Argument preview: Will an old law shrink?

The Supreme Court opens its new Term at 10 a.m. on Monday, and starts with one hour of oral argument on the reach of a 1789 law that seeks to impose liability in U.S. courts on those who commit human rights violations in foreign countries.  The case is Kiobel v. Royal Dutch Petroleum (docket 10-1491).  Arguing for a group of Nigerians who claim violations of the Alien Tort Statute of 1789 will be Paul L. Hoffman, a Venice, Calif., attorney, with thirty minutes of time.  He will be followed by Kathleen M. Sullivan, a New York attorney, arguing against applying the ATS to conduct that occurs entirely outside the U.S.  The remaining ten minutes will be used by U.S. Solicitor General Donald B. Verrilli, Jr.,  for the U.S. government as an amicus taking something of a middle position.

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Background

A case that has been unfolding in American courts over the past decade puts before the Supreme Court one of the most important and historic issues affecting international law and U.S. foreign policy.   It is a test of whether judges in the U.S., applying both American legal theory and international law norms, will have a role in holding to account those accused of carrying out atrocities in foreign lands.  Foreign governments and international business firms have weighed in against allowing U.S. judges wide-ranging authority to carry out that role, when there is no real connection to the U.S., while human rights advocates have joined in to support that role so that there is some potential remedy for such abuses beyond any remedies in international crimes tribunals.   The U.S. government is straddling a bit between the two opposing factions.

While the case of Kiobel v. Royal Dutch Petroleum was filed in 2002 in a federal court in New York, it seeks to apply a law passed by the very first U.S. Congress, in 1789 — the Alien Tort Statute.  That law does not spell out just what kinds of lawsuits can be filed in U.S. courts; it is simply a grant by Congress of authority to U.S. District Courts to hear ATS claims.  The law says that those trial courts may consider a lawsuit filed by “an alien” — that is, not a U.S. citizen — who claims to have been harmed by a “violation of the law of nations” or of a U.S. treaty.  In essence, Congress left it to the courts to fill in the blanks of what claims could be made.

The law went almost entirely unused until a federal appeals court in New York City in 1980 allowed an “all-Paraguayan” lawsuit — that is, filed by one Paraguayan national against another, claiming to have been tortured in Paraguay.   The only connection to the U.S. in that case was that the alleged torturer was then living in this country, and the lawsuit was based on a U.S. law — the ATS.  One reason that the case was allowed to proceed was that, otherwise, it might appear that the U.S. would be protecting the torturer.    The decision in that case (Filartiga v.Pena-Irala) set off a wave of ATS lawsuits that has continued in growing numbers, and the Supreme Court from time to time has had a role in defining the scope of such claims.  (The ATS lawsuits that have been filed are civil in nature, and thus provide an alternative to the criminal cases that now go before international human rights tribunals dealing with controversies such as alleged war crimes or “crimes against humanity.”)

Up to now, the Justices’ most important interpretation of the ATS came in 2004 in the case of Sosa v. Alvarez-Machain.  While the decision allowed U.S. judges to permit some ATS lawsuits to proceed, the Court stressed that they should proceed cautiously, making sure that the international law they were applying was clear and definite and that it reflected legal norms accepted by “civilized nations.”  But it left it to later cases to provide more specifics.

The Kiobel case now before the Justices arrived at the Court in June of last year.   At that point, it raised the basic question of whether a business corporation operating in another country could be sued in a U.S. court for allegedly committing, or helping others to commit, human rights violations overseas.   A group of Nigerian nationals, led by Esther Kiobel, contended in the lawsuit that a Netherlands firm, Royal Dutch Shell Petroleum Co., along with one of its subsidiaries and a British firm, had aided military forces of the Nigerian dictatorship in the killing or torture of, or other atrocities against, Nigerian civilians in a plot to suppress resistance to oil exploration in the Ogoni region of the Niger Delta between 1992 and 1995.   The oil companies had aided and abetted those human rights violations, the lawsuit claimed.   The lawsuit was thrown out by the Second Circuit Court, which concluded that an ATS claim could be made only against human beings, not a corporation.

The first round in the Court

Last October, the Supreme Court agreed to hear the Kiobel petition, on the sole question of whether corporations could be sued under the ATS.   The Justice Department, supporting some forms of corporate liability under the law, urged the Court to decide that issue and not be side-tracked by any other issues.  The foreign oil companies, however, urged the Court to consider whether the ATS should be available at all when all of the circumstances in a case had occurred entirely outside the U.S.   The companies contended that, if any U.S. law is to be applied to conduct beyond the limits of the U.S., Congress has to say that explicitly, and it had not done so in the ATS.

The Court, though, proceeded to hold an oral argument on the case on February 28, and much of the exchange between the Court and the lawyers focused on the corporate liability issue.

The second round in the Court

The Court, as matters turned out, did not decide whether ATS applies to corporate conduct abroad.   Instead, six days after the oral argument, the Court issued an order putting off the case until the following Term, and ordering all sides in the case to file new written briefs on the so-called “extraterritoriality” question.  The order called for written briefs on “whether and under what circumstances” an ATS lawsuit could be filed in U.S. courts “for violations of the law of nations occurring within the territory of a sovereign other than the United States.”   The supplemental briefs were filed over the summer, by the parties and by scores of amici, and the case was then scheduled for oral argument as the first case to be heard in the new Term starting October 1.   If the Court were to rule that the ATS does not reach entirely foreign actions, the Nigerians’ case will be over.   If it were to rule for a broader reach for ATS, presumably it would then turn to the issue of whether the law applies at all to corporations, or only to human beings.

Arguments for a broader ATS reach

The Nigerians who filed the human rights case against the three foreign oil companies contended in their supplemental brief that no court has ever imposed a territorial limit on such claims, and argued that the Supreme Court should not be the first to do so.  Any such limitation, they asserted, would have no support in precedents or in the history of the old law, would restrain such lawsuits in a way that Congress would have the power to do but has never done, and would contradict long-standing U.S. foreign policy in favor of global compliance with human rights protection and accountability for “gross violations” of international law.

Treating the Court’s call for further briefing as embracing two questions — does the ATS ever reach actions occurring on foreign soil, and, if it does, what circumstances would define or limit U.S. courts’ power — the Nigerians argued that the Court has already answered the first question, with its decision in the Sosa case eight years ago.   The Court, the brief said, approved the move in the courts beginning in 1980 to hear ATS claims involving human rights violations occurring on foreign territory, so unless Sosa is cast aside as precedent, there is no categorical bar to such claims.

And, the brief went on, the Sosa decision has already put distinct limitations on ATS claims: the Court made clear there that “ATS jurisdiction is not available for all law of nations violations, but only for universally-recognized, specifically-defined norms” of international law.  Lower federal courts already use caution in dealing with “transnational” cases, and can be trusted to continue to do so when claims arise under the ATS, the Nigerians said.  One such limitation the brief noted was the doctrine that a case cannot proceed if it is an inconvenient forum for one side or the other, requiring it to go far beyond its own homeland to defend itself legally.

For those members of the Court who prefer to read the language of federal statutes literally, the Nigerians noted that the ATS itself applies explicitly to claims by aliens, contains no territorial limitations, and was enacted to enforce international law — law that is not limited in its application to U.S. territory.   Although courts generally follow the principle that a U.S. law does not apply outside the U.S. unless Congress explicitly says it does, the Nigerians’ brief added, that does not apply to a law that only assigns jurisdiction to a court and does not seek to enforce “American norms of conduct.”  But, even if the Court were to find that the presumption against extraterritoriality would apply in the ATS context, the brief said, that presumption could easily be overcome by the fact that the ATS was written explicitly to enforce international laws, which extend beyond any one nation’s territory.

Finally, the brief said, the accusations leveled in this case — torture, killing, prolonged detention, crimes against humanity — “are so fundamental that every nation may assert universal jurisdiction over the perpetrators.  Any restriction upon such jurisdiction would protect modern perpetrators of genocide, slavery, torture, or other egregious violations” who were present in the United States from accountability.

The Nigerians are supported by nearly three dozen amicus briefs, from civil liberties and human rights advocacy organizations, to scholars in international law, to individuals who have filed lawsuits over the September 11, 2001, terrorist attacks on the U.S., to individuals who claim that they or their families were subjected to the kind of atrocities that the Nigerians confronted, to former diplomats and former counter-terrorism officials in government, and even to one foreign government — Argentina — and to some members of the German parliament.

Arguments against ATS cases for acts on foreign soil

The foreign oil companies relied heavily upon the long-standing notion — traced back to opinions of Chief Justice John Marshall as early as 1804 and reiterated by the Court as recently as two years ago – that American law does not extend outside U.S. territory unless Congress explicitly says that it does.  This is both a traditional, history-based argument, and one keyed to separation-of-powers concepts.  Congress, the companies’ supplemental brief said, knows very well how to make a U.S. law reach beyond the nation’s shores — and, in fact, it has done so for some forms of terrorism — and so the Court should not itself conclude that the ATS reaches actions that occurred entirely on foreign soil.

There is a second notion about how to read statutes that supports limiting ATS cases, the brief said.  The Court has long followed the practice of refusing to interpret U.S. law in a way that would make it violate international law.   It would be a violation of the law of nations, the brief asserted, for the Court to interpret the ATS as conferring universal civil jurisdiction in U.S. courts over foreign entities sued in such cases.   It is for foreign governments to deal with violations that occur within their own territories, and U.S. law has long acknowledged that, the companies said.

Going back to the origins of the ATS, the companies argues that the first Congress passed this law to deal with violations of international law that had occurred on U.S. soil, because such incidents “might prompt international conflict and even war if left without a remedy” in the newly created federal courts.

In discussing potential foreign policy complications of applying ATS extraterritorially, the companies’ new brief noted that the Nigerian government has formally protested this very lawsuit, and had argued that allowing the case to proceed would jeopardize a process already ongoing in Nigeria to deal with the suppression of the Ogoni people.  In addition, the brief noted, Nigeria’s government had said that an ATS case could compromise government efforts in Nigeria to “guarantee the safety of foreign investments, including those of the United States,” and harm the bilateral relations of the Nigerian and U.S. governments.

Although U.S. judges may retain the power to put some limits on ATS litigation, the companies asserted, that does not deal with the core question of whether Congress intended for the ATS to reach beyond America’s shores.

But the companies’ brief has a fallback position: if the Court does find that the ATS can reach conduct that occurred entirely overseas, it should then conclude that, in any event, the ATS cannot be used against a business corporation.

The governments of Great Britain and the Netherlands filed briefs that are nominally not in support of either party in the Kiobel case, but amount to strong contentions against giving the ATS an extraterritorial sweep.  It is up for each sovereign government, that brief contended, to deal with the human rights abuses that involve their own territories and their own nationals.   The European Commission, representing the multi-national European Union, also filed a nominally neutral brief, but it argued against extending ATS in the international context only to those situations in which the sued party is a United States national or when the conduct involved “threatens United States’ fundamental security interests.”   Otherwise, only laws that deal with criminal conduct should have an extraterritorial reach, the Commission argued.

Some fourteen amicus briefs have been filed in support of the oil companies’ challenge.  Many of those are from business firms, including major multi-national companies, and from business advocacy organizations.  Others are from former State Department legal advisers, groups of law professors, and libertarian or conservative legal advocacy groups.

The U.S. government’s separate argument

The Obama Administration has switched what had been the government’s position against extending the ATS to conduct occurring on foreign soil.  That was a categorical position.  In its place, the Solicitor General’s office, reflecting the result of new consultations with the State Department, no longer wants to shut U.S. courts completely out of hearing ATS cases that have extraterritorial reach.   The government would leave that to the courts to decide, on a case-by-case basis.   The government, though, does take the explicit stance that the Kiobel lawsuit itself should not be allowed to proceed.

Spelling out specifically the kind of case that should not be allowed to go forward in a U.S. court, the Administration said it would be one involving the actions of a foreign government on its own territory, where the lawsuit specifically targeted a foreign corporation that was claimed to have aided and abetted actions of the foreign government.   That position has provoked a strong objection from the oil companies, who argue that it would shut Congress completely out of the picture in deciding whether ATS should reach outside America.

(A post discussing more fully the Administration’s new brief can be found here.)

Analysis

The decision in this case may come down to whether the Court shows more respect for Congress or for the Executive Branch.   If the Justices conclude that Congress should have the power to decide the reach of a federal law, that could doom the attempt to extend U.S. judges’ ATS authority beyond the nation’s territory.  If the Justices, however, see the core issue as the management of foreign policy, that could work in favor of the Obama Administration’s new position that moved away from a flat rejection of a foreign reach for ATS lawsuits.

There is one undeniable fact, though, that works in favor of the oil companies’ challenge to foreign-based ATS claims: the Court’s decision, on its own, that the core question of extraterritoriality had to be addressed explicitly, once and for all.  In the first round, the Court was proceeding — as the Solicitor General had suggested — on the premise that the only issue was whether the ATS reached the conduct of corporations.  But it did not take the Justices long, after the oral argument had concluded, to skip that issue and move to the more basic question of whether the ATS applied at all in circumstances like those in the Kiobel case.  The likelihood is that at least a majority of the Justices thought that had to be addressed explicitly, and that would seem to imply considerable skepticism about it.

The Court’s own precedents, including fresh ones, reinforcing the presumption against extraterritoriality of American law generally, and the institutional pedigree of that long-standing doctrine, seem likely to work in favor of shrinking the ATS’s scope.   If that is the outcome, it would not be surprising if the Court were to add some commentary to its opinion making it very clear that it was not denigrating the seriousness of human rights violations in today’s troubled global climate.

(This case in plain English:  This blog in July carried a description of this case in non-legal terms.  It can be read here.)