Last February, early in the first oral argument in Kiobel v. Royal Dutch Petroleum, Justice Alito asked Paul Hoffman – the lawyer representing twelve Nigerian nationals who filed a lawsuit against three European oil companies for aiding the Nigerian military in killing and torturing civilians who protested oil exploration in Nigeria – a simple but potentially far-reaching question: “What business does a case like this have in the courts of the United States?” Just a few days later, the Court ordered a second round of briefing and oral argument, on a question that at bottom mirrors the one posed by Justice Alito – whether a case like Kiobel can be brought in U.S. courts at all. Lyle has reported on this case extensively, and over the summer this blog hosted an online symposium on the case as well. In preparation for the second oral argument in the case on Monday morning, this post focuses on the players in the case and their views of what is at stake.
At issue in the Kiobel case is the proper interpretation of the Alien Tort Statute (ATS), which provides, in relevant part, that foreign citizens may bring civil suits in U.S. district courts for actions “committed in violation of the law of nations or a treaty of the United States.” Enacted as part of the Judiciary Act of 1789, the ATS lay almost forgotten
for nearly two hundred years. But in 1980, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit breathed life into the statute, holding that the ATS conferred jurisdiction over a lawsuit brought by one Paraguayan national against another Paraguayan national (residing in the United States) for torture that occurred in Paraguay. Since then, victims of human rights violations that occurred overseas have sought to rely on the ATS to press their own claims in U.S. courts.
Until Kiobel, the Supreme Court had considered only one other case brought under the ATS: Sosa v. Alvarez-Machain, a case brought by a Mexican national against other Mexican nationals who – at the behest of the U.S. Drug Enforcement Administration – abducted the plaintiff from Mexico to the United States to stand trial in this country. In Sosa, the Court held that lawsuits could be brought under the ATS only for a limited set of serious violations of international law. It did not, however, discuss the question now before it in Kiobel: whether the ATS applies at all if those violations occurred in another country.
The Kiobel plaintiffs and other victims of human rights violations
For the Kiobel plaintiffs and other foreign nationals who allege that they have been the victims of human rights abuses overseas, the stakes are significant. In the view of Peter Weiss, who served as the lead lawyer for Filartiga in the Second Circuit, “[w]hat’s riding [on Kiobel] is the whole Filartiga line of jurisprudence” – that is, the ability to seek redress in U.S. courts under the ATS at all.
A ruling against the Kiobel plaintiffs would be disastrous, contends Katie Redford, the co-founder of EarthRights International, which filed an amicus brief supporting the Kiobel plaintiffs. In 1996, Redford filed an ATS case against the Union Oil Company of California (Unocal) on behalf of Burmese peasants who alleged that a company in which Unocal was a minority shareholder had been complicit in forced labor, rape, and murder by security forces dispatched by the Burmese government to protect an oil pipeline. Redford characterizes the ATS as a tool for providing people for whom the odds of seeing justice for the abuses they have suffered is next to null. She explains that “[i]n these human rights cases, it is so hard for victims to actually get their case into court. Forget about who are they – they are living in jungles most of the time – or how they are going to find a lawyer, it’s also the language differences, the logistical challenges, the travel.”
“What’s at stake for us,” Redford said of the prospect that the Court could close the door to ATS lawsuits alleging human rights violations in other countries, “is just a chance for those very few cases that you can actually get together.” Indeed, she emphasized, only a handful of ATS cases are even filed in U.S. courts each year, and most of them are dismissed under other doctrines, precisely because a forum is available in other countries.
Royal Dutch Petroleum and other businesses
The strong conviction of human rights activists that the ATS provides a necessary avenue for victims of human rights abuses to seek justice are met with equally strong opposition from businesses – like the defendant in this case, Royal Dutch Petroleum – with operations in foreign countries. The defendants object not only to the large litigation bills that may accompany ATS suits, but also to the difficulties of both predicting when they will be filed and defending them when they are. In remarks made earlier this year at Georgetown Law, Kristin Myles, who represented Unocal and filed an amicus brief on behalf of several companies in support of Royal Dutch Petroleum in Kiobel, explained that the Unocal case started with several different defendants, all of whom were dismissed from the case except Unocal. That left the company to litigate not only issues of its own conduct, but also the conduct of the dismissed parties, which it had allegedly aided and abetted. Unocal eventually settled.
Myles draws parallels between that case and Kiobel, and she cautions that reading the ATS to potentially hold corporations liable in cases like these can threaten the sovereignty of their foreign hosts. She reasons that when a country cooperates with a foreign company for the sole purpose of enjoying economic benefits from the foreign company, holding the company responsible for the actions of the host country’s military can look like a threat to the nation’s sovereignty. Such countries, Myles says, “don’t want a doctrine of law that says that ‘visitors in our borders get to tell us how to run our country.’”
As the remarks by Myles suggest, foreign countries are also watching the Kiobel case closely. Some countries oppose what some commentators have derisively called the “legal colonialism” that ensues when U.S. courts rely on U.S. laws to try international law cases. Thus, the United Kingdom and the Netherlands, where Royal Dutch Petroleum is incorporated and the other most likely fora for the case, argue in an amicus brief submitted in support of neither party that the ATS creates “special litigation advantages” for plaintiffs. To avoid this, their brief suggests strict observance of the “requirement of a sufficiently close nexus” of the parties and events to the U.S. “to minimize conflicts between States and to prevent forum shopping by plaintiffs and defendants rushing to obtain judgments in a forum that favors their own interests.”
But not all countries would regard a holding in favor of the Kiobel plaintiffs as a U.S. endorsement of “forum shopping,” or as purely an opportunity for the U.S. to project its laws abroad. Argentina filed an amicus brief in support of the Kiobel plaintiffs, because it believes that the advancement of the international human rights agenda is something for which all countries in the international community are responsible. Jonathan Miller, who served as counsel to Argentina in the case, explains that, however frustrating the ATS may be for plaintiffs and defendants alike, the law has “done a lot of good in specific contexts” – including Argentina, where the ATS was among the tools used to respond to human rights violations which occurred during that country’s military dictatorship.
The federal government, including the State Department
The ongoing debate over whether the ATS applies to events that occurred in other countries can be seen in the different positions that the federal government has taken over time in ATS lawsuits, as well as the conflict within the federal government over those positions.
The Bush Administration opposed the broad application of the ATS to events that occurred abroad on the grounds that ATS decisions are in effect foreign policy decisions and should be left to Congress, and further that allowing cases against foreign officials, whom are generally assumed to have immunity, could expose U.S. officials to legal action abroad.
The Obama Administration has been more sympathetic to human rights cases brought under the ATS: in its initial amicus brief, filed last Term, the government argued that corporations could be held liable under the ATS, and it urged the Court to allow the case to proceed in U.S. courts. It reasoned that U.S. courts can and should serve as a forum to resolve cases alleging a limited group of violations of international law. Moreover, it noted, Congress has never challenged “the view that some extraterritorial causes of action may be recognized under the ATS”; to the contrary, in the wake of the Second Circuit’s decision in Filartiga, Congress passed the Torture Victim Protection Act, which provides that individuals can be held civilly liable in U.S. court for acts of torture or extrajudicial killing that occur in other countries.
However, the government’s position shifted in its new amicus brief. In that brief, the government told the Court that cases like Kiobel – involving foreign plaintiffs, the conduct of a foreign country, and the role of a foreign corporation from a third country in that conduct – have no place in U.S. courts. The government’s brief notes that foreign governments are typically immune from suit, and that although the Kiobel plaintiffs are suing private corporations, “adjudication of the suit would necessarily entail a determination about whether the Nigerian Government or its agents have transgressed limits imposed by international law.” Such a determination by a U.S. court rather than by the executive or legislative branches could create unwanted friction between the U.S. and Nigerian governments.
Notably, lawyers from the State Department appeared on the government’s first amicus brief in Kiobel, but not on the second. Former State Department lawyers and diplomats are themselves divided over whether the ATS should be available for cases like this one. Several former legal advisors to the State Department filed an amicus brief supporting Royal Dutch Petroleum, and in 2008 John Bellinger – who served as the State Department legal advisor during the George W. Bush Administration – told an audience at Vanderbilt Law School that ATS suits can cause friction in U.S. foreign relations because “foreign governments do not see the Alien Tort Statute as an instance of the United States instructively engaging in international law. In fact quite the opposite, we are regarded as something of a rogue actor by allowing these suits.” Moreover, Bellinger argued earlier this year, the United States “should be concerned about reciprocity: It would certainly object if foreign governments were to encourage lawsuits in their courts against U.S. companies for perceived violations of international law, such as against the manufacturers of drone aircraft.”
But not all State Department officials and diplomats share Bellinger’s views. J.D. Bindenagel, one of several former Foreign Service officers who signed onto an amicus brief in support of the petitioners and who also served as Ambassador and Special Envoy for Holocaust issues and U.S. Special Negotiator for Conflict Diamonds, counters that the ATS plays an important role as a complement to the International Criminal Court in cases of post-conflict justice. In his experience, the ATS was useful beyond simply getting parties to court, as it provided opportunities for the parties to negotiate alternative remedies and – in the case of the relationship between Germany and Poland – even a basis for reconciliation. Although the International Criminal Court may eventually be able to take over the role that the ATS currently serves in the international community, he concludes that, until then, the ATS can help secure forums for plaintiffs in their lifetimes.
However the Court decides Kiobel, the era of “plaintiff’s diplomacy” ushered in by Filartiga has at a minimum raised questions of individual, governmental, and corporate responsibility in a globalized world, questions that are unlikely to go away no matter who wins the case. An opinion on whether the ATS is the proper tool for addressing those questions is expected sometime next year.