Opening its new term with old business, the U.S. Supreme Court on Monday appeared likely to restrict lawsuits in federal courts by foreign victims of human rights violations committed abroad.
The court originally heard arguments last term in Kiobel v. Royal Dutch Petroleum on whether corporations could be liable under the 1789 Alien Tort Statute. That law authorizes federal courts to hear civil claims by aliens for torts committed in violation of international law or a treaty of the United States. However, the court raised the already high stakes for business and human rights groups by ordering reargument on an additional and broader question—whether the law applies when those violations by any defendant occur in foreign nations.
The justices took their seats on the first Monday precisely at 10 a.m. and showed no sign of the high emotion and tension that marked the final day of the previous term and the release of the landmark health care ruling.
Chief Justice John Roberts Jr. announced the official end of the 2011-12 term and the opening of the new one. Shortly afterward, the justices were off and running, peppering the lawyers in the Kiobel case with numerous hypotheticals probing the reach of their arguments.
The two lawyers in the original arguments faced off again. Paul Hoffman of Schonbrun DeSimone Seplow Harris & Hoffman in Venice, Calif., represents Esther Kiobel and 11 Nigerian nationals who sued three oil companies for allegedly aiding and abetting the Nigerian dictatorship in the torture, rape and killings of unarmed citizens protesting oil drilling in the Ogoni region. Royal Dutch Petroleum’s counsel is Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan in New York.
Hoffman began his argument by telling the court that his clients had received asylum in the United States because of the human rights violations alleged in their suit. They could sue the oil companies in federal court because those companies do business in the United States and are subject to the courts’ personal jurisdiction.
He immediately drew skeptical questions from Justices Anthony Kennedy and Antonin Scalia. Kennedy asked what was the connection between the United States and the events alleged in Nigeria. Hoffman replied that besides his clients and the defendants being present in the United States, there was no connection between the events and the U.S. forum.
Kennedy probed Hoffman on whether, if a U.S. corporation committed an international law violation in the United States, it could be sued in any court in the world, which, he said, appeared to be an effect of Hoffman’s position.
Hoffman replied that there were many jurisdictions in which such a U.S. corporation could be sued, but there were doctrines that could be applied to restrict such suits, such as exhaustion of administrative remedies, comity and forum non conveniens—doctrines that U.S. courts also could apply when appropriate to ATS lawsuits.
Scalia asked him if there was “some super body” that decides what is a violation of a particular norm of international law. “That is to say, these other countries that have jurisdiction, they decide for themselves, don’t they, whether there’s been a violation of the international norm or not?”
Hoffman said national courts always have been engines of decision-making on international law. But Scalia rejoined, “Sure, national courts have been the deciders when the violation occurs within the nation. But to give national courts elsewhere the power to determine whether a United States corporation in the United States has violated a norm of international law is something else, it seems to me. “
Sullivan began by stressing that the Kiobel case has nothing to do with the United States. She emphasized throughout her argument that “under the well-established canon against extraterritorial application of U.S. law, absent congressional clear indication,” there should not be an extension of the ATS for events occurring in foreign nations. The purpose of the presumption, she said, was to avoid conflict with foreign sovereigns.
However, she received push-back from justices, such as Roberts, when she argued that the ATS did not apply to conduct on the high seas, long considered one of the main targets of the act. “I thought that was the most clear violation of an international norm,” said Roberts. “The one thing that the civilized countries would agree on is that you can capture pirates.”
Justice Stephen Breyer interjected, “If, when the statute was passed, it applied to pirates, the question to me is who are today’s pirates. And if Hitler isn’t a pirate, who is? And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today’s pirate, who is? And we have treaties that say there is universal jurisdiction.”
Sullivan, however, countered that the United States has never adopted the principle of universal civil jurisdiction.
Solicitor General Donald Verrilli Jr. offered the court a middle-of-the-road position, saying there should not be an action under the ATS against a foreign corporation when the claim is that corporation aided and abetted a foreign sovereign. He urged the court not to adopt Sullivan’s categorical bar to ATS suits.
Scalia noted that the government’s position differed from the past administration’s position, which was that there was no extraterritorial application of the ATS. “Why should we listen to you rather than the solicitors general who took the opposite position and the position taken by Respondents here in other cases, not courts of appeals, but even up here?”
Verrilli responded that it was his position to balance the interests of the government consistent with the law, and he believed the government’s arguments were persuasive.
Roberts said, “I don’t want to put words in his mouth, but Justice Scalia’s point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.”
In rebuttal, Hoffman told the Court that the ATS, as applied to human rights violators since 1980, is part of a trend in the world today. “The trend in the world today is towards universal justice for people and corporations that violate these kinds of norms. In fact, the United States has been the leader in that. Our government has proclaimed our leadership position to U.N. bodies and around the world.” The framework established by the Court in its 2004 decision in Sosa v. Alvarez-Machain, he added, works and there is no need for a radical re-evaluation.
International law scholar William Dodge of the University of California Hastings College of Law attended the arguments and suggested the court was skeptical of Sullivan’s “hard line” position that there was no extraterritorial application of the ATS.
“I think the court may be headed in the direction of some sort of jurisdiction of necessity in cases with no contacts with the United States,” he said, explaining, “So if there is no other place one could bring suit, then U.S. courts should be open.”
Some ATS historians note that the Bush administration’s position against extraterritorial application of the ATA was inconsistent with the Carter and Clinton administrations’ positions and that even the Reagan administration was slightly more pro-exterritoriality than the Bush administration. “The government has been all over the map,” said one.