[liberationtech] Kiobel Ruling on Alien Tort Statute and Censorship Tech

[Peter Micek]

Hey Collin,

It looks like the Supreme Court set a very high bar to overcoming the
presumption of territoriality in ATS cases.

That US laws should apply only to traditional spaces of US jurisdiction is
presumed unless congress specifically says otherwise. Since the Filartiga v
Peña case in 1989, the US has experimented with applying the ATS (passed as
part of the *1789* Judiciary Act), to torts committed elsewhere.

The ATS and other domestic attempts at asserting universal jurisdiction,
like Spain has experimented with, highlight the need for some adjudication
where in cases none is likely, or feasible. Spain, for example, recently
used it to target Pinochet and those responsible for El Salvador's
massacres in the 1980s.

Courts asserting universal jurisdiction claim the right to judge crimes
regardless of where they were committed. See
http://www.globalpolicy.org/international-justice/universal-jurisdiction-6-31.html
 Some international treaties actually mandate that states account for
egregious rights abuses when they are not brought to justice domestically.

This post highlights some legal and policy solutions in the U.S. that go
survive today's ruling:
http://opiniojuris.org/2013/04/17/human-rights-will-survive-kiobel

The Foreign Corrupt Practices Act, the proposed State Department Reporting
Requirements on US companies operating in Burma, and other measures are
taking the actions of US corps abroad seriously. And the SEC has been able
to seize funds of bad actors.

There are strong reasons to oppose universal jurisdiction here. Domestic
courts are not necessarily the best equipped to issue swift justice in huge
transnational cases. The time and cost on ordinary plaintiffs are
prohibitive (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1953190).

The International Criminal Court has assumed jurisdiction over four
egregious crimes committed worldwide. Corporations don't face any
transnational court like that. But the process of creating norms (and then
international law) will continue without universal jurisdiction, and
companies probably fear angry investors more than many national courts.

Plus, look at the flip side -- do we want torts occurring between US
entities and citizens, on US soil, adjudicated in foreign domestic courts?
It's not a perfect analogy, but not likely.

Happy to continue the conversation,
Peter



On Wed, Apr 17, 2013 at 4:05 PM, Collin Anderson
<collin at averysmallbird.com>wrote:

> Libtech,
>
>
> Today the Supreme Court handed down a ruling that seriously limited the
> scope of the Alien Tort Statute on human rights cases. ATS was the grounds
> that Iranians attempted to sue Nokia Siemens Networks for their sale of
> lawful intercept, claims of liabilities for selling surveillance to China,
> and the Turkcell v. MTN case was waiting on the decision[3], so this should
> matter to many on the list. I was hoping that perhaps we could pull out
> some comments from our colleagues in CSR and legal communities.
>
> Cordially,
> Collin
>
> [1]
> http://www.dw.de/nokia-siemens-lawsuit-dropped-by-iranian-plaintiffs/a-6240017
> [2] http://www.economist.com/node/18986482
> [3]
> http://blogs.wsj.com/corruption-currents/2012/10/12/judge-stays-turkcell-lawsuit-citing-supreme-court-case/
>  --
> *Collin David Anderson*
> averysmallbird.com | @cda | Washington, D.C.
>
> --
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