The first case on the Supreme Court’s oral argument calendar in its new term is Kiobel v. Royal Dutch Petroleum (to be argued on Monday, October 1), which presents fundamental questions about the Alien Tort Statute of 1789. As usual, SCOTUSblog has a repository of information about the case, including all the briefs and a symposium of commentary, for any readers interested in exploring the case more deeply. I’ll limit myself to several points:
1. As I explained in my series of posts on Harold Koh’s 2009 nomination to be the top lawyer in the State Department, transnationalists like Koh aim to use American courts to import actual or supposed norms of international law to override the policies that American citizens adopt through the processes of representative government. Over the last three decades, a favorite tool of transnationalists has been aggressive use/abuse of the Alien Tort Statute, which grants the federal courts “jurisdiction of any civil action by an alien for a tort … committed in violation of the law of nations or a treaty of the United States.” Through litigation alleging human rights abuses abroad by foreign governments, transnationalists have sought to have federal judges act in a way that intrudes on and interferes with the authority of the executive branch and Congress to manage our nation’s foreign affairs.
In Kiobel itself, for example, the plaintiffs are residents of Nigeria who claim that Dutch, British, and Nigerian corporations that were engaged in oil exploration and production in Nigeria aided and abetted the Nigerian government in committing human rights abuses. Although the Nigerian government and its officials are not named defendants (and would almost certainly benefit from sovereign immunity if they were), the litigation would inevitably require a federal court to cast judgment on the legality of their actions, with obvious potential implications for foreign relations between the United States and Nigeria.
2. Kiobel was first argued in the Supreme Court last term, with the primary question under consideration being whether corporations are subject to liability under the ATS. (A divided Second Circuit panel, in an opinion by Judge José Cabranes—a highly respected Clinton appointee (that’s not a phrase I use often)—had ruled that corporations are not liable under the ATS because the “law of nations,” or customary international law, does not recognize the concept of corporate liability.) But after oral argument the Supreme Court requested supplemental briefing on the more fundamental question whether the ATS applies extraterritorially—whether, as the Court phrased it, the ATS’s jurisdictional grant “allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”
3. In his supplemental amicus brief on behalf of various American corporations, Harvard law school professor (and my former boss at DOJ’s Office of Legal Counsel) Jack Goldsmith powerfully demonstrates that ATS causes of action for conduct on foreign soil are contrary to the Court’s 2004 decision on the ATS in Sosa v. Alvarez-Machain, cannot be squared with the presumption against extraterritoriality, and would violate international law (thus triggering the so-called Charming Betsy canon against such a construction).
As I pointed out in my blogging on the Koh nomination, the advocacy by transnationalists of an interpretation of the ATS that would violate international law provides further support for the notion (set forth by Justice Scalia in his dissent in Roper v. Simmons) that American transnationalists use international law selectively as an ideological weapon: they invoke it when it advances their own hard-left ideological agenda and ignore it when it doesn’t.
4. Even the Obama administration, after initially submitting an amicus brief that supported the Kiobel plaintiffs on the issue of corporate liability under the ATS, now states in its supplemental amicus brief its position that while there are circumstances in which a court might recognize an extraterritorial ATS cause of action, the Kiobel case does not present such circumstances.
Notably, Koh, as the State Department’s legal adviser, signed the Obama administration’s initial brief, but after (I’m told) losing a bruising internal battle refused to sign his name to the supplemental brief (as various commentators at the time noted).