Shell: Alien Tort Statute not meant for international human rights

August 3, 2012

The first case the U.S. Supreme Court will hear when the justices return in October is a reprise of Kiobel v. Royal Dutch Petroleum, which the high court originally heard in February but tossed back to the parties for rebriefing. The new question before the high court is this: Does the Alien Tort Statute, passed as part of the Judiciary Act of 1789 and revived from obscurity in the 1990s to become a tool of international human rights advocates, apply to conduct that took place outside of the United States? For the human rights community, this is a do-or-die moment. The Alien Tort Statute, which holds simply that federal courts may hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States,” has become a means for victims to seek retribution from perpetrators and abettors of atrocities. The stakes are so high that the State Department’s legal adviser, former human rights litigator Harold Koh, refused to sign the Justice Department’s recent amicus brief advocating certain limits on the ATS’s reach overseas.

Late Wednesday, Royal Dutch’s corporate successor, Shell Petroleum, filed its brief on the extraterritorial application of the ATS. You will not be surprised to hear that Shell’s lawyers at Quinn Emanuel Urquhart & Sullivan cite Morrison v. National Australia Bank in arguing that because the 1789 law makes no mention of extraterritorial application, it’s presumed not to extend to conduct on foreign soil. To answer arguments by the Kiobel plaintiffs that the ATS was specifically drafted to address piracy claims, which, by definition, involve offshore conduct, Shell contended that the high seas are not the same as foreign soil since no nation is sovereign in international waters.

Shell’s brief, elegantly written by former Stanford Law School Dean Kathleen Sullivan, goes quite a bit further, though. It implies that federal appeals courts have erred in rulings that permitted the Alien Tort Statute to be asserted by victims of overseas acts that allegedly violate the “law of nations.” It’s Congress’s job to decide how far its laws extend, Shell argued, and Congress has shown its willingness to extend the reach of some laws, including a civil cause of action against terrorists, to conduct on foreign soil. So if Congress wants the Alien Tort Statute to have the same reach, it should amend the law. Or if it wants some other human rights law to take the place of the ATS, it can pass one.

Otherwise, Shell argues, the Supreme Court should respect the sovereignty of other nations, many of which have said in amicus filings that they don’t want U.S. courts opining on their conduct. “Policy debates regarding whether U.S. law should afford a civil cause of action regarding alleged human-rights violations abroad are appropriately directed to Congress, not the courts,” the Shell brief said. “Modern Congresses have provided certain civil causes of action and criminal offenses for international-law violations committed abroad, but have done so in modest steps with specified safeguards. Congress should likewise be permitted to decide whether to extend an additional extraterritorial remedy through the ATS and federal common law, without bypass through judicial fiat.”

Even though the Justice Department’s amicus brief supported Shell in this case, which involves foreign plaintiffs suing a foreign defendant for conduct that took place on foreign soil, Shell argued that the U.S. government didn’t go far enough. Pointing again to Congress’s power, the brief said the Justice Department misinterpreted the presumption against extraterritoriality. “Correctly interpreted,” Shell asserted, “the presumption bars ATS suits alleging foreign conduct whether the defendant is a U.S. or foreign citizen.

Underlying the fascinating policy debate about the role of U.S. courts in international human rights litigation are some arcane legal questions, including whether the ATS involves the international law of nations or federal common law and whether the presumption against extraterritoriality applies to jurisdictional laws like the ATS, or only to substantive laws. For the record, Shell argued – in language that shows why Supreme Court litigators are a rarefied breed – that because the Supreme Court has held that federal courts have authority under federal common law to recognize ATS causes of action, the presumption against territoriality applies.

Here’s hoping that when the court hears the case in October, the debate centers on the appropriate forum for the claims of victims of international atrocities, and not on the application of the presumption against extraterritoriality to jurisdictional laws.

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