The first case the U.S. Supreme Court will hear when the
justices return in October is a reprise of Kiobel v. Royal Dutch
Petroleum, which the high court originally heard in February but
tossed back to the parties for rebriefing. The new question
before the high court is this: Does the Alien Tort Statute,
passed as part of the Judiciary Act of 1789 and revived from
obscurity in the 1990s to become a tool of international human
rights advocates, apply to conduct that took place outside of
the United States? For the human rights community, this is a
do-or-die moment. The Alien Tort Statute, which holds simply
that federal courts may hear "any civil action by an alien for a
tort only, committed in violation of the law of nations or a
treaty of the United States," has become a means for victims to
seek retribution from perpetrators and abettors of atrocities.
The stakes are so high that the State Department's legal
adviser, former human rights litigator Harold Koh, refused to sign the Justice Department's recent amicus brief advocating
certain limits on the ATS's reach overseas.
Late Wednesday, Royal Dutch's corporate successor, Shell
Petroleum, filed its brief on the extraterritorial application
of the ATS. You will not be surprised to hear that Shell's
lawyers at Quinn Emanuel Urquhart & Sullivan cite Morrison v. National Australia Bank in arguing that because the 1789 law
makes no mention of extraterritorial application, it's presumed
not to extend to conduct on foreign soil. To answer arguments by the Kiobel plaintiffs that the ATS was specifically drafted to
address piracy claims, which, by definition, involve offshore
conduct, Shell contended that the high seas are not the same as
foreign soil since no nation is sovereign in international
Shell's brief, elegantly written by former Stanford Law
School dean Kathleen Sullivan, goes quite a bit further, though.
It implies that federal appeals courts have erred in rulings
that permitted the Alien Tort Statute to be asserted by victims
of overseas acts that allegedly violate the "law of nations."
It's Congress's job to decide how far its laws extend, Shell
argued, and Congress has shown its willingness to extend the
reach of some laws, including a civil cause of action against
terrorists, to conduct on foreign soil. So if Congress wants the
Alien Tort Statute to have the same reach, it should amend the
law. Or if it wants some other human rights law to take the
place of the ATS, it can pass one.
Otherwise, Shell argues, the Supreme Court should respect
the sovereignty of other nations, many of which have said in
amicus filings that they don't want U.S. courts opining on their
conduct. "Policy debates regarding whether U.S. law should
afford a civil cause of action regarding alleged human-rights
violations abroad are appropriately directed to Congress, not
the courts," the Shell brief said. "Modern Congresses have
provided certain civil causes of action and criminal offenses
for international-law violations committed abroad, but have done
so in modest steps with specified safeguards. Congress should
likewise be permitted to decide whether to extend an additional
extraterritorial remedy through the ATS and federal common law,
without bypass through judicial fiat."
Even though the Justice Department's amicus brief supported
Shell in this case, which involves foreign plaintiffs suing a
foreign defendant for conduct that took place on foreign soil,
Shell argued that the U.S. government didn't go far enough.
Pointing again to Congress's power, the brief said the Justice
Department misinterpreted the presumption against
extraterritoriality. "Correctly interpreted," Shell asserted,
"the presumption bars ATS suits alleging foreign conduct whether
the defendant is a U.S. or foreign citizen.
Underlying the fascinating policy debate about the role of
U.S. courts in international human rights litigation are some
arcane legal questions, including whether the ATS involves the
international law of nations or federal common law and whether
the presumption against extraterritoriality applies to
jurisdictional laws like the ATS, or only to substantive laws.
For the record, Shell argued -- in language that shows why
Supreme Court litigators are a rarefied breed -- that because
the Supreme Court has held that federal courts have authority
under federal common law to recognize ATS causes of action, the
presumption against territoriality applies.
Here's hoping that when the court hears the case in October,
the debate centers on the appropriate forum for the claims of
victims of international atrocities, and not on the application
of the presumption against extraterritoriality to jurisdictional
(Reporting by Alison Frankel)
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