This week, there was no escaping the second oral argument in the Kiobel case that kicked off the US Supreme Court’s term on Monday. If you are not familiar with this case, it concerns the enigmatic Alien Tort Statute which, as part of the Judiciary Act 1789, holds that “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” SCOTUSblog provides more background on the case here and here.
First of the mark here at Opinio Juris was Deborah Pearlstein posting on the early consensus about how oral argument was going. Peter Spiro posted a link to the transcript of the oral argument, and argued that things did not go that well for Shell, but stopped short of making predictions about the final outcome. Roger Alford predicted that the Supreme Court will limit application of the ATS to claims by foreign plaintiffs against foreign corporations for conduct on foreign soil. In a later post, Deborah discussed three possible readings of an exchange between Justice Scalia and the US Solicitor General on whether the Court should give deference to the views of the State Department.
During our special Kiobel Roundtable, Curtis Bradley argued that the presumption against extraterritorial application is a better fit than the stronger presumption against extraterritoriality to limit the scope of the ATS. In his post, William Dodge also pointed out that suggestions by respondents to apply the presumption against extraterritoriality did not appear to gain traction with the justices. He also touched on the questions of the availability of alternative fora and of corporate liability for human rights violations. Chimène Keitner focused on transitory torts, rejected Shell’s claims that federal courts should not consider any claims arising outside the US and discussed how much deference should be given to the political branches to avoid offending foreign countries.
A few contributors raised the issue of the purpose of the ATS. Julian Ku expressed disappointment that the parties did not offer a persuasive theory of the purpose of the ATS. Meir Feder asked whether the ATS addresses national or universal interests. In a similar vein, Beth Stephens discussed how to define a coherent limit on ATS cases, and argued that the devil is in the details. Thomas Lee argued that the real purpose of the ATS was about protecting safe conducts and not about piracy or ambassadorial infringements, as is often assumed.
Doug Cassel argued that the Supreme Court should only require the prior exhaustion of foreign and international remedies “in ATS cases brought exclusively under universal jurisdiction, and not in ATS suits against US companies”. He added that any exhaustion requirement should respect the exceptions recognized by international law.
Aside from our Kiobel posts, Kevin wrote about the passing of historian Eric Hobsbawn. Ken Anderson reposted part of Gary Bass’ review of John Witt’s book “Lincoln’s Code“, discussed Aryeh Neier’s call for a no-fly zone over Syria, and examined the differences between the targeted killing of Anwar al-Awlaki and the landmark case of Reid v Covert. Julian discussed reports that the US is preparing a retaliatory military strike into Libya over the killing of Ambassador Stevens, and posted about the refusal by the Japanese PM to submit the Senkaku/Diaoyu dispute to the ICJ. Finally, Duncan Hollis posted about a recent decision by the Nevada Supreme Court to implement the ICJ’s Avena judgment, despite there being no requirement to do so, as the US Supreme Court held in Medellin v. Texas.
Many thanks to our guest contributors and have a great weekend!