department’s brief.
The government's brief in Kiobel
II aims to bar most extraterritorial ATS claims, while keeping the
courthouse doors ajar for certain cases. The brief makes two main
points. First, it urges the Supreme Court to refuse to recognize
an ATS suit that “challenges the actions of a foreign sovereign in its own
territory” where, as here, “foreign plaintiffs are suing foreign corporate
defendants for aiding and abetting a foreign sovereign’s treatment of its own
citizens in its own territory.” This appears to be a bid to exempt
multinational corporations, while perhaps preserving ATS cases against
companies headquartered in the United States or cases against flesh-and-blood
perpetrators.
Second, the government argues that the Executive branch should
play a stronger role in determining whether the ATS applies to violations committed
overseas, on a case-by-case basis. Courts could likely continue to hear
cases—such as CJA’s—where the primary human rights abuser is physically
present, because it would serve U.S. foreign policy interests in denying safe
haven. All the same, the government argues that when extraterritorial ATS
suits are permitted, procedural rules and doctrines of judicial restraint
should apply “with special force.”
CJA’s Amicus Brief in Kiobel II: Transnational human
rights cases are necessary to deny safe haven to perpetrators.
On June 13, 2012, with co-counsel
Pam Karlan and Jeffrey Fisher of the Stanford Supreme Court Clinic, CJA filed
an amicus brief in Kiobel II on behalf of
twelve of our clients, Dolly Filartiga, and CJA itself. Our brief stresses
the importance of keeping U.S. courts open to human rights lawsuits filed
against perpetrators who have sought safe haven here. We make three major
points.
First, we argue that individuals who come to the United States are
normally subject to lawsuits in this country for claims that arise abroad –
whether the claims arise from automobile accidents in Europe, theft of trade
secrets in Asia, or intentional torts in Africa. Adjudicating lawsuits
here for human rights abuses abroad involves no unusual, much less
unprecedented, exercise of jurisdiction. Indeed, it would be perverse to
permit tort suits for foreign fender-benders but not for foreign genocide.
Second, allowing ATS suits against U.S. residents for atrocities
committed abroad is essential to our country’s longstanding commitment to deny
safe haven to human rights abusers who take refuge in our country and enjoy the
privileges of living here. And, third, other existing legal
doctrines are available to limit the prospect of litigation having no real
nexus with the United States. By contrast, a categorical bar would only
push human rights litigation into state courts, impeding the government’s
ability to monitor and intervene in human rights suits, and creating a
patchwork of inconsistent rulings in a field of foreign relations law where
uniformity is vital.
In Mohamad, decided on April 18, 2012, the
Supreme Court held that the Torture Victim Protection Act—which provides
victims with a cause of action against an “individual” who commits torture or
extrajudicial killing—does not apply to an entity, such as a de facto
government or corporation, whose agents commit torture. The Court thus
foreclosed a U.S. family's claims against the Palestinian Authority for the
torture and killing of their son.
Source: www.cja.org
