|Susan Farbstein & Tyler Giannini|
Guest Post by Tyler Giannini & Susan FarbsteinThe Supreme Court will open its new term on Monday. The first argument it hears will be Kiobel v. Royal Dutch Petroleum Co., the most significant human rights case to reach the Court in recent years. Intense interest in the case has generated more than 80 amicus curiae briefs from a range of actors around the world, including governments, human rights organizations, and corporations. Kiobelis especially intriguing not only because of the human rights issues at stake, but also because it will be the Court’s second time hearing oral argument in the matter. This is a rarity; the last example was Citizen United, the major campaign finance case.What are the issues?Kiobel is an Alien Tort Statute (“ATS”) suit based on a 1789 statute that allows non-U.S. citizens to bring civil claims in U.S. federal courts for universally recognized violations of international law. The case arises out of allegations that Royal Dutch/Shell was complicit in killings and other abuses by the Nigerian government in the 1990s. The Court first heard Kiobel last February, addressing the question of whether corporations can be held liable under the statute. But in an unusual move, a week later the Court requested supplemental briefing and a second oral argument.At the first oral argument in February, it quickly became clear that some of the justices were interested in additional questions beyond corporate liability. Specifically, they asked about whether the ATS permits claims that arise out of actions that take place on foreign soil (in this case, Nigeria). This question—whether, and when, the ATS allows such suits—was the focus of the supplemental briefing and will be addressed in the second oral argument.As the Petitioners and their amici have explained, the text of the statute, as well as its history, show that the ATS does allow for cases arising on foreign soil. It was intended to provide a remedy for universal violations, including piracy, which by definition occur outside the United States. For example, one of the earliest interpretations of the ATS, by Attorney General William Bradford in 1795, involved pillage and plunder committed during a raid on the British colony of Sierra Leone.What is at stake?On the question of corporate liability, Shell’s lawyers have advocated for a categorical rule: there should be no corporate liability under the statute under any circumstances. Shell’s lawyers are proposing a similarly absolutist rule on the question of extraterritoriality: plaintiffs should never be allowed to bring ATS claims for violations occurring outside the United States. This view is in opposition to the U.S. government’s position, and has drawn the attention of numerous commentators, including John Ruggie, the former UN Special Representative on business and human rights, who views Shell’s position as “extraordinarily far-reaching.”Shell’s views raise the stakes of the case. Its stance on corporate liability departs from more than fifteen years of corporate ATS jurisprudence. But Shell’s proposed rule on extraterritoriality would be an even more profound reversal, departing from more than thirty years of ATS case law.The first seminal ATS case—Filártiga, considered the Brown v. Board of international human rights litigation in U.S. courts—launched the modern era of ATS jurisprudence in 1980. Dolly Filártiga brought her case in New York against the Paraguayan police official who had tortured her brother to death. The court’s decision was rooted in the notion that today’s torturers, like eighteenth century pirates, are the enemies of all mankind. Filártiga was endorsed by the Supreme Court in its 2004 ATS decision, Sosa v. Alaverez-Machain.The categorical rule now advanced by Shell would close the door to remedies for plaintiffs like Dolly Filártiga, who wrote before Sosa: “I am proud to live in a country where human rights are respected, where there is a way to bring to justice people who have committed horrible atrocities. Now it is up to the Supreme Court to ensure that truth will continue to triumph over terror.” Her sentiments remain as moving today as they did then.What might happen?As with so many cases, it is difficult to make predictions, but most commentators are focused on Justice Anthony Kennedy as the critical swing vote. Justice Kennedy has been a supporter of international law and joined the majority in Sosa, which allowed ATS claims to proceed in narrow circumstances for well-recognized violations of international law. At the same time, Justice Kennedy and the Court have been notably sympathetic to corporate interests in recent years. After Monday, we may have a better sense of what to expect in Kiobel.The Sosa Court left the door ajar to ATS suits for universal violations, whether piracy or genocide, whether committed outside the United States or within its borders. This Court should do the same. Survivors of torture, extrajudicial killing, crimes against humanity, and war crimes deserve the opportunity to obtain justice in U.S. courts, just as Dolly Filártiga did more than thirty years ago.Tyler Giannini and Susan Farbstein are the co-directors of the International Human Rights Clinic at Harvard Law School. They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co. Giannini served as one of the architects of Doe v. Unocal, a precedent-setting suit that settled in 2005. Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.
When the U.S. Supreme Court starts its 2012-2013 term on Monday the very first case it is scheduled to hear involves a law passed by the first U.S. Congress in 1789. At that time, the Congress allowed aliens victimized by a violation of international law to seek civil redress in U.S. courts. In this post, Professor Oona Hathaway of Yale Law School argues that “No Congress in the more than 200 years since has revisited this decision. The Supreme Court should not do so now in a misguided attempt to correct problems with the law that do not, in truth, exist.”
Guest Post by Professor Oona Hathaway
Kiobel plaintiffs on
February 28, 2012.
Amnesty International USA
On the face of it, the re-argument of Kiobel v. Royal Dutch Shell is about whether the Alien Tort Statute (ATS) applies to conduct that occurs outside the geographic borders of the United States. But behind this surface issue are two deeper concerns that are really motivating the debate—concerns that, when examined closely, turn out to be misplaced.
The first is a worry that the U.S. courts will become the courts of the world. The U.S. is alone, the argument goes, in allowing individuals harmed by human rights abuses to sue those responsible. Moreover, the ATS allows aliens to sue defendants that have no connection to the United States for conduct that happened outside the United States. Clearly, then, allowing this case to proceed will open the floodgates!
Nothing could be further from the truth. The U.S. is one of many countries—including the Netherlands, the home of Royal Dutch Shell—that provides for the enforcement of international human rights law in its courts. Indeed, in preparing our supplemental amicus brief for re-argument, the Yale Law School Center for Global Legal Challenges gathered a large number of foreign cases, statutes, and constitutions that expressly provide for such enforcement. The United States is in good company.
Moreover, there are a variety of doctrines that already exist to keep cases out of U.S. courts if they belong elsewhere. These include personal jurisdiction, forum non conveniens, act of state doctrine, and exhaustion. Indeed, under personal jurisdiction doctrine, foreign defendants are subject to suit in U.S. courts only if they have sufficient contacts with the United States. Royal Dutch Shell, which does extensive business in the United States, so clearly meets this test (as the ubiquitous Shell gas stations attest) that it did not even raise the issue below.
A second, and related, concern motivating the debate is a worry that the United States is improperly imposing U.S. law abroad. The background presumption against extraterritorial application of U.S. law can be understood as an effort to respect the sovereignty of other states: Foreign states should have the freedom to regulate behavior within their own geographic boundaries, hence U.S. courts should not apply U.S. law to conduct abroad unless Congress expressly so provides. That is because doing so risks imposing distinctive U.S. law to conduct that is more appropriately regulated by the state in which the conduct occurs.
Yet this does not apply in this case or any other ATS case. The plaintiffs are not asking the Supreme Court to apply distinctive U.S. law to conduct that occurred abroad. They are asking U.S. courts to enforce international law—including the prohibition on torture, crimes against humanity, and extrajudicial killing—that the country in which the conduct occurred has itself accepted (if not always honored).
The ATS does not supply substantive rules that govern conduct abroad. Instead it simply provides for the enforcement of existing international law norms. International law makes clear that each state has the sovereign prerogative to do just this—to determine when and how to enforce international law. Indeed, a foundational principle of international law known as the Lotus principle provides that, in the absence of a specific prohibitive rule, “every State remains free to adopt the principles which it regards as best and most suitable.”
In 1789, the First U.S. Congress decided to allow aliens victimized by a violation of international law to seek civil redress in U.S. courts. No Congress in the more than 200 years since has revisited this decision. The Supreme Court should not do so now in a misguided attempt to correct problems with the law that do not, in truth, exist.Oona A. Hathaway is the Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School. Professor Hathaway is the director of the Yale Law School Center for Global Legal Challenges, which filed amicus briefs on behalf of Esther Kiobel in this case. She is currently a committee member on the Advisory Committee on International Law for the Legal Advisor at the State Department. Professor Hathaway has also served as a law clerk for Justice Sandra Day O’Connor and lectured at Harvard Law School, UC Berkeley School of Law, and Boston University School of Law.
The United States Supreme Court term that starts Monday is packed with cases with the potential to restrict corporate accountability and limit everyday Americans’ civil rights and access to justice. According to a report released today by the Alliance for Justice “the majority on the court is likely to live down to its full potential,” says AFJ President Nan Aron.“With polling showing the public increasingly fearful that corporations are receiving favorable treatment, the Court risks drifting further from the American mainstream and jeopardizing the legitimacy of its decisions,” Aron said.The report, available here, comes on the same day AFJ previews its documentary Unequal Justice: The Relentless Rise of the 1% Court, at American University’s Washington College of Law. The screening, at noon today, will be followed by a panel discussion.“The documentary describes a 40-year campaign by big business to put its thumb on the scales of justice,” Aron said. “AFJ’s Supreme Court Preview documents how the campaign may reach its zenith in the term that starts Monday.“Decisions this term could harm the ability of consumers, victims of discrimination, victims of human rights abuses and many others to stand up for their rights in court,” Aron said. “This could be The One Percent Court on steroids.”
As we celebrate Voter Registration Day, an effort to involve civic groups, media, and voters across the country, nationwide voter suppression efforts threaten the ability of millions of Americans to participate in the upcoming election. Two cases involving voter suppression efforts were decided this Monday: a federal judge in Florida gave a green light to Governor Rick Scott’s plan to cut back early voting, while a New Hampshire judge struck down a law that targeted college students seeking to vote in the state.
Governor Scott’s move to limit early voting is widely seen as a partisan effort, since early voters have heavily skewed toward the Democratic Party, especially for President Obama in 2008. Cutting back early voting is especially burdensome for students and minorities, who have less access to polling booths, and turn out in larger numbers during the early vote period. In 2008, Governor Charlie Crist, at the time a Republican, was attacked by his own party for extending early voting hours to accommodate the historic turnout in the election. The Florida law in question specifically ends early voting on the Sunday before Election Day, which saw particularly heavy minority voter turnout in 2008. Despite this history and the federal court decisions blocking other provisions of Florida’s voter suppression laws, Judge Timothy Corrigan of the Middle District of Florida found insufficient evidence that the reduction of early voting from 14 to 8 days would “impermissibly burden the right of African Americans to vote.” Judge Corrigan was appointed to the federal bench by President George W. Bush.
The New Hampshire Civil Liberties Union and League of Women Voters found more success in New Hampshire, where Strafford County Superior Court Judge John Lewis blocked a law that would prevent out-of-state students from voting in New Hampshire, where they attend college and live for most of the year. This law would require all voters agree to register a car and obtain a state drivers’ license, which is limited only to those who intend to reside in New Hampshire indefinitely or permanently. The law was enacted by the Republican-dominated state legislature over the veto of Governor John Lynch (D-NH). Speaker of the House Bill O’Brien explained that students were “basically doing what I did when I was a kid and foolish, voting as a liberal.”