Kiobel II: Summaries of Key Amicus BriefsKiobel v. Royal Dutch Shell Petroleum
CJA has provided summaries of select amicus briefs, to present an overview of the broad range of issues and arguments raised in Kiobel II. For links to all the briefs filed in Kiobel I and II, click here.
Amicus Briefs in Support of the Petitioners (Kiobel et al.)
CJA's 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.
The International Law Scholars brief argues that nothing in international law prohibits the ATS from providing a domestic remedy for violations of international law, even when those violations occur within the territory of another state. First, the ATS exercises “adjudicative jurisdiction” rather than “prescriptive jurisdiction” – meaning the ATS does not legislate new regulations and project those overseas; it simply provides a forum to decide international law claims. Second, under the Lotus principal, one state’s exercise of jurisdiction is presumptively valid, unless it violates some specific prohibitory rule. And Shell fails to prove that international law forbids providing a tort remedy for foreign human rights abuses. The fact that other states have chosen not to enact statutes similar to the ATS does not mean that they are prohibited from doing so. Moreover, contemporary international human rights law rejects the right of states to commit genocide, war crimes, or crimes against humanity with impunity under cover of territorial sovereignty. Third, international law requires that states provide effective remedies for violations of human rights law, and the exercise of adjudicatory jurisdiction through the ATS is entirely consistent with that right to a remedy. Fourth, even if the ATS were an example of prescriptive jurisdiction, it would be a valid exercise of (i) universal jurisdiction for core international crimes or (ii) active personality jurisdiction over U.S. nationals who violate human rights abroad. Finally, a categorical bar on applying the ATS overseas is unnecessary because U.S. courts have numerous case-specific doctrines that ensure respect for foreign sovereigns and international law.
The Former U.S. Diplomats brief argues that potential policy concerns should not lead to the wholesale rejection by U.S. courts of suits challenging human rights violations abroad; rather courts should take such suits on a case-by-case basis. Lawsuits challenging gross violations of human rights committed overseas are sometimes in American foreign policy interests, and sometimes not. It would be imprudent to allow all cases challenging overseas human rights violations to proceed, no matter the foreign policy consequences. But it would be unduly restrictive to allow none to proceed, thereby depriving our country of an often valuable tool in support of U.S. foreign policy commitments to worldwide respect for human rights. Further, as they have done in the past, courts maintain the possibility of narrowing the issues in appropriate cases to avoid negative foreign policy implications. Therefore, the approach most consistent with American foreign policy interests is to make these determinations on a case-by-case basis, after consultation with the Executive.
The brief for the Government of the Argentine Republic argues that the Filartiga decision was a significant step toward ending the impunity of human rights violators in repressive regimes, and has been applauded as such in Latin America. For the United States to cease hearing human rights actions arising abroad would reverse the Hemisphere’s gains in ending impunity; that retreat would lack a sound legal basis. First, critics who insist that the Alien Tort Statute was not intended to apply to causes of action arising abroad ignore the importance of Emmerich de Vattel, whose work informed the First Congress’s 18th century conceptions of the law of nations. Vattel insisted on the natural rights of the individual and supported universal jurisdiction against criminals who through heinous acts became enemies of all mankind. Latin America shares the heritage of Vattel with the United States, and while international law’s focus changed over the course of the 19th and early 20th centuries, the individual has returned to the fore since World War II. Second, concerns that Sosa v. Alvarez Machain improperly opened the door to excessive exercise of prescriptive jurisdiction by the United States are unfounded given the universal nature of the limited set of norms that Sosa protects and the fact that virtually all nations have legislated them domestically.
The American Bar Association brief makes two arguments. First, the ATS confers jurisdiction over suits arising from conduct that takes place in other countries. The plain language of the ATS is categorical and contains no hint that Congress intended to place a territorial limitation on its grant of jurisdiction. When Congress has intended to create an exception for acts committed outside the United States, it has done so expressly, as it did in the Federal Tort Claims Act. With passage of the Torture Victim Protection Act, Congress signaled its approval of enforcement of the ATS’s plain language and its extraterritorial application. Second, categorically rejecting extraterritorial application of the ATS will have negative practical and policy-related consequences. Additional litigation over where various acts occurred will likely ensue, calling upon the courts to craft fact-intensive rules. Adding such layers of complexity is unnecessary when courts already have at their disposal a number of well-recognized tools—such as the requirement of personal jurisdiction, the doctrines of forum non conveniens and exhaustion, and the defined limitations of the scope of ATS jurisdiction to universally recognized wrongs—to limit the ATS’s jurisdiction to appropriate cases. Moreover, restricting the ATS to violations that occur within the territory of the United States would be inconsistent with America’s historic commitment to promoting accountability for human rights violations and encouraging all nations to develop effective remedies for violations. ATS precedents have powerfully influenced the development of human rights law and adherence to the rule of law throughout the world. The ATS has also proved to be an important means of securing relief for victims who have fled their home countries under the threat of persecution, and who cannot return to pursue their cases there. A narrow reading of the ATS would diminish the United States’ voice in fostering universal adherence to norms of international law.
The brief of U.N. High Commissioner for Human Rights, Navi Pillay, argues that the exercise of universal civil jurisdiction over gross human rights violations and serious violations of international humanitarian law is both permitted and beneficial from a human rights perspective. First, conventional and customary international law permits states to exercise universal jurisdiction in cases involving gross human rights violations or serious violations of international humanitarian law. In this narrowly defined area of law, states merely offer a judicial forum allowing the victims to obtain effective remedies for violations that are so obvious and abhorrent that the international community recognizes the need for effective recourse. Second, universal jurisdiction applies to civil cases and extends, at a minimum, as far as universal criminal jurisdiction. In practice, a number of states combine universal criminal with universal civil jurisdiction by allowing victims to join criminal proceedings brought under universal jurisdiction as civil claimants. From the perspective of the victim, it would be anomalous if international law allowed third States to offer one aspect of an effective remedy (prosecution of the perpetrators), but not the other (adequate, prompt and effective reparation). Also, the exercise of civil jurisdiction is far less intrusive than criminal jurisdiction vis-à-vis other nations and individual defendants, and hence not subject to more stringent limitations. Third, the prospect of civil litigation before U.S. courts under the ATS provides incentives for States, corporations, and individuals to prevent gross human rights violations and adapt their practices accordingly.
The Yale Law School brief argues that the ATS is a jurisdiction-granting statute that does not create new substantive law, but rather enforces international law. Nothing in international law prohibits such enforcement; quite the contrary. First, Under the Lotus principle of international law, each nation-state has broad authority to exercise extraterritorial criminal and civil jurisdiction to enforce international law. This authority is inherent in state sovereignty and is subject only to specific and affirmative international law limitations, such as sovereign immunity, that are not relevant in this case. Second, treaty law and international tribunal jurisprudence demonstrate that extraterritorial application of the ATS does not violate international law. Torture, for example, is a clearly recognized basis for an ATS action, and the Convention Against Torture certainly permits, and may even require, state parties to establish extraterritorial civil jurisdiction. International tribunals, moreover, have expressed support for extraterritorial civil jurisdiction over violations of the law of nations. Third, the United States is far from alone in asserting extraterritorial civil jurisdiction over violations of international law. Many countries have exercised their power as sovereign states to provide for both civil and criminal extraterritorial jurisdiction over such violations. In addition, some foreign courts have entertained ATS-like extraterritorial civil suits. None has refused relief on the ground that extraterritorial jurisdiction would violate international law. Together, these sources demonstrate that nothing in international law prohibits the United States from exercising its inherent sovereign power to provide civil jurisdiction for its courts to redress violations of international law that occur in foreign countries.
Yale Law School has also provided access to all of the foreign and international law sources covered in its brief, much of which is not readily available on-line.
The brief for Victims of the Hungarian Holocaust argues that the presumption against extraterritoriality does not apply to the ATS. The purpose of the presumption is to limit conflicts between U.S. and foreign law by limiting the application of U.S. substantive law on foreign soil. However, the ATS does not seek to apply U.S. substantive law. As noted in Sosa, the ATS applies only a narrow band of international law that is universally recognized, including genocide, torture and crimes against humanity. Customary international law not only allows, but requires that jurisdiction be asserted wherever such perpetrators are found. As such, the ATS cannot bring U.S. law into conflict with foreign law because it does not apply U.S. law. The presumption against extraterritoriality is therefore irrelevant in the context of ATS litigation.
The Professors of Legal History (Casto, et. al.) brief argues that limiting the reach of the ATS to U.S. territory would be ahistorical, inconsistent with the statute’s plain text, and contrary to congressional purpose. First, the word “tort” invokes the background presumption that personal injury torts were transitory. The cases and treatises on which the founding generation relied support that tort actions were triable wherever the defendant could be found. While statutes at the time could rebut the transitory tort presumption, the ATS contains no such limiting language. Rather, use of the term “law of nations” indicates congressional intent to enforce universally-prohibited violations to their fullest extent, which did not include a territorial limitation. Second, Attorney General Bradford’s 1795 Opinion on the application of the ATS to a raid in the British colony of Sierra Leone confirms that ATS claims were cognizable for actions occurring within the territory of sovereigns other than the United States. As historical documents show, Bradford was informed that many of the tortious acts had taken place in British sovereign territory, and expressed “no doubt” that British citizens injured in the incident could seek civil redress in U.S. courts for law of nations violations. Finally, early nineteenth century treatment of piracy and slave trade cases affirms that early U.S. courts entertained cases for violations of universal norms wherever they arose. Accordingly, the universal nature of ATS norms along with well-established transitory tort principles reinforce that Congress intended the ATS to apply to suits arising on foreign soil.
Amicus Briefs in Support of Neither Party
The U.S. 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.”
The brief of the U.K. and Netherlands argues that the ATS should not apply extraterritorially. First, international law only allows the exercise of extraterritorial civil jurisdiction where the challenged acts and/or parties have a sufficiently close factual connection to the forum state. Although international law permits universal criminal jurisdiction for a narrow category of international norms, it does not give rise to a corresponding basis for civil jurisdiction. Sosa met the international law standard for jurisdiction because there was a sufficiently close nexus with the U.S. Courts in the Netherlands and U.K. also apply jurisdiction-limiting principles consistent with international law. The presence of a U.S. corporate affiliate, as in this case, is not a sufficient basis to establish jurisdiction over ATS claims against a foreign parent or affiliated corporation for unrelated activities that have no effect in the U.S. Second, the presumption against extraterritoriality invoked by U.S. courts applies the ATS. Allowing U.S. courts to exercise broad extraterritorial jurisdiction in ATS cases often interferes with the right of a nation to prescribe rules for and adjudicate disputes among its own residents that occur on its own territory. International comity considerations particularly weigh against exercising U.S. extraterritorial jurisdiction in ATS cases. The risks of jurisdictional disputes among sovereigns would also be reduced if this Court were to require the use of the exhaustion of local remedies doctrine before a plaintiff could bring an ATS claim based on conduct in the territory of a foreign sovereign.
Amicus Briefs in Support of the Respondents (Shell)
The brief for B.P. argues that the plaintiffs’ claims should be dismissed for two reasons. First, the ATS contains no indication that Congress intended the statute to apply extraterritorially. Congress enacted the ATS in 1789 to ease diplomatic tensions with other countries by ensuring that aliens injured in the United States (or on the high seas) would not be left without a judicial remedy. Far from reducing diplomatic tension, extraterritorial projections of the ATS have prompted complaints from America’s closest allies. The references to “aliens” and the “law of nations,” as well as the fact that the ATS is a jurisdictional and not proscriptive statute, are insufficient to rebut the presumption against extraterritoriality. International law does not require the United States to exercise jurisdiction over U.S. citizens’ extraterritorial torts, and this Court’s longstanding refusal to judge other governments’ sovereign acts supports a territorial limit on the ATS. Second, the ATS does not confer jurisdiction over claims involving civil aiding and abetting liability. Congress has provided for aiding and abetting liability in the criminal sphere, but that cannot support the creation of an inferred right of action for civil aiding and abetting liability. Well-established precedents of this Court provide the basis for two clear lines: absent the kind of clear indications of congressional intent that are lacking here, the ATS neither applies to alleged injuries that occurred on foreign soil nor provides for civil aiding and abetting liability.
Chevron’s brief argues that extraterritorial ATS causes of action are invalid for three reasons. First, they create significant legal and diplomatic conflicts. ATS cases have been internationally controversial because they violate foreign territorial sovereignty and are fueled by what other nations view as exorbitant U.S. rules concerning discovery, litigation costs, jury trials, punitive damages, class actions, and contingent fees. Second, extraterritorial application of the ATS cannot be squared with the presumption against extraterritoriality. The ATS contains no indication of congressional intent to create or support extraterritorial causes of action. Third, extraterritorial ATS causes of action violate international law because they purport to regulate foreign government conduct on foreign soil beyond the consent of nations. Nations have consented in treaties to numerous human rights obligations, to individual responsibility in specified courts for defined international crimes, and to various forms of monitoring by international and regional organizations. They have not, however, consented to the regulation of human rights inside their territories through private civil causes of action in the domestic courts of other nations. Accordingly, the ATS does not apply to causes of action that took place outside of U.S. territory.
Bellia & Clark’s brief argues that the ATS confers jurisdiction only over suits by aliens against U.S. citizens, and not over suits between aliens, regardless of where the acts took place. First, the history of the ATS demonstrates that it was understood to confer jurisdiction only over acts by U.S citizens against aliens. At the time of the statute’s enactment, the failure to redress a tort in violation of the law of nations gave the offended nation just cause for war. Since the states proved unable or unwilling to redress such violence, the First Congress granted federal courts jurisdiction to hear such claims. Congress had no similar incentive to authorize federal courts to adjudicate tort suits between aliens, since violence by aliens against other aliens was not imputed to the United States under the law of nations. Second, the limits of Article III diversity jurisdiction preclude applying the ATS to suits between aliens. The ATS was enacted on the understanding that the common law would provide a cause of action. Moreover, this Court has never considered the “law of nations” to qualify, in and of itself, as federal law. Accordingly, the ATS provides no basis for “arising under” jurisdiction, and can only plausibly be understood as a jurisdictional grant pursuant to Article III‘s foreign diversity clause. Such jurisdiction requires that at least one party to the case be a U.S. citizen.
The brief for the U.S. Chamber of Commerce argues that the ATS does not apply extraterritorially, even when the defendant is an American company. First, the Court has already ruled that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none.” Because the ATS provides no clear indication of extraterritorial application, the inquiry ends. Second, applying the ATS to the actions of American companies abroad creates disincentives for such companies to invest in developing nations and puts those American companies at a substantial disadvantage vis-à-vis their foreign competitors. Under the limited view of extraterritoriality, plaintiffs seeking a deep pocket in ATS cases could simply target U.S. companies, while their foreign competitors would sidestep those costs altogether. This penalty for being an American company finds no support in logic, the text of the statute, or the previous positions of the U.S government.
The brief for former Legal Advisers to the State Department argues that the Court should categorically apply the presumption against extraterritoriality to the ATS and reject the State Department’s current proposal for “case-by-case” deference to the Executive. This approach is more faithful to U.S. foreign policy objectives and Supreme Court precedent than the “case-by-case” approach. First, the presumption against extraterritoriality is designed to avoid the significant foreign relations concerns that would be raised by U.S. attempts to regulate conduct within the territory of foreign sovereigns. Second, the United States consistently has viewed as separate questions what the substance of international law should be and whether the United States should domestically impose its views of international law extraterritorially. For example, the United States ratified the ICCPR in 1992, but took the position that it would not enforce the Covenant with respect to conduct outside the United States. Third, with regard to extraterritoriality generally, the United States consistently has advocated a categorical approach, which the Supreme Court has consistently upheld. Fourth, the practice of consulting the State Department as to whether specific litigation matters should go forward has not worked well in the other contexts, such as foreign sovereignty immunity cases. Moreover, the model of soliciting the United States’ case-specific views is even less appropriate in deciding statutory interpretation issues such as extraterritoriality, because the meaning of the statute should not change depending on the views of the Administration that is in place. Amici therefore urge the Court to reject the “facts and circumstances” test for extraterritoriality urged in the United States’ Supplemental Brief and to hold categorically that the ATS does not authorize suits for violations of the Law of Nations occurring solely within the territory of a foreign sovereign.