Monday, October 1, 2012

Supreme Court opens new term with re-hearing on case that could determine the future of the Alien Tort Statute

As you probably remember, last year the Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum in which the Court was asked to decide whether corporations (or other entities) could be liable under the Alien Tort Statute.  After hearing oral arguments, however, the Court surprisingly set the case for a rehearing and asked the parties to prepare briefs on an issue that had not been presented to the Court - whether the Alien Tort Statute could apply extraterritorialy.

That new oral argument was held today, the first day of the Court's new term.

On the issue of extraterritoriality, as I have said in the past, the Supreme Court's decision could result in the end of the ATS as we know it, and it does not help that the U.S. Justice Department switched sides on the issue.  Go here and here for some of my original comments.  As stated by Judge Posner last year, in Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013 (7th Cir. 2011),  courts have been applying the statute extraterritorially since the beginning; no court has ever held that it doesn’t apply extraterritorially.  In fact, the only case on the ATS decided by the Supreme Court involved the application of the statute extraterritorially. If you eliminate the possible extraterritorial application of the statute, the statute will be useless.

This is an extremely important case that has generated a tremendous amount of literature.  Simply stated, a decision for the defendants will essentially eliminate the ATS as a possible source of redress for human rights violations.  For more, see Kiobel v. Royal Dutch Petroleum: What’s at stake, and for whom?.

The SCotUS blog has a recap of the oral argument here. The actual transcript of the argument is available here.  The audio will probably be available on Friday. I will post a link to it then.

For more recent comments and information on the oral argument you can go to the New York Times, the Associated Press, Thomson-Reuters, Bloomberg, Slate, ABC news, The Pop Tort and Washington Legal Foundation.

I have been following the developments around the issue since the case was decided by the court of appeals and you can catch up with all the links by going here and scrolling down.  There about a zillion posts, all with about another zillion links to cases, articles, op-ed pieces and debates. 


Anonymous said...

Prof. Bernabe,

Although it might be true that Sosa was "extraterritorial" given that it occurred in Mexico, there was certainly a direct nexus to the United States in that case. When the DEA hatches a plan and pays Mexicans to go along with its own agents to kidnap a Mexican suspect, that's a pretty clear connection to something that the United States might be thought to be responsible for.

The same cannot be said when a Dutch company works with a Nigerian dictatorship and mistreat Nigerian citizens. That case, and other "foreign-cubed" cases with no connection or nexus to the United States, are another matter.

Professor Alberto Bernabe said...

Thanks for the comment. I understand what you are trying to say, but remember that the ATS can't be used to sue the United States, so whether what happened in a case "might be something that the US might be responsble for" is not really part of the analysis. As in all ATS cases, the issue was whether (because of the ATS) US courts have jurisdiction over a claim by a foreigner against a foreigner for a tort that takes place in foreign soil. Whether the courts have jurisdiction in a case like Sosa is not based on whether the conduct is something for which the US might be responsible.

It seems to me that if the court now decides Kiobel in favor of the defendants, a case like Sosa could not be brought in US courts.

Anonymous said...

I think you're supposition is completely incorrect. With respect, the analysis under customary international law turns on the sufficiency of a nexus to the host forum. Whether something is actually connected to that forum or not can matter a great deal for the purposes of establishing jurisdiction. That would clearly be satisfied in Sosa given that it was an entire DEA operation to kidnap the plaintiff. I'm well aware of sovereign immunity, but that is an affirmative defense and irrelevant for the purposes of gauging whether there is an actual nexus to the host country.