The Trojan Horse in Kiobel: Royal Dutch Shell’s Conflation of Prescriptive and Adjudicative Jurisdiction

When the Supreme Court decided to rehear arguments in Kiobel, it instructed the parties to address the following 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.

In its Supplemental Brief addressing this question, Respondents came up with two arguments for why the answer to this question is “never.” First, Respondents argue, that the presumption against extraterritoriality prevents the ATS from applying in cases with an international component. And second, international law prohibits a state from using its prescriptive jurisdiction to recognize the claims presented by plaintiffs in Kiobel.

Both of these arguments are underwhelming. It is Respondents’ argument concerning an alleged lack of prescriptive jurisdiction, however, that is problematic. Respondents’ first argument is misguided, but primarily due to its overemphasis on the importance of the presumption against extraterritorial application, and a corresponding failure to address the broader context of the question posed by the Supreme Court in its order for rehearing. Respondents’ second argument, in contrast, is not an argument addressed at Kiobel’s merits; it is instead a Hail Mary pass, aimed at promoting certain policy objectives extending well beyond Respondents’ short-term interests in the Kiobel litigation. Respondents’ purpose in making this second argument was to attempt to influence the development of international law in a way that is favorable to Respondents’ corporate interests. It is Respondents’ hope that, through its deliberate conflation of prescriptive and adjudicative jurisdiction, Respondents will be able to bait the U.S. Supreme Court into enshrining, as precedent, a previously-unrecognized restriction in international law limiting states’ ability to regulate corporate behavior.

Respondents’ primary argument for why Kiobel should be dismissed is that the Supreme Court must read into the Alien Tort Statute a prohibition on any cause of action arising from events that took place abroad. But Respondents have ignored the fact that this canon, known as the presumption against the extraterritorial application of U.S. law, is but a minor component of a comprehensive jurisdictional scheme regulating the jurisdictional reach of U.S. courts. The United States, in its Supplemental Amici Brief in Kiobel, thoroughly catalogued many of the other components of this jurisdictional infrastructure, and described the role they play in regulating the jurisdiction of U.S. courts in hearing cases under the Alien Tort Statute. These components include:

  • Exhaustion of remedies;
  • Forum non conviens;
  • Personal jurisdiction/due process;
  • Act of State;
  • International comity;
  • Political question; and
  • Case-specific judicial deference.

Although the presumption against extraterritoriality can be a factor in considering whether the exercise of jurisdiction over an ATS claim is appropriate, Respondents have elevated the importance of this single rule of statutory interpretation to an absurd degree. The question posed by the Supreme Court, in its request for reargument, is addressed at the limits imposed by the U.S.’s jurisdictional scheme as a whole — not the constraints imposed by any individual element of it.

Nevertheless, the majority of Respondents’ Supplemental Brief is spent addressing, in exhaustive detail, the limitations imposed by the presumption against extraterritoriality. Although there are lots of reasons to think that Respondents have turned a molehill into a mountain with their extraterritoriality argument, and I won’t get into all of them here (not in this post, anyway), here are, briefly, two points that suggest that presumption against extraterritoriality is insufficient, standing alone, to justify a dismissal of Kiobel:

1. As is repeated in many of the amici briefs, the first Congress would have been equally concerned about a U.S. citizen attacking a diplomat in Canada and avoiding liability by hiding in the U.S., as it would have been concerned about a U.S. resident attacking a diplomat in the United States. Ultimately, the purposes behind the ATS’s enactment are not compatible with a presumption that Congress intended to create a tort scheme that would allow the U.S. to serve as a safe haven to those who violate international law abroad, while only providing an enforcement mechanism against those who violate international law while easily reachable in the U.S.

2. Respondents ignore the fact that the Supreme Court has already, albeit implicitly, affirmed the reach of the ATS to acts occurring on foreign soil. In O’Reilly de Camara v. Brooke, 209 U.S. 45 (1908), Justice Holmes dismissed a suit brought under the ATS for acts that occurred in Cuba, on the grounds that the plaintiff’s claim for damages was based on property that she had no recognizable rights to. Before dismissing on those grounds, however, Holmes’ decision briefly “mention[ed] some technical difficulties that would have to be discussed before the plaintiff could succeed[,]” and noted that plaintiff’s claim had several other defects. Notably absent, however, is any hint or suggestion that plaintiff’s claims were invalid because they concerned events that occurred in Cuba, and not in the United States.

Prescriptive Jurisdiction

Respondents’ second — and more dangerous — argument is that permitting Kiobel to be heard in a U.S. court is a violation of international law, and therefore, pursuant to the Charming Betsy canon, the ATS should not be interpreted in a manner that would authorize a U.S. court to hear a case like Kiobel. In reaching this conclusion, however, Respondents deliberately mischaracterize the nature of their argument: while Respondents repeatedly claim that “a U.S. court’s exercise of prescriptive jurisdiction under the ATS” is prohibited by international law (Respondents’ Supplemental Brief, at 47) (emphasis added), Respondents’ actual arguments in support of this claim only address limitations on a U.S. court’s exercise of adjudicative jurisdiction.

This isn’t simply an error or misunderstanding on Respondents’ part; it is an intentional conflation of two distinct concepts. Respondents want the Supreme Court to find that the United States lacks prescriptive jurisdiction to regulate foreign corporate activities, not merely that U.S. courts lack adjudicative jurisdiction to hear claims about those activities.

This is because Royal Dutch Petroleum’s corporate interests would be best served by a norm of international law that minimizes a state’s authority to regulate the foreign activities of corporations, even for corporations that are incorporated or headquartered in that state’s territory. As far as Shell is concerned, having Kiobel dismissed on, say, forums non conveniens grounds, or for reasons of international comity, would only be a partial victory for Shell at best. Even if Kiobel is dismissed from New York federal courts, Shell hasn’t won all that much as long as the plaintiffs are still able to turn around and re-file their claims in London or the Hague.

And so Respondents insist throughout their brief that their argument is concerned with prescriptive jurisdiction. Respondents even going so far as to quote the entirety of the section on prescriptive jurisdiction from the Restatement (Third) of the Foreign Relations Law of the United States — perhaps hoping that the Supreme Court will focus on analyzing how the available bases of prescriptive jurisdiction apply to the situation in Kiobel, and fail to notice the fact that prescriptive jurisdiction is irrelevant here. Examples of these efforts at mischaracterization in Respondents’ brief include the following:

“Affording a federal-common-law claim under ATS jurisdiction … would violate international law because there is no accepted basis on which the United States may prescribe its law to govern such a case. ” (Id., at 38).

“the Charming Betsy presumption is not overcome by the text or historical context of the ATS, neither of which affirmatively indicates that federal courts should assert … any prescriptive jurisdiction with respect to conduct on foreign soil.” (Id., at 47).

“A U.S. court’s exercise of prescriptive jurisdiction under the ATS and federal common law as to conduct on foreign soil typically will violate international law[.]” (Id.)

But Respondents’ actual arguments, with the sole exception of its brief aside regarding sec. 402 of the Restatement (Third), are addressed exclusively at the question of why the Court’s exercise of adjudicatory jurisdiction under the ATS, at least in Kiobel, would be in violation of international law:

“That is because adjudication of such a case in a U.S. court clearly violates the international-law norm against universal civil jurisdiction.”

Respondents provide a long list of authorities that Respondents would have the Court believe support its claims that prescriptive jurisdiction is the actual issue in Kiobel. However, Respondents’ authorities consist solely of foreign court decisions concerned with the question of adjudicative jurisdiction. It is only Respondents’ use of delicate phrasing that creates a suggestion that these sources address the topics of the prescriptive power of legislative branches, when in fact that subject is never addressed. For instance, Respondents allege the following:

To the contrary, foreign governments and tribunals view the assertion of civil—as opposed to criminal—universal jurisdiction as a violation of international law. In Jones v. Ministry of Interior for the Kingdom of Saudi Arabia, [2006] UKHL 26, the United Kingdom’s House of Lords observed that “there is no suggestion that [universal civil jurisdiction] represents current international law.”

But Jones v. Saudi Arabia was not about “foreign governments” prescribing jurisdiction. Instead, the opinions begins with the following description: “[t]he issue at the heart of these conjoined appeals is whether the English court has jurisdiction to entertain proceedings.” (Also notable is the fact that Respondents’ quote from Jones — “there is no suggestion that [universal civil jurisdiction] represents current international law” — is actually an instance in which the UK court summarizes Breyer’s concurring opinion in Sosa. That hardly counts as foreign authority on whether or not the U.S. had the ‘prescriptive jurisdiction’ to enact the ATS!)

Every single foreign source that Respondents cite to is, once reviewed, clear a case concerned with adjudicative jurisdiction:

An Australian appellate court similarly explained, in rejecting a plaintiff’s contention “that international law confers universal jurisdiction on the Australian courts to hear and determine a civil claim of torture[,] … [t]here is a considerable body of authority denying the existence of such jurisdiction, despite the recognition of the prohibition of torture as jus cogens.”

An allegation of an abuse of a “jus cogens” norm committed anywhere in the world, cannot alone justify the civil jurisdiction of the U.S. courts. Such jurisdiction, without any underpinning of a clear connection with the forum (i.e. truly “universal” jurisdiction), is only well established in the criminal context.

Moreover, Respondents’ reliance on sec. 402 of the Restatement (Third) of Foreign Relations is particularly odd — not to mention inappropriate — given the explicit textual support for the ATS that the Restatement provides just a couple short sections later, at section 404. Respondents dismiss section 404’s explicit grant of prescriptive jurisdiction to “define and [] punish” violations of international law by stating:

“this principle refers to universal criminal jurisdiction and offers no support for the assertion of universal civil jurisdiction.”

But either Respondents are willing to knowingly distort the authorities they cite to, or else Respondents simply didn’t bother to read all of section 404, because this principle absolutely provides support for an assertion of universal civil jurisdiction. See sec. 404, at comment b:

Universal jurisdiction not limited to criminal law. In general, jurisdiction on the basis of universal interests has been exercised in the form of criminal law, but international law does not preclude the application of non-criminal law on this basis, for example, by providing a remedy in tort or restitution for victims of piracy.

Finally, in light of Respondents’ own exclusive reliance on case law dealing with adjudicative jurisdiction, not prescriptive jurisdiction, Respondents’ argument for why the Court should disregard the authorities cited to by Petitioner is particularly absurd:

[i]n fact, Petitioners’ authorities are inapposite … because they exercised adjudicative (rather than prescriptive) jurisdiction.

The legal strategy employed here by Respondents can best be described as the “these are not the droids you’re looking for” argument. It is an attempt to distract the Court from what Respondents are actually proposing: that the U.S. should recognize a new norm of international law which imposes expansive limitations on a sovereign’s power to regulate corporate coduct. Trussed up in language of “adjudicative jurisdiction,” this attempted intrusion on state sovereignty seems much more palatable — and, who knows, maybe some of the judicial minimalists on the bench will fall for it. But look at what Respondents are actually saying:

A U.S. court’s exercise of prescriptive jurisdiction under the ATS and federal common law as to conduct on foreign soil typically will violate international law even in cases where the defendant is a U.S. individual or corporation. … In the typical “foreign-squared” ATS case, the exercise of prescriptive jurisdiction will be unreasonable because, while the U.S. has a connection with the defendant, the activity being regulated neither takes place in the United States nor has direct effects here[.]

This is — technically speaking — insane. No one can seriously doubt that the U.S. has the power to regulate the foreign activities of its domestic corporations. And yet Respondents go one step father, and claim that doing so would actually be a violation of international law. Respondents are not arguing that it is only the United States that lacks the authority to prohibit Royal Dutch Petroleum from committing human rights abuses in Nigeria — Respondents are arguing that the United Kingdom and the Netherlands don’t have that authority either.

With that in mind, I would like to review how Royal Dutch Petroleum describes, in its Supplemental Brief, the international norm that it is proposing should be adopted by the Supreme Court in Kiobel:

In the typical “foreign-squared” ATS case, the exercise of prescriptive jurisdiction will be unreasonable because, while the U.S. has a connection with the defendant, the activity being regulated neither takes place in the United States nor has direct effects here; the plaintiffs have no connection with the United States; the foreign state has a strong interest in regulating the alleged conduct; and U.S. attempts to regulate may conflict with that foreign state’s law.

Keeping the factual situation alleged by the Kiobel plaintiffs in mind, here is an attempted translation of what Respondents actually mean to say in the above paragraph:

Even if Royal Dutch Shell was a U.S. company, it would be unreasonable, and therefore a violation of international law, for the U.S. to prescribe a domestic law prohibiting Royal Dutch Shell from committing human rights abuses in Nigeria. U.S. law regulating Royal Dutch Shell’s joint ventures with foreign sovereigns would be unreasonable because, although Royal Dutch Shell is incorporated in the U.S., all of the human rights abuses are being committed in Nigeria, and these human rights abuses don’t actually cause any harm on U.S. territory. The victims of these human rights abuses have no connection to the U.S. (aside from being subject to human rights abuses committed by a U.S. company). Nigeria has a strong sovereign interest in how foreign corporations conduct their business in Nigeria, and whether or not those corporations respect human rights. Attempts by the U.S. to prohibit Royal Dutch Shell from engaging in foreign human rights abuses would necessarily conflict with Nigerian law, which specifically permits and condones Royal Dutch Shell’s actions there.

This translation is slightly tongue in cheek, but the scheme proposed by Respondents is specifically advocating against the existence of prescriptive jurisdiction to regulate foreign human rights abuses. Respondents’ argument goes too far to be taken seriously.

In short, Respondents would have the Court believe that it would be a violation of international law for the United States to institute a civil cause of action against U.S. nationals who, acting under a grant of government authority, violate international law while abroad. In fact, under international law, the United States would itself be liable for breaching international law in those circumstances. See Draft Articles on State Responsibility, Art. 5 (“The conduct of … a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.”). And yet, under Respondents’ bait-and-switch theory of ‘prescriptive jurisdiction,’ international law actually prohibits the U.S. from making civil reparations available in that situation.

The Charming Betsy argument contained in Respondents’ Supplemental Brief is nothing more than at attempt at judicial misdirection. Although Respondents do make the (valid) argument that the U.S. lacks of adjudicatory jurisdiction to hear ATS claims regarding purely foreign conduct — an argument they would be idiots to avoid making, since its the strongest argument in favor of Kiobel’s dismissal — Respondents attempt to sell this argument as a much broader limitation on state’s sovereignty.

Simply put, it is not sufficient for Royal Dutch Petroleum’s purposes to have Kiobel dismissed solely for a lack of adjudicatory jurisdiction. What Respondents wants — and Respondents are hoping the U.S. Supreme Court will provide a global precedent for — is a finding that states not only lack the jurisdiction to adjudicate claims regarding a corporation’s foreign human rights abuses, but that states lack the authority to prohibit such human rights abuses in the first place, even when those abuses are committed by a state’s own nationals.


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