Agreed.
This is a bad decision. The ATS is, as Chip wrote earlier, a
jurisdictional statute. And, quite frankly, its text and historical
context strongly suggests it captures "extraterritoriality" activities.
In 1789, the United States was a young republic, attempting to normalize
international relations. The ATS was likely enacted with that aim in
mind, that is, to allow foreign plaintiffs— such as merchants and
ambassadors— the right to sue Americans in U.S. courts for certain
international law violations causing injury to person or property
(though defendants are not limited by the ATS). Such "violations" at
the time would have been understood to include extraterritorial acts,
like violating neutrality on the high seas and piracy. Under the "law
of nations" if you did not provide such domestic redress (ie with a
statute like ATS) then the state itself would be liable (and would also
cause friction with other states). Presumably today, foreign
subsidiaries of American corporations-- which under the Kiobel
majority's reasoning would not overcome the presumption against
extra-territorial application-- likewise could cause friction for the
U.S. among foreign states, for acts abroad committed in violation of
international legal norms.
IMHO, the Court should not have used a rule of statutory interpretation
to gut the ATS. Rather, leave it to Congress: if lawmakers have a
problem with the Founding Era statute's extraterritorial application,
then it should have the guts to repeal it.
best, jwp
Jillian C. York wrote:
That's a rather odd position for someone who works for a human rights
group to take.
On Wed, Apr 17, 2013 at 2:26 PM, Peter Micek <[email protected]
<mailto:[email protected]>> wrote:
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] <mailto:[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 <http://averysmallbird.com> | @cda
| Washington, D.C.
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