Author: Doug Cassel

[Doug Cassel is an Emeritus Professor of Law at Notre Dame Law School.] The unanimous jurisdictional ruling of the United Kingdom Supreme Court in Vedanta Resources PLC and another v Lungowe and others, issued April 10, is the most important judicial decision in the field of business and human rights since the jurisdictional ruling of the United States Supreme Court in Kiobel v Royal Dutch Petroleum in 2013. ...

[Doug Cassel is Professor of Law at Notre Dame Law School] If Alien Tort Statute suits to redress human rights violations committed abroad are upheld in Kiobel, the Supreme Court is likely to require that plaintiffs first exhaust their foreign and international remedies (or show good cause for not doing so).  If so, it is important that the Supreme Court get right the contours of the exhaustion doctrine under international law.  The Court should require exhaustion only in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies.  Even in purely universal jurisdiction cases, the Court should respect exceptions to exhaustion recognized by international law. An exhaustion requirement seems likely.  In the Kiobel oral argument on the extraterritorial reach of the ATS, three Justices likely to support extraterritorial reach -- Ginsburg, Kagan and Sotomayor -- asked questions sympathetic to an exhaustion requirement (Tss. at 8, 13-15).  In response, Paul Hoffman, plaintiffs’ counsel, appeared open to an exhaustion requirement (Tss. at 13-14).  No Justice or counsel spoke against an exhaustion requirement; even two Justices generally hostile to the plaintiffs – Alito and Scalia – seemed friendly to an exhaustion requirement (in the event extraterritorial ATS suits are allowed) (Tss. at 15, 31). The most substantial brief on the exhaustion issue, favorably cited by Justice Sotomayor (Tss. at 12-13), is the amicus brief of the European Commission on behalf of the European Union.  The EU brief is generally excellent.  It correctly limits an exhaustion requirement to ATS cases whose exclusive jurisdictional basis under international law is universal jurisdiction (part A below). However, its articulation of the exceptions to exhaustion in universal jurisdiction cases is imprecise (Part B below).  There is a resulting risk that the Court may saddle plaintiffs with a vague and overbroad exhaustion requirement.  This would undermine the very purpose of universal civil jurisdiction – to ensure that grave international crimes do not go unredressed.

[Doug Cassel is Professor of Law at Notre Dame Law School] Venezuelan President Hugo Chavez on April 30 directed his Council of State (a policy advisory body) to study Venezuela’s “withdrawal” from the Inter-American Commission on Human Rights.  He asked for their recommendation within days, not weeks.  This is the latest move in the Bolivarian Republic’s long record of denouncing the Commission and the Inter-American Court of Human Rights as tools of US imperialism, supposedly biased against socialist Venezuela. But the real reason for Chavez’ pronouncement, say human rights groups – in my view correctly – is that the Commission and Court hold the Chavista regime accountable for its systematic violations of the independence of the judiciary (1, 2), and of freedom of the press, (3, 4), as well as other serious violations of human rights (5, 6). Chavez’ call was promptly cheered by other high officials in Caracas.  It seems a foregone conclusion that the Council will recommend withdrawal.  Since Chavez has already declared that Venezuela should have withdrawn a long time ago, he is all but certain to heed such a recommendation. Withdrawing from the Commission, however, is not so simple.

[Doug Cassel is Professor of Law at Notre Dame Law School] Kevin Jon Heller’s reply to my post on the fraudulent Ecuadorian judgment against Chevron is entitled, “Chevron’s Buyer’s Remorse.” Heller avers that there is “one reason, and one reason only, that this case was heard before an Ecuadorian court: because that is what Chevron wanted.” Actually, that is what Texaco...

[Doug Cassel is Professor of Law at Notre Dame Law School] Heller’s reply misses the point of my post, Suing Chevron in Ecuador: Do the Ends Justify the Means? I did not ask whether Chevron is an “innocent victim.” I asked whether the ends pursued by plaintiffs’ lawyers (environmental remediation) justify their means (making covert payments to the court’s “independent” expert from their “secret account,” writing his report and then lying about it, meeting secretly with the judge in an abandoned warehouse, etc.). I answered, “No.” Human rights lawyers cannot vindicate rights by trashing the rights to due process and fair trial. Doing so undermines our moral and professional credibility. I hold that view as a career human rights lawyer, not (in Heller’s ad hominem) as an “advocate for Chevron.” My post linked to my longer open letter, which made explicit that I billed Chevron for representing it on an amicus brief, but not for the time entailed in writing the open letter. Heller’s “other side of Chevron” consists of a series of erroneous, tendentious or unsupported accusations, based almost entirely on press statements by plaintiffs’ PR operatives. In the order he raises them:

[Doug Cassel is Professor of Law at Notre Dame Law School] In an environmental suit brought by lawyers for some residents of the Amazon, an Ecuadorian court last year issued an $18.2 billion judgment against Chevron. Readers who follow the case only casually may have the impression that this is a classic case of David vs. Goliath, and that Ecuadorian courts...