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).