Are the high seas the legal equivalent of foreign soil?

According to a new U.S. Supreme Court brief by the victims of alleged state-sponsored violence on an oil rig in Nigeria, they are indeed. The brief, filed in a case that will determine the role of the United States in international human rights litigation, argues that the very first Congress enacted the Alien Tort Statute in 1789 in order to establish federal-court jurisdiction over piracy cases. The sort of robbery on the high seas that Congress had in mind, the brief said, clearly took place off the shores of the United States. So it doesn't make sense to presume, more than 200 years later, that Congress intended the Alien Tort Statute to apply only to alleged wrongdoing inside U.S. borders, especially because in all those intervening years Congress has never redefined the scope of the statute.

The brief, filed by Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman & Harrison in the case known as Kiobel v. Royal Dutch Petroleum, is the opening salvo in the Supreme Court's reshaping of the Kiobel case. As you may recall, the justices first heard oral argument in Kiobel in February, when lawyers on both sides addressed the issue of whether corporations can be held liable under the law. (The 2nd Circuit Court of Appeals had ruled in Kiobel that they can't be, in a split with several other circuit courts.) Argument had hardly begun when Justice Anthony Kennedy asked a broader question prompted by Royal Dutch amici: Why was this case, which involved Shell's alleged complicity with the Nigerian government in the torture and killing of Nigerian nationals, even in a U.S. court? In an extraordinary order issued days after the Kiobel oral argument, the Supreme Court essentially said it had been looking at the wrong question in the case. The justices called for all new briefing on "whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of the law occurring within the territory of a sovereign other than the United States."

Underlying that issue, of course, is the high court's 2010 ruling in Morrison v. National Australia Bank, which held that U.S. laws should not be presumed to apply to conduct outside our borders. As I've reported, no federal appeals court has decided an ATS case based only on a Morrison analysis of extraterritoriality, though both the 9th Circuit and the District of Columbia Circuit have addressed whether the ATS applies overseas. (Majorities in both circuit court rulings concluded that it does, despite Morrison and dissenting opinions.)

In last week's opening brief on the extraterritoriality of the ATS, the Nigerian plaintiffs said that the law's history presumes that it applies to conduct outside the borders of the United States. So does Supreme Court precedent, according to the brief: The seminal 2004 Supreme Court case that affirmed the use of the Alien Tort Statute as a vehicle for international human rights litigation, Sosa v. Alvarez-Machain, held that a Mexican national could proceed with a suit against Mexican officials for claims based on his alleged kidnapping in Mexico. "Only by overturning the core analysis in Sosa and its application of the ATS to modern human rights cases could this court impose categorical territorial limitations on the ATS. There is no reason for this court to do so," the brief said.

In a highly technical parsing, Hoffman and other lawyers for the Nigerian plaintiffs also argued that Morrison doesn't apply to the Alien Tort Statute because the ATS is a jurisdictional law that merely grants plaintiffs the right to sue in federal court. Morrison, they said, dealt with the reach of substantive U.S. securities laws, not with the jurisdictional provisions of the Securities Act. "This court distinguished between the jurisdiction to adjudicate the case and the substantive regulation of conduct prescribed by U.S. securities regulation, and only restricted the territorial reach of the latter," the brief said.

"The (Morrison) presumption against extraterritoriality does not apply to jurisdictional statutes or to the jurisdictional provisions in statutes," the Nigerians' lawyers wrote. And because the ATS claims are based not on substantive U.S. laws but rather on the international law of nations, Morrison can't limit the reach of the statute.

Hoffman previously told me that he expected Justice Kennedy to be the swing vote in the court's consideration of the extraterritorial application of the ATS. I asked what parts of the new brief -- which also notes that other countries permit claims for international human rights violations and describes the safeguards in U.S. courts against frivolous claims -- were directed at Kennedy. "Everything," he said in an email.

Another key question is how the Justice Department will opine on the scope of the ATS. The United States argued as an amicus in the Sosa case that the law does not apply overseas but supported the Nigerians in the first Supreme Court iteration of Kiobel, when the issue was simply the liability of corporations under the ATS. Hoffman said he has heard that there's been "quite a battle" inside the Justice Department over its new Kiobel amicus brief, but he doesn't know what the Solicitor General's office has decided. The department did not immediately respond to requests for comment.

Shell is represented at the Supreme Court by Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan. She referred me to a Shell spokesman, who declined comment on the Nigerians' brief. The defense brief on extraterritoriality is due on Aug 1.

(Reporting by Alison Frankel)

Follow us on Twitter @AlisonFrankel, @ReutersLegal  | Like us on Facebook