Hey Collin, It looks like the Supreme Court set a very high bar to overcoming the presumption of territoriality in ATS cases.
That US laws should apply only to traditional spaces of US jurisdiction is presumed unless congress specifically says otherwise. Since the Filartiga v Peña case in 1989, the US has experimented with applying the ATS (passed as part of the *1789* Judiciary Act), to torts committed elsewhere. The ATS and other domestic attempts at asserting universal jurisdiction, like Spain has experimented with, highlight the need for some adjudication where in cases none is likely, or feasible. Spain, for example, recently used it to target Pinochet and those responsible for El Salvador's massacres in the 1980s. Courts asserting universal jurisdiction claim the right to judge crimes regardless of where they were committed. See http://www.globalpolicy.org/international-justice/universal-jurisdiction-6-31.html Some international treaties actually mandate that states account for egregious rights abuses when they are not brought to justice domestically. This post highlights some legal and policy solutions in the U.S. that go survive today's ruling: http://opiniojuris.org/2013/04/17/human-rights-will-survive-kiobel The Foreign Corrupt Practices Act, the proposed State Department Reporting Requirements on US companies operating in Burma, and other measures are taking the actions of US corps abroad seriously. And the SEC has been able to seize funds of bad actors. There are strong reasons to oppose universal jurisdiction here. Domestic courts are not necessarily the best equipped to issue swift justice in huge transnational cases. The time and cost on ordinary plaintiffs are prohibitive (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1953190). The International Criminal Court has assumed jurisdiction over four egregious crimes committed worldwide. Corporations don't face any transnational court like that. But the process of creating norms (and then international law) will continue without universal jurisdiction, and companies probably fear angry investors more than many national courts. Plus, look at the flip side -- do we want torts occurring between US entities and citizens, on US soil, adjudicated in foreign domestic courts? It's not a perfect analogy, but not likely. Happy to continue the conversation, Peter On Wed, Apr 17, 2013 at 4:05 PM, Collin Anderson <[email protected]>wrote: > Libtech, > > > Today the Supreme Court handed down a ruling that seriously limited the > scope of the Alien Tort Statute on human rights cases. ATS was the grounds > that Iranians attempted to sue Nokia Siemens Networks for their sale of > lawful intercept, claims of liabilities for selling surveillance to China, > and the Turkcell v. MTN case was waiting on the decision[3], so this should > matter to many on the list. I was hoping that perhaps we could pull out > some comments from our colleagues in CSR and legal communities. > > Cordially, > Collin > > [1] > http://www.dw.de/nokia-siemens-lawsuit-dropped-by-iranian-plaintiffs/a-6240017 > [2] http://www.economist.com/node/18986482 > [3] > http://blogs.wsj.com/corruption-currents/2012/10/12/judge-stays-turkcell-lawsuit-citing-supreme-court-case/ > -- > *Collin David Anderson* > averysmallbird.com | @cda | Washington, D.C. > > -- > Too many emails? Unsubscribe, change to digest, or change password by > emailing moderator at [email protected] or changing your settings at > https://mailman.stanford.edu/mailman/listinfo/liberationtech > -- Policy Counsel | Access www.accessnow.org www.rightscon.org Ph: +1-646-255-4963 | S: peter-r-m | PGP: 22510994
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