The SCOTUS blog recently held a symposium on Kiobel v. Royal Dutch Petroleum. Kiobel is one of the most important cases that will be decided by the U.S. Supreme Court in the new term that begins October 1, 2012.
Kiobel was filed under the Alien Tort Statute (“ATS”), and alleges that subsidiaries of the corporate defendant planned, conspired and facilitated extrajudicial executions, torture and crimes against humanity by Nigeria in the Niger Delta between 1992 and 1995.
Lyle Dennison’s article, Kiobel: Made Simple, is an excellent starting point for anyone wanting to learn more about the case.
In a nutshell, the central issue of the case concerns the extraterritorial applicability of the ATS–whether US federal courts may rely on the ATS to exercise jurisdiction over human rights abuses which have no connection to the U.S., i.e. abuses committed by non-U.S. entities against non-U.S. victims on non-U.S. territory. Notably, this sounds very much like the so-called “F-cubed” fact pattern that the U.S. Supreme Court encountered two years ago in Morrison v. National Australia Bank.
In the context of ATS litigation there are three main issues: the presumption against extraterritoriality, the substantive scope of the ATS, and international law.
For purposes of this post, I’ll focus on the third–the extraterritorial application of U.S. law pursuant to international law. According to proponents of this third basis for extraterritorial jurisdiction, universal civil jurisdiction is rooted in universal criminal jurisdiction, which in many countries also includes some form of civil redress. Opponents argue that a nation’s sovereignty is absolute and, thus, beyond the reach of a foreign court.
The Case for Universal Jurisdiction
Proponents of universal jurisdiction point to the Opinion of Justice Stephen Breyer in Sosa. In the opinion, Justice Breyer wrote that it is generally accepted that there exists “procedural agreement” within the international community to criminally prosecute a subset of universally condemned behaviour, including torture, genocide, crimes against humanity, and war crimes. Justice Bryer further noted that “universal criminal jurisdiction necessarily contemplates a significant degree of civil tort recovery as well.”
The case for universal jurisdiction is further supported by international law, according to supporters of universal jurisdiction. Specifically, pursuant to Article 75(2) of the Rome Statute, the International Criminal Court has the power to “[M]ake an order directly against a convicted person specifying appropriate reparations to, or in respect of, victims, including restitution, compensation and rehabilitation.”
Also helping to make the case of universal jurisdiction is that existence of human rights treaties that obligate signatories to provide effective remedies to human rights victims. This was precisely argument raised in the brief submitted by Navi Pillay, the UN High Commissioner for Human Rights.
The Case Against Universal Jurisdiction
Other argues that universal jurisdiction has no place under the ATS.
In Response: For ATS claims, universal jurisdiction isn’t the answer, Michael Ramsey argues against universal juridisiction.
In sum, adopting a universal jurisdiction approach to the ATS is not consistent with the ATS’s purposes. The U.S. has no general obligation to remedy international wrongs (even universal wrongs) having no connection with the U.S. Adjudicating such wrongs, and thereby imposing U.S. legal standards, U.S. fact-finding, and U.S. remedies on the entire world, would endanger rather than protect U.S. foreign relations. When Congress has legislated in the area of universal wrongs, it has done so narrowly, and it does not make sense for courts to use an a historical version of the ATS to accomplish what Congress has not.
The point was also made in a brief by Chevron in which it stated that:
Under international law, a nation’s sovereignty over activities within its territory is presumptively absolute, subject to exceptions by national consent. Nations […] have not, however, consented to allow a foreign court to entertain civil causes of action on the basis of universal jurisdiction, as is done in ATS cases.”
This argument finds further support in an amicus curiae brief submitted by the UK and Netherlands. These governments argued that:
[T]he right of the United States or any other sovereign to create and enforce such a domestic remedy depends on it being able to satisfy the proper jurisdictional limits recognized by international law. […] The Governments believe that there is no basis under international law for a U.S. court to exercise jurisdiction against the Respondents for the conduct charged in the complaint”.
As highlighted above, Kiobel raises many mind-bending questions that the Court will take up in its next term. While proponents of universal jurisdiction make the point that international law provides for at least some civil redress, opponents counter that a nation’s sovereignty is absolute and cannot be not be infringed upon by a foreign court.
What do you think?
Be sure to check out my other posts on Kiobel: