KIOBEL v. ROYAL DUTCH PETROLEUM
The Shell Petroleum Development Company of Nigeria, Ltd., one of the respondents, operated oil production facilities in the Ogoniland region of Nigeria. Esther Kiobel and the other petitioners were Nigerian nationals who alleged that they, or their relatives, were killed, tortured, unlawfully detained, deprived of their property, and forced into exile by the Nigerian government. The petitioners maintain that the respondents, including the Shell Petroleum Development Company were complicit with the Nigerian government’s human rights abuses.
The petitioners filed a putative class action against the respondents, under the Alien Tort Statute in the United States District Court for the Southern District of New York. The District Court dismissed claims against the corporate defendants in part and certified its order for interlocutory appeal.
Both parties cross-appealed to the U.S. Court of Appeals for the Second Circuit. The respondents argued that the law of nations does not attach civil liability to corporations under any circumstances. The petitioners argued that the liability should attach to corporate actors, just as it would to private actors. On September 17, 2010, the Second Circuit affirmed dismissal of the lawsuit with the majority holding that the Alien Tort Statute does not confer jurisdiction over suits against corporations. On February 4, 2011, the Second Circuit denied the petitioners’ request for panel rehearing and for rehearing en banc. The petitioners filed a second petition for rehearing en banc and a motion to recall the mandate, which the Second Circuit denied.
Following oral argument, the Court set the case for reargument in the 2012 Term to address whether and when the Alien Tort Statute 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.
1. Is corporate civil tort liability under the Alien Tort Statute an issue of subject matter jurisdiction?
2. Under the Alien Tort Statute, are corporations immune from tort liability for violations of the law of nations, such as torture, extrajudicial executions, or genocide?
3. Upon reargument, whether and when does the Alien Tort Statute allow 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?
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
ESTHER KIOBEL, individually and on behalf of her late husband, Dr. BARINEM KIOBEL, et al., PETITIONERS v. ROYAL DUTCH PETROLEUM CO. et al.
on writ of certiorari to the united states court of appeals for the second circuit
[April 17, 2013]
Chief Justice Roberts delivered the opinion of the Court.
Petitioners, a group of Nigerian nationals residing in the United States, filed suit in federal court against certain Dutch, British, and Nigerian corporations. Petitioners sued under the Alien Tort Statute, 28 U. S. C. §1350, alleging that the corporations aided and abetted the Nigerian Government in committing violations of the law of nations in Nigeria. The question presented is whether and under what circumstances courts may recognize a cause of action under the Alien Tort Statute, for violations of the law of nations occurring within the territory of a sovereign other than the United States.I
Petitioners were residents of Ogoniland, an area of 250 square miles located in the Niger delta area of Nigeria and populated by roughly half a million people. When the complaint was filed, respondents Royal Dutch Petroleum Company and Shell Transport and Trading Company, p.l.c., were holding companies incorporated in the Netherlands and England, respectively. Their joint subsidiary, respondent Shell Petroleum Development Company of Nigeria, Ltd. (SPDC), was incorporated in Nigeria, and engaged in oil exploration and production in Ogoniland. According to the complaint, after concerned residents of Ogoniland began protesting the environmental effects of SPDC’s practices, respondents enlisted the Nigerian Government to violently suppress the burgeoning demonstrations. Throughout the early 1990’s, the complaint alleges, Nigerian military and police forces attacked Ogoni villages, beating, raping, killing, and arresting residents and destroying or looting property. Petitioners further allege that respondents aided and abetted these atrocities by, among other things, providing the Nigerian forces with food, transportation, and compensation, as well as by allowing the Nigerian military to use respondents’ property as a staging ground for attacks.
Following the alleged atrocities, petitioners moved to the United States where they have been granted political asylum and now reside as legal residents. See Supp. Brief for Petitioners 3, and n. 2. They filed suit in the United States District Court for the Southern District of New York, alleging jurisdiction under the Alien Tort Statute and requesting relief under customary international law. The ATS provides, in full, that “[t]he 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.” 28 U. S. C. §1350. According to petitioners, respondents violated the law of nations by aiding and abetting the Nigerian Government in committing (1) extrajudicial killings; (2) crimes against humanity; (3) torture and cruel treatment; (4) arbitrary arrest and detention; (5) violations of the rights to life, liberty, security, and association; (6) forced exile; and (7) property destruction. The District Court dismissed the first, fifth, sixth, and seventh claims, reasoning that the facts alleged to support those claims did not give rise to a violation of the law of nations. The court denied respondents’ motion to dismiss with respect to the remaining claims, but certified its order for interlocutory appeal pursuant to §1292(b).
The Second Circuit dismissed the entire complaint, reasoning that the law of nations does not recognize corporate liability. 621 F. 3d 111 (2010). We granted certiorari to consider that question. 565 U. S. ___ (2011). After oral argument, we directed the parties to file supplemental briefs addressing an additional question: “Whether and under what circumstances the [ATS] 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.” 565 U. S. ___ (2012). We heard oral argument again and now affirm the judgment below, based on our answer to the second question.II
Passed as part of the Judiciary Act of 1789, the ATS was invoked twice in the late 18th century, but then only once more over the next 167 years. Act of Sept. 24, 1789, §9, 1 Stat 77; see Moxon v. The Fanny, 17 F. Cas. 942 (No. 9,895) (DC Pa. 1793); Bolchos v. Darrel, 3 F. Cas. 810 (No. 1,607) (DC SC 1795); O’Reilly de Camara v. Brooke, 209 U. S. 45 (1908) ; Khedivial Line, S.A.E. v. Seafarers’ Int’l Union, 278 F. 2d 49, 51–52 (CA2 1960) (per curiam). The statute provides district courts with jurisdiction to hear certain claims, but does not expressly provide any causes of action. We held in Sosa v. Alvarez-Machain, 542 U. S. 692, 714 (2004) , however, that the First Congress did not intend the provision to be “stillborn.” The grant of jurisdiction is instead “best read as having been enacted on the understanding that the common law would provide a cause of action for [a] modest number of international law violations.” Id., at 724. We thus held that federal courts may “recognize private claims [for such violations] under federal common law.” Id., at 732. The Court in Sosa rejected the plaintiff’s claim in that case for “arbitrary arrest and detention,” on the ground that it failed to state a violation of the law of nations with the requisite “definite content and acceptance among civilized nations.” Id., at 699, 732.
The question here is not whether petitioners have stated a proper claim under the ATS, but whether a claim may reach conduct occurring in the territory of a foreign sovereign. Respondents contend that claims under the ATS do not, relying primarily on a canon of statutory interpretation known as the presumption against extraterritorial application. That canon provides that “[w]hen a statute gives no clear indication of an extraterritorial application, it has none,” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 6), and reflects the “presumption that United States law governs domestically but does not rule the world,” Microsoft Corp. v. AT&T Corp., 550 U. S. 437, 454 (2007) .
This presumption “serves to protect against unintended clashes between our laws and those of other nations which could result in international discord.” EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco). As this Court has explained:
“For us to run interference in . . . a delicate field of international relations there must be present the affirmative intention of the Congress clearly expressed. It alone has the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain.” Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957) . The presumption against extraterritorial application helps ensure that the Judiciary does not erroneously adopt an interpretation of U. S. law that carries foreign policy consequences not clearly intended by the political branches.
We typically apply the presumption to discern whether an Act of Congress regulating conduct applies abroad. See, e.g., Aramco, supra, at 246 (“These cases present the issue whether Title VII applies extraterritorially to regulate the employment practices of United States employers who employ United States citizens abroad”); Morrison, supra, at ___ (slip op., at 4) (noting that the question of extraterritorial application was a “merits question,” not a question of jurisdiction). The ATS, on the other hand, is “strictly jurisdictional.” Sosa, 542 U. S., at 713. It does not directly regulate conduct or afford relief. It instead allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law. But we think the principles underlying the canon of interpretation similarly constrain courts considering causes of action that may be brought under the ATS.
Indeed, the danger of unwarranted judicial interference in the conduct of foreign policy is magnified in the context of the ATS, because the question is not what Congress has done but instead what courts may do. This Court in Sosa repeatedly stressed the need for judicial caution in considering which claims could be brought under the ATS, in light of foreign policy concerns. As the Court explained, “the potential [foreign policy] implications . . . of recognizing . . . . causes [under the ATS] should make courts particularly wary of impinging on the discretion of the Legislative and Executive Branches in managing foreign affairs.” Id., at 727; see also id., at 727–728 (“Since many attempts by federal courts to craft remedies for the violation of new norms of international law would raise risks of adverse foreign policy consequences, they should be undertaken, if at all, with great caution”); id., at 727 (“[T]he possible collateral consequences of making international rules privately actionable argue for judicial caution”). These concerns, which are implicated in any case arising under the ATS, are all the more pressing when the question is whether a cause of action under the ATS reaches conduct within the territory of another sovereign.
These concerns are not diminished by the fact that Sosa limited federal courts to recognizing causes of action only for alleged violations of international law norms that are “ ‘specific, universal, and obligatory.’ ” Id., at 732 (quoting In re Estate of Marcos, Human Rights Litigation, 25 F. 3d 1467, 1475 (CA9 1994)). As demonstrated by Congress’s enactment of the Torture Victim Protection Act of 1991, 106Stat. 73, note following 28 U. S. C. §1350, identifying such a norm is only the beginning of defining a cause of action. See id., §3 (providing detailed definitions for extrajudicial killing and torture); id., §2 (specifying who may be liable, creating a rule of exhaustion, and establishing a statute of limitations). Each of these decisions carries with it significant foreign policy implications.
The principles underlying the presumption against extraterritoriality thus constrain courts exercising their power under the ATS.III
Petitioners contend that even if the presumption applies, the text, history, and purposes of the ATS rebut it for causes of action brought under that statute. It is true that Congress, even in a jurisdictional provision, can indicate that it intends federal law to apply to conduct occurring abroad. See, e.g., 18 U. S. C. §1091(e) (2006 ed., Supp. V) (providing jurisdiction over the offense of genocide “regardless of where the offense is committed” if the alleged offender is, among other things, “present in the United States”). But to rebut the presumption, the ATS would need to evince a “clear indication of extraterritoriality.” Morrison, 561 U. S., at ___ (slip op., at 16). It does not.
To begin, nothing in the text of the statute suggests that Congress intended causes of action recognized under it to have extraterritorial reach. The ATS covers actions by aliens for violations of the law of nations, but that does not imply extraterritorial reach—such violations affecting aliens can occur either within or outside the United States. Nor does the fact that the text reaches “any civil action” suggest application to torts committed abroad; it is well established that generic terms like “any” or “every” do not rebut the presumption against extraterritoriality. See, e.g., id., at ___ (slip op., at 13–14); Small v. United States, 544 U. S. 385, 388 (2005) ; Aramco, 499 U. S., at 248–250; Foley Bros., Inc. v. Filardo, 336 U. S. 281, 287 (1949) .
Petitioners make much of the fact that the ATS provides jurisdiction over civil actions for “torts” in violation of the law of nations. They claim that in using that word, the First Congress “necessarily meant to provide for jurisdiction over extraterritorial transitory torts that could arise on foreign soil.” Supp. Brief for Petitioners 18. For support, they cite the common-law doctrine that allowed courts to assume jurisdiction over such “transitory torts,” including actions for personal injury, arising abroad. See Mostyn v. Fabrigas, 1 Cowp. 161, 177, 98 Eng. Rep. 1021, 1030 (1774) (Mansfield, L.) (“[A]ll actions of a transitory nature that arise abroad may be laid as happening in an English county”); Dennick v. Railroad Co., 103 U. S. 11, 18 (1881) (“Wherever, by either the common law or the statute law of a State, a right of action has become fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which has jurisdiction of such matters and can obtain jurisdiction of the parties”).
Under the transitory torts doctrine, however, “the only justification for allowing a party to recover when the cause of action arose in another civilized jurisdiction is a well founded belief that it was a cause of action in that place.” Cuba R. Co. v. Crosby, 222 U. S. 473, 479 (1912) (majority opinion of Holmes, J.). The question under Sosa is not whether a federal court has jurisdiction to entertain a cause of action provided by foreign or even international law. The question is instead whether the court has authority to recognize a cause of action under U. S. law to enforce a norm of international law. The reference to “tort” does not demonstrate that the First Congress “necessarily meant” for those causes of action to reach conduct in the territory of a foreign sovereign. In the end, nothing in the text of the ATS evinces the requisite clear indication of extraterritoriality.
Nor does the historical background against which the ATS was enacted overcome the presumption against application to conduct in the territory of another sovereign. See Morrison, supra, at ___ (slip op., at 16) (noting that “[a]ssuredly context can be consulted” in determining whether a cause of action applies abroad). We explained in Sosa that when Congress passed the ATS, “three principal offenses against the law of nations” had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy. 542 U. S., at 723, 724; see 4 W. Blackstone, Commentaries on the Laws of England 68 (1769). The first two offenses have no necessary extraterritorial application. Indeed, Blackstone—in describing them—did so in terms of conduct occurring within the forum nation. See ibid. (describing the right of safe conducts for those “who are here”); 1 id., at 251 (1765) (explaining that safe conducts grant a member of one society “a right to intrude into another”); id., at 245–248 (recognizing the king’s power to “receiv[e] ambassadors at home” and detailing their rights in the state “wherein they are appointed to reside”); see also E. De Vattel, Law of Nations 465 (J. Chitty et al. transl. and ed. 1883) (“[O]n his entering the country to which he is sent, and making himself known, [the ambassador] is under the protection of the law of nations . . .”).
Two notorious episodes involving violations of the law of nations occurred in the United States shortly before passage of the ATS. Each concerned the rights of ambassadors, and each involved conduct within the Union. In 1784, a French adventurer verbally and physically assaulted Francis Barbe Marbois—the Secretary of the French Legion—in Philadelphia. The assault led the French Minister Plenipotentiary to lodge a formal protest with the Continental Congress and threaten to leave the country unless an adequate remedy were provided. Respublica v. De Longschamps, 1 Dall. 111 (O. T. Phila. 1784); Sosa, supra, at 716–717, and n. 11. And in 1787, a New York constable entered the Dutch Ambassador’s house and arrested one of his domestic servants. See Casto, The Federal Courts’ Protective Jurisdiction over Torts Committed in Violation of the Law of Nations, 18 Conn. L. Rev. 467, 494 (1986). At the request of Secretary of Foreign Affairs John Jay, the Mayor of New York City arrested the constable in turn, but cautioned that because “ ‘neither Congress nor our [State] Legislature have yet passed any act respecting a breach of the privileges of Ambassadors,’ ” the extent of any available relief would depend on the common law. See Bradley, The Alien Tort Statute and Article III, 42 Va. J. Int’l L. 587, 641–642 (2002) (quoting 3 Dept. of State, The Diplomatic Correspondence of the United States of America 447 (1837)). The two cases in which the ATS was invoked shortly after its passage also concerned conduct within the territory of the United States. See Bolchos, 3 F. Cas. 810 (wrongful seizure of slaves from a vessel while in port in the United States); Moxon, 17 F. Cas. 942 (wrongful seizure in United States territorial waters).
These prominent contemporary examples—immediately before and after passage of the ATS—provide no support for the proposition that Congress expected causes of action to be brought under the statute for violations of the law of nations occurring abroad.
The third example of a violation of the law of nations familiar to the Congress that enacted the ATS was piracy. Piracy typically occurs on the high seas, beyond the territorial jurisdiction of the United States or any other country. See 4 Blackstone, supra, at 72 (“The offence of piracy, by common law, consists of committing those acts of robbery and depredation upon the high seas, which, if committed upon land, would have amounted to felony there”). This Court has generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application. See, e.g., Sale v. Haitian Centers Council, Inc., 509 U. S. 155 –174 (1993) (declining to apply a provision of the Immigration and Nationality Act to conduct occurring on the high seas); Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989) (declining to apply a provision of the Foreign Sovereign Immunities Act of 1976 to the high seas). Petitioners contend that because Congress surely intended the ATS to provide jurisdiction for actions against pirates, it necessarily anticipated the statute would apply to conduct occurring abroad.
Applying U. S. law to pirates, however, does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign, and therefore carries less direct foreign policy consequences. Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction. See 4 Blackstone, supra, at 71. We do not think that the existence of a cause of action against them is a sufficient basis for concluding that other causes of action under the ATS reach conduct that does occur within the territory of another sovereign; pirates may well be a category unto themselves. See Morrison, 561 U. S., at ___ (slip op., at 16) (“[W]hen a statute provides for some extraterritorial application, the presumption against extraterritoriality operates to limit that provision to its terms”); see also Microsoft Corp., 550 U. S., at 455–456.
Petitioners also point to a 1795 opinion authored by Attorney General William Bradford. See Breach of Neutrality, 1 Op. Atty. Gen. 57. In 1794, in the midst of war between France and Great Britain, and notwithstanding the American official policy of neutrality, several U. S. citizens joined a French privateer fleet and attacked and plundered the British colony of Sierra Leone. In response to a protest from the British Ambassador, Attorney General Bradford responded as follows:
So far . . . as the transactions complained of originated or took place in a foreign country, they are not within the cognizance of our courts; nor can the actors be legally prosecuted or punished for them by the United States. But crimes committed on the high seas are within the jurisdiction of the . . . courts of the United States; and, so far as the offence was committed thereon, I am inclined to think that it may be legally prosecuted in . . . those courts . . . . But some doubt rests on this point, in consequence of the terms in which the [applicable criminal law] is expressed. But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States . . . .” Id., at 58–59.
Petitioners read the last sentence as confirming that “the Founding generation understood the ATS to apply to law of nations violations committed on the territory of a foreign sovereign.” Supp. Brief for Petitioners 33. Respondents counter that when Attorney General Bradford referred to “these acts of hostility,” he meant the acts only insofar as they took place on the high seas, and even if his conclusion were broader, it was only because the applicable treaty had extraterritorial reach. See Supp. Brief for Respondents 28–30. The Solicitor General, having once read the opinion to stand for the proposition that an “ATS suit could be brought against American citizens for breaching neutrality with Britain only if acts did not take place in a foreign country,” Supp. Brief for United States as Amicus Curiae 8, n. 1 (internal quotation marks and brackets omitted), now suggests the opinion “could have been meant to encompass . . . conduct [occurring within the foreign territory],” id., at 8.
Attorney General Bradford’s opinion defies a definitive reading and we need not adopt one here. Whatever its precise meaning, it deals with U. S. citizens who, by participating in an attack taking place both on the high seas and on a foreign shore, violated a treaty between the United States and Great Britain. The opinion hardly suffices to counter the weighty concerns underlying the presumption against extraterritoriality.
Finally, there is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms. As Justice Story put it, “No nation has ever yet pretended to be the custos morum of the whole world . . . .” United States v. The La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC. Mass. 1822). It is implausible to suppose that the First Congress wanted their fledgling Republic—struggling to receive international recognition—to be the first. Indeed, the parties offer no evidence that any nation, meek or mighty, presumed to do such a thing.
The United States was, however, embarrassed by its potential inability to provide judicial relief to foreign officials injured in the United States. Bradley, 42 Va. J. Int’l L., at 641. Such offenses against ambassadors violated the law of nations, “and if not adequately redressed could rise to an issue of war.” Sosa, 542 U. S., at 715; cf. The Federalist No. 80, p. 536 (J. Cooke ed. 1961) (A. Hamilton) (“As the denial or perversion of justice . . . is with reason classed among the just causes of war, it will follow that the federal judiciary ought to have cognizance of all causes in which the citizens of other countries are concerned”). The ATS ensured that the United States could provide a forum for adjudicating such incidents. See Sosa, supra, at 715–718, and n. 11. Nothing about this historical context suggests that Congress also intended federal common law under the ATS to provide a cause of action for conduct occurring in the territory of another sovereign.
Indeed, far from avoiding diplomatic strife, providing such a cause of action could have generated it. Recent experience bears this out. See Doe v. Exxon Mobil Corp., 654 F. 3d 11, 77–78 (CADC 2011) (Kavanaugh, J., dissenting in part) (listing recent objections to extraterritorial applications of the ATS by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland, and the United Kingdom). Moreover, accepting petitioners’ view would imply that other nations, also applying the law of nations, could hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world. The presumption against extraterritoriality guards against our courts triggering such serious foreign policy consequences, and instead defers such decisions, quite appropriately, to the political branches.
We therefore conclude that the presumption against extraterritoriality applies to claims under the ATS, and that nothing in the statute rebuts that presumption. “[T]here is no clear indication of extraterritoriality here,” Morrison, 561 U. S., at ___ (slip op., at 16), and petitioners’ case seeking relief for violations of the law of nations occurring outside the United States is barred.IV
On these facts, all the relevant conduct took place outside the United States. And even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application. See Morrison, 561 U. S. ___ (slip op. at 17–24). Corporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices. If Congress were to determine otherwise, a statute more specific than the ATS would be required.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
ESTHER KIOBEL, individually and on behalf of her late husband, Dr. BARINEM KIOBEL, et al., PETITIONERS v. ROYAL DUTCH PETROLEUM CO. et al.
on writ of certiorari to the united states court of appeals for the second circuit
[April 17, 2013]
Justice Breyer, with whom Justice Ginsburg, Justice Sotomayor and Justice Kagan join, concurring in the judgment.
I agree with the Court’s conclusion but not with its reasoning. The Court sets forth four key propositions of law: First, the “presumption against extraterritoriality applies to claims under” the Alien Tort Statute. Ante, at 13. Second, “nothing in the statute rebuts that presumption.” Ibid. Third, there “is no clear indication of extraterritoria[l application] here,” where “all the relevant conduct took place outside the United States” and “where the claims” do not “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” Ante, at 13–14 (internal quotation marks omitted). Fourth, that is in part because “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Ante, at 14.
Unlike the Court, I would not invoke the presumption against extraterritoriality. Rather, guided in part by principles and practices of foreign relations law, I would find jurisdiction under this statute 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. See Sosa v. Alvarez-Machain, 542 U. S. 692, 732 (2004) (“ ‘[F]or purposes of civil liability, the torturer has become—like the pirate and slave trader before him—hostis humani generis, an enemy of all mankind.’ ” (quoting Filartiga v. Pena-Irala, 630 F. 2d 876, 890 (CA2 1980) (alteration in original))). See also 1 Re-statement (Third) of Foreign Relations Law of the United States §§ 402, 403, 404 (1986). In this case, however, the parties and relevant conduct lack sufficient ties to the United States for the ATS to provide jurisdiction.I A
Our decision in Sosa frames the question. In Sosa the Court specified that the Alien Tort Statute (ATS), when enacted in 1789, “was intended as jurisdictional.” 542 U. S., at 714. We added that the statute gives today’s courts the power to apply certain “judge-made” damages law to victims of certain foreign affairs-related misconduct, including “three specific offenses” to which “Blackstone referred,” namely “violation of safe conducts, infringement of the rights of ambassadors, and piracy.” Id., at 715. We held that the statute provides today’s federal judges with the power to fashion “a cause of action” for a “modest number” of claims, “based on the present-day law of nations,” and which “rest on a norm of international character accepted by the civilized world and defined with a specificity comparable to the features” of those three “18th-century paradigms.” Id., at 724–725.
We further said that, in doing so, a requirement of “exhaust[ion]” of “remedies” might apply. Id., at 733, n. 21. We noted “a strong argument that federal courts should give serious weight to the Executive Branch’s view of the case’s impact on foreign policy.” Ibid. Adjudicating any such claim must, in my view, also be consistent with those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its own laws and their enforcement. Id., at 761 (Breyer, J., concurring in part and concurring in judgment). See also F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155 –169 (2004).
Recognizing that Congress enacted the ATS to permit recovery of damages from pirates and others who violated basic international law norms as understood in 1789, Sosa essentially leads today’s judges to ask: Who are today’s pirates? See 542 U. S., at 724–725 (majority opinion). We provided a framework for answering that question by setting down principles drawn from international norms and designed to limit ATS claims to those that are similar in character and specificity to piracy. Id., at 725.
In this case we must decide the extent to which this jurisdictional statute opens a federal court’s doors to those harmed by activities belonging to the limited class that Sosa set forth when those activities take place abroad. To help answer this question here, I would refer both to Sosa and, as in Sosa, to norms of international law. See Part II, infra.B
In my view the majority’s effort to answer the question by referring to the “presumption against extraterritoriality” does not work well. That presumption “rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 5–6). See ante, at 4. The ATS, however, was enacted with “foreign matters” in mind. The statute’s text refers explicitly to “alien[s],” “treat[ies],” and “the law of nations.” 28 U. S. C. §1350. The statute’s purpose was to address “violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious con-sequences in international affairs.” Sosa, 542 U. S., at 715. And at least one of the three kinds of activities that we found to fall within the statute’s scope, namely piracy, ibid., normally takes place abroad. See 4 W. Blackstone, Commentaries on the Law of England 72 (1769).
The majority cannot wish this piracy example away by emphasizing that piracy takes place on the high seas. See ante, at 10. That is because the robbery and murder that make up piracy do not normally take place in the water; they take place on a ship. And a ship is like land, in that it falls within the jurisdiction of the nation whose flag it flies. See McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 –21 (1963); 2 Restatement §502, Comment d (“[F]lag state has jurisdiction to prescribe with respect to any activity aboard the ship”). Indeed, in the early 19th century Chief Justice Marshall described piracy as an “offenc[e] against the nation under whose flag the vessel sails, and within whose particular jurisdiction all on board the vessel are.” United States v. Palmer, 3 Wheat. 610, 632 (1818). See United States v. Furlong, 5 Wheat. 184, 197 (1820) (a crime committed “within the jurisdiction” of a foreign state and a crime committed “in the vessel of another nation” are “the same thing”).
The majority nonetheless tries to find a distinction between piracy at sea and similar cases on land. It writes, “Applying U. S. law to pirates . . . does not typically impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign and therefore carries less direct foreign policy consequences.” Ante, at 10 (emphasis added). But, as I have just pointed out, “[a]pplying U. S. law to pirates” does typically involve applying our law to acts taking place within the jurisdiction of another sovereign. Nor can the majority’s words “territorial jurisdiction” sensibly dis-tinguish land from sea for purposes of isolating adverse foreign policy risks, as the Barbary Pirates, the War of 1812, the sinking of the Lusitania, and the Lockerbie bombing make all too clear.
The majority also writes, “Pirates were fair game wherever found, by any nation, because they generally did not operate within any jurisdiction.” Ibid. I very much agree that pirates were fair game “wherever found.” Indeed, that is the point. That is why we asked, in Sosa, who are today’s pirates? Certainly today’s pirates include torturers and perpetrators of genocide. And today, like the pirates of old, they are “fair game” where they are found. Like those pirates, they are “common enemies of all mankind and all nations have an equal interest in their apprehension and punishment.” 1 Restatement §404 Reporters’ Note 1, p. 256 (quoting In re Demjanjuk, 612 F. Supp. 544, 556 (ND Ohio 1985) (internal quotation marks omitted)). See Sosa, supra, at 732. And just as a nation that harbored pirates provoked the concern of other nations in past centuries, see infra, at 8, so harboring “common enemies of all mankind” provokes similar concerns today.
Thus the Court’s reasoning, as applied to the narrow class of cases that Sosa described, fails to provide significant support for the use of any presumption against extraterritoriality; rather, it suggests the contrary. See also ante, at 10 (conceding and citing cases showing that this Court has “generally treated the high seas the same as foreign soil for purposes of the presumption against extraterritorial application”).
In any event, as the Court uses its “presumption against extraterritorial application,” it offers only limited help in deciding the question presented, namely “ ‘under what circumstances the Alien Tort Statute . . . 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.’ ” 565 U. S. ___ (2012). The majority echoes in this jurisdictional context Sosa’s warning to use “caution” in shaping federal common-law causes of action. Ante, at 5. But it also makes clear that a statutory claim might sometimes “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” Ante, at 14. It leaves for another day the determination of just when the presumption against extraterritoriality might be “overcome.” Ante, at 8.II
In applying the ATS to acts “occurring within the territory of a[nother] sovereign,” I would assume that Congress intended the statute’s jurisdictional reach to match the statute’s underlying substantive grasp. That grasp, defined by the statute’s purposes set forth in Sosa, includes compensation for those injured by piracy and its modern-day equivalents, at least where allowing such compensation avoids “serious” negative international “consequences” for the United States. 542 U. S., at 715. And just as we have looked to established international substantive norms to help determine the statute’s substantive reach, id., at 729, so we should look to international jurisdictional norms to help determine the statute’s jurisdictional scope.
The Restatement (Third) of Foreign Relations Law is helpful. Section 402 recognizes that, subject to §403’s “rea-sonableness” requirement, a nation may apply its law (for example, federal common law, see 542 U. S., at 729–730) not only (1) to “conduct” that “takes place [or to persons or things] within its territory” but also (2) to the “activities, interests, status, or relations of its nationals outside as well as within its territory,” (3) to “conduct outside its territory that has or is intended to have substantial effect within its territory,” and (4) to certain foreign “conduct outside its territory . . . that is directed against the security of the state or against a limited class of other state interests.” In addition, §404 of the Restatement explains that a “state has jurisdiction to define and prescribe punishment for certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade,” and analogous behavior.
Considering these jurisdictional norms in light of both the ATS’s basic purpose (to provide compensation for those injured by today’s pirates) and Sosa’s basic caution (to avoid international friction), I believe that the statute provides 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.
I would interpret the statute as providing jurisdiction only where distinct American interests are at issue. Doing so reflects the fact that Congress adopted the present statute at a time when, as Justice Story put it, “No nation ha[d] ever yet pretended to be the custos morum of the whole world.” United States v. La Jeune Eugenie, 26 F. Cas. 832, 847 (No. 15,551) (CC Mass. 1822). That restriction also should help to minimize international friction. Further limiting principles such as exhaustion, forum non conveniens, and comity would do the same. So would a practice of courts giving weight to the views of the Executive Branch. See Sosa, 542 U. S., at 733, n. 21; id., at 761 (opinion of Breyer, J.).
As I have indicated, we should treat this Nation’s interest in not becoming a safe harbor for violators of the most fundamental international norms as an important jurisdiction-related interest justifying application of the ATS in light of the statute’s basic purposes—in particular that of compensating those who have suffered harm at the hands of, e.g., torturers or other modern pirates. Nothing in the statute or its history suggests that our courts should turn a blind eye to the plight of victims in that “handful of heinous actions.” Tel-Oren v. Libyan Arab Republic, 726 F. 2d 774, 781 (CADC 1984) (Edwards, J., concurring). See generally Leval, The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court, 92 Foreign Affairs 16 (Mar. / Apr. 2013). To the contrary, the statute’s language, history, and purposes suggest that the statute was to be a weapon in the “war” against those modern pirates who, by their conduct, have “declar[ed] war against all mankind.” 4 Blackstone 71.
International norms have long included a duty not to permit a nation to become a safe harbor for pirates (or their equivalent). See generally A. Bradford, Flying the Black Flag: A Brief History of Piracy 19 (2007) (“Every polis by the sea . . . which was suspected of sponsoring piracy or harboring pirates could be attacked and destroyed by the Athenians”); F. Sanborn, Origins of the Early English Maritime and Commercial Law 313 (1930) (“In 1490 Henry VII made a proclamation against harboring pirates or purchasing goods from them”); N. Risjord, Representative Americans: The Colonists 146 (1981) (“William Markham, Penn’s lieutenant governor in the 1690s, was accused of harboring pirates in Philadelphia . . . . Governor Benjamin Fletcher of New York became the target of a royal inquiry after he issued privateering commissions to a band of notorious pirates”); 3 C. Yonge, A Pictorial History of the World’s Great Nations 954 (1882) (“[In the early 18th century, t]he government of Connecticut was accused of harboring pirates”); S. Menefee, Piracy, Terrorism, and the Insurgent Passenger: A Historical and Legal Perspective, in Maritime Terrorism and International Law 51 (N. Ronzitti ed. 1990) (quoting the judge who handled the seizure of the Chesapeake during the Civil War as stating that “ ‘piracy jure gentium was justiciable by the court of New Brunswick, wherever committed’ ”); D. Field, Outlines of an International Code 33, Art. 84 (2d ed. 1876) (citing the 1794 treaty between the United States and Great Britain (“Harboring pirates forbidden. No nation can receive pirates into its territory, or permit any person within the same to receive, protect, conceal or assist them in any manner; but must punish all persons guilty of such acts”)).
More recently two lower American courts have, in effect, rested jurisdiction primarily upon that kind of concern. In Filartiga, 630 F. 2d 876, an alien plaintiff brought a lawsuit against an alien defendant for damages suffered through acts of torture that the defendant allegedly inflicted in a foreign nation, Paraguay. Neither plaintiff nor defendant was an American national and the actions underlying the lawsuit took place abroad. The defendant, however, “had . . . resided in the United States for more than ninth months” before being sued, having overstayed his visitor’s visa. Id., at 878–879. Jurisdiction was deemed proper because the defendant’s alleged conduct violated a well-established international law norm, and the suit vindicated our Nation’s interest in not providing a safe harbor, free of damages claims, for those defendants who commit such conduct.
In Marcos, the plaintiffs were nationals of the Philippines, the defendant was a Philippine national, and the alleged wrongful act, death by torture, took place abroad. In re Estate of Marcos, Human Rights Litigation, 25 F. 3d 1467, 1469, 1475 (CA9 1994); In re Estate of Marcos Human Rights Litigation, 978 F. 2d 493, 495–496, 500 (CA9 1992). A month before being sued, the defendant, “his family, . . . and others loyal to [him] fled to Hawaii,” where the ATS case was heard. Marcos, 25 F. 3d, at 1469. As in Filartiga, the court found ATS jurisdiction.
And in Sosa we referred to both cases with approval, suggesting that the ATS allowed a claim for relief in such circumstances. 542 U. S., at 732. See also Flomo v. Firestone Natural Rubber Co., 643 F. 3d 1013, 1025 (CA7 2011) (Posner, J.) (“Sosa was a case of nonmaritime extraterritorial conduct yet no Justice suggested that therefore it couldn’t be maintained”). Not surprisingly, both before and after Sosa, courts have consistently rejected the notion that the ATS is categorically barred from extraterritorial application. See, e.g., 643 F. 3d, at 1025 (“[N]o court to our knowledge has ever held that it doesn’t apply extraterritorially”); Sarei v. Rio Tinto, PLC, 671 F. 3d 736, 747 (CA9 2011) (en banc) (“We therefore conclude that the ATS is not limited to conduct occurring within the United States”); Doe v. Exxon Mobil Corp., 654 F. 3d 11, 20 (CADC 2011) (“[W]e hold that there is no extraterritoriality bar”).
Application of the statute in the way I have suggested is consistent with international law and foreign practice. Nations have long been obliged not to provide safe harbors for their own nationals who commit such serious crimes abroad. See E. de Vattel, Law of Nations, Book II, p. 163 (§76) (“pretty generally observed” practice in “respect to great crimes, which are equally contrary to the laws and safety of all nations,” that a sovereign should not “suffer his subjects to molest the subjects of other states, or to do them an injury,” but should “compel the transgressor to make reparation for the damage or injury,” or be “deliver[ed] . . . up to the offended state, to be there brought to justice”).
Many countries permit foreign plaintiffs to bring suits against their own nationals based on unlawful conduct that took place abroad. See, e.g., Brief for Government of the Kingdom of the Netherlands et al. as Amici Curiae 19–23 (hereinafter Netherlands Brief) (citing inter alia Guerrero v. Monterrico Metals PLc  EWHC (QB) 2475 (Eng.) (attacking conduct of U. K. companies in Peru); Lubbe and Others v. Cape PLc  UKHL 41 (attacking conduct of U. K. companies in South Africa); Rb. Gravenhage [Court of the Hague], 30 December 2009, JOR 2010, 41 m.nt. Mr. RGJ de Haan (Oguro/Royal Dutch Shell PLC) (Neth.) (attacking conduct of Dutch respondent in Nigeria)). See also Brief for European Commission as Amicus Curiae 11 (It is “uncontroversial” that the “United States may . . . exercise jurisdiction over ATS claims involving conduct committed by its own nationals within the terri-tory of another sovereign, consistent with international law”).
Other countries permit some form of lawsuit brought by a foreign national against a foreign national, based upon conduct taking place abroad and seeking damages. Certain countries, which find “universal” criminal “jurisdiction” to try perpetrators of particularly heinous crimes such as piracy and genocide, see Restatement §404, also permit private persons injured by that conduct to pursue “actions civiles,” seeking civil damages in the criminal proceeding. Thompson, Ramasastry, & Taylor, Translating Unocal: The Expanding Web of Liability for Business Entities Implicated in International Crimes, 40 Geo. Wash. Int’l L. Rev. 841, 886 (2009). See, e.g., Ely Ould Dah v. France, App. No. 13113/03 (Eur. Ct. H. R.; Mar 30, 2009), 48 Int’l Legal Materials 884; Metcalf, Reparations for Displaced Torture Victims, 19 Cardozo J. Int’l & Comp. L. 451, 468–470 (2011). Moreover, the United Kingdom and the Netherlands, while not authorizing such damages actions themselves, tell us that they would have no objection to the exercise of American jurisdiction in cases such as Filartiga and Marcos. Netherlands Brief 15–16, and n. 23.
At the same time Congress has ratified treaties obliging the United States to find and punish foreign perpetrators of serious crimes committed against foreign persons abroad. See Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents, Dec. 28, 1973, 28 U. S. T. 1975, T. I. A. S. No. 8532; Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, Sept. 23, 1971, 24 U. S. T. 565, T. I. A. S. No. 7570; Convention for the Suppression of Unlawful Seizure of Aircraft, Dec. 16, 1970, 22 U. S. T. 1641, T. I. A. S. No. 7192; Restatement §404 Reporters’ Note 1, at 257 (“These agreements include an obligation on the parties to pun ish or extradite offenders, even when the offense was not committed within their territory or by a national”). See also International Convention for the Protection of All Persons from Enforced Disappearance, Art. 9(2) (2006) (state parties must take measures to establish jurisdiction “when the alleged offender is present in any territory un-der its jurisdiction, unless it extradites or surrenders him or her”); http://www.unhcr.org/refworld/docid/47fdfaeb0.pdf (as visited Apr.1, 2013, and available in Clerk of Court’s case file); Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, Dec. 10, 1984, 1465 U. N. T. S. 85, Arts. 5(2), 7(1) (similar); Geneva Convention (III) Relative to the Treatment of Prisoners of War, Art. 129, Aug. 12, 1949,  6 U. S. T. 3316, T. I. A. S. No. 3364 (signatories must “search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts” or “hand such persons over for trial”).
And Congress has sometimes authorized civil damages in such cases. See generally note following 28 U. S. C. §1350 (Torture Victim Protection Act of 1991 (TVPA) (private damages action for torture or extrajudicial killing committed under authority of a foreign nation)); S. Rep. No. 102–249, p. 4 (1991) (ATS “should not be replaced” by TVPA); H. R. Rep. No. 102–367, pt. 1, p. 4 (TVPA intended to “enhance the remedy already available under” the ATS). But cf. Mohamad v. Palestinian Authority, 566 U. S. ___ (2012) (TVPA allows suits against only natural persons).
Congress, while aware of the award of civil damages under the ATS—including cases such as Filartiga with foreign plaintiffs, defendants, and conduct—has not sought to limit the statute’s jurisdictional or substantive reach. Rather, Congress has enacted other statutes, and not only criminal statutes, that allow the United States to prosecute (or allow victims to obtain damages from) foreign persons who injure foreign victims by committing abroad torture, genocide, and other heinous acts. See, e.g., 18 U. S. C. §2340A(b)(2) (authorizing prosecution of torturers if “the alleged offender is present in the United States, irrespective of the nationality of the victim or alleged offender”); §1091(e)(2)(D) (2006 ed., Supp. V) (genocide prosecution authorized when, “regardless of where the offense is committed, the alleged offender is . . . present in the United States”); note following 28 U. S. C. §1350, §2(a) (private right of action on behalf of individuals harmed by an act of torture or extrajudicial killing committed “under actual or apparent authority, or color of law, of any foreign nation”). See also S. Rep. No. 102–249, supra, at 3–4 (purpose to “mak[e] sure that torturers and death squads will no longer have a safe haven in the United States,” by “providing a civil cause of action in U. S. courts for torture committed abroad”).
Thus, the jurisdictional approach that I would use is analogous to, and consistent with, the approaches of a number of other nations. It is consistent with the approaches set forth in the Restatement. Its insistence upon the presence of some distinct American interest, its reliance upon courts also invoking other related doctrines such as comity, exhaustion, and forum non conveniens, along with its dependence (for its workability) upon courts obtaining, and paying particular attention to, the views of the Executive Branch, all should obviate the majority’s concern that our jurisdictional example would lead “other nations, also applying the law of nations,” to “hale our citizens into their courts for alleged violations of the law of nations occurring in the United States, or anywhere else in the world.” Ante, at 13.
Most importantly, this jurisdictional view is consistent with the substantive view of the statute that we took in Sosa. This approach would avoid placing the statute’s jurisdictional scope at odds with its substantive objectives, holding out “the word of promise” of compensation for victims of the torturer, while “break[ing] it to the hope.”III
Applying these jurisdictional principles to this case, however, I agree with the Court that jurisdiction does not lie. The defendants are two foreign corporations. Their shares, like those of many foreign corporations, are traded on the New York Stock Exchange. Their only presence in the United States consists of an office in New York City (actually owned by a separate but affiliated company) that helps to explain their business to potential investors. See Supp. Brief for Petitioners 4, n. 3 (citing Wiwa v. Royal Dutch Petroleum Co., 226 F. 3d 88, 94 (CA2 2000)); App. 55. The plaintiffs are not United States nationals but nationals of other nations. The conduct at issue took place abroad. And the plaintiffs allege, not that the defendants directly engaged in acts of torture, genocide, or the equivalent, but that they helped others (who are not American nationals) to do so.
Under these circumstances, even if the New York office were a sufficient basis for asserting general jurisdiction, but see Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. ___ (2011), it would be farfetched to believe, based solely upon the defendants’ minimal and indirect American presence, that this legal action helps to vindicate a distinct American interest, such as in not providing a safe harbor for an “enemy of all mankind.” Thus I agree with the Court that here it would “reach too far to say” that such “mere corporate presence suffices.” Ante, at 14.
I consequently join the Court’s judgment but not its opinion.
SUPREME COURT OF THE UNITED STATES
ESTHER KIOBEL, individually and on behalf of her late husband, Dr. BARINEM KIOBEL, et al., PETITIONERS v. ROYAL DUTCH PETROLEUM CO. et al.
on writ of certiorari to the united states court of appeals for the second circuit
[April 17, 2013]
Justice Alito, with whom Justice Thomas joins, concurring.
I concur in the judgment and join the opinion of the Court as far as it goes. Specifically, I agree that when Alien Tort Statute (ATS) “claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” Ante, at 14. This formulation obviously leaves much unanswered, and perhaps there is wisdom in the Court’s preference for this narrow approach. I write separately to set out the broader standard that leads me to the conclusion that this case falls within the scope of the presumption.
In Morrison v. National Australia Bank Ltd., 561 U. S. ___ (2010), we explained that “the presumption against extraterritorial application would be a craven watchdog indeed if it retreated to its kennel whenever some domestic activity is involved in the case.” Id., at ___ (slip op., at 17). We also reiterated that a cause of action falls outside the scope of the presumption—and thus is not barred by the presumption—only if the event or relationship that was “the ‘focus’ of congressional concern” under the relevant statute takes place within the United States. Ibid. (quoting EEOC v. Arabian American Oil Co., 499 U. S. 244, 255 (1991) ). For example, because “the focus of the [Securities] Exchange Act [of 1934] is not upon the place where the deception originated, but upon purchases and sales of securities in the United States,” we held in Mor-rison that §10(b) of the Exchange Act applies “only” to “transactions in securities listed on domestic exchanges, and domestic transactions in other securities.” 561 U. S., at ___–___ (slip op., at 17–18).
The Court’s decision in Sosa v. Alvarez-Machain, 542 U. S. 692 (2004) , makes clear that when the ATS was enacted, “congressional concern” was “ ‘focus[ed],’ ” Morrison, supra, at ___ (slip op., at 17), on the “three principal offenses against the law of nations” that had been identified by Blackstone: violation of safe conducts, infringement of the rights of ambassadors, and piracy, Sosa, 542 U. S., at 723–724. The Court therefore held that “federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted.” Id., at 732. In other words, only conduct that satisfies Sosa’s requirements of definiteness and ac-ceptance among civilized nations can be said to have been “the ‘focus’ of congressional concern,” Morrison, supra, at ___ (slip op., at 17), when Congress enacted the ATS. As a result, 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 law norm that satisfies Sosa’s requirements of definiteness and acceptance among civilized nations.
SUPREME COURT OF THE UNITED STATES
on writ of certiorari to the united states court of appeals for the second circuit
[April 17, 2013]
Justice Kennedy, concurring.
The 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. Many serious concerns with respect to human rights abuses committed abroad have been addressed by Congress in statutes such as the Torture Victim Protection Act of 1991 (TVPA), 106Stat. 73, note following 28 U. S. C. §1350, and that class of cases will be determined in the future according to the detailed statutory scheme Congress has enacted. Other cases may arise with allegations of serious violations of international law principles protecting persons, cases covered neither by the TVPA nor by the reasoning and holding of today’s case; and in those disputes the proper implementation of the presumption against extraterritorial application may require some further elaboration and explanation.
ORAL ARGUMENT OF PAUL HOFFMAN ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-1491, Kiobel v. Royal Dutch Petroleum.
Paul Hoffman: Mr. Chief Justice, and may it please the Court:
The principal issue before this Court is the narrow issue of whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute.
Under Respondents' view, even if these corporations had jointly operated torture centers with the military dictatorship in Nigeria to detain, torture, and kill all opponents of Shell's operations in Ogoni, the victims would have no claim.
Justice Anthony Kennedy: But, counsel, for me, the case turns in large part on this: page 17 of the red brief.
"International law does not recognize corporate responsibility for the alleged offenses here. "
And the -- one of the -- the amicus brief for Chevron says,
"No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection. "
And in reading through the briefs, I was trying to find the best authority you have to refute that proposition, or are you going to say that that proposition is irrelevant?
Paul Hoffman: Well, there -- there are a couple of questions within that.
Justice Anthony Kennedy: And it -- it involves your whole argument, of course.
Paul Hoffman: It does.
And -- and let me start by saying that the international human rights norms that are at the basis of this case for the plaintiffs -- crimes against humanity, torture, prolonged arbitrary detention, extrajudicial executions -- all of those human rights norms are defined by actions.
They're not defined by whether the perpetrator is a human being or a corporation or another kind of entity.
And so, I think that the -- the Respondents are wrong when they say that international law does not extend to -- to those kinds of acts.
They do -- it does.
And the United States agrees with that position.
What they have tried to -- to conflate is the question about whether international law -- the international law norms apply to a corporation or a person with whether there's a -- an international consensus with respect to how those norms should be enforced, particularly within domestic civil jurisdiction as opposed to criminal jurisdiction.
Justice Anthony Kennedy: But in -- in the area of international criminal law, which is just analogous, I recognize, there is a distinction made between individuals and corporations.
Paul Hoffman: Well, there's a distinction made within the jurisdiction of certain modern international criminal tribunals.
And Respondents take their position too far in this, because what they've said is that the fact that corporations can't be found liable criminally under the International Criminal Court, for example, means that the norms, the underlying norms -- genocide, crimes against humanity, and war crimes when it comes to the International Criminal Court -- don't apply to corporations.
And that's -- that clearly is wrong because the United Kingdom and Netherlands, for example, the two home countries of -- of these corporations has passed domestic implementing legislation that imposes criminal penalties for violations of those very norms.
So, there's no question that it can be done.
What the most important -- I think one of the most important principles in this case is that international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law.
Justice Ruth Bader Ginsburg: Mr. Hoffman--
Chief Justice John G. Roberts: You began by -- by--
Justice Ruth Bader Ginsburg: --Mr. Hoffman, I -- I thought that Justice Kennedy asked you, is there another nation that has a counterpart to 1350 that imposes civil liability on corporations for violations of customary international law, whether the conduct occurred abroad, the harmed person is employed, and the defendant is not a U.S. resident?
Paul Hoffman: Well, the -- there are two parts to -- to my answer to that.
One is that the Alien Tort Statute is a -- is a unique way of enforcing the law of nations, in terms of the way that the Founders married tort law and violations of the law of nations.
In the international human rights amicus brief, the amicus brief of international human rights organizations, at pages 18 to 22, there's a whole series of cases where the domestic courts and domestic legislation of various states around the world have addressed those kinds of issues.
And so, there isn't an exact analogue to the Alien Tort Statute, but there's no question that domestic legislation and domestic courts have taken on these kinds of issues.
Justice Samuel Alito: Well, there's no particular connection between the events here and the United States.
So, I think the question is whether there's any other country in the world where these plaintiffs could have brought these claims against the Respondents.
Paul Hoffman: Well, let me address the -- I think this comes under the general rubric of extraterritoriality.
Justice Samuel Alito: But is there a yes or no answer to that question or not?
Paul Hoffman: I believe that they -- that the answer to that would be yes.
Justice Samuel Alito: Where?
Paul Hoffman: I think that they could be brought in Holland or the United Kingdom for events in Nigeria.
I think that the cases that are discussed as those--
Justice Samuel Alito: Any other country other than the country of the citizenship of the defendants?
Paul Hoffman: --I don't know if this precise case could be brought.
I know that the -- we have a principle of transitory torts, and so, one -- and I believe other countries have that principle as well.
So, in terms of the underlying tort action, we have plaintiffs who are U.S. residents and were U.S. residents when they filed this case.
They found a tortfeasor within the United States that they believe was responsible for these torts, and from Mostyn v. Fabrigas and before, Mostyn v. Fabrigas being the 1774 case by Lord Mansfield talking about transitory tort, the courts clearly have the jurisdiction to adjudicate those kinds of tort claims.
Chief Justice John G. Roberts: --If -- if there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn't it a legitimate concern that allowing the suit itself contravenes international law?
Paul Hoffman: Well, that -- that issue has been raised in a number of the briefs.
I would say two things: One is that that doesn't really go to the question about whether corporations can be categorically excluded from Alien Tort Statute coverage, which is really the issue that -- that was decided by the court below and which was the question presented here.
Extraterritoriality has to do with a different kind of issue.
I would argue that -- I mean, we've obviously argued that that's an issue that ought to be briefed on its own.
But there is no international law principle that I am aware of, and I think it would need to be proved, that says that the United States Congress was disempowered at its founding from providing these kinds of tort remedies.
And it was clear from the founding that the Founders at least believed that this statute would be extraterritorial.
Chief Justice John G. Roberts: But it was motivated, I gather, by assaults on ambassadors here within the United States.
Paul Hoffman: Well, it was motivated by the Marbois incident and a similar incident to -- with regard to a Dutch ambassador in New York at the time of the Constitutional Convention.
But if -- if the Court looked to the Bradford incident -- the incident about which Attorney General Bradford expressed his opinion in 1795, which was an opinion that this Court found very important in terms of -- of interpreting the Alien Tort Statute, the Bradford opinion had to do with an assault on the British colony in Sierra Leone.
And so, it was not only extraterritorial in the sense of piracy, and I think everybody agrees that -- that this statute was intended to deal with piracy and maritime-related violations of the law of nations.
It -- the Bradford opinion there said, even though U.S. criminal jurisdiction was limited, the civil jurisdiction under the Alien Tort Statute provided that the corporation that -- whose property was attacked within the territory of Sierra Leone--
Justice Samuel Alito: Have all the judges who have interpreted that opinion interpreted it the way you just did?
Paul Hoffman: --The Bradford opinion?
Justice Samuel Alito: Yes.
Paul Hoffman: I'm not sure in which sense.
I mean, the -- yes, the -- I think that the Bradford opinion has been used--
Justice Samuel Alito: Well, what did -- how did Judge Kavanaugh interpret that on the D.C. Circuit?
Paul Hoffman: --Well, I think -- I don't recall specifically.
I know that there has been some controversy about whether that was an attack in the high seas.
I know there's some scholarship about that.
What I would suggest to the Court, if the Court went back to the original documents that that the -- that were sent to Attorney General Bradford which -- from the British government, I think the Court would find that -- that this attack actually took place in the territory of Sierra Leone.
And so, one of the reasons that we've suggested that -- that -- that the extraterritoriality issue deserves full treatment if the Court is troubled by it, in a case where there is full briefing, because in this case it was raised by the -- by -- by the Respondents' amici largely, although the Respondents have raised it, and there -- the historians that have expressed opinions on corporate liability and others that would be interested in this question have not been able to put the other side before the Court.
And I think there's a very -- there are very important--
Justice Samuel Alito: The first sentence in your brief and the statement of the case is really striking:
"This case was filed by 12 Nigerian Plaintiffs who alleged that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria between 1992 and 1995. "
What does a case like that -- what business does a case like that have in the courts of the United States?
Paul Hoffman: --Well--
Justice Samuel Alito: There's no connection to the United States whatsoever.
The Alien Tort Statute was enacted, it seems to be -- there seems to be a consensus, to prevent the United States -- to prevent international tension, to -- and -- does this -- and this kind of a lawsuit only creates international tension.
Paul Hoffman: --Well, the Alien -- if I could start with the second part first.
The Alien Tort Statute certainly was passed to do that, but also as an expression of the Nation's commitment to international law, I think primarily as a -- as statement of this country's commitment to international law as a new member of the community of nations.
And if -- if you look at the incidents like the Marbois incident or--
Justice Samuel Alito: Do you really that think the first Congress wanted victims of the French Revolution to be able to sue in -- in the court -- to sue French defendants in the courts of the United States?
Paul Hoffman: --I think that what -- I think the question would have been, is there a law of nations violation?
For example, in the Marbois incident, say the -- Marbois was -- was attacked by Longchamps outside the United States, but Longchamps came to take refuge in the United States, and the French government said you have somebody living in your country that has attacked our ambassador in violation of the law of nations.
I think the United States -- I think the same principle -- the United States would have wanted to do something for the French government in response to that, because it would have been giving refuge to someone who had violated the law of nations.
And -- and the same principle has been applied in the modern era to -- to giving no safe haven to torturers and others.
Justice Ruth Bader Ginsburg: That sounds--
Justice Elena Kagan: Mr. Hoffman, could I--
Justice Ruth Bader Ginsburg: --That sounds very much like Filartiga.
And I thought that -- that Sosa accepted that Filartiga would be a viable action under the tort claims act.
So, I thought what we were talking about today, the question was is it only individual defendants or are corporate defendants also liable?
Paul Hoffman: A lot of the extraterritoriality issues would apply to the cases that this Court endorsed in Sosa.
Justice Anthony Kennedy: But I agree that we can assume that Filartiga is a binding and important precedent for the Second Circuit.
But in that case the only place they could sue was in the United States.
He was an individual.
He was walking down the streets of New York, and the victim saw him walking down the streets of New York and brought the suit.
In this case, the corporations have residences and presence in many other countries where they have much more -- many more contacts than here.
Paul Hoffman: And those issues, generally speaking, are resolved by other doctrines rather than an exclusion of corporations categorically from the statute.
Justice Stephen G. Breyer: Can I go back to -- are you finished with that answer?
Paul Hoffman: I was -- the only thing I was going to add to that is that a doctrine like forum non conveniens or personal jurisdiction would deal with the issues about whether this is the most appropriate forum.
And those doctrines apply whether it's an Alien Tort Statute case or it's a common law tort case.
These plaintiffs could bring this case in State court.
What the Alien Tort Statute does is provide a federal forum when these torts are in violation of the law of nations.
And that's really what it -- what the Founders intended and what -- and what it does.
Justice Stephen G. Breyer: I just want some clarification on the first question that Justice Kennedy asked.
Well -- I'll get it in reading about it.
You go ahead.
You want to reserve your time.
I can find the answer to what I was going to ask.
Paul Hoffman: If there aren't any further questions right now, I'd reserve the balance of my time.
Chief Justice John G. Roberts: Thank you, Mr. Hoffman.
ORAL ARGUMENT OF EDWIN S. KNEEDLER, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONERS
Mr. Kneedler: Mr. Chief Justice, and may it please the Court:
The court of appeals erred in its categorical ruling that a corporation may never be held liable under the Alien Tort Statute regardless of the nature of the norm, the locus of the wrong, or the involvement of the state.
Justice Sonia Sotomayor: Mr. Kneedler, could you explain to me the -- the difference between respondeat superior liability and corporate liability?
In -- in the briefs there seems to be an assumption that respondeat superior liability is -- is permissible, and the only issue is whether corporate liability is.
Is there a difference between the two doctrines?
Mr. Kneedler: Well, I think the difference is really a matter of degree.
I mean, under respondeat superior liability, a corporation is normally responsible, liable for the acts of its agents.
Judge Posner in the Seventh Circuit Flomo decision suggested that in the nature -- in this category of cases, assuming that the ATS would allow a common law cause of action for conduct in another country, that maybe there should be more limited respondeat superior limited principles because the action would occur in circumstances were the corporation sought to be held liable may not have much -- much control over it.
Where the corporation itself is liable -- and this would be true in criminal law and presumably in -- in tort law -- would usually require some action by those responsible for running the corporation or high enough up the chain of command--
Justice Elena Kagan: But, Mr. Kneedler, when you--
Mr. Kneedler: --that policy--
Justice Elena Kagan: --Excuse me.
Mr. Kneedler: --I'm sorry.
Justice Elena Kagan: When you say in your brief that we should look at this as a remedial question, as a question of enforcement, do you say that because you're thinking of this as a vicarious liability case?
In other words, there's an individual person who clearly has violated a norm of international law, and then the question of whether to hold the corporation liable is an enforcement question; or would you say that it's also an enforcement question when we're talking about direct corporate liability?
Mr. Kneedler: I -- I think it's both.
Particularly the latter, but I think the former as well.
As Mr. Hoffman said, international law norms proscribe certain conduct, but the enforcement of that is left to each nation.
Justice Antonin Scalia: Well, but -- but I find it difficult to understand why we -- we would not hold foreign sovereigns liable under this Act, that they're excluded despite -- despite its language; and yet, we cannot inquire whether persons other than sovereigns are covered.
What is -- what is the distinction between the two?
Mr. Kneedler: With respect to sovereigns, a sovereign could not be held liable for -- at least for conduct outside the United States, because of the Foreign Sovereign Immunities Act.
That's -- that's what this Court held in the Amerada Hess case.
Within the United States, if a foreign sovereign committed a tort, the Foreign Sovereign Immunities Act, subject to certain limitations, would allow--
Justice Elena Kagan: But I think this--
Justice Antonin Scalia: This is more specific than the Foreign Sovereign Immunities Act.
It deals with a much more narrow category of case.
And I do not think that the Foreign Sovereign Immunities Act would be interpreted to eliminate the sovereign's liability, if indeed this statute provided for it.
Mr. Kneedler: --Well, the court in Amerada Hess did hold that, that -- and it made an important--
Justice Antonin Scalia: Yes.
Mr. Kneedler: --It made a point that is important to this case as well.
It said that while the Alien Tort Statute identifies who the plaintiff must be -- the plaintiff must be an alien -- it does not identify who the defendant may be, and that if there are limitations on who the defendant may be, from other sources of law and foreign sovereign immunity would be one of them, then the suit could not go forward against the foreign sovereign.
Justice Elena Kagan: --But, Mr. Kneedler, in Sosa, and this is the footnote 20, we said that the question of whether you were a state actor or not a state actor might be relevant to the question of whether there was a substantive norm that applied to you.
And I guess the question here is why that same analysis doesn't apply to the question of whether there is corporate liability.
In other words, is there a substantive norm that applied to corporations?
Maybe there is, maybe there isn't, but that that's the question as opposed to what you suggest in your brief, that really we should just think of this as a question of enforcement which is entirely up to Federal common law.
And I guess the question is: Why think of it as enforcement rather than as a substantive obligation?
Mr. Kneedler: Well, first looking at footnote 20 in -- in Sosa, it -- what the footnote says, that a related consideration, meaning related to whether the particular norm satisfies the criteria in Sosa, is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued.
If the defendant is a private actor such as a corporation or individual--
Justice Elena Kagan: No, I'm not saying footnote 20--
Mr. Kneedler: --Right.
Justice Elena Kagan: --It addressed a different question, but it's an analogous question.
If the question of whether non-state actors are part of the substantive obligation question, why, too, isn't the question of whether international law extends to corporations?
Mr. Kneedler: But -- because the state actor aspect of it goes to the question of the conduct.
Does the conduct itself violate the norm?
I think it's a -- but beyond that, it's enforcement.
I think it's important to bear in mind that the Alien Tort Statute uses the word "tort".
Justice Antonin Scalia: But it -- I didn't understand the point you just made, that the sovereign immunity part goes to -- to the conduct?
Mr. Kneedler: --Well, it goes to whether the defendant can be sued, the sovereign immunity does.
Justice Antonin Scalia: Why doesn't the corporate thing go precisely to the same question.
Mr. Kneedler: Because there is no independent prohibition in international law or domestic law against suing a corporation the way there is for a foreign sovereign.
To the contrary--
Chief Justice John G. Roberts: But whether -- I'm sorry.
Mr. Kneedler: --I was just going to say, to the contrary, at the time the Alien Tort Statute was adopted, corporations could be held liable.
This Court's decision in Chandler recently surveyed the -- the law and corporations could be held liable in tort.
Chief Justice John G. Roberts: But under international law, it is critically pertinent who's -- who's undertaking the conduct that is alleged to violate international norms.
If an individual private group seizes a ship, it's piracy.
If the navy does it, it's not.
Governmental torture violates international norms.
Private conduct does not.
So, why doesn't the -- why isn't the same pertinence -- your argument seems to be that all you need to do is find an event, torture, piracy, whatever, and then it's up to the domestic law whether or not particular entities can be sued.
Mr. Kneedler: I -- I think that's correct, and--
Chief Justice John G. Roberts: As a statement of your position.
Mr. Kneedler: --Yes.
Chief Justice John G. Roberts: But it doesn't work when you're talking about state -- whether it's a state conducting the illegal conduct or somebody else.
So, why -- that's not up to the domestic--
Mr. Kneedler: No, because that goes to the definition of the norm.
But if we -- if we take -- if we take the Alien Tort Statute, in 1907, the Attorney General concluded that an irrigation company could be sued for violating a treaty.
If we take the examples that gave rise to the Alien Tort Statute, if a process serving company -- if one of its agents went into an ambassador's house and tried to serve process, that was a criminal violation at the time.
Justice Anthony Kennedy: But you go much -- you go much further.
Suppose an American corporation commits human trafficking with U.S. citizens in the United States.
Under your view, the U.S. corporation could be sued in any country in the world, and it would -- and that would have no international consequences.
We don't look to the international consequences at all.
That's -- that's the view of the Government of the United States, as I understand.
Mr. Kneedler: No.
The question of extraterritorial application is distinct from the question of whether a corporation can be held liable.
Justice Stephen G. Breyer: So -- so, why -- why then -- you want to answer in your brief -- and this--
question, I find impossibly difficult, maybe highly fact-dependent.
There is no United States Supreme Court of the World.
There is no way of getting unified law on the points of whether when we interpret a common law Federal -- a system of Federal common law to decide whether a corporation can be defendant -- a defendant in a certain kind of case.
Every other country could do the same.
And there's no way of resolving it.
So, I find that a difficult question.
I don't know why that's in this case.
I would have thought the question in this case is, can a private actor be sued for certain violations of -- of substantive criminal law?
The answer's "yes".
Genocide, for example.
And then the question is -- a corporation is a private actor.
And is there any reason why, just like any other private actor, a corporation couldn't be sued for genocide?
And there the answer is I don't know, but I'll find out when the other side argues.
So, I -- I think this is unnecessarily complicated.
They made a -- a categorical rule.
They said never sue a corporation.
I seem to think possibly of counterexamples.
Mr. Kneedler: Right.
Justice Stephen G. Breyer: You know?
I mean -- so -- so, why isn't that -- why are we going into -- I mean, you have good reason for doing it, and I want to hear why.
Mr. Kneedler: Well, our -- our position is straightforward.
Just as you said, the question of whether a corporation should be held liable we think should be based on the fact that the ATS refers to torts.
And in applying -- this question we think is not complicated.
In fashioning Federal common law to decide whether there should be a common law cause of action, the ATS's reference to tort law, I think, directs the Court to domestic tort law, and the question of whether a corporation can be held liable under domestic tort law.
And it clearly can be.
It could be at the time this statute was enacted, and it can be today.
Chief Justice John G. Roberts: --Thank you, Mr. Kneedler.
ORAL ARGUMENT OF KATHLEEN M. SULLIVAN ON BEHALF OF THE RESPONDENTS
Ms Sullivan: Mr. Chief Justice, and may it please the Court:
I'd like to begin with the answer to Justice Kennedy's first question.
Justice Kennedy asked and Justice Breyer renewed the question, is there any source in customary international law throughout the world that holds corporations liable for the human rights offenses alleged here?
And the answer is there is none.
Justice Stephen G. Breyer: You say there is not a case.
That's a different matter.
Ms Sullivan: Not a case--
Justice Stephen G. Breyer: Yes, but that's a different matter because you can have a principle that applies even though there isn't a case.
And the principle that here would apply is what I said, Pirates, Incorporated.
Do you think in the 18th century if they'd brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation -- do you think that they would have then said: Oh, I see, it's a corporation.
Ms Sullivan: --Justice Breyer, yes, the corporation would not be liable.
Justice Stephen G. Breyer: All right.
Well, what source have you--
Ms Sullivan: The corporation would not be liable.
Justice Stephen G. Breyer: --What source have you for that proposition?
Ms Sullivan: The -- look to Justice Story in U.S. v. Smith, cited in the Respondents' brief at footnote 12.
It looks to piracy.
And piracy is allowed -- in rem actions.
You could seize the ship with which the piracy was committed, as you could later slave trading ships.
But you could not seize another ship, and you could not seize the assets of the corporation.
Justice Stephen G. Breyer: You couldn't seize another person other than Blackbeard.
That's why -- if the ship is owned by a corporation, and they sue the corporation in 18 -- 17 whatever it was -- '96 or something, what reason do we have to think that the corporation would have lost -- I mean, would have won?
Ms Sullivan: --Your Honor, let's be clear that Sosa referred to specific norms.
So, the answer to Pirates, Inc., does not determine the answer in this case, which is about whether corporations can commit post-Nuremberg human rights offenses.
A given norm must be applicable to a corporation.
So, even if I gave you Pirates, Inc., it wouldn't decide this case.
But in fact Pirates, Inc., was not suable; it was the ship that could be seized.
But to answer Your Honor's question about the genocide convention, perhaps I could go back.
I want to be very clear: We're not arguing there needs to be an international adjudicated case finding a corporation liable in order for Petitioners to win, but they have failed to show anything in the conventions, the non-binding treaties engaged in by multiple nations.
They failed to show anything in custom or practice.
Justice Elena Kagan: But, Ms. Sullivan, I think that that's mostly because all of these are written to prohibit certain acts, and they don't talk about the actors.
So, if I could, you know, draw an analogy, it's as if somebody came and said, you know, this -- this norm of international law does not apply to Norwegians.
And you -- well, there's no case about Norwegians.
And it doesn't specifically say "Norwegians".
But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.
Ms Sullivan: --But, Justice Kagan, international law does speak to who may be liable, which you correctly identified as a substantive question, not a question of enforcement.
And international law holds corporations liable for some international law violations.
Look to the convention on the suppression of the financing of terrorism, which speaks about legal entities, or the convention on bribery of public officials, which speaks about legal persons.
But the human rights offenses here do not arise from conventions like those which allow corporate liability.
To the contrary.
The human rights offenses here arise from conventions that speak to individual liability.
The liability of individuals.
And, Justice Breyer, in precise answer to your question about the convention on genocide, if you look to the Chevron brief on page 20 -- this is the amicus brief of Chevron filed by Professor Goldsmith.
On page 20, it quotes in full the relevant passage from the genocide convention, Article IV.
I'm sorry there are many briefs, but perhaps if I could read it to Your Honors, I will read it in full.
It says that
"persons committing genocide or any of the other acts enumerated in Article III shall be punished whether they are constitutionally responsible rulers, public officials or private individuals. "
And Justice Kagan, all the other relevant conventions also speak about natural persons.
The convention against torture speaks about him, not it.
And when Congress, in the one time it implemented the conventions that are the source of the human rights offenses that are alleged here, Congress in the Torture Victim Protection Act said that the suit may be brought against individuals.
And it expressly declined to use the term "persons", which could embrace corporations.
Chief Justice John G. Roberts: You're getting ahead of yourself.
We haven't decided that question just yet.
Justice Ruth Bader Ginsburg: But this statute doesn't use the word "individual", and it doesn't use the word "person".
As far as a corporate entity is concerned, a corporate -- a corporation could sue, could be a plaintiff under the Alien Tort Statute, could it not?
Ms Sullivan: --Justice Ginsburg, a corporation could sue if it were an alien, and if you decided the alien embraced corporations.
And of course, the Attorney General Bradford opinion from 1795, which I agree with the Chief Justice, extended -- and with Justice Alito -- did not extend to conduct in other countries; it extended only to conduct on the high seas.
But Bradford -- the Bradford opinion, if you give it any credit, only establishes that a corporation may be a plaintiff.
It does not speak to the question here, which is whether a corporation may be a defendant.
Justice Elena Kagan: Miss Sullivan, take an example that has all the extraterritoriality aspects of this case taken away from it.
Let's assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a corporate agent.
Would we say that the corporation there cannot be sued under the Alien Tort Statute?
Ms Sullivan: Yes, Your Honor.
You would say that because there is no assaulting ambassador norm that applies to corporations.
I just want to go back and--
Justice Elena Kagan: Could you explain to me -- we would have to sue the person individually?
Ms Sullivan: --Exactly.
Justice Elena Kagan: What -- so this goes back to--
Justice Breyer's question.
Where do you find that in international law?
Where -- where does it say, when the French ambassador is sued in the United States by a corporate agent, we can't sue the corporation?
Ms Sullivan: The burden rests on the Petitioners to show that the norm is established by international law; not on us to show that corporate liability is any--
Justice Antonin Scalia: Congress could -- could pass a statute to that effect.
Ms Sullivan: --Could absolutely.
Congress tomorrow, Justice Scalia--
Justice Antonin Scalia: The issue is whether this did it or not.
Ms Sullivan: --This did not.
And what international law has not established -- not just through cases, Justice Breyer, but through any source, convention, or custom -- if you look to the jurisdictional statutes of the ICC -- the Rome Statute--
Justice Elena Kagan: You don't -- of course one could bring an ATS suit against the individual.
Is that right?
Ms Sullivan: --Yes, Your Honor.
Justice Elena Kagan: Now, all United States law and mostly in other countries' law would hold the corporation liable for the individual's act.
Isn't that right?
That's a general principle of law.
Ms Sullivan: Justice Kagan, let's be clear to separate two very different causes of action.
There is no country, and to answer Justice Ginsburg's first question, there is no country in the world that provides a civil cause of action against a corporation under their domestic law for a violation of the law of nations.
In Mr. Hoffman's hypothetical, if there were a suit in England or in the Netherlands, it would be for assault and battery, wrongful death, or--
Justice Elena Kagan: Miss Sullivan that would be true against an individual as well.
The ATS is just a unique statute.
It's unique against individuals, and it's unique against corporations.
That doesn't answer the question that you're here to address which is whether corporations are meaningfully different from individuals.
Ms Sullivan: --They are meaningfully different from individuals under international law which is the crucial choice of law question that you need to answer here.
The crucial question that is at the threshold is which law determines whether corporations are liable.
Justice Stephen G. Breyer: I think you are right on that point.
What about slavery?
Genocide -- I see your point in the Goldsmith brief.
But what about slavery?
That seems like contrary to international law norms, basic law norms, it could be committed by an individual.
And why, if it could be committed by an individual, could it not also be committed by a corporation in violation of an international norm?
Ms Sullivan: Let me be clear.
The question is not "could".
Justice Stephen G. Breyer: No, no.
I have read the reason why, as you point out in your briefs, the corporations are different in many countries as if they are not moral persons.
And I have in my mind filled in the blanks on that, and I think I know what it refers to.
That's the rationale that kept them out of some of these treaties.
And now the question would be, all right, are they always kept out no matter what?
And I'm bringing up the two counterexamples I think were fairly strong, was Pirates Inc. But that's a joke example.
And the other -- although it's a point.
And the other is slavery.
What about, what about that one?
Ms Sullivan: Corporate liability, even for norms, on which the international community agrees -- torture, genocide, piracy, slavery -- corporate liability is a substantive norm that is established by international law.
And the nations of the world, for various reasons, have treated individuals and corporations differently.
And Justice Kennedy, over and over and over again, it's not just the Respondent's brief at page 17 but the U.K. Netherlands brief, two of our most important allies, filed a brief of Respondents, saying at pages 11 through 15: There is no international norm applicable to corporations for violations of the human rights offenses here.
Now the international community has many reasons for this.
In 1998 when our own statute established the ICC, the signatories actually discussed whether to have criminal liability for corporations; and as the Scheffer amicus brief in support of Petitioners points out at page 18, they actually also discussed civil liability for corporations.
And the nations of the world who created the ICC, one of the most important modern instruments for bringing about human rights prosecutions, declined to embrace jurisdiction over corporations.
Justice Anthony Kennedy: Can you tell me why you think they did that?
I mean, for us, the respondeat superior is so simple.
Why is it a big deal in international law?
Ms Sullivan: Well, Justice Kennedy, there's many reasons.
For one, a corporation involves many innocent stakeholders beyond the perpetrators.
And the regime established at Nuremberg, if it established nothing else, established that it is individuals who are liable for human rights offenses.
It pierced to the notion of hiding behind a state abstract entity, and held individuals, including individual businessmen from Alfred Krupp to 28 officials indicted from the I.G. Farben firm.
But Nuremberg was about individual liability.
Justice Ruth Bader Ginsburg: --What happened to I.G. Farben?
I thought it was dissolved and its assets taken.
Ms Sullivan: Yes, Justice Ginsburg.
I.G. Farben was dissolved by the control counsel law number 9 in 1945.
It was a political act.
It preceded any of the tribunals, either international or national.
It was not until later that year that the international military tribunal began.
It prosecuted no corporations.
When the allies prosecuted perpetrators of the Nazi horrors in later cases, they prosecuted again only individual officers, not any corporations.
There are two amicus briefs on the Nuremberg history: one in support of Petitioners, filed by Jennifer Green, and one in support of neither party filed by Jonathan Massey.
Both of them agree on one proposition, and that is, that no corporation was prosecuted by either the international military tribunal in 1945 and 46 nor in any of the subsequent U.S. tribunals.
In fact, in U.S. v--
Justice Ruth Bader Ginsburg: But there's no -- there was no civil liability adjudicated in Nuremberg.
It was about criminal.
Ms Sullivan: --That's correct, Your Honor.
And to answer your question, when I.G. Farben was dissolved, it was part of denazification, decartelization, and a distraction of the Nazi war machine of which I.G. Farben was an integral part.
It was practically viewed as an enemy state in and of itself.
That is a prece -- so the precedent of Nuremberg, like the precedent of the ICTY, the ICTR, the ICC, all exclude liability for corporations, even for the most heinous offenses of the modern era.
They focus liability, rather, on corporate officers.
And Justice Kagan, we don't dispute that corporate officers can be held to account for these offenses assuming, Justice Alito, that we don't have concerns about extraterritoriality even as to individuals.
Justice Elena Kagan: Well, it that's -- if that is true -- let me just take you back to this question of separating out direct corporate liability from vicarious corporate liability.
Because it is clear -- one question is, is there a substantive international law obligation?
But there is another question which would not be an international law question, which is, a remedial question.
Remedies are addressed by common law rather than -- American common law rather than by international law.
So why shouldn't we look at the vicarious liability question as essentially a question about the scope of the appropriate remedy once an international law violation has been found?
Ms Sullivan: Justice Kagan, you should look at questions of corporate liability.
Like questions of aiding and abetting liability.
Like questions of individual private liability as opposed to state actor liability.
You should look at all of those questions as substantive questions answered by international law.
And that's because footnote 20 of Sosa says you look to whether international law extends liability to the perpetrator being sued.
You can't just find an act out there and fan out to anyone in the entire world, including consumers pumping gas in Ohio, and say there's been an act of international law violation.
It's a question is proof.
Justice Elena Kagan: But the question of who can sued is a remedial question.
Ms Sullivan: It is not.
Justice Elena Kagan: The question of who has an obligation is a substantive question.
Ms Sullivan: Respectfully, Justice Kagan, we disagree.
The question of who may be sued is fundamentally part of the question of whether there has been a tort committed in violation of the law of nations.
It would read the verb "committed" out of the statute.
If you just said find a violation of the law of nations anywhere and then apply it to whoever you want.
Justice Elena Kagan: To give you an example, the tort in violation of the law nations has been committed.
It has been committed by the corporate agent.
And the question then is, can one hold the corporation responsible for that tort.
And that seems to be a question of enforcement, of remedy; not of substantive international law.
Ms Sullivan: Justice Kagan, we respectfully disagree.
That is a question of substantive law.
Think about a domestic analogy.
Look to the restatement of conflicts.
You would ask whether -- you would not look to foreign law to determine a question of respondeat superior or contribution or indemnity.
You would not look to foreign law to determine whether, in the words of the restatement, one person is liable for the tort of the other.
You would look to the law of the place of misconduct or the place of where the corporation is headquartered.
Foreign law determines in this case whether you had could have civil remedies rather than criminal.
We concede that the ATS allows a civil remedy where the world would impose only criminal liability.
That's because civil liability versus criminal liability, that's a matter of remedy.
So would be the amount of damages.
So would be the choice of compensatory or punitive damages.
Those are matters of remedy for domestic law to decide.
Justice Ruth Bader Ginsburg: If you look to the law of the place where the corporation is headquartered, well, suppose that has a typical respondeat superior liability says corporations are liable for the acts of their agents.
So -- and most -- correct me if I am wrong, I think most countries in the world have such a notion that corporate -- corporations are responsible for the acts of their agents.
So how does that -- looking to the law where the corporation is headquartered, where does that get you when that country has the very same law that we do, that yes, corporations are liable for the acts of their agents?
Ms Sullivan: Justice Ginsberg, respectfully, we don't think the world is all of one when it comes to issues of corporate responsibility for the acts of its agents.
If you look at the ICJ -- sorry, if you look at the Rome Statute, the Rome Statute itself has very particular sections about when an -- a corporate superior is liable for the actions of a corporate inferior.
It looks to a knowledge and deliberate indifference standard.
Not every nation of the world agrees on what standard must -- there must be for even attributing the agent's act at the bottom of the corporate hierarchy to a senior officer, much less to the corporation as an entity.
In answer to your question about -- earlier about respondeat superior, Justice Kagan, the only way a corporation can do anything is through the acts of human beings; thus there is always the question when it comes to corporate liability to ask how to attribute the action of the human beings who work for the corporation to the corporation.
And we respectfully submit that Sosa footnote 20 commits that question, as does the ATS itself, to international law.
Justice Anthony Kennedy: Well, I wonder if you don't concede away too much, when you say well, there is a difference in substance and -- and remedy and questions of jury trial, damages and so forth.
Those were the concerns that the U.K. and the Netherlands addressed in their brief as saying why corporations shouldn't be liable for acts committed on foreign -- foreign territories.
That was the whole reasoning of -- of -- of the U.K. brief.
Ms Sullivan: Justice Kennedy, I agree completely on what may be very clear on one thing.
I've addressed only step one of Sosa, which is, does international law provide for a specific universal and obligatory norm of corporate liability.
It does not.
In fact it refutes it.
The Rome Statute rejected liability for corporations.
The jurisdictional statutes of the ICTY and the ICTR apply jurisdiction only to natural persons.
The international community at step one has rejected it.
But Justice Kennedy, it's very important that Sosa puts a second screen into your inquiry.
You must ask if the second step -- even if international law had provided any source of corporate liability, which it does not, you would still have to ask: Footnote 30 of Sosa says it's a higher bar.
Should Federal common law, should Federal common law now embrace these kinds of actions?
And the answer is no.
Even if you found this were a question of domestic remedy, we think you cannot -- this is a question of substance.
But even if this were a question of -- domestic remedy, you should not find liability for corporations for the same reasons you rejected corporate liability in Malesko.
Justice Ruth Bader Ginsburg: Ms. Sullivan, I'm -- in Sosa as I understand it, it's all about what is the conduct that falls under this law of nations.
It is not about who is the actor subject to that law.
Sosa is dealing with what kinds of conduct come within the Alien Tort Statute.
It -- it doesn't consider the question of what actor; that wasn't before the Court.
What was before the Court is what kind of activity violates, is contrary to the law of nations.
Ms Sullivan: Justice Ginsburg, respectfully we disagree, and so do all the courts of appeals who have addressed the question of aiding and abetting liability.
Every court of appeals save one, including the Ninth Circuit and the DC Circuit, which disagreed with us on the outcome, said that the question of whether international law prohibits liability for aiding and abetting is to be determined by international law.
Justice Stephen G. Breyer: You could -- you could -- first, maybe you addressed this case.
There was a case called Skinner v. East India Company.
Ms Sullivan: --Yes, Your Honor.
That was under English tort law, 1666.
Justice Stephen G. Breyer: Okay, all right.
Now -- what I'm thinking of, is if you go through the rationale, as you find some instances where individuals could in fact violate an international law norm, and then you find a lack of a reason why a corporation couldn't do the same.
Now in that kind of category, could the Court say we're interpreting Federal common law here to determine who can be sued under this statute?
That's the remedial part.
Ms Sullivan: You may--
Justice Stephen G. Breyer: And so what we are saying is that there is a -- in certain circumstances there could be a suit against your corporation.
You would have to be careful, because you recognize that by creating a -- a suit against your corporation you are saying every country in the world could do the same.
And -- and therefore, but maybe there are instances of like, universal jurisdiction recognized under international law, where you could be pretty certain no harm would be done by that.
And so what I'm thinking of is -- is a way of enforcing it.
Ms Sullivan: --Justice Breyer, first we disagree that the question of who may be sued is a question of enforcement.
We think that bridge--
Justice Stephen G. Breyer: No, I--
Ms Sullivan: --was crossed in Sosa.
And as I was saying to Justice Ginsburg, in all the cases that hold, all the courts of appeals agree that who may be liable, just primary actors or also aiders and abetters, is determined by international law as a question of substance.
So we disagree with the premise.
But to answer Your Honor's question, the Federal common law still should not fly in the face of Congress, and I think the important question in your hypothetical is who is the "you"?
As Justice Scalia just pointed out, Congress could amend the ATS tomorrow to provide for a Federal common -- a Federal statutory cause of action against corporations.
But the one time Congress spoke to the very question at issue here, it held the diametric opposite.
Congress in the TVPA rejected corporate liability by choosing the term "individuals" rather than "persons".
And I realize, Mr. Chief Justice, that is the next case, but we think there is really the answer that the TVPA excludes corporations is compelled, and the U.S. agrees.
So Your Honor, the question is not what should Federal courts do in the abstract, it's what should Federal courts do when there is exact statutory decisionmaking by the political branches that has gone the other way.
In maritime law in Miles v. Apex, you didn't -- you didn't decide to go contrary to Congress in the Jones Act; you said if there is a Jones Act statutory statement about wrongful death, we should follow it in Federal common law.
Similarly here, even if the international community thought there was anything to corporate liability -- which it doesn't, it disagrees; our two allies the U.K. and Netherlands disagree, and Germany has filed a brief saying it also disagrees with the ATS as it has been applied -- even if there was international consensus, you would still have to ask should the Federal courts, through free-form Federal common law making, do the opposite of what Congress is saying?
Justice Stephen G. Breyer: --Well, we know the way to do it.
I mean, in Skinner, even if it was English common law, the court reasons -- it says the taking of the ship on the high seas was
"odious and punishable by all laws of God and man. "
So we -- could you not say, where an action is forbidden by the international law, and it is punishable or -- by all laws of God and man, in such a circumstance there being no reason to deny corporate liability here, even under the moral person rule, it -- we interpret the Federal common law to permit that remedy?
Ms Sullivan: Well, Your Honor, the ATS has language that says the tort must be committed in violation of the law of nations.
So although, Justice Ginsburg, it doesn't specify who may be the defendants, it does point us to the law of nations to figure out what the law of nations thinks about who may be the defendants, and the law of nations is uniform.
It rejects corporate liability.
It rejects corporate liability.
So to find a Federal common law cause of action here is to fly in the face of both the international community, with all the foreign policy consequences Justice Kennedy referred to earlier, if as Mr. -- as the Chief Justice said earlier, the point of the ATS was to stop war, by making sure there was a forum for the Marbois incident, so that France wouldn't think it had to go to war on us to stop the offense ti its sovereignty -- but it will it provoke war to out ahead of the international, foiling the purpose of the ATS.
But also, and this is--
Justice Elena Kagan: Ms. Sullivan, could I take you back--
Justice Ruth Bader Ginsburg: I think it has taken that into account.
You are just representing the corporations to say what is in the interests of the United States, when the United States representative told us they think that individuals and corporations are both subject to suit.
Ms Sullivan: --Your Honor, respectfully, we -- we accept that the United States here before you today doesn't speak to the foreign -- foreign policy consequences of this kind of ATS liability.
And we haven't even gotten to the alternative ground, Justice Alito and the Chief Justice referred to earlier, which is Charming Betsy canon says don't lightly construe your law to offend international law.
But just back to the -- the -- the United States, I respectfully suggest you should look to the TVPA, rather than simply to what the United States says here today.
And the TVPA, which is Congress interpreting--
Justice Elena Kagan: --Well, the TVPA is one limited statute dealing with one particular category of offense, and it was specifically meant to supplement, not to supplant, the ATS.
So between those two things, the fact that it's limited to torture, and that there was no design to supplant the ATS, I guess I think that if your best shot is the TVPA, that's a -- that's a weak one.
Ms Sullivan: --Well, far -- it's -- it's one of many sources, Your Honor.
Just to go back to the key point about international community.
The international community -- Justice Breyer says don't just look for adjudicated opinions, but every convention for every international tribunal excludes corporations.
Look to the U.N. process.
The Petitioners make a great deal out of the U.N. process that's taken place since 2007.
We cite the U.N. special representative, saying
"I have looked at the international human rights instruments that are out there, and I find no basis-- "
Justice Elena Kagan: Miss Sullivan, if I asked you--
Ms Sullivan: --"for corporate liability".
That's the U.N., not Congress.
Justice Elena Kagan: --You -- you said the international community draws this line.
And as far as I can see, the international sources are simply silent as to this question.
So if I said to you, Miss Sullivan, I want to go back and read the best thing you have saying that the international law sources draw this line, what do I read?
Ms Sullivan: Read first of all the Rome Statute, 1998, and the legislative history.
Justice Elena Kagan: But the Rome Statute is different, because the Rome Statute is about criminal liability.
And we know that the Rome Statute was meant to complement many international states' laws which in fact do not hold corporations criminally liable domestically.
Ms Sullivan: Read -- but the Rome Statute also rejected civil liability.
That's in the Scheffer brief.
The Scheffer amicus brief.
He was our representative there, and he said civil liability was considered but rejected.
So the Rome Statute rejected either corporate or criminal liability for corporations under the new ICC.
The ICC -- the ICTY, the convention against torture itself, and--
Justice Ruth Bader Ginsburg: I thought they re -- rejected civil liability for everyone.
It wasn't limited to corporations.
Ms Sullivan: --Well, Justice Ginsburg, we don't -- we agree that there's no civil liability for human rights offenses.
The answer to Justice Alito's question at the beginning, is there any other nation in the world that provides for civil liability for human rights violations, the answer is no, there is no other nation in the world.
Justice Elena Kagan: Yes, but that's for individuals as well as for corporations--
Ms Sullivan: That's correct.
But for human rights violations.
Justice Samuel Alito: Yes.
Is there an Article III source of jurisdiction for a lawsuit like this?
Ms Sullivan: None other than the ATS, Your--
If -- there--
Justice Samuel Alito: What's the constitutional basis for a lawsuit like this, where an alien is suing an alien?
Ms Sullivan: --The -- well, there's no alien diversity jurisdiction.
So -- because an alien is suing an alien.
And there is a good argument you could dispose of this case, but not all the other ATS cases, by simply holding there's no alien diversity jurisdiction here.
And the ATS can't have been viewed as displacing Congress's intent to limit jurisdiction at the time.
That would dispose of this case, and other cases involving foreign corporations sued by other plaintiffs.
Cases likes Talisman and Nestle and Rio Tinto.
But we respectfully urge you to reach a broader ruling, which is that corporate liability is foreclosed both by the uniform practice -- the uniform practice, not just adjudications -- of the nations of the world--
Justice Stephen G. Breyer: Okay.
You're now beginning one additional thing, that the corporate rule that you're about to cite shows that many people believe there shouldn't be a remedy against a corporation because they're not moral persons.
Why does it show that the corporation couldn't violate the substantive rule?
Ms Sullivan: --Your Honor, we do not urge a rule of corporate impunity here.
Corporate officers are liable for human rights violations and for those they direct among their employees.
There can also be suits under State law or the domestic laws of nations, but there may not be ATS Federal common law causes of action against corporations.
Thank you, Your Honor.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Hoffman, you have 5 minutes remaining.
Paul Hoffman: Thank you.
Let me just make a few quick--
REBUTTAL ARGUMENT OF PAUL HOFFMAN ON BEHALF OF THE PETITIONERS
Justice Sonia Sotomayor: For all the reasons Justice Kagan mentioned, that the TVPA is not a limiting source, and can be viewed as a supplemental source.
But there does appear to be a little bit of incongruity, that aliens can sue corporations for acts against other aliens, but American citizens under the TVPA might not be able to sue corporations.
How do we deal with that under--
Paul Hoffman: --There are a number of -- of differences between the TVPA and -- and the Alien Tort Statute apart from that.
I mean, for example, the Alien Tort Statute applies to a much broader range of international human rights violations.
Congress decided to legislate in those areas for the reasons that it decided to do that.
The one thing that's clear, as -- as Justice Kagan said, is that the Torture Victim Protection Act was designed to -- to establish the -- or to make even stronger the Filartiga precedent, and shielded from analyses that challenged its bases, and was -- was not intended to restrict the Alien Tort Statute in any way.
And obviously, the next case will discuss in greater detail whether the TVPA applies to corporations or not.
If -- I don't know.
If I could just make a couple of additional points.
If -- if it was true that international law barred corporate liability, then our friends the United Kingdom and Netherlands have violated international law by passing legislation that imposes criminal liability on corporations for violating genocide crimes against humanity, and war crimes.
And I think that brief makes it pretty clear that whatever they're saying, that -- if -- if the Alien Tort Statute is a domestic enforcement of international law, then their views don't apply.
And -- and -- and this is a tort statute.
That's -- there was a meaning to torts.
Skinner's case, for example, was a tort not only under English common law, it was -- it was a tort in violation of the law of nations.
It was robbery on the sea.
The law of nations was incorporated in English common law just as it was in the founding in our country.
And under the Peck heyday, it is still a part of our land -- the law of our land.
"Tort" meant to the founders "tort remedies".
It meant -- it meant that the means of enforcement would be done by the common law.
That's all that was available then, it's all that's available now.
And -- and international law places no restriction on the way domestic jurisdictions enforce international law.
There is a general principle law of corporate civil liability for all of the things that we allege in this case.
In every legal system in the world, one can get redressed for this kind of thing.
Countries don't necessarily call it a violation of the law of nations.
They didn't fashion the statute the way our founders did for the reasons that they did--
Chief Justice John G. Roberts: I'm sorry -- in every nation in the world, you can get redress for this sort of thing.
But I thought you told us earlier that there was no place where this suit could be brought--
Paul Hoffman: --No, no.
Chief Justice John G. Roberts: --in other words, a suit by an -- an alien against another alien for conduct that takes place overseas.
Paul Hoffman: --Well, what I'm suggesting -- I don't know whether in every domestic jurisdiction, the extraterritoriality issue is taken in this same way.
What I'm suggesting is that for these kinds of acts, you can get redress against the corporation within every legal system.
Now, not every legal system -- I don't know every legal system with respect to the extraterritoriality issue.
Chief Justice John G. Roberts: Well, that just gets back to your basic submission, which is you define the international norm based on the act rather than the entire issue that's going to be litigated, which includes both remedy and actor.
Paul Hoffman: Well, what -- what -- what we would suggest is that international law does not distinguish with respect to actor, at least in -- with respect to these four norms, if we're going by a norm-by-norm basis.
These acts -- these norms are defined in ways that human beings and corporations can violate.
Justice Antonin Scalia: What's your position -- what's your position on aiding and abetting?
Is that -- is that a matter of our domestic law or -- or would -- would we track international law on that?
Paul Hoffman: --The lower courts have treated it in different ways.
I think that most of the courts now have found that aiding and abetting is--
Justice Antonin Scalia: I don't care about the courts.
I care about you.
What's your position on aiding and abetting?
Paul Hoffman: --I think that -- that aiding and abetting could be viewed as a conduct regulating norm, that it actually applies to the things that can be done to violate the norm.
And therefore, international law would apply to that.
I think my -- my time is up.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
ORAL ARGUMENT OF PAUL L. HOFFMAN ON BEHALF OF THE PETITIONERS
Chief Justice John G. Roberts: We'll hear argument first this term in Case 10-1491, Kiobel v. Royal Dutch Petroleum.
Paul L. Hoffman: Mr. Chief Justice, and may it please the Court:
The plaintiffs in this case received asylum in the United States because of the human rights violations alleged in the complaint.
They sued the defendants for their role in these human rights violations in U.S. courts because the defendants are here and subject to the general personal jurisdiction of our courts.
There's nothing unusual about suing a tortfeasor in our--
Justice Ruth Bader Ginsburg: May -- may I ask you about the statement you just made?
Personal jurisdiction was raised as a defense, right?
Paul L. Hoffman: --Personal jurisdiction was raised as an affirmative defense, but not raised in a motion to dismiss.
Justice Ruth Bader Ginsburg: And so your position is it was waived?
Paul L. Hoffman: Yes.
Justice Ruth Bader Ginsburg: But it was not adjudicated.
Paul L. Hoffman: It was not adjudicated in this case.
Our position, it was waived when it was not raised in a Rule 12 motion.
Justice Anthony Kennedy: What effects that commenced in the United States or that are closely related to the United States exist between what happened here and what happened in Nigeria?
Paul L. Hoffman: The -- the only connection between the events in Nigeria and the United States is that the plaintiffs are now living in the United States and have asylum because of those events, and the defendants are here.
There's no other connection between the events that took place in the -- in Nigeria and the forum.
The -- the basis for suing the defendants here was because they are here and because it was possible to get jurisdiction.
Justice Anthony Kennedy: And just to make it clear--
Paul L. Hoffman: Yes.
Justice Anthony Kennedy: --it's your position -- and I believe it's the position of the United States; I'm not sure -- that if a U.S. corporation commits an international law violation in the United States, that U.S. corporation can be sued in any court in the world?
Paul L. Hoffman: Well, it is -- it is possible that other countries would assert jurisdiction.
I think that, generally speaking -- and it might well have been the case in this case had the issues been raised -- most of the time, alternative doctrines like the requirement of personal jurisdiction, or the requirement -- or forum non conveniens or other doctrines would -- would have those cases litigated in other places.
Justice Anthony Kennedy: But then -- but the way I stated the hypothetical, or the proposition, that is your beginning proposition -- although there might be some defenses.
But as a beginning matter, that they can be sued in any country in any court in the world.
Paul L. Hoffman: Well, I think it would depend on what the events were and what the claims were and -- and what the law in that jurisdiction was.
Justice Anthony Kennedy: Well, we assume--
Paul L. Hoffman: I think that this -- sorry.
Justice Anthony Kennedy: --we assume a violation of international law--
Paul L. Hoffman: Okay.
Justice Anthony Kennedy: --as part of the hypothetical.
Paul L. Hoffman: Yeah.
Well, I think that if -- if, in fact, the U.S. corporation committed a violation of the universal jurisdiction norm, for example, as we believe these norms are in this case, there are many jurisdictions in which U.S. corporations could be -- could be sued.
In fact, in the United Kingdom and the Netherlands, I believe their -- their provisions enforcing the international criminal court might--
Chief Justice John G. Roberts: I suppose, if you have -- I suppose, if you have, as I think there probably is in this case, a number of plaintiffs, they can sue in a number of different countries, right?
Some will sue in the United States, others in the United Kingdom, others in the Netherlands?
Paul L. Hoffman: --Well, it -- it is possible that the plaintiffs could have sued in other places.
They sued here because this is where they live.
This is their adopted homeland because of that.
The United States, under international law, clearly has jurisdiction to adjudicate claims between parties properly before them.
Justice Antonin Scalia: Is there some -- is there some super body that decides what constitutes a violation of the particular norms of international law?
That is to say, these other countries that have jurisdiction, they decide for themselves, don't they, what -- whether there's been a violation of the international norm or not?
Paul L. Hoffman: Well, if -- if there are proceedings with respect to those norms or violations, yes, they do.
And then in domestic courts, there are international tribunals that have a limited jurisdiction, and they decide.
There are some ad hoc tribunals that decide other cases.
And the national -- national courts have always been engines of decision making on -- on international law.
In fact, that's the foundation of this -- of this statute comes from the founders' desire to have Federal courts decide what law of nations claims--
Justice Antonin Scalia: Sure, national courts have been the deciders when -- when the violation occurs within the nation.
But to give national courts elsewhere the power to determine whether a United States corporation in the United States has violated a norm of international law is something else, it seems to me.
Paul L. Hoffman: --Well, it's unlikely that -- that that would come up, because the suit could be brought in the United States.
It's also unlikely, because, based on most forum non conveniens doctrines, the suit would be heard here, because--
Justice Ruth Bader Ginsburg: --You didn't mention exhaustion of administrative remedies.
Paul L. Hoffman: --Well, there is the possibility of exhaustion of local remedies.
I know the European Union brief suggests that that's part of the international law package that one has to accept.
And this Court in Sosa did say that it would consider an exhaustion of local remedies doctrine if that was the case.
And, of course, exhaustion of local remedies would be an additional safeguard against the issue that Justice Kennedy and Justice--
Justice Samuel Alito: Suppose a case like this is brought in the United States and the State Department tells the district court that allowing this case to go forward will have a very deleterious effect on U.S. foreign policy and on the welfare of U.S. -- U.S. citizens abroad.
Paul L. Hoffman: --Well, I think there--
Justice Samuel Alito: The district court says:
"Well, there's nothing I can do about it. "
"This case is just going to go forward. "
That's your position?
Paul L. Hoffman: --Well, no, not at all.
I mean, I think--
Justice Samuel Alito: Well, what would happen in that situation?
Paul L. Hoffman: --Well, I think the political question doctrine would clearly apply, and -- and -- and a court would decide whether to go forward.
If the United States believed that the case should be dismissed, as I understand the U.S. position in past cases like Doe v. Exxon, is that there should be interlocutory appeal from -- from a denial of a political question doctrine decision to go forward in light of that.
Justice Samuel Alito: What if a district court won't certify a question for interlocutory appeal?
Paul L. Hoffman: Well, but I think what the U.S. position is, and I think -- I think it would -- I assume it would be accepted -- is that if the United States says going forward at all raises those questions, that it would be able to go up on a Cohen v.--
Justice Anthony Kennedy: Well, you know, Justice Alito can protect his own hypothetical, but it seems to me you're walking away from it.
The question as I understood it assumed that there is a violation of international law.
Paul L. Hoffman: --Right.
Justice Anthony Kennedy: But that proceeding with this particular case will, because of some other reasons--
Paul L. Hoffman: Right--
Justice Anthony Kennedy: --involve the United States or its citizens living abroad in serious complications with a foreign government.
That's not a political question.
Paul L. Hoffman: --Well, it could be.
Justice Anthony Kennedy: There's political consequences, but that's the whole point.
Paul L. Hoffman: Well--
Justice Anthony Kennedy: There's -- there's -- you can't cite a case -- but maybe you can, please do if you can -- that this is part of the political question doctrine.
Paul L. Hoffman: --Well, I think that in Corrie v. Caterpillar, for example, there were alleged human rights violations, and the United States said that because U.S. aid was involved in providing the bulldozers that were involved in that alleged human rights violation, that the court should dismiss on political question grounds, and the courts did dismiss on political question grounds.
Justice Stephen G. Breyer: Couldn't you just say if -- would we have the power to say, looking at Sosa and the principles that narrow considerably the subject matter of this statute, to add a requirement that if the State Department says that it interferes with foreign relations it doesn't fall within the statute, can't bring it?
Paul L. Hoffman: Well--
Justice Stephen G. Breyer: That would get rid of this problem, wouldn't it?
Paul L. Hoffman: --Well, that would get rid of the problem.
I think that in truth, the way the political question doctrine would work would probably end up being the same when it's that kind of rule.
Justice Stephen G. Breyer: It would be the same thing.
By the way, did we sign the torture treaty?
Paul L. Hoffman: Yes.
Justice Stephen G. Breyer: We've signed the torture treaty.
Paul L. Hoffman: --We've ratified--
Justice Stephen G. Breyer: The torture treaty does provide for -- for what is it called, universal jurisdiction?
Paul L. Hoffman: --Yes.
Justice Stephen G. Breyer: All right.
So, if in fact a corporation in the United States, in cahoots with the government or something, should do the unusual thing of violating the torture treaty, Tasmania or any country in the world that signed the torture treaty would have jurisdiction under that treaty to proceed, is that right?
Paul L. Hoffman: Right.
Justice Stephen G. Breyer: So the situation that we're talking about already is in existence.
Paul L. Hoffman: That's right.
I mean, there's nothing that the Court would do in this case that would change--
Justice Samuel Alito: Well, if it was the corporation, it wouldn't fall under the torture--
Justice Stephen G. Breyer: Well, that -- no, the torture treaty says nothing about corporations.
Paul L. Hoffman: --Right.
I mean, that's different from the ICC.
But the -- yes.
Justice Sonia Sotomayor: Counsel, there is the amicus brief from the European Commission.
Paul L. Hoffman: Yes.
Justice Sonia Sotomayor: And it provides for a very simple rule.
Please explain to me what's wrong with it?
It basically says you have to borrow both the substantive and procedural international law norms; that those norms do permit these foreign-cubed cases only so long as either, it appears to me, the defendant is a citizen of the country, the acts occurred within that country, or the alien has exhausted both domestic and international avenues for relief, a sort of forum by necessity, which apparently most countries have, including the ones who have submitted amici arguing--
Paul L. Hoffman: Right.
Justice Sonia Sotomayor: --different points, like England and The Netherlands.
Paul L. Hoffman: Right.
Justice Sonia Sotomayor: It seems to me like a fairly simple set of rules clearly defined and limiting the application of this statute in a way that sort of makes sense.
Paul L. Hoffman: Well, I think--
Justice Sonia Sotomayor: What's wrong with the rule?
Paul L. Hoffman: --I don't think there is a lot wrong with the rule, actually.
In a foreign cube kind of case, it seems to me the EU position is, number one, that there is universal jurisdiction no matter whether you consider the Federal Commonwealth cause of action prescriptive or not.
And so, the countries of the world have agreed that all states have an interest in enforcing these fundamental norms and that's part of international law.
And that -- that what goes with that are limits of exhaustion of remedies under international law, which safeguards the interests of third states before the United States can litigate it.
Justice Sonia Sotomayor: So answer me why is this not the case where on the facts there has been a failure to exhaust.
Paul L. Hoffman: Well, I think that we would -- we would -- there's no record, obviously, about that.
And one of the arguments we would make about exhaustion, I believe, is that it would have been futile to exhaust under international law -- under international law standards.
Justice Ruth Bader Ginsburg: Might be -- Nigeria is one question, but other potential forums are the U.K. and the Netherlands.
Paul L. Hoffman: Right.
And I think that we -- you know, we have -- if there was an exhaustion of local remedies requirement, then we would have to see if we could satisfy that.
Justice Ruth Bader Ginsburg: I think -- haven't both of those nations said they would not entertain this case?
Paul L. Hoffman: It's not clear.
I mean, in fact, the -- you know, there is a recent Dutch decision that goes perhaps farther than the Alien Tort Statute, the Al Brujaj case.
Justice Elena Kagan: But you would agree, Mr. Hoffman, that if there were an exhaustion requirement, it would not apply only to Nigeria, but also to the Netherlands and to the U.K.--
Paul L. Hoffman: Well, I mean, it depends on how the Court frames it.
I mean, there's the exhaustion requirement under the Torture Victim Protection Act, there are arguments about what that looks like under international law.
I mean, I think that -- to follow up on Justice Sotomayor's point, I think that if that's deemed by the Court to be a requirement of international law, then international law rules on exhaustion should apply, and we would either be able to satisfy them or not or take whatever position we would take with respect to that.
Justice Samuel Alito: --Well, the U.K. -- the U.K. and the Netherlands, I -- well, I'll ask you.
Do you disagree that those are fair judicial systems where a Plaintiff can get a fair shake?
Paul L. Hoffman: Yeah.
No, I don't think that anybody disputes that the legal systems in the Netherlands or the United Kingdom are fair.
I mean, they obviously are.
Justice Samuel Alito: Well, if that's so, then what does this case -- why does this case belong in the courts of the United States--
Paul L. Hoffman: Well--
Justice Samuel Alito: --when it has nothing to do with the United States other than the fact that a subsidiary of the defendant has a big operation here?
Paul L. Hoffman: --Well, it -- it -- from our standpoint it's here, the way I started the argument, really, which is that our clients are here, they're here.
Personal jurisdiction has not been contested and no one made a forum non conveniens motion in this particular case.
Now, there was a forum non conveniens motion in a companion case.
So -- but I think that that's a problem that goes more toward--
Justice Ruth Bader Ginsburg: And what happened to that?
Paul L. Hoffman: --It -- the Second Circuit overturned the district court on forum non conveniens.
Justice Ruth Bader Ginsburg: Overturned it which way?
Paul L. Hoffman: It said that the case -- that the Wiwa case could proceed and--
Justice Ruth Bader Ginsburg: So it rejected the forum non conveniens.
Paul L. Hoffman: --Rejected forum non conveniens in that case.
And I know that the United States brief believes that that was wrongly decided.
But from our standpoint, if we're talking about the way that the ATS should be structured, our belief is that forum non conveniens, generally speaking, is going to deal with the problem -- the problems that the Court has raised.
If -- if the Court believes that the Wiwa decision was wrong or that that doctrine's wrong, that doctrine should be changed.
Justice Ruth Bader Ginsburg: May I ask you a question about your reliance on the Alien Tort Statute, that if your theory is that this is a violation of a universal norm, and that Federal common law makes it a claim available in the United States, now there is 1331 general Federal question jurisdiction.
Couldn't you have said, never mind the Alien Tort Statute, I'm suing under 1331 Federal question jurisdiction, and I have got -- the claim for relief is the U.S. common law implementing the international law?
Paul L. Hoffman: Well, I think this Court in Sosa said that its analysis did not necessarily apply to 1331, and I think that's because of the history of 1350.
The history of 1350, as the historians' brief lays out, is that the Founders believed that certain law of nations norms could be implemented by common law tort actions.
And this Court in Sosa found that without further congressional action, the courts of the United States would be available to enforce norms that were similar to those norms.
And in fact, the norms that the Founders were familiar with were very similar in kind to the universal jurisdiction norms that Justice Sotomayor--
Justice Antonin Scalia: Yes, but general -- general common law was not considered to be Federal law, neither Federal law nor state law.
If that were so, every tort action, which in those days were decided under -- under a general law that was up there in the sky, would have been a Federal -- a Federal claim.
Paul L. Hoffman: --But there were -- there was certain -- there were certain norms that were believed to be part of the law of nations, including piracy and attacks on ambassadors, and they were governed by universal standards.
Justice Antonin Scalia: Common law.
It's general common law.
Paul L. Hoffman: Well, but I think this Court found in Sosa that that -- that that part of common law at the time has become customary international law, and that the courts of this country have not lost their ability to enforce the same kinds of law of nations norms as the Founders wanted to enforce in the Alien Tort Statute in the context of universal human rights norms.
Justice Antonin Scalia: Well, that isn't the issue.
The issue is whether when they do so they are enforcing Federal law or not.
Paul L. Hoffman: I think this Court said that the Federal common law within one of the exceptions to Erie -- I think this Court, right after Erie, found that there were enclaves of Federal law, one of them being the area of foreign relations, where Federal common law should be viewed as Federal--
Justice Anthony Kennedy: Well, that answer would apply if you were answering Justice Ginsburg's question in the affirmative by saying that there is 1331 jurisdiction, but you need not go so far, given Sosa.
Paul L. Hoffman: --We don't.
We don't, and I think the distinction is that in Sosa and in the Alien Tort Statute the statute itself speaks about torts.
This Court found, based on the history and intent of the Congress, that there was no reason to wait for any congressional authorization to go forward on those claims, and therefore it was available to bring claims.
Justice Ruth Bader Ginsburg: Well, maybe they had--
Paul L. Hoffman: --we're not taking the position that 1331--
Justice Ruth Bader Ginsburg: --maybe they had to provide that in 1789 because there was no -- there was no general Federal question jurisdiction existing at the time.
Paul L. Hoffman: --Well, it could be, but what seems more obvious about the reason for the Alien Tort Statute was to make sure that there was a Federal court available to litigate law of nations claims that could have been litigated in state court, just as these claims could be litigated in State court.
And in fact, one of the -- and, also, in answer to the Respondents' claims about extraterritoriality, if one imagines -- under the Respondents' theory, you could -- a French ambassador could be attacked by a Frenchman in Pennsylvania and have Alien Tort Statute jurisdiction and a claim for relief.
If a U.S. citizen attacked the French ambassador on foreign soil, he wouldn't have an Alien Tort Statute claim; he would be sent to the state courts if he could -- the state courts were open, which is exactly the opposite of the purpose of the Alien Tort Statute, the fundamental known purpose of the Alien Tort Statute.
Justice Ruth Bader Ginsburg: You point out, I think, an anomaly.
If the victim is a United States citizen -- you say the only ties here are that the victims got asylum in the United States, so they are here.
But someone who is here all the time, someone who is a citizen of the United States, but is abroad and is a victim of one of these atrocities, there would be no suit for such a person.
Paul L. Hoffman: Well, Congress provided for some jurisdiction in the Torture Victim Protection Act.
Justice Ruth Bader Ginsburg: Yes, but under the Alien Tort Statute.
Paul L. Hoffman: Well, the Alien Tort Statute is limited to alien plaintiffs.
I mean, and that was the congressional design, and it was -- that arises out of the history, to make sure that aliens with law of nations claims had access to Federal courts and Federal remedies to vindicate those positions.
The United States could still take action to protect the U.S. citizen.
Can I reserve the balance of my time then?
Chief Justice John G. Roberts: You can.
ORAL ARGUMENT OF KATHLEEN M. SULLIVAN ON BEHALF OF THE RESPONDENTS
Kathleen M. Sullivan: Mr. Chief Justice and may it please the Court:
This case has nothing to do with the United States.
It's Nigerian plaintiffs suing an English and Dutch company for activity alleged to have aided and abetted the Nigerian government for conduct taking place entirely within Nigeria.
And, Justice Ginsburg, to the personal jurisdiction question, Shell did not waive personal jurisdiction objections to the suit.
The court in the companion Wiwa case determined -- rejected the personal jurisdiction affirmative defense, and the Second Circuit affirmed.
So if you look at Joint Appendix pages 111 to 112, you'll see that we absolutely preserved the personal jurisdiction defense.
Missing from the discussion you've just had with Mr. Hoffman about possible ways to minimize the dangers of applying the ATS in foreign countries is any mention of Congress.
And I'd like to return us to the question presented on this round of the argument, which is: Should the ATS and, Justice Ginsburg, Federal common law be applied to conduct taking place entirely within the borders of a foreign country?
And our answer is it should not, under the--
Justice Ruth Bader Ginsburg: Does that mean, Ms. Sullivan, that you -- and do I understand your argument on brief correctly, that you would say from -- the revival of 1350 from Filartiga was wrong because nothing happened -- nothing happened in the United States there?
Marcos was wrong because nothing -- the wrong occurred abroad?
Does your -- the argument you're making now that this is not applicable to things that happened offshore exclude Filartiga and Marcos?
Kathleen M. Sullivan: --We do not believe that you need to address Filartiga because Filartiga is taken care of entirely by the proper body, which is Congress.
Congress, in enacting the TVPA, the Torture Victim Protection Act, covered a situation like Filartiga, where a Paraguayan plaintiff sues a Paraguayan individual defendant for conduct in Paraguay.
Justice Ruth Bader Ginsburg: But then you're at least saying--
Justice Anthony Kennedy: Well, maybe it's just history and background, but I would really like you to answer Justice Ginsburg's question.
Suppose we had granted cert in Filartiga before Congress acted?
What -- under your position, what should have been the result?
I think that was the purport of her question, and I would appreciate an answer to it.
Kathleen M. Sullivan: Yes, Justice Kennedy.
We think the current correct result is that the ATS and Federal common law, which is substantive and remedial law of the United States -- and here, we agree with the United States on page 2 of its brief -- ATS plus Federal common law is the substantive and remedial law of the United States.
And we think, under the well-established canon against extraterritorial application of U.S. law, absent congressional clear indication, there should not be such an extension.
Justice Antonin Scalia: Ms. Sullivan, can I ask you about your position on extraterritorial application.
I believe strongly in the presumption against extraterritorial application, but do you know of any other area where extraterritorial application only means application on the territory of a foreign country and not application on the high seas?
Kathleen M. Sullivan: --Well--
Justice Antonin Scalia: I find that -- you know, extraterritorial means extraterritorial, but -- but you contend that this -- as I think you must -- that this statute applies on the high seas.
Kathleen M. Sullivan: --We -- we don't concede that the statute applies on the high seas.
Justice Antonin Scalia: Oh, you don't?
I thought that was common ground.
I'm glad to know it isn't.
Kathleen M. Sullivan: Sosa said, looking to the three Blackstone paradigms, assault on ambassadors, interference with safe conduct, and piracy, that certainly the antecedents to the ATS, the Morbois incident of an attack in Philadelphia, and the New York constable entering the home in New York City of the Dutch ambassador, those were incidents on U.S. soil.
And Sosa says perhaps also the third paradigm, piracy, might also be covered.
Chief Justice John G. Roberts: Well, I thought that was the most clear violation of an international norm.
The one thing that the civilized countries would agree on is that you--
Kathleen M. Sullivan: At the time.
Chief Justice John G. Roberts: --capture pirates.
Kathleen M. Sullivan: Our clear -- our position on piracy is this.
Even if you think the ATS and Federal common law can extend to conduct on the high seas, which are stateless, a place where no foreign sovereign rules, that does not mean that the ATS and Federal common law can apply to conduct within a foreign sovereign's borders--
Justice Stephen G. Breyer: Well, it doesn't mean that.
It doesn't mean that, but if the -- what is the question we're asking.
If, when the statute was passed, it applied to pirates, the question to me is who are today's pirates.
And if Hitler isn't a pirate, who is?
And if, in fact, an equivalent torturer or dictator who wants to destroy an entire race in his own country is not the equivalent of today's pirate, who is?
And we have treaties that say there is universal jurisdiction.
Other countries take it.
Kathleen M. Sullivan: --Justice Breyer--
Justice Stephen G. Breyer: We took it in Filartiga.
We took it in the cases that Justice Ginsburg mentioned.
So I absolutely grant you could make the distinction, but, given the purpose and an objective of the statute, why should we make it?
Kathleen M. Sullivan: --Justice Breyer, with respect, the United States has not acceded to the principle of universal civil jurisdiction.
And with respect--
Justice Stephen G. Breyer: Well, we did explicitly in the torture treaty in respect to that particular incident.
Kathleen M. Sullivan: --Justice Breyer, in our brief at 48, note 11, you'll see that that's not quite the case.
I'm sorry -- I'm sorry.
We object -- the United States objected to the universal civil jurisdiction aspect of the convention against torture.
We have never acceded to that.
And the reason is that we fear exactly the consequences Justice Kennedy began the argument with.
We fear that if we say that a United States court can be open to try any accused law of nations violator anywhere in the world regardless of the place of the conduct, the other nations of the world might seek to do the same to us.
Justice Stephen G. Breyer: They do that, don't they, with torture?
I mean, isn't that -- it's criminal, not civil, quite right.
Does that make it better?
Kathleen M. Sullivan: Criminal is very different from civil.
And what we -- the precise argument we are making here is that the presumption against application of U.S. law to conduct within foreign sovereigns -- and remember, the purpose of the presumption, Justice Scalia, is to avoid conflict with foreign sovereigns.
There is no foreign sovereign over the high seas.
The conflict arises, and the presumption protects against this conflict, when we go into a foreign nation, we project our law.
Justice Antonin Scalia: I understand that.
That's the worst.
But I really don't -- you appeal to the general principle of territoriality of our laws.
And, as I say, I don't know any other case where that principle allows our securities laws to be applied on the high seas, for example--
Kathleen M. Sullivan: Well--
Justice Antonin Scalia: --even though they can apply in Australia.
Kathleen M. Sullivan: --Your Honor, if you wish to say no extraterritorial application, we think Sosa does not foreclose that, because Sosa simply said piracy might be one of the actions covered.
But I want to get back to the key point, which is--
Justice Samuel Alito: Can I ask this about piracy?
In 1789, do you think that Congress was contemplating tort actions against pirates in courts of the United States?
Kathleen M. Sullivan: --No, we do not, Your Honor, because we many think that in rem actions were the typical things contemplated.
And as soon as United States v. Palmer comes along, this Court applied the presumption against extraterritorial application of U.S. law to -- the application of the then-extant piracy statute to a foreign-flagged vessel on the high seas.
The thought was, don't apply it to the foreign-flagged vessel because that's like a mini-foreign country on the high seas.
So we would argue that the presumption against extraterritoriality actually applied in the founding era even to piracy.
But even if you were to say, well, piracy is covered now, it doesn't follow that the norms that are invoked here under the law of nations can be subject to a U.S. civil cause of action.
And I want to stress that our point is that the U.S. is projecting here -- and I don't believe through the statute, the ATS, but through the causes of action under Federal common law -- our law onto foreign countries.
Justice Elena Kagan: Well, Ms. Sullivan, your argument is very broad, and I want to ask you a question.
Your case might properly be dismissed.
But take a different case, and it's a -- just a variation on the Marbois incident, where instead of being attacked in Philadelphia, the French ambassador to Britain is attacked in London, but is attacked by a United States citizen, who then comes home to the United States, seeks refuge in the United States.
And the French ambassador -- the French ambassador wants to bring an action.
Wouldn't the ATS have contemplated exactly that sort of action?
I mean, why would it make any difference whether the attack on the French ambassador by a United States citizen occurred in Philadelphia or occurred in London?
Kathleen M. Sullivan: The difference it makes is that in your hypothetical, the reverse Marbois case, the proper remedy would have been to seek -- for France to seek extradition of the U.S. assailant and--
Justice Elena Kagan: Well, I think I'm advised by the Solicitor General's office that there were very few extradition treaties at that time.
And even if extradition was a possible remedy, I mean why shouldn't we understand the ATS to provide supplemental remedies as well, civil as well as criminal, civil as well as extradition?
Kathleen M. Sullivan: --Because Congress hasn't clearly said so.
And the point of the presumption is to avoid all of the judge-made possible qualifications that were discussed earlier: Exhaustion, political question, the possible limitations suggested by the European Union.
Congress doesn't get to say anything if it's the courts deciding, through their own prudence, together with the advice from the Department of State.
And, Justice Alito, in answer to your question whether--
Justice Antonin Scalia: Excuse me.
Do you mean that the courts -- in those areas where you acknowledge the statute applies, that the courts will not apply doctrines of exhaustion, of, you know, comity, of the appropriateness of bringing the action here?
Of course they will, won't they.
Kathleen M. Sullivan: --They're not always applied, Justice Scalia.
And if so, it sometimes takes many years before they happen.
And the State Department is not always listened to.
In the South African apartheid case, not only did the State Department seek to protest the action, but the government of South Africa filed a letter, and the district court ignored both.
Justice Elena Kagan: Well, we should fix that then.
But that's not the question here, right?
The question here is -- is the different one of whether you ever get to the exhaustion question.
Kathleen M. Sullivan: Correct.
Justice Elena Kagan: And if you go back to the reverse Marbois, you said Congress didn't speak, but I think what we said in Sosa is that Congress did speak, that Congress was referring to exactly that kind of tort when it passed the Alien Tort Statute.
And you are saying it would have made a difference to Congress that the incident occurred in a different place even though the attacker was a United States citizen seeking refuge in the United States and leaving the French with no remedy.
Kathleen M. Sullivan: With respect, Your Honor, the French had several remedies.
The French victim could have sued in tort in the United States.
And under the transitory tort doctrine that was adopted at the time, which is not a precedent for the ATS, would have allowed a suit under French law.
French law would have been imported to try that claim.
So it could have been tried in State court as an assault.
Second, there could have been extradition.
Third, the point of the Marbois in stimulating the ATS was that if a U.S. citizen attacks the French ambassador on U.S. soil, and we then harbored him, that could have led to an incident of war.
But there is no incident of war or conflict posed in your hypothetical because extradition was possible, and State court tort violations -- State law tort -- State court jurisdiction over a transitory tort should have obtained.
Justice Sonia Sotomayor: Do you think it matters that the harboring is after the fact or not?
Meaning if the mercenary fled France and was hiding from the French here, why is there any less chance of a war?
Kathleen M. Sullivan: Well--
Justice Sonia Sotomayor: I don't understand.
The apples and apples don't -- seem to not match in my mind.
Kathleen M. Sullivan: --Justice Sotomayor, I -- there is theoretically the possibility that if State law transitory tort didn't work, and if extradition didn't work, and if the French didn't just seek to punish the assailant in their own country, maybe there would have been international conflict, but there is no evidence Congress was thinking about that at the time.
Justice Sonia Sotomayor: Pirates could have been sued in State court, too, and yet the ATS -- I know that you quarrel about whether an act of piracy qualifies as an international norm, but assuming that I accept it is, pirates could have been -- under your theory, pirates could have been sued in State court, too, yet Congress found it important to pass the ATS.
Kathleen M. Sullivan: It did.
But, Your Honor, there is not a single founding era precedent, not a single one, that involves the reverse hypothetical.
Every single founding era precedent that simulated the ATS or came soon in its aftermath involved international law violations alleged to have occurred on U.S. soil or in U.S. waters.
The two cases most soon after the ATS were Moxon v. The Fanny and Bolchos v. Darrell, which involved supposed law of nations violations on U.S. waters and on U.S. soil.
Justice Samuel Alito: What should happen when the injury occurs within the territory of a foreign country, but it is alleged that the injury was directed by someone in the United States?
Kathleen M. Sullivan: Justice Alito, we would respectfully urge that direction is -- is not enough.
If the place of the injury and the place of the last conduct was on foreign soil.
We think ordinary restatement of conflict principles would suggest that you look to the law of the place of injury, not to the forum law.
And the most important point about the ATS and Federal common law, even if it were under section 1331, Justice Ginsburg, is that it's an application of U.S. substantive and remedial law to another country.
And the offense is we're telling the other country that they have to entertain private civil litigation.
And there is a difference, Justice Breyer, between criminal and civil--
Justice Stephen G. Breyer: Okay.
You're right about that.
What about the Bradford?
Isn't there -- all this stuff about -- you know what I'm talking about.
Kathleen M. Sullivan: --Bradford is the best thing the Petitioners have in the founding era, and it's not enough to overcome the presumption--
Justice Stephen G. Breyer: Because?
Kathleen M. Sullivan: --because he could have been speaking about the high seas.
Justice Stephen G. Breyer: He could have, but if you read it, it looks as if there was -- what he's upset about -- or what Britain was upset about was an American.
Kathleen M. Sullivan: And he--
Justice Stephen G. Breyer: Yes.
Kathleen M. Sullivan: --It was Americans, but we -- we think, if properly read, the hostilities of which he spoke was the high seas part of the conduct.
It was an American who piloted the French fleet 60 miles from the Iles de Los to the Sierra Leone River.
And that was -- if you read grammatically, we think that is what Attorney General Bradford was referring to.
Justice Elena Kagan: But--
Justice Ruth Bader Ginsburg: --Ms. Sullivan, before your time runs out, I mean, you have said, candidly, that if Filartiga were to come up today, if Marcos were to come up to this forum, there would be no basis under the Alien Tort Statute.
But assume for the moment that those two cases -- that we accept them -- Sosa seemed to accept them.
Is there anything different about your case?
Kathleen M. Sullivan: Yes, Your Honor.
There are many -- many differences between us and Filartiga.
For one, this is a case in which there is a class action against a corporation.
And if you don't agree with us on the lack of extraterritorial application, we still maintain that the ATS does not apply to corporations.
Second, there is -- there was a -- there's an allegation here of aiding and abetting a foreign government.
It was unclear in Filartiga whether the Paraguayan was acting within or without the state's authority, but -- and he was later deported, so we don't know the answer.
But here the offense is magnified because the allegation is that an English and a Dutch company aided and abetted the Nigerian government.
That is where the offense to the principle against international friction is at its highest.
And so if you weren't to adopt our position in full, at a minimum we think you should hold that the presumption applies to foreign cubed cases involving aiding and abetting a foreign government, where everything is foreign.
But we don't think you should do that in the first instance.
We respectfully submit the better approach is to apply the presumption as a categorical matter.
Justice Anthony Kennedy: But in Filartiga, why wasn't there an aiding and abetting?
I think it was pretty clear.
He probably was working for the government, which is even worse.
Kathleen M. Sullivan: Well--
Justice Anthony Kennedy: But -- and I am interested in Justice Ginsburg's question.
Kathleen M. Sullivan: --Yes.
Justice Anthony Kennedy: Just assume we think the Second Circuit was right, pre-congressional action under the Alien Tort Statute.
Is there any way in which we can use the principle of extraterritoriality to rule in your favor?
Kathleen M. Sullivan: We think there is, Justice Kennedy.
And we think the principle of extraterritoriality is -- is essentially a democracy-forcing device to send these questions back to Congress.
And if we send it back to Congress--
Chief Justice John G. Roberts: Well, have we crossed that -- we've crossed that bridge already, didn't we, in Sosa?
Kathleen M. Sullivan: --You have--
Chief Justice John G. Roberts: The presumption applies to interpreting acts of Congress.
We are over that.
We're -- we're making this law up ourselves, right?
Kathleen M. Sullivan: --Chief -- Mr. Chief Justice, you are making it up themselves, and that's why there's all the more reason to apply the presumption against application to foreign countries.
It's far worse to have judges--
Justice Sonia Sotomayor: But you're asking us to overturn our precedents.
Kathleen M. Sullivan: --We--
Justice Sonia Sotomayor: You're -- you're basically saying Filartiga and Marcos, Sosa, they were all wrong.
Kathleen M. Sullivan: --We are not, Your Honor.
Sosa did not address the question we have before the Court today.
Justice Sonia Sotomayor: Counsel, how can you say that?
Maybe the facts didn't, but certainly the reasoning of the case addressed that issue very directly and -- and basically said it does.
And then it talked about how you limit it.
That's what Sosa did.
Kathleen M. Sullivan: To answer the Chief Justice's question, you don't need to overrule, so to speak, Filartiga on Justice Kennedy's question.
You can simply say that in the intervening period, Congress did, as is appropriate in the area of applying law to foreign conduct, pass a specific statute, the TVPA, that applies exactly to the conduct in Filartiga.
That should inform your decision today, that you don't need judge-made law to address the situation in Filartiga.
And you don't need to overrule Sosa, with respect, Justice Sotomayor, because Sosa did not address, for better or for worse, the extraterritoriality argument we make today.
It went off at the first step.
No international norms, specifically universal and specific -- sufficiently specific and universal.
So it didn't get to the concerns about friction with foreign countries.
Justice Elena Kagan: --But, Ms. Sullivan, I'm going to read you something from Sosa, which -- it talks all about the rule that it adopts and then it says:
"This is generally consistent with the reasoning of many of the courts and judges who faced the issue before it reached this Court. "
"See Filartiga. "
And then it quotes Filartiga:
"For purposes of civil liability, the torturer has become like the pirate and slave trader before him, an enemy of all mankind. "
So we gave a stamp of approval to Filartiga and Filartiga's understanding that there were certain categories of offenders who were today's pirates.
Kathleen M. Sullivan: If -- the fact that the nations of the world agree on norms does not mean the nations of the world agree on remedies.
And what the ATS and Federal common law, as interpreted in Sosa, do is project a U.S. civil cause of action with U.S. rules, punitive damages, no attorney fee shifting, contingent fee and punitive damages.
That should not be done except by Congress.
They did it in the TVPA, but you should not permit it to be done here.
Chief Justice John G. Roberts: Thank you, Ms. Sullivan.
ORAL ARGUMENT BY GEN. DONALD B. VERRILLI, JR., FOR THE UNITED STATES AS AMICUS CURIAE, SUPPORTING THE RESPONDENTS
Donald B. Verrilli Jr: Mr. Chief Justice, and may it please the Court:
The Alien Tort Statute should not afford a cause of action to address the extraterritorial conduct of a foreign corporation when the allegation is that the defendant aided and abetted a foreign sovereign.
In this category of cases, there just isn't any meaningful connection to the United States.
Justice Sonia Sotomayor: Is that the same -- is that your simple rule?
Is that how you want us to rule--
Donald B. Verrilli Jr: Yes.
Justice Sonia Sotomayor: --that there could never be aiding and abetting on behalf of a corporation?
Is that your simple answer to this case, or what's the general--
Donald B. Verrilli Jr: It's -- it's a narrower statement than that, Justice Sotomayor.
It's that there shouldn't be a cause of action to address the extraterritorial conduct of a foreign corporation that is alleged to have aided and abetted the acts of a foreign sovereign.
Justice Ruth Bader Ginsburg: What about in your -- you do say in your brief that you think that Filartiga is within the Alien Tort Statute.
Donald B. Verrilli Jr: Yes, we do, Justice Ginsburg.
Justice Ruth Bader Ginsburg: You don't -- don't adopt a theory that many of the -- the briefs do, that there has to be some connection, some nexus to the United States.
You just tell us that Filartiga is okay.
And how about Marcos, is that okay?
Donald B. Verrilli Jr: Well, we think in Filartiga, Justice Ginsburg, that the -- the -- that there is a nexus to the United States.
The actual perpetrator was -- A, it was a case against the actual perpetrator.
Justice Ruth Bader Ginsburg: Yes, but you -- you don't--
Donald B. Verrilli Jr: And B--
Justice Ruth Bader Ginsburg: --you don't offer us a nexus.
You don't offer us that reason why Filartiga was okay.
Donald B. Verrilli Jr: --Yes, I think our reasons for why Filartiga was okay is that -- that it was the actual perpetrator, not an aider and abettor, and the actual perpetrator was resident in the United States.
And I do think when Congress enacted the TVPA, that is what Congress looked to as the salient features of the Filartiga situation that justified--
Justice Ruth Bader Ginsburg: What else?
You -- you say Filartiga.
You don't mention Marcos.
Is Marcos in your view a proper exercise?
Donald B. Verrilli Jr: --I -- I think Filartiga is the paradigm, and cases like Filartiga are the paradigm that -- where we think ATS -- ATS causes of action should be recognized.
Justice Antonin Scalia: General Verrilli, the -- that's -- that is a new position for the -- for the State Department, isn't it?
Donald B. Verrilli Jr: It's a new--
Justice Antonin Scalia: And for -- and for the United States Government?
Why should -- why should we listen to you rather than the solicitors general who took the opposite position and the position taken by Respondents here in other cases, not only in several courts of appeals, but even up here.
Donald B. Verrilli Jr: --Well, Justice Scalia, in a case like this one, in cases under the Alien Tort Statute, the United States has multiple interests.
We certainly have foreign relations interests in avoiding friction with foreign governments; we have interests in avoiding subjecting United States companies to liability abroad.
We also have interests in ensuring that our Nation's foreign relations commitments to the rule of law and human rights are not eroded.
Justice Antonin Scalia: I understand that, but--
Donald B. Verrilli Jr: It's my responsibility to balance those sometimes competing interests and make a judgment about what the position of the United States should be, consistent with existing law.
Justice Antonin Scalia: --It -- it was--
Donald B. Verrilli Jr: And we have done so.
Justice Antonin Scalia: --it was the responsibility of your predecessors as well, and they took a different position.
So, you know, why -- why should we defer to the views of -- of the current administration?
Donald B. Verrilli Jr: Well, because we think they are persuasive, Your Honor.
Justice Antonin Scalia: Oh, okay.
Chief Justice John G. Roberts: Your successors may adopt a different view.
And I think -- I don't want to put words in his mouth, but Justice Scalia's point means whatever deference you are entitled to is compromised by the fact that your predecessors took a different position.
Donald B. Verrilli Jr: So, Mr. Chief Justice, let me be clear: In this case our position is that the Court ought not recognize a cause of action.
Justice Samuel Alito: Suppose that the defendant in this case were a U.S. corporation, but the case were otherwise identical.
What result then?
Donald B. Verrilli Jr: In that case the possible risk of foreign relations friction would be comparable.
The risk of reciprocal exposure to American companies would also exist.
The difference between that case and this case, Your Honor, is that there'd be a much more substantial connection to the United States because it's an American company.
The question in the case would be whether the -- that substantial connection provided sufficient justification for subjecting the United States company to these international law norms to avoid undermining the credibility of our Nation's commitment to those norms.
We haven't taken a position on that question in this case because we think that the Court ought to proceed incrementally here.
The case before the Court involves a foreign corporation in which there just isn't any connection to the United States at all, and it's our judgment that the Court should decide that case--
Justice Sonia Sotomayor: --You are disavowing any forum of necessity view of the ATS?
You are disavowing what other countries do or say with respect to citizens -- to aliens who are attacked?
Donald B. Verrilli Jr: --Our view about that, Justice Sotomayor, is that the key determinant here, and the reason why there ought not be a cause of action here, is the absence of any meaningful connection to the United States.
And the question is--
Justice Sonia Sotomayor: I asked you a question directly.
Are you foregoing -- are you foregoing any forum necessity exception to the rule you've just announced?
Donald B. Verrilli Jr: --We don't think that the question of the availability of a forum or nonavailability of a forum is sufficient to override the absence of any connection to the United States.
Now, I will say--
Justice Samuel Alito: If I could follow up on the question I asked before.
I'm not asking you to say definitively which way you would come out in this hypothetical case, but from your brief I really don't understand how you would decide.
Would it depend -- what would it depend on?
Donald B. Verrilli Jr: --Well, I think it would depend on a weighing of the strength of the interests of the United States, the foreign relations interests of the United States, in applying this narrow category of Sosa norms in order to avoid undermining the credibility--
Justice Samuel Alito: Suppose everything is the same except for--
Justice Antonin Scalia: But we don't -- we are not very good at figuring out the foreign policy interests of the United States.
And, you know, in the past we have tried to get out from under our prior case law in the sovereign immunity area of asking the State Department.
And the State Department would come in here: This is good; this is bad.
We abandoned all that in the sovereign immunity field.
Why should we walk back into it here?
Or do you intend to have us make these foreign policy decisions?
Donald B. Verrilli Jr: --Congress can always act in this area, Justice Scalia.
Justice Antonin Scalia: No, but assuming Congress doesn't act.
Why should -- you know, you want us to listen to the State Department case by case.
Donald B. Verrilli Jr: Well, actually what we are advocating here, Your Honor, is that the Court can make categorical judgments, not pure case by case factual judgments.
We just think there is more than one category.
There are salient differences between a situation like this one, in which there is no connection to the United States at all, or the situation like the one Justice Alito raised about an American corporation.
And there are also cases in which the suit is against a direct perpetrator.
Justice Antonin Scalia: --But we listen to the State Department as to what those categories ought to be.
Donald B. Verrilli Jr: Well, I think the categories are evident from the kinds of cases that have been brought.
But certainly, the views of the State Department do deserve deference.
Justice Sonia Sotomayor: Are you talking about a nexus test?
That's what it sounds like to me.
Has to have either an actor nexus or a act nexus, effect nexus?
What are you talking?
Donald B. Verrilli Jr: I think what we're -- we're not -- we're talking about something different, Justice Sotomayor.
The question is whether to recognize a Federal common law cause of action.
I think that depends on--
Justice Sonia Sotomayor: Either it exists or it doesn't.
Donald B. Verrilli Jr: --It depends on a weighing of interests, I believe, Your Honor, and that there are interests that cut against recognizing causes of acts in this area, and that's what Sosa said.
Justice Sonia Sotomayor: I'm having trouble with this.
Without question, piracy, attacks on ambassadors, we know that those were international norms in 1789.
If one of those acts happened, you seem to be suggesting that, answering Justice Kagan's hypothetical, that if a Frenchman attacks an English ambassador in Switzerland, that case would never be heard in the United States because there is no nexus to the United States; is that correct?
Donald B. Verrilli Jr: Well, if no one ever came to the United States.
Justice Sonia Sotomayor: Well, assuming someone came.
So how is that different from here.
Donald B. Verrilli Jr: No.
It's just -- it's not -- the connection is not an on/off switch.
But our position is you need a connection in order to assess whether there is even an interest in having cause of action--
Justice Sonia Sotomayor: So why isn't presence alone in the United States a connection?
Donald B. Verrilli Jr: --Well, if it's an individual perpetrator like Filartiga we think that it is because it's the direct perpetrator.
Justice Stephen G. Breyer: If in fact in Filartiga it was done through a corporation -- the torture -- now?
Donald B. Verrilli Jr: If the -- if the -- it was -- I think torture has to be--
Justice Stephen G. Breyer: Torture is done by hiring Torture, Inc. Okay?
Is there or isn't there?
Donald B. Verrilli Jr: --If it's a norm that has to be violated by--
Justice Stephen G. Breyer: You heard the question.
I need an answer to that specific -- that specific hypothetical.
Everything is the same except the torture is carried out by Torture Inc. Because my actual question is about aiding and abetting.
I mean, the first part is they do it directly.
Can they bring Filartiga or not -- in your view?
Donald B. Verrilli Jr: --If they do it directly.
If they are the direct violator of a norm that they can violate directly, then yes they can.
Justice Stephen G. Breyer: Okay.
But if it's aiding and abetting?
Donald B. Verrilli Jr: Then if it's a foreign corporation and it occurred entirely in a foreign country.
Justice Stephen G. Breyer: Yes.
So it turns on that.
And what I really want to know is what is the difference between that?
Is it like the criminal law difference of accessory versus principle or what?
Donald B. Verrilli Jr: May I answer, Mr. Chief Justice?
Chief Justice John G. Roberts: Briefly, yes.
Donald B. Verrilli Jr: The difference is that while you would have a comparable -- you would have a risk of friction in subjecting a foreign sovereign's acts to scrutiny in the United States, you have the reciprocity risk I mentioned.
You would have to make a judgment about whether those concerns are overcome by the countervailing concern of applying the -- finding the ATS cause of action to apply U.S. norms.
If it's an entirely foreign corporation with no connection to the United States, our position is the answer to that is no.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Hoffman you have eight minutes remaining.
REBUTTAL ARGUMENT OF PAUL L. HOFFMAN ON BEHALF OF THE PETITIONERS
Paul L. Hoffman: Thank you, Mr. Chief Justice.
I would like to make three points.
First, on the Bradford opinion.
I think if you read the diplomatic materials that we placed before the Court, it's absolutely clear that what the British were concerned about was pillaging and plundering on land in the Sierra Leone colony.
They were seeking redress for those things, for destroying libraries, for destroying Freetown, not just about things that happened on the high seas and not just about things that happened in territorial waters.
It's absolutely clear that that's true, but obviously you have those materials and you can read it.
And Attorney General Bradford said there was no doubt that there was an ATS action.
Justice Ruth Bader Ginsburg: There was also a U.S. perpetrator.
Paul L. Hoffman: Well, that's true, but with respect to the presumption against extraterritoriality, it wouldn't matter if it is a U.S. perpetrator or not.
And it shows exactly why the presumption can apply because it would undermine the very purposes of the statute in the best available evidence that we have about what it meant in the era.
I would like to give a hypothetical that I think reveals why the U.S. Government position should not be accepted.
Suppose there is an Iranian corporation that secretly supplies poison gas to the current Syrian regime in order to kill tens of thousands of Kurdish citizens.
And suppose after the Asad regime is overthrown, those -- the documents revealing that poison gas transfer to the Syrian regime was made public and that Iranian corporation does business in the United States, asylum seekers who were driven out by the poison gas attacks are in the United States, maybe living in the same communities as the plaintiffs in our case, having gotten asylum in this case.
Would it be the case that the Alien Tort Statute should not apply to a claim of aiding and abetting the Asad regime and murdering tens of thousands of its people?
It is the modern day example of I.G. Farben.
Is it the case that a modern day I.G. Farben would be exempt from the Alien Tort Statute?
There is a clear, well-established doctrine of aiding and abetting in international law.
It has been accepted by the lower courts.
The lower courts have uniformly rejected the arguments that have been made by Respondents in this case.
And I would say that the Sosa framework is -- should be given a chance to work.
This Court dealt with these issues eight years ago.
It set up a historical paradigm test based on many of the concerns that have been expressed here, and there are alternative doctrines that can be applied to deal with these concerns.
Political question, active state, international comity, forum non conveniens, personal jurisdiction, those have not really been litigated.
Whether they have been waived or not is something that the lower courts can deal with.
Whether they apply the lower court--
Justice Ruth Bader Ginsburg: Given the court's recent decisions on personal jurisdiction, and I have in mind particularly the Goodyear Tire case, is there personal jurisdiction in this case or in the case of your hypothetical?
Paul L. Hoffman: --One of the problems that we would have, Justice Ginsburg, in answering that question is that there is no record about the contacts between these defendants and -- and the jurisdiction in 2002.
The Wiwa case for example where it was litigated was dealt on a factual record that went back to 1996 and 1997.
So there is no record here about personal jurisdiction because it hasn't been asserted.
Now if the defendants have not in fact waived personal jurisdiction, then presumably the lower courts would apply the tests that this Court has established or in the 2011 decisions.
And the same would be true of forum non conveniens or any of the other defenses.
They have raised other defenses in this case that have not been fully litigated.
So my basic position is that the Sosa framework actually is -- works.
It has actually weeded out cases.
These alternative doctrines have weeded out cases, but the court should not accept the categorical positions asserted by either of the Respondents, which are the broadest categorical positions even rejected by the government, or the government's modified categorical position.
Those kinds of issues can be dealt with within well-established doctrines where lower courts have a body of jurisprudence that they can use to do this.
The Alien Tort Statute as was applied to human rights cases from Filartiga on is part of a trend in the world today.
The trend in the world today is towards universal justice for people that -- and corporations that violate these kinds of norms.
That's the trend.
In fact, the United States has been the leader in that.
Our government has proclaimed our leadership position to U.N. bodies and around the world.
Chief Justice John G. Roberts: Well, the United Kingdom and Netherlands don't think so.
Paul L. Hoffman: Well, the United Kingdom and Netherlands have obviously asserted this position.
But the Netherlands have asserted that position while at the same time 21 days after the argument in February a Dutch court gave damages to a Palestinian doctor for wrongful imprisonment and torture that occurred in Libya against two Libyan defendants that were not even present in the courtroom.
Justice Antonin Scalia: It may have been wrong.
Paul L. Hoffman: Well, it may have been but actually it seems perfectly consistent with Dutch law, it is consistent with the exercise of universal jurisdiction in many pieces of legislation--
Justice Antonin Scalia: I would rather listen to the Dutch government than one, one Dutch judge, frankly.
Paul L. Hoffman: --Well, the Dutch government, though, and one of the significant pieces in this case is that the Nigerian government doesn't have a position on this case any longer.
The United States government has never asked for this case to be dismissed on foreign policy grounds.
The United Kingdom and Dutch government have never asked for this case to be invalidated on foreign policy grounds.
They have stated their position about what they think the Alien Tort Statute should mean.
And if you look at the European Union brief, of which the United Kingdom and Dutch are members, the European Union says there is no issue about universal jurisdiction, there is no issue about civil jurisdiction that falls within universal jurisdiction.
Their only argument is that if you accept that you should accept international opposition and exhaustion of local remedies.
Justice Elena Kagan: And isn't that really the way to reconcile the Dutch positions?
The Dutch are objecting because they think they have a fair forum, but when the judges were faced with a case arising from Libya, they thought that there was no fair forum there.
And that's the difference, that in one case there was exhaustion and in the other there wasn't.
Paul L. Hoffman: I think that that's probably what the basis of the Dutch position.
Our position, though, is that this -- the framework that this court established in Sosa to take the pirates of the 18th century and deal with the Alien Tort Statute with the torturers and those who commit genocide in the 21st Century was correct, and that doesn't need a radical re-evaluation as suggested by the Respondents and the United States.
If there are no further questions, I'd--
Chief Justice John G. Roberts: Thank you, Counsel.
The case is submitted.