Tag: international law

Supreme Court Wisely Rules that U.S. Law Doesn’t Apply Outside the U.S.

As Walter Olson notes below, today the Supreme Court correctly ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, like any federal law not explicitly stating otherwise, does not cover actions occurring outside the United States.  That is, you can’t bring a suit in U.S. court just because it involves a “violation of the law of nations” (the conduct that the ATS addresses).

As Chief Justice Roberts said in announcing the decision, even a claim that a foreigner committed such an international-law violation against another foreigner isn’t enough to counter the presumption that laws don’t have extra-territorial application.  Indeed, in such a case – and Kiobel’s allegations of human rights abuses by Nigerians against Nigerians in Nigeria is such a case – there is even less of a reason to invoke the jurisdiction of American courts than if some American dimension existed (e.g., the citizenship of one of the parties or the location of the conduct).  

Nothing in the text of the ATS overcomes that basic presumption against extra-territoriality and the Court’s fascinating historical exposition demonstrates why the First Congress – the ATS was enacted in 1789 as one of our first laws – wouldn’t have wanted to change that practice or make the fledgling republic a “uniquely hispitable forum for the enforcement of international norms.”

As Cato’s amicus brief argued, the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction. Their understanding of jurisdiction rested on the nexus between territory and sovereignty; the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted. That the law of nations permits jurisdiction over piracy on the high seas or in other unique circumstances doesn’t mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.

Finally, the Court correctly noted that the mere fact that corporations are present in the case – the original issue was whether the ATS recognized corporate liability – doesn’t somehow change the extraterritorial-applicability calculus.  In Kiobel, even the corporations were foreign (Dutch and British oil companies), with nobody alleging that so much as a U.S. subsidiary was involved.

At the end of the day, this was an exceedingly complicated case with a relatively simple solution.  Well done, Supreme Court.

What Did the Founders Think About International Law?

Last term, the Supreme Court postponed its decision in Kiobel v. Royal Dutch Petroleum, a case that initially asked whether the Alien Tort Statute—one of our oldest laws (1789), giving federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations”—applies to non-natural persons (that is, corporations). Instead, the Court called for further briefing and re-argument on a more basic question: Does the ATS allow U.S. courts to even hear lawsuits for violations of international law on foreign soil?

Cato’s previous brief in this case argued that the ATS must be interpreted in a manner consistent with Congress’s original jurisdictional grant—that is, in accordance with international law as of 1789, which allowed only natural persons to be sued—because courts cannot expand their own jurisdiction.

But the inquiry need not end there, because the Founders understood “the law of nations” to provide a methodology for defining the extraterritorial scope of ATS jurisdiction as well, as we explain in our supplemental Kiobel brief. We argue that the Founders’ understanding of jurisdiction rested on the nexus between territory and sovereignty and that the law of nations as of 1789 recognized a territorial nexus between the state asserting jurisdiction and the claim asserted.

We further argue that the petitioners’—12 Nigerians who sued an oil company and its subsidiaries for various human rights violations committed by Nigerian soldiers in Nigeria—heavy reliance on an analogy to piracy to support their expansive view of extraterritorial jurisdiction is unconvincing because “piracy,” properly understood, occurs on the high seas, in a stateless zone, and involves crimes committed by stateless actors. That the law of nations permits jurisdiction under those unique circumstances does not mean that a U.S. court may assert jurisdiction over conduct occurring entirely within the territory of a foreign sovereign.

Moreover, we note that the Supreme Court has already ruled in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund (1999) that courts should not resort to “evolving” standards of international law to define the ATS’s extraterritorial scope. Petitioners have no answer for why the Court should not follow Grupo Mexicano or the clear principles of international law as of 1789.

In any event, the supplemental briefs filed by the petitioners, supporting amici, and the United States (which previously supported the petitioners but now argues partially against them) demonstrate the need for a clear, principled methodology regarding all aspects of ATS claims. The law of nations, as understood by the Founders in 1789, provides just such methodological guidance.

The Supreme Court will hear re-argument in Kiobel v. Royal Dutch Petroleum on Oct. 1, the first day of the new term.

Why Corporate Speech Rights But Not Corporate Liability for Violating the ‘Law of Nations’?

Yesterday the Supreme Court heard argument in Kiobel v. Royal Dutch Petroleum, the case (which I’ve discussed before and in which Cato filed a brief) that asks whether, under the Alien Tort Statute, the “law of nations” can be applied against an entity that is not a natural person: a corporation.  As the majority of the Court seemed to think, and as I wrote in the New York Times online, the answer is no because Congress never gave U.S. courts the power to entertain lawsuits alleging corporate malfeasance involving foreign actors abroad.

It seems like a discrete enough issue – does this statute contemplate corporate liability? – one that international law junkies and the “human rights” establishment are passionate about, but not one that should have much broader purchase.  Yet the blogosphere, not least the response to my Times piece, is up in arms about organizations like Cato saying that “corporations are people” when it gets them political speech rights (Citizens United) but not when it subjects them to liability for their dastardly deeds (Kiobel).

But to make this charge – whether labeled shilling for corporations or just plain hypocrisy – is to misunderstand both Citizens United and Kiobel.

Before explaining why, let me just reiterate that I agree with the keen point that corporations are not human beings.  But that brilliant observation is legally irrelevant.  Corporations are formed by individuals as a means of exercising their constitutionally protected rights.  Corporate personhood is simply a convenient legal fiction that we use to enable that rights-pooling for all sorts of purposes.  If using the word “person” in relation to an inanimate entity is confusing or offensive, you could try calling it something else (but then nobody you’re talking to would understand you, so we’re stuck with the word, for better or worse).  In any event, as I explain in my recent law review article – “So What If Corporations Aren’t People?” – none of this changes how the law treats corporations.

Now then, I’m not saying that corporate personhood is operative for purposes of political speech but not for purposes of liability for malfeasance.  Instead, I’m clarifying two areas of law as they relate to corporate actors.  First, the First Amendment guarantees that rights-bearing individuals don’t forfeit their rights (to speak about politics or anything else) when they associate in groups, whether in corporate form or otherwise.  Second, the Alien Tort Statute – a peculiar law by which Congress gave federal courts jurisdiction over ”law of nations” violations alleged by foreigners against other foreigners – doesn’t recognize corporations as a type of party that can in that manner be haled into our courts.  That is so because the “law of nations” doesn’t extend to corporate actions (for reasons explained in our brief and elsewhere that I won’t repeat here).  

Kiobel has nothing to do with corporate liability in general – e.g., liability for manufacturing defective products, dumping chemicals, etc., in violation of U.S. or even foreign law – but rather only concerns corporate liability for human rights abuses and other violations of the “law of nations” by foreign corporations in foreign countries.

The law can surely be “a ass,” but you have to understand what law you’re discussing to understand what type of ass it might be.

The ‘Law of Nations’ Is What It Was in 1789

One of our oldest laws, the Alien Tort Statute (1789), grants federal courts jurisdiction over lawsuits brought by aliens for actions “in violation of the law of nations.” Courts have differed in their method of interpreting this “law of nations” – an old way of saying “international law” – and thus in their decisions on what behavior violates it and the types of defendants who may be liable. Recent ATS litigation has thus ignited a debate over the role of judges in applying international law.

Kiobel v. Royal Dutch Petroleum presents the question of whether, under the ATS, the law of nations can be applied against an entity that is not a natural person: a corporation. In this case, 12 Nigerians sued Royal Dutch and its Shell subsidiaries, alleging that Nigerian soldiers committed human rights abuses on the companies’ behalf between 1992 and 1995, purportedly in response to demonstrations against oil exploration.

The district court dismissed most of the claims but let certain others proceed. The Second Circuit dismissed the case entirely, holding that the ATS’s jurisdictional grant does not extend to cases against corporations, which are not liable for crimes under the law of nations. The Supreme Court agreed to review the case.

Cato has now filed a brief arguing that the ATS must be interpreted in a manner consistent with Congress’s original jurisdictional grant. This interpretation, supporting the Second Circuit’s ruling, maintains the Constitution’s separation of powers – which gives Congress the power to determine the scope of federal courts’ jurisdiction. Allowing courts to expand their jurisdiction without Congress’s consent would create a “democracy gap” that would be particularly serious here, where the case involves issues of foreign affairs that are appropriately the province of the political branches.

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 Supreme Court will hear oral argument in Kiobel v. Royal Dutch Petroleum on February 28.

Thanks to legal associate Anastasia Killian for her help with this blogpost.

Obama, International Law, and Free Speech

Stuart Taylor has a very good article this week about the Obama administration, international law, and free speech.  This excerpt begins with a quote from Harold Koh, Obama’s top lawyer at the State Department:

“Our exceptional free-speech tradition can cause problems abroad, as, for example, may occur when hate speech is disseminated over the Internet.” The Supreme Court, suggested Koh – then a professor at Yale Law School – “can moderate these conflicts by applying more consistently the transnationalist approach to judicial interpretation” that he espouses.

Translation: Transnational law may sometimes trump the established interpretation of the First Amendment. This is the clear meaning of Koh’s writings, although he implied otherwise during his Senate confirmation hearing.

In my view, Obama should not take even a small step down the road toward bartering away our free-speech rights for the sake of international consensus. “Criticism of religion is the very measure of the guarantee of free speech,” as Jonathan Turley, a professor at George Washington University Law School, wrote in an October 19 USA Today op-ed.

Even European nations with much weaker free-speech traditions than ours were reportedly dismayed by the American cave-in to Islamic nations on “racial and religious stereotyping” and the rest.

Read the whole thing.

Use Only U.S. Law to Interpret the U.S. Constitution

This fall, the Supreme Court will hear two cases involving Eighth Amendment challenges to the sentencing of juveniles to life without parole (“LWOP”) – Graham v. Florida and Sullivan v. Florida – claims that these types of sentences are “cruel and unusual.”  Cato takes no position on the wisdom of these types of sentences, but when evaluating their constitutionality the Court should only consider American law.

That is, regardless of the criminological or moral merits of juvenile LWOP sentences, the Supreme Court ought not consider non-binding provisions of international human rights treaties and customary international law in its analysis (as it has in cases like Roper v. Simmons and Atkins v. Virginia).  To that end, Cato joined the Solidarity Center for Law and Justice, the Sovereignty Network, and 10 other groups in a brief urging the Court to limit its constitutional analysis to domestic law and the decisions of U.S. courts.

Our brief argues that the Court should leave to the political branches the decision of whether to transform international norms into domestic law and only allow duly ratified international agreements to override domestic law – in the way the Court has set out in cases such as Medellin v. Texas. It further contends that if the Court believes this is one of the rare cases where international norms are relevant, it should follow the test it laid out in Sosa v. Alvarez Machain, which addressed the (unrelated) Alien Tort Statute: The relevant norm must be widely accepted by the civilized world and as clearly defined as the historic “law of nations” norms regarding safe conduct permits, ambassadorial rights, and piracy on the high seas.

The brief also cautions that reliance on non-binding and indefinite international norms will undermine the democratic process and rule of law, casting considerable uncertainty over many U.S. laws.

More generally, while looking to foreign and international example is prudent when designing constitutions and drafting legislation – or even adjudicating complex international legal disputes – it is simply not relevant to interpreting the nation’s founding document.