Kiobel and the Commission

As readers may know, the hot topic in many international law circles this past week was the Kiobel v. Royal Dutch Petroleum Co. case currently under consideration by the US Supreme Court. On October 1, the Supreme Court heard a second round of arguments in the case specifically concerning the issue of the extraterritoriality of the US Alien Tort Statue (ATS). While this case primarily involves US and international law, EU lawyers may be interested to know that the European Commission submitted an amicus curiae brief to the Court. The brief, which is a fascinating read for anyone interested in EU foreign policy, details the EU’s position on the extraterritoriality issue. In short, it argues that (1) the US should exercise universal civil jurisdiction only in cases for which universal criminal jurisdiction would apply, and that (2) the ATS should include an exhaustion requirement.

The ATS, which was enacted by the first US Congress in 1789, allows for US jurisdiction over “all causes where an alien sues for a tort only in violation of the law of nations.” The ATS was largely dormant for the first 170 years of its life, before re-emerging in the 1980 Filártiga v. Peña-Irala case. Filártiga was a suit brought by the Paraguayan parents of Paraguayan victim Joelito Filártiga, who was abducted and tortured to death (in Paraguay) by Americo Norberto Peña-Irala, inspector general of the Department of Investigation for the Police of Asunsion, Paraguay. The case established that the ATS provides jurisdiction over tort actions in such “foreign cubed” cases, brought by non-US  plaintiffs against non-US defendants for violations of customary international law, including war crimes and crimes against humanity, committed outside the US. In other words, the ATS provides for a form of universal civil jurisdiction.

In the decades since Filartiga, the ATS has been successfully used to sue individuals for their involvement in such violations. In more recent years, however, victims of international crimes have begun attempting to use the ATS to sue corporations–as legal persons–for their participation in war crimes, crimes against humanity, and other violations of customary international law.

Kiobel is a case in this new line. In a nutshell, Kiobel is a civil suit stemming out of the actions of Shell Oil in the Niger Delta in the early 1990s. The suit was brought on behalf of Dr. Barinem Kiobel, a murdered Ogoni leader, and eleven other Nigerians from the Ogoni region who suffered crimes against humanity including extrajudicial killings, torture, and other violations of interantional law. Eshter Kiobel and the other petitioners in the case allege that they or their family members are entitled to compensation from Shell and the other respondents, whom they allege aided and abetted the government of Nigeria in the commission of these abuses.

Kiobel and the other petitioners filed a class action suit against Shell and others under the ATS. A New York District Court dismissed the complaint in part, and then kicked it up to the Second Circuit on an interlocutory appeal. The Second Circuit affirmed the dismissal in September 2010, with the majority finding that the ATS could not be used to sue corporations, because corporations are not capable of violating customary international law. The Supreme Court granted cert in the case in 2011, and heard a first round of arguments in February 2012. It then ordered that the case be reargued in order to answer the question: “Whether and under what circumstances the Alien Tort Statute … allows courts to recognize a cause of violations of the law of nations occurring within the territory of a sovereign other than the United States.”

As noted above, the European Commission’s brief makes two basic arguments, the first substantive and the second procedural: (1) that the jurisdictional limits of the ATS should be defined by reference to international law, in particular that the US should allow universal civil jurisdiction only in cases where universal criminal jurisdiction would normally apply; and (2) that the US’s exercise of universal civil jurisdiction must be constrained by the procedural limits imposed by international law, in particular by an exhaustion requirement. These limits, it contends, “ensure that universal jurisdiction is appropriately exercised and that such jurisdiction comports with the international law principles of comity and equality of sovereignty” (p. 4).

While the EU remains committed to human rights, it argues that the ATS must respect the limits set by international law:

To preserve harmonious international relations, States and international organizations such as the European Union must respect the substantive and procedural limits imposed by international law on the authority of any individual State to apply its laws beyond its own territory. (p. 2)

Because the EU “has a concrete interest in ensuring that EU-based natural and legal persons are not at risk of being subjected to the laws of other States where extraterritorial application of laws does not respect the limits imposed by international law,” the Commission submits that the ATS must be “confined to the limited bases for extraterritorial jurisdiction recognized by international law” (p. 2-4). That is, the ATS should allow for universal jurisdiction only in circumstances that could give rise to universal criminal jurisdiction: “the narrow category of claims involving the most grave violations of the law of nations, such as genocide or torture, or conduct committed outside any nation’s territorial borders, such as piracy” (p. 4). In the Commission’s view, this is consistent with the EU regime established by the Brussels I Regulation and the 2007 Lugano Convention (p. 24).

Additionally, the Commission would support an exhaustion requirement, according to which claimants “must exhaust domestic and international remedies (or demonstrate their pursuit would be futile) before United States courts may entertain ATS cases on the basis of universal jurisdiction” (p. 4).

Justice Sotomayor cited the Commission’s brief favorably during oral arguments, arguing that it was “a fairly simple set of rules clearly defined and limiting the application of this statute in a way that sort of makes sense” (transcript p. 13).

Interestingly, a conflicting amicus brief was also submitted by two EU Member State governments. The amicus brief of the Governments of the Netherlands and the United Kingdom argues that the universality principle applies only in criminal cases, and would therefore limit the jurisdiction of the ATS to civil cases with some US-nexus (Filartiga would meet this criteria, they argue, because the defendant was illegally present in the US at the time the case was brought). The governments assert that this also describes the state of the law in Dutch and British courts, though this claim is disputed in an amicus brief filed by a group of Dutch law professors.

Despite the efforts of the Commission, then, it seems there is still a bit of discord disrupting the ‘united European’ position in this case. Is anyone surprised that the two dissenting voices are the defendant’s domiciliary states?