CHAPTER 19 SHIFTING BATTLEFIELDS: A POST-KIOBEL ASSESSMENT OF HUMAN RIGHTS ADVOCACY

• Jurisdiction: United States

Human Rights Law and the Extractive Industries
(Feb 2016)
CHAPTER 19
SHIFTING BATTLEFIELDS: A POST-KIOBEL ASSESSMENT OF HUMAN RIGHTS ADVOCACY
Noah Benjamin Novogrodsky
Professor of Law
University of Wyoming College of Law
Laramie, WY

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NOAH NOVOGRODSKY is a professor at the University of Wyoming Law School and a 2015-16 Visiting Scholar at the Human Rights Center, UC Berkeley School of Law. Professor Novogrodsky teaches International Law, Civil Procedure, and International Human Rights Law. Professor Novogrodsky is a Phi Beta Kappa graduate with highest honors from Swarthmore College; he holds a law degree from Yale and an M.Phil, in International Relations from Queens' College at Cambridge University, where he won the Daniel Vincent Prize for the best thesis on the Middle East. After law school, he served as law clerk to the Honorable Nancy Gertner of the U.S. District Court for the District of Massachusetts; as a Robert L. Bernstein Fellow in International Human Rights in Asmara, Eritrea, Addis Ababa, Ethiopia, and Cape Town, South Africa; as a litigation associate at the firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin in San Francisco; and as the founding director of the International Human Rights Clinic at the University of Toronto Faculty of Law. Professor Novogrodsky has also been a Visiting Professor at Georgetown University Law Center and the University of Connecticut School of Law; his scholarship is focused on transitional justice, international criminal law, and the human rights obligations of non-state actors.

Kiobel: A New Standard

Since the early 1980s, the Alien Tort Claims Act (also known as the Alien Tort Statute or ATS), 28 U.S.C § 1350, has occupied pride of place for human rights advocates pressing civil claims for serious abuses committed abroad.¹ Although the United States Supreme Court has recently diminished the scope of the statute, the ATCA represents the creative reappropriation of a statute originally drafted to address non-human rights issues, principally tortious assaults on ambassadors and acts of piracy. Under the Act, foreigners alleging a tort in violation of the law of nations may bring suit in U.S. federal court. The watershed case of Doe v. Unocal Corp., 395 F.3d 932 (9th Cir. 2002) embodied the use of the statute - along with other state and federal laws (such as the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq.) - to vindicate human rights claims. In Unocal, Burmese villagers alleged that the company, directly or indirectly, subjected the plaintiffs to forced labor, murder, rape, and torture when the defendants constructed a gas pipeline through the Tenasserim region. By finding the defendant potentially liable, Unocal solidified the theory that corporations can aid and abet atrocities and emboldened dozens of other suits, including In re South African Apartheid Litigation, 346 F.Supp2d 538 (S.D.N.Y. 2004); Sarai v. Rio Tinto, 550 F.3d 822 (9th Cir. 2008); and Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244 (2nd Cir. 2009). Unocal also led to a sizable but confidential settlement. For almost a decade after Unocal, U.S.

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courts proceeded on the assumption that the ATS can provide jurisdiction over corporations.²

In Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), however, the Second Circuit held that corporations cannot be liable for human rights abuses under customary international law and that, accordingly, there was no subject-matter jurisdiction under the ATCA. On appeal, the Supreme Court ignored the question of whether corporations are immune from suit under the ATS. Rather, the Court held that 'principles underlying the presumption against extraterritoriality' constrain courts in crafting a common law cause of action for claims under the ATS arising on foreign soil. As Professor Sarah Cleveland has written, "The Court thus articulated a 'Kiobel presumption' against extraterritoriality, for the ATS only, which it necessarily adapted to the purposes

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of that statute. The Court held that the presumption could be displaced where the claims 'touch and concern' US territory with sufficient force, but that the 'mere corporate presence' of Royal Dutch Petroleum was not enough."³ Justice Breyer, who mused at oral argument that it would be appropriate to refer to modern day human rights abusers as "Torture, Inc.,"⁴ concurred with the majority's dismissal of the case but argued that the ATS should continue to provide "jurisdiction . . . where (1) the alleged tort occurs on American soil, (2) the defendant is an American national, or (3) the defendant's conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind."⁵ Justice Kennedy wrote in his one-paragraph concurrence that "[t]he opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition."⁶ Justice Alito with Justice Thomas joining found that "a putative ATS cause of action will fall within the scope of the presumption against extraterritoriality - and will therefore be barred - unless the domestic conduct is sufficient to violate an international norm that satisfies Sosa's requirements of definiteness and acceptance among civilized nations."⁷ Kiobel leaves undecided the issue of corporate liability itself (although the bar against suing corporations under the ATS remains the law of the Second Circuit) and does not preclude non-state actors from suing corporations in other contexts.⁸ Kiobel also appears to create more stringent standards for U.S. corporations than their foreign

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counterparts (because of the territorial nexus to the firm). A case against ExxonMobil in Indonesia, for example, is proceeding because ExxonMobil "sprung from Standard Oil and is currently headquartered in Texas."⁹

Wither the ATS?

Post-Kiobel, the ATS landscape has been altered but reports of its death are premature. Kiobel clearly forecloses federal court cases where the plaintiff, defendant and situs of the violations are all foreign (so called "foreign cubed" cases). In Sarei v. Rio Tinto PLC, for example, plaintiffs from Papua New Guinea alleged that a joint Australian/British aided and abetted the actions of the government of Papua New Guinea during a civil war in which the state is accused of committing serious violations of international humanitarian law. Following the Kiobel decision, the Sarei plaintiffs sought voluntary dismissal of the suit. The U.S. Supreme Court also added a personal jurisdiction barrier in a case brought in part under the ATS, Daimler AG v. Bauman, 134 S. Ct. 746 (2014), ruling that a German parent company is not within the general jurisdiction of the state courts simply because it has an in-state subsidiary unconnected to the plaintiffs' underlying claims. According to the Court, Kiobel rendered the Bauman plaintiffs' claims untenable, because all the allegedly wrongful conduct occurred abroad.

In the Second Circuit, corporate immunity under the ATS continues to operate although there is no barrier to suits against individual corporate officers.¹⁰ As future cases play out, defendant corporations are likely to invoke those ATS

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decisions that have taken a restrictive view of aiding and abetting a violation of international law. See Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 258 (2d Cir. 2009)(adopting a standard that potential liability only attaches where the defendant provides practical assistance to the principal violator and the assistance had a substantial effect of the perpetration of the violation).¹¹ ATS suits also face the additional hurdles posed by forum non conviens considerations, see Aguinda v. Texaco, Inc. 303 F.3d 470, 477 (2d Cir. 2002), and the heightened federal pleading standards of Twombly and Iqbal. As Laurie Weiss and William Panlilio explain, "[t]he plaintiffs in Sinaltrainal v. Coca-Cola Co. failed to satisfy that more stringent pleading standard, 578 F.3d 1252 (11th Cir. 2009), abrogated on other grounds by Mohamad v. Palestinian Authority, 132 S. Ct. 1702 (2012). In that case, plaintiffs from Colombia alleged that their employers - two bottling companies in Colombia - collaborated with Colombian paramilitary forces that purportedly engaged in systematic intimidation, kidnapping, detention, torture, and murder of Colombia trade unionists... The court rejected what it found to be the plaintiffs' vague and conclusory allegations as well as formulaic recitations on which they based their ATS allegations. According to the court, the plaintiffs...failed to allege sufficient facts to nudge the ATS claims from conceivable to plausible."¹²

At least one category of cases almost certainly remains: ATS claims against individuals for serious violations of international human rights law where the defendant has a substantial connection to the United States. Indeed, the presumption against extraterritoriality in avoiding foreign conflicts appears to recognize that claims which sufficiently 'touch and concern' the United States include: conduct that occurs in part on U.S. territory, perpetrators who are U.S. nationals or are domiciled in the United States, and claims implicating significant

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U.S. national interests, including piracy and the denial of safe haven to serious human rights violators. In Al Shimari v. CACI International (4th Cir. 2014), four Iraqi citizens alleged that CACI, a U.S. government contractor providing "interrogation servies" to Iraq's Department of the Interior, violated international law by torturing and mistreating prisoners at Abu Ghraib. After...