Kiobel Will Be Reargued

by Julian Ku

Sometimes oral argument really does reflect what is going on in the Justices’ minds.  The Supreme Court will hear reargument in Kiobel next term (meaning October or so).

The Supreme Court on Monday put over to its next Term a major case on lawsuits against corporations for human rights abuses in foreign countries, and ordered lawyers to come back with an expanded argument on Congress’s power to pass laws that reach overseas.  The case of Kiobel v. Royal Dutch Petroleum (docket 10-1491) was heard just last Tuesday, and some of the Justices at that time questioned whether the Alien Tort Statute allowed U.S. courts to hear lawsuits for violations of international law on foreign soil.   That is the issue lawyers are to address in new legal briefs due on a schedule that runs through June 29.  The order is here.

So the extraterritoriality argument will get its full day in court, and maybe even aiding-and-abetting.  This may be the end or the new start for the ATS.

7 Responses

  1. Response…
    very good — no need to rush to judgment on such an important set of issues, especially when there was inadequate briefing all around.

  2. I’d be more worried than that.  Not too early to start thinking through the question: what does human rights look like after the ATS?

  3. An interesting aspect of the reargument order is that it focuses on violations occurring within foreign territory, rather than on violations occurring outside U.S. territory.  The idea is probably to take into account the understanding that the ATS applies to piracy, which occurs (typically) on the high seas.  

    This framing of the issue will raise the question whether the presumption against extraterritoriality distinguishes between extraterritorial applications of US law depending on whether the situation in question is within another state’s jurisdiction.  The Court in recent years hasn’t seemed to apply such a distinction.  I’ve argued, however, that it should.  Specifically, a presumption against extrajurisdictionality that applies more strictly to situations outside U.S. prescriptive jurisdiction under international law than to situations (such as piracy on the high seas) that are within U.S. jurisdiction would, I think, better fit with its pre-Aramco jurisprudence and with international law.

  4. Response…
    Readers of JURIST (see )will find some of the evidence of this early and continued attention to extraterritorial jurisdiction of our courts exercisable on the basis of universal jurisdiction in the 1795 Opinion of the Attorney General and the Kadic and Presbyterian Church of the Sudan and other cases noted above and in footnote 38 of the Virginia Journal article as well as in an article on The History, Nature, and Reach of the Alien Tort Claims Act, in 16 Fla. J. Int’l L. 249, 230-31 & n.3 (2004). The Court’s question might also be too limiting in view of the recognized reach of the statute, for example, to conduct in violation of a treaty that seemed to occur at least partly within the U.S. but that recognizably resulted in injury in Mexico. See 26 Op. Att’y Gen. 250 (1907), addressed in the Virginia Journal article.
    Moreover, piracy was not “on” the high seas, but “on” the vessel of some state as the pirates traversed from their pirate ship to the flag of some state (which is the equivalent of that state’s territory under international law).

  5. I argued recently and at length in the Virginia Law Review that the presumption against extraterritoriality simply shouldn’t apply to statutes like the ATS that implement international law (to the extent the statutes are construed to apply international, not domestic, legal principles); rather, the relevant canon of construction is Charming Betsy, which would allow claims arising both outside the United States and inside foreign territory.

  6. Response…
    Thanks all for this discussion re: piracy, etc.  I added an Addendum to my JURIST Op Ed ( www site above).

  7. Piracy and prize cases should be especially relevant to the reargument.  Both U.S. and British courts have held that their courts have extraterritorial jurisdiction over piratical and enemy cargo captured on foreign land under the law of nations.  See, e.g., Davison v. Seal Skins, 7 F. Cas. 192 (C.C.D. Conn. 1835) (retaking of piratical cargo landed on Falkland Island still subject to federal salvage law); The Progress, [1810] Edw. Adm. (Eng. High Ct. Adm.) 210 (enemy cargo stored on shore in Portugal subject to salvage award); The Hercules, 2 Dods. 369, 372 (High Ct. Admiralty 1819) (upholding warrants authorizing arrest of piratically obtained property in the possession of anyone and wherever such property may be found).

    In fact, when Cuban authorities were aiding and abetting pirates in the 1820s, the U.S. Navy, under the authority of the law of nations, pursued the pirates onto Cuban territory and seized those goods that had been earlier taken piratically from aliens.  Sounds similar to Kiobel.

    Francisco Forrest Martin

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