2/23 ATCA/ATS News Roundup

The world of Alien Tort Statute/Alien Tort Claims Act has been a-humming as the oral argument date for Kiobel v. Royal Dutch Petroleum draws near. Some quick hits:

Washington’s Ogonis (an ethnic group from Nigeria to which the Kiobel plaintiffs belong) are organizing around the oral argument.

– Eric De Brabandere of the Grotius Centre for International Legal Studies on “Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalize the Role of Corporations as Participants in the International Legal System

Anthony J. Bellia Jr. of Notre Dame Law School and Bradford R. Clark of on George Washington University Law School on “Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute

D.C. Circuit Court says the fathers of two Guantanamo Bay detainees do not have claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments.

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Update in 1984 anti-Sikh riot case

From IBN Live:

A US court is set to hear on March 15 a petition seeking a “default judgement” against the Congress party for its alleged failure to defend the charges of conspiring, aiding, abetting and organising attacks on Sikhs in November 1984.

The plea filed by a New York-based Sikh body is also urging Judge Robert W Sweet of US Federal Court of the Southern District of New York to issue “Letters Rogatory” for appearance of Justice G T Nanavati. In a statement, Attorney Gurpatwant Singh Pannun, the legal adviser to Sikhs for Justice (SFJ), said that the plaintiffs will ask the court to issue Letters Rogatory for appearance of Justice Nanavati who had gone into the anti-Sikh riots in the wake of assassination of the then Prime Minister Indira Gandhi in 1984. “Letters Rogatory” is a procedure provided in international law used by US courts to ask the courts of another country to assist them in the administration of justice.

[…]

Pannun said the New York court will hear on March 15 a motion for entry of “default judgement” against the Congress party for its alleged failure to defend the charges of conspiring, aiding, abetting, organising and carrying out attacks on Sikhs in November 1984. The summons was issued by a New York court on March 1, after the Congress party apparently did not act on the court’s direction to respond to the class action law suit filed under Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA).

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CCR Launches Kiobel/Mohamed Site

No, not that CCR.

Yesterday, the Center for Constitutional Rights launched an ATCA-specific campaign and website, called Corporate Accountability Now.  It’s a “coalition of groups supporting the idea that corporations should be held responsible in U.S. courts for violations of international human rights law.”  Which groups?  The bare-bones website doesn’t say, but the press release does:

Corporate Accountability Now is a joint project of EarthRights International, the Center for Constitutional Rights, and the Human Rights Litigation and International Legal Advocacy Clinic at the University of Minnesota Law School. Corporate Accountability Now does not represent the plaintiffs in either Kiobel v. Royal Dutch Petroleum or Mohamad v. Palestinian Authority, but the sponsoring organizations have filed amicus briefs in these cases.

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Def Comity Jam

From Lawfare:

The Governments of Germany, the United Kingdom, and the Netherlands have filed amicus briefs in support of Shell Oil in the Kiobel case, in which the Supreme Court will decide whether corporations may be held liable under the Alien Tort Statute for violations of international law.  The foreign governments’ intervention could have a significant effect on the case, given concerns previously expressed by the Court in Sosa v Alvarez-Machain about the implications of ATS litigation for US foreign relations and international comity.

[…]
In their joint brief, the United Kingdom and the Netherlands agree with the Second Circuit’s holding that international law does not impose liability on corporations; they also argue that application of the ATS to foreign nationals for actions in foreign countries with no nexus to the United States violates international law. Germany similarly urges the Court “to instruct the lower courts that the power to adjudicate should only be exercised in ATS cases brought by foreign plaintiffs against foreign corporate defendants concerning foreign activities where there is no possibility for the foreign plaintiff to pursue the matter in another jurisdiction with a greater nexus.”

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The politics of Kiobel v. Royal Dutch Petroleum

Last week, I dumped some cold water on the idea that Kiobel will be a political issue this year.  Anti-big business types can latch on to the idea that corporations are people when it suits them and aren’t when it doesn’t. America-firsters can bristle at the use of international law and the idea that foreigners are clogging up our court system. Yet somehow I can’t see this being an issue in the same league as gay marriage was in 2004 or prayer in schools has been for decades.  Citizens United came down with a bang, but election day responded to it with barely a whimper.

Marcia Coyle of The National Law Journal: makes a comparison with Citizens United:

The next Citizens United, in the view of some of that decision’s most vigorous critics, may have nothing to do with campaign finance or the First Amendment.

Instead, corporations in a case the justices will hear this month seek not to spend their money but to avoid doing so by arguing that they have no liability under a 1789 statute for torts committed abroad in violation of international law or U.S. treaties.

The case, Kiobel v. Royal Dutch Petroleum Co., involves the Alien Tort Statute (ATS) and is scheduled for argument on Feb. 28. Kiobel will be heard in tandem with Mohamad v. Palestinian Authority, which raises a similar question involving claims against non-natural persons under a different statute — the Torture Victim Protection Act. Kiobel starkly pits the business community against human rights organizations.

Let’s look at the potential winners and losers in Kiobel.  In one corner are the Rio Tintos and Royal Dutch Shells of the world, who would rather not publicly dwell on the kind of things they do to get the stuff they sell.  The think tanks will write amici and talking points, but it doesn’t behoove them to talk more about it.  In the other corner, we have ATS plaintiffs: poor, often indigenous people considered to be, at best, inconveniences by their own nations. Speaking on their behalf are a bunch of clinical professors and human rights lawyers. 

Citizens United‘s winners and losers included politicians, who just happen to have a metaphorical megaphone and a predilection to use it.  I find it hard to imagine that Kiobel will have the sustained attention of anyone who has any sort of audience.

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Cato files “originalist” Kiobel brief

Surprise of all surprises, the Cato Institute filed a brief in Kiobel v. Royal Dutch Petroleum!  And it came out in favor of … wait for it … not extending jurisdiction to corporations! Ilya Somin summarizes:

The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods.

In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”

Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.

The flippant analysis would note that if a 1798 statute that references something outside the text that has since changed, a judge reading the statute in 2012 might want to consider what the statute refers to looks like today. Much like how the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” and isn’t limited to making treaties with countries that existed in 1789. Similarly, the prohibition of cruel and unusual punishment doesn’t just apply to punishments used when the bill was passed. Were that true, there would be a battery and jumper cables in the interrogation rooms of every police station in the country.

Of course, jurisdiction is more complicated than that, there are political questions and foreign policy concerns involved, historians disagree on whether corporations have ever been held liable for crimes against humanity, an argument like that doesn’t consider all precedent and would get you laughed out of any 1L classroom, etc… I guess what I’m trying to say here is that I haven’t really seen anyone take an idiosyncratic stance on this issue.  It seems as if one’s views on corporations is the sole determinant of how you think Kiobel should be decided.

But then again, what’s new?

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Could Kiobel become an election issue?

Personally, I don’t think anything this arcane could ever reach the public consciousnesses, but The View from LL2 says Kiobel may have an impact in November.  If SCOTUS holds that corporations are outside the purview of the jus cogens norms of international law, we could see “a mini-replay of the Citizens United furor” … because that really swung the last election.  On the other hand, if the High Court finds that corporations are people too even when it doesn’t suit them:

[…] then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc.

Seems like material for hour three of Rush Limbaugh’s show, but not something that will make TV attack ads.  It requires an awful lot of educating just to demagogue. Plus, as anyone familiar with ATS/ATCA can tell you, there are only a few active cases at any given time. Most of them involve the sort of sectors that don’t engender that much public support, like the extractive industries (oil, mining, etc.).

In an ideal world, politicians would discuss issues like this, if only because it would entertain me more than illegal immigrants and green building retrofits.  However, many people think that their little issue is as important to everyone else as it is to them.  Sorry folks, but we’ll probably be laboring in obscurity for the foreseeable future.

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