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Prof. Dr. von Bernstorff

The Alien Tort Statute

As part of the proceedings of Kiobel v. Royal Dutch Petroleum Co. before the US Supreme Court, Prof. Dr. Jochen von Bernstorff co-authored the Supplemental Brief of Amici Curiae of the German Institute for Human Rights and International Law Experts.

 

The proceedings in the case Kiobel v. Royal Dutch Petroleum Co. were instituted against Royal Dutch Petroleum Co., Shell Transport & Trading Co., Plc and its wholly owned subsidiary Shell Petroleum Development Company of Nigeria Ltd. By referring to the US Alien Tort Statute, the petitioners sought compensation  for damages caused by crimes against humanity, especially torture and extrajudicial executions, which were committed with the aid and assistance of the defendant between 1992 and 1995. Re-argument opened in October 2012 and the case was decided on 17 April 2013.

Amicus Curiae Brief of the German Institute for Human Rights and International Law Experts in support of petitioners.

Amicus Curiae Brief of German International Scholars in the case concerning Ester Kiobel, et al. v. Royal Dutch Petroleum Co., et al.

Click here for more information regarding the proceedings and links to submitted Briefs.

 

Below is an extract from von Bernstorff/ Jacob/ Stone: The Alien Tort Statute before the US Supreme Court in the Kiobel case: Does international law prohibit US courts to exercise extraterritorial civil jurisdiction over human rights abuses committed outside of the US? (ZaöRV 2012, 579 - available via beck online)

 

The US Alien Tort Statute (28 U.S.C. § 1350; ATS), which dates from 1789, is hardly the best imaginable mechanism to adjudicate and implement international human rights norms. It reads as follows:

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.

The plain wording of the statute would seem to enable US courts to adjudicate over private claims for damages regarding gross human rights violations which have taken place in a foreign country, even if no US nationals have been involved as perpetrators or victims. Various legitimate political concerns can be raised in this context. Is it wise to entrust the domestic courts of one country with the universal task of applying and enforcing international human rights law? Is civil litigation the right mechanism to enforce human rights due to its profit-oriented structures of legal representation and its market-based forms of case selection? Does it further contribute to an increasingly dominant position of US law in our globalized economy? Many of the concerns raised appear well founded from a political perspective. Moreover, there is an intuitive uneasiness amongst international lawyers when they have to rely on decentralized and thus unilateral adjudication and enforcement of international legal norms; ironically, however, that often remains the only game in town. But today, in light of what is by now a household proliferation of international judicial institutions, decentralized adjudication does not have the same appeal to international lawyers as it may have had at the time the ATS was drafted.
Nevertheless, in the human rights field and in particular in the area of corporate liability for gross human rights violations, there are – for all the glowing expressions and well-intended endeavors regarding corporate accountability of the past decades – still no international courts to turn to for effective redress if someone has been killed, tortured or similarly harmed for protesting against the corporate devastation of one's land and livelihood.

That is essentially the claim brought by the plaintiffs in Esther Kiobel, et al. v. Royal Dutch Petroleum Co., et al., a case that has attracted a lot of attention and rekindled several crucial debates.1 They allege Shell's complicity in human rights violations committed against them in the Ogoni region between 1992 and 1995, including torture, extra-judicial executions and crimes against humanity. These were preceded by indigenous protest movements against Shell and other companies operating in the Niger delta.2 To add insult to injury and leaving aside more fundamental misgivings, those domestic legal orders that might be considered to have close links to a particular case through the territoriality or personality principle, such as the host or home country of a multinational corporation, often have restrictive substantive or procedural rules in place when it comes to holding corporations or other private or public actors liable for human rights abuses, especially when committed abroad. Conversely, the same multinational corporation's business interests are nowadays very likely to be protected by a highly effective mechanism of international investment arbitration.3

In the late 18th century, given the absence of permanent international judicial institutions, unilateral adjudication would likely have seemed to the founders of the ATS to be an ordinary means of redress for victims of international law violations. Even though recourse to ad hoc international arbitration mechanisms, such as the ones provided for by the Jay Treaty,4 gradually became more frequent, they were not a permanent forum to adjudicate over a broader number of infringements of international law outside of particular bilateral contexts. Moreover, for European international lawyers, the concept of the national judge as an agent of the international legal community was a familiar notion of 20th century international legal theory, with Georges Scelle and his idea of a „dédoublement fonctionnel” springing to mind. According to this, national agents and officials should be seen as performing a split function as domestic officials and as agents of the international legal community.5

For better or for worse, decentralized judicial enforcement continues to play a vital role in those fields of international law that lack adequate centralized judicial institutionalization. Such „outsourcing” can even be a mechanism to counter the predominance of the executive branch when it comes to domestic decisions over the (non-)implementation of international legal standards.6

In the Kiobel matter in the US Supreme Court, many of these controversial issues were raised and broken down into concrete arguments in light of that particular lawsuit, not least by means of amicus curiae briefs. While the earlier focus had amongst other things been on the question whether corporate entities could be held liable, in March 2012 the Supreme Court unexpectedly and at a rather late stage restored the case to the calendar for re-argument and invited further submissions on the following fundamental question:

Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.

Evidently this is a very broad query that opens up several possible routes for tackling it, for instance by way of a detailed examination of US tort law, conflict of laws or constitutional law. Regardless of the specific avenue pursued, it is hard to escape the feeling that the Supreme Court was keen to subject the ATS to a more thorough review, given the head-scratching the provision has caused7 and since it would certainly have appeared possible to avoid a more penetrating analysis by deciding the corporate liability point accordingly. But the Court chose not to let sleeping dogs lie.

 



1 At the time of writing, the case is pending in the US Supreme Court (Docket No. 10-1491), on appeal from
the US Court of Appeals for the Second Circuit.

2 See IV. D.

3 There is a certain asymmetry in current international law between the degree of judicial protection of
interests of economic actors and the judicial protection of non-economic interests of individuals, local
communities or the population at large; see on such concerns J. von Bernstorff, Reflections on the
Asymmetric Rule of Law in International Relations, in: J. Crawford/S. Nouwen (eds.), Select Proceedings of
the European Society of International Law, Vol. 3, 2010, 381; M. Jacob, International Investment
Agreements and Human Rights, INEF Research Paper Series on Human Rights, Corporate Responsibility and
Sustainable Development 03/2010.

4 Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of
America, signed 19 November 1794.

5 G. Scelle, Précis de droit des gens. Principes et systématique, 2 Vols. (Paris: Librairie du Recueil Sirey
1932-1934), 10, 21; on Scelle see W. Schiffer, The Legal Community of Mankind, 1954, 260 et seq.

6 E. Benvenisti, Reclaiming Democracy: The Strategic Uses of International and National Law by National
Courts, Am. J. Int'l L. 102 (2008), 241.