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

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

Written by Barrie Sander

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”.