Amicus brief in Kiobel argues that 'extraterritorial' application of the ATS turns intent on its head

Michael P. Tremoglie Sep. 4, 2012, 12:11pm


WASHINGTON (Legal Newsline) - Allowing extraterritorial claims in U.S. courts could turn the Alien Tort Statute (ATS) "on its head."

A supplemental amicus brief filed Aug. 8 on behalf of several corporate giants in Kiobel v. Royal Dutch Petroleum (BP brief) argues that allowing claims from foreign countries over conduct by foreigners would enable the ATS to be used in the exact opposite way it was intended.

Former U.S. Solicitor General Paul Clement, who now works for Bancroft LLC in Washington, is IBM's counsel of record and co-author of the BP brief.

"The brief argues that the extraterritorial application of the ATS turns the framers' intent on its head -- a statute designed to reduce friction with other nations by ensuring a federal forum for conduct occurring here (like an assault on an ambassador) has been converted into a source of friction as U.S. courts consider events taking place on foreign soil, in some cases even drawing protests from the nation with a direct stake in the dispute," Clement told Legal Newsline.

After hearing arguments in Kiobel on Feb. 28, the U.S. Supreme Court in March ordered Kiobel reargued. The Court seeks opinions about the extent of the 1789 law which gives foreigners a right to sue in U.S. courts.

The case is scheduled to be reargued on Oct. 1.

Initially, the major issue in Kiobel was whether corporations are liable for human rights abuses in foreign countries. But the court first wants to concentrate on the extraterritoriality issue.

Clement asserts that the question for the Court is how, when or if, the ATS applies to extraterritorial conduct. He maintains this is at the very core of what has gone wrong with the ATS over the last 30 years.

"Issues of the statute's extraterritoriality and aiding and abetting liability go to the heart of the concern with creating diplomatic friction," he said.

"Alleged international law violations typically occur abroad and the principal alleged wrongdoers are often foreign governments protected by sovereign immunity. Thus, a statute that applies on foreign soil and allows allegations that deep-pocketed companies aided and abetted international law violations will open up U.S. Courts to many more disputes, while an ATS that does not reach foreign soil or alleged aiders and abettors would not be a likely source of friction and might actually eliminate friction in conformity with the framers' design."

The salient points made by those opposed to increasing the scope of the ATS is that Congress enacted the ATS in 1789 to ease foreign relations tension with other countries by ensuring that aliens injured in the United States (or on the high seas) would have access to a legal remedy. But they believe that the ATS was transformed, somehow, into a mandate for federal courts to become essentially world courts. They will adjudicate alleged torts - that occur all around the globe - with no connection whatsoever to the United States.

Opponents of extraterritoriality contend, as the BP brief states: "This extraterritorial projection of the ATS has prompted complaints from our closest allies as United States courts stand in judgment of the actions of foreign governments on foreign soil, in contravention of this Court's longstanding and oft-repeated proscription on such interference. In the past decade, the governments of Australia, Canada, China, Colombia, El Salvador, Germany, Indonesia, Israel, Papua New Guinea, Nigeria, South Africa, Switzerland, and the United Kingdom have objected formally to the extraterritorial application of the ATS."

The BP brief mentions that in another recently filed brief in this case, Germany explained that extraterritoriality will interfere with foreign sovereign interests "governing their own territories and subjects and in applying their own laws in cases which have a closer nexus to those countries."

The Germans declare that this proposition "is unacceptable."

The British and Dutch governments also find the prospect of extraterritoriality as an infringement as well. They cite that U.S. courts fail to consider the jurisdictional limits of international law when interpreting the ATS. This failure by the American courts can be a source of conflict.

According to the BP brief, "ATS plaintiffs have targeted 'corporations as proxies for what are essentially attacks on [foreign] government policy.'"

It also states that extraterritorial application of the ATS "disrupts the ability and responsibility of other sovereigns to redress wrongful acts committed in their own territory as they see fit," observing that plaintiffs have filed ATS suits to second-guess foreign nations' reconciliation measures, including decisions to grant amnesty. The countries of El Salvador, South Africa, and Colombia have all objected to ATS suits as an infringement of their rights to resolve territorial disputes, the BP brief said.

Another objection to extraterritoriality made by foreign governments, says the BP brief, is that "ATS suits that attempt to regulate the conduct of their nationals outside the United States, Australia, Canada, Germany, the Netherlands, Switzerland, and the United Kingdom have each filed diplomatic protests to ATS suits in which claims were brought against their nationals for activity that occurred in other countries."

The Kiobel case and others like it "are brought by foreign plaintiffs against foreign corporations for aiding the acts of foreign governments in their own territories ... The United States acknowledges that such cases are not permissible under the ATS," the BP brief declares. It says that "the extraterritorial application of the ATS to the conduct of U.S. nationals abroad inevitably risks being "considered a violation of international law; states are supposed to respect each other's exclusive authority to regulate behavior within their territorial boundaries."

It continues to make the point by claiming that, "As the governments of Australia and the United Kingdom recently explained, the ATS creates differences with other sovereigns whose courts exercise civil jurisdiction on the primary basis recognized by international law-that is, territorial jurisdiction-and which are politically and legally responsible for dealing with a particular situation.... A holding that the ATS does not reach alleged offenses committed within a foreign country would avoid the jurisdictional disputes that inevitably arise from worldwide application of the ATS. The decision to authorize lawsuits that inherently interfere with the territorial jurisdiction of other countries should be made, if at all, by Congress, which is not only in a better position to assess diplomatic consequences but also can ameliorate those consequences through exhaustion requirements and other devices."

The proponents of extraterritoriality have made their own arguments citing the founders, indeed, wanted the ATS to have such a broad scope.

Professor Tyler Giannini is clinical director of the Human Rights Program, Harvard Law School, and has a very different view about the framers' intent and the extraterritorial application of the ATS.

"I think the intent of the framers was to provide a broad remedy for established violations of the laws of nations such as piracy," Giannini said. "They would not have had some categorical rule to exclude things on foreign territory. Indeed, the 1795opinion Attorney General William Bradford said ATS could be applied to British raids on Sierra Leone. The opinion is referenced in Sosa."

Giannini also mentioned that this argument was included in the supplemental amicus brief on behalf of Professors of Legal History brief he filed as the counsel of record. The brief noted that the considerations by the Attorney General were "whether the law of nations had been violated and second, applying common law principles to give the statute practical effect."

Giannini wrote that "Bradford expressed 'no doubt' that British citizens injured in the incident could seek civil redress in U.S. courts for law of nations violations. ...the Bradford Opinion confirms that from the outset, ATS claims were cognizable for actions occurring within the territory of sovereigns other than the United States."

But Clement argued in the BP brief, "The Founders surely did not intend the ATS to be used as a tool to 'sit in judgment' of the foreign controversies of the era. The notion of the fledgling republic's courts adjudicating the human rights excesses of the French Revolution is simply absurd."

There is one other point that Clement made that may be considered tangential by those advocating extraterritoriality but it does present a genuine and significant concern not only to American businesses, but to those in foreign countries seeking to improve their economic status.

"The brief argues that the prospect of an ATS that applied on foreign soil and imposed liability on aiders and abetters would have a significant chilling effect on foreign investment," Clement said.

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