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

Wed Apr 17 15:08:15 PDT 2013

Hi, Collin, Peter, and all:

My comment
<http://opiniojuris.org/2013/04/17/human-rights-will-survive-kiobel/#comment
-54352>  in the Opinio Juris Insta-Forum to which Peter links below sets
forth my own attempt to remember the bright side of what remains, but
today’s erroneous Supreme Court decision was indeed an awful blow to what
had been one of the leading drivers (if not the leading driver) for hard law
corporate accountability globally.  

Full disclosure, I was involved in the case for many years as one of the
International Legal Scholars who contributed amicus briefs in this and
similar cases.  (Collin, I was also the Chief Legal Officer of Nokia Inc.
who drafted Nokia’s code of conduct applicable to the Iranian situation you
mention, even though that happened after I left and we never would have sold
such equipment to such a regime while I was there).

Peter, while the ATS jurisdiction resembled “universal jurisdiction” in
various ways, it’s important to remember that it technically wasn’t
universal jurisdiction but constituted its own jurisdictional statute
(passed by the first US Congress).  The ATS has high substantive and
procedural hurdles, so liability under the statute was already pretty
constrained even before this decision.

The Supreme Court majority’s reasoning was erroneous in multiple respects as
to the facts and the law, but the legal errors were particularly egregious
(and the “concurrence” of Justice Breyer and the so-called “liberal” wing of
the court -- really a sort of dissent strategically framed as a concurrence,
since it agreed with the end result on the narrow facts of this case but
totally rejected the reasoning of relying on the inapposite “presumption
against extraterritoriality” – does a pretty fair job of pointing out the
major errors.  The Supreme Court rejected a globally respected and very
influential line of jurisprudence which goes back more than thirty years and
which it had cited with approval the last time it considered an ATS case
(Sosa, in 2004).  To imagine that the ATS wasn’t conceived with
extraterritorial application in mind, when dealing with piracy was a chief
purpose, is surreal, and the twisting of AG Bradford’s Opinion on the
statute is terrible.  

The results-oriented reasoning of the conservative majority does little to
enhance the rule of law or the prestige of the court (or US national
interest, which as Breyer also points out is a factor here).

Most importantly, the anachronistic decision is out of step with the
significant global trend toward enhanced corporate legal accountability
(which is the subject of the CSR Law textbook
<http://www.lexisnexis.com/store/ca/catalog/booktemplate/productdetail.jsp?p
rodId=prd-cad-00708>  my co-authors and I have done, a second edition of
which will be available later this year), and with the significant global
and increasingly official (GA decisions, UN SC action, etc) recognition of
the dire need for a legal remedy when there are significant wrongs like the
gross human rights violations alleged here and in similar cases.

That need for a remedy where none exists, Peter, is why your question about
reciprocal actions in the US isn’t really relevant:  the point is that in
jurisdictions where there’s such rampant corruption and no rule of law
victims of atrocities will be without effective remedy unless something like
the ATS’s extraterritorial remedy exists.  That’s why such extraterritorial
remedies are such a hot topic at present around the world and why, as I say,
the action now moves to other fora, to state courts in the US, to
legislatures in the US and abroad, to the longer-term treaty avenue, and so
on.  We have a fairly decent judicial system here and at least some
semblance of the rule of law remains for daily life, so the fears of similar
methods being used against the US are overblown (as are the fears re the
International Criminal Court).  If an unreasonable situation were to arise,
there are many legal and judicial doctrines to deal with that (and they’re
applied on a daily basis in this globalized environment).  

Fortunately, and in no small part due to the inspiration and incentives
provided by the ATS, there’s an entire and substantially new legal
infrastructure that’s also been arising on a daily basis for many years now,
which increasingly makes it less and less feasible for violators to expect
that serious violations can be hidden from the transparency that info and
telecoms technology has brought.  The new UN Framework on Business and Human
Rights, the new Guiding Principles, and the many hard and soft laws that
have come into being over the past twenty or so years make it increasingly
risky and dumb to commit such violations, which is partially the legacy of
the prior ATS cases whatever the future holds for the ATS under this (or,
more likely a different) US Supreme Court.

Chip Pitts <http://www.law.stanford.edu/profile/joe-w-chip-pitts-iii> 

Stanford Law School

From: liberationtech-bounces at lists.stanford.edu
[mailto:liberationtech-bounces at lists.stanford.edu] On Behalf Of Peter Micek
Sent: Wednesday, April 17, 2013 4:26 PM
To: liberationtech
Subject: Re: [liberationtech] Kiobel Ruling on Alien Tort Statute and
Censorship Tech

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-6-3
1.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-62400
17

[2] http://www.economist.com/node/18986482

[3]
http://blogs.wsj.com/corruption-currents/2012/10/12/judge-stays-turkcell-law
suit-citing-supreme-court-case/

-- 
Collin David Anderson

averysmallbird.com | @cda | Washington, D.C.

--
Too many emails? Unsubscribe, change to digest, or change password by
emailing moderator at companys at stanford.edu or changing your settings at
https://mailman.stanford.edu/mailman/listinfo/liberationtech

-- 
Policy Counsel | Access
www.accessnow.org
www.rightscon.org
Ph: +1-646-255-4963 <tel:%2B1-646-255-4963>  | S: peter-r-m | PGP: 22510994 

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.stanford.edu/pipermail/liberationtech/attachments/20130417/77b36656/attachment.html>