Go On! AI annual meeting in San Francisco

(Go On! is an occasional item on symposia and other events of interest)

Amnesty International USA will host its Annual General Meeting this weekend, March 18-20, in San Francisco. Registration details here; full agenda here. (photo at right is from last year's meeting)
Amnesty is convening a special session for human rights lawyers on Friday, March 18 at the Fairmont Hotel, 950 Mason Street, from 9 a.m.-4 p.m. The event is free, but registration is recommened. Topics will include:

• the Foreign Sovereign Immunities Act,


• the Torture Victims Protection Act,


• the Alien Tort Statute,


• corporate accountability for complicity in human rights violations, and


• applying actions from international human rights mechanisms in U.S. courts.

Here is the full schedule:

9:00 – 9:30 Welcome and Opening Remarks: Jessica Carvalho Morris (left), Vice-Chair AIUSA Board of Directors and Director of the International and Foreign Graduate Programs, University of Miami School of Law
9:30 – 11:00 Civil Actions to Hold Human Rights Violators Accountable: Successes, Obstacles, and Future Challenges

• William S. Dodge, Professor of Law at the University of California’s Hastings College of the Law

• IntLawGrrl Chimène Keitner, Associate Professor of Law at the University of California’s Hastings College of the Law (right)

• Andrea Evans, Litigation Director, Center for Justice and Accountability (left)

11:00 – 12:30 No Safe Haven: Criminal and Administrative Enforcement

• IntLawGrrl Pamela Merchant, Executive Director, Center for Justice and Accountability (left, at podium)

• IntLawGrrl Beth Van Schaack, Associate Professor of Law, Santa Clara University School of Law (below left)

• Theresa Harris, AIUSA Board of Directors and Executive Director of the World Organization for Human Rights USA (right)

12:30 – 2:00 Lunch

2:00 – 3:30 Corporate Accountability: Emerging Standards

• Paul Hoffman, Schonbrun, Seplow, Seplow, Harris, Hoffman & Harrison, LLP

• IntLawGrrl Natalie Bridgeman Fields, Founder and Executive Director of Accountability Counsel (right)

• Morton Winston, Founding Chair of the AIUSA Business & Human Rights Group

3:30 – 4:00 Discussion and Closing Remarks

Hope to see you there!

ATS Case Involving Abuse By Church Officials Survives Motion to Dismiss

An Alien Tort Statute (ATS) case pending in the Central District of California survived this week a motion to dismiss for lack of subject matter jurisdiction. The case was filed on behalf of a Mexican national, proceeding anonymously, against Cardinal Roger Mahony, the Roman Catholic Archdiocese of Los Angeles, Mexican national Cardinal Norberto Rivera, Mexican national Father Nicholas Aguilar Rivera (left, the alleged direct perpetrator), and the Diocese of Tehuacan in Mexico. Plaintiff's lawyers specialize in cases redressing the abuse of minors. The plaintiff's allegations stem from abuse suffered when he was twelve-years old at the hands of Father Aguilar and the subsequent conspiracy among the defendants to conceal and cover-up the abuse in order to protect Father Aguilar and the Church. The complaint contains ten causes of action, including:

• rape & other sexual abuse,
• crimes against humanity,
• torture,
• cruel, inhuman, & degrading treatment,
• civil conspiracy,
• intentional infliction of emotional distress,
• negligence and
• failure to warn.

In addition to the abuse of the plaintiff, it alleges other instances of abuse in the relevant dioceses, including some that led to the criminal prosecution of Father Aguilar (see this timeline of events). Evidence invoked in the opinion suggest that Church officials were aware of Father Aguilar's history of abuse and yet did nothing to prevent his access to children in either diocese.

In the opinion denying defendants' motion to dismiss for lack of subject matter jurisdiction (under FRCP 12(b)(1)), the Court determined that plaintiff had adequately pled a federal cause of action and thus had the right to proceed in federal court. In so ruling, the Court determined that the plaintiff's claims were not insubstantial, implausible, frivolous, or devoid of merit, which would allow it to dismiss the case at this preliminary stage in the absence of a motion to dismiss for failure to state a claim upon which relief could be granted (under FRCP 12(b)(6)). The Court also ruled that the complaint was not barred by the 10-year statute of limitation, because the ATS is subject to equitable tolling. The infamous Erie case reared its head here as the Court cited California laws tolling cases involving a child plaintiff until the child turns 18 and laws tolling cases filed by victims of sexual abuse until the child turns 26. The Court determined that the case was timely under either theory. In addition, the Court ruled that plaintiff was not required to exhaust local remedies prior to filing suit here.

Most importantly for students of international law, the Court also ruled that plaintiff's international law claims were actionable under the Alien Tort Statute as violations of customary international law. In particular, it noted that rape, sexual abuse, and private torture can violate international law when they rise to the level of crimes against humanity. In so ruling, the Court cited prior ATS jurisprudence, human rights treaties including the Convention on the Rights of the Child, and Article 7 of the ICC Statute (defining crimes against humanity). The Court confirmed that supplemental jurisdiction exists over the California state law claims of negligence and intentional infliction of emotional distress.

Based on the arguments made in the instant motion, we can expect future motions to dismiss arguing that

• As a corporation, the Archdiocese cannot be sued under the ATS,


• The plaintiff has failed to allege facts that if true would entitle him to relief for the causes of action alleged.

The crimes against humanity claim is no doubt the most worrisome claim for the Church and the most vulnerable claim for the plaintiff. It will require the plaintiff to demonstrate the existence of a widespread and systematic attack against a civilian population. Given the increasing number of cases involving abuse and cover-up within the Church worldwide, the plaintiff may be able to meet this threshold. In addition, maintaining the crimes against humanity claim will entitle the plaintiff to broad pattern-and-practice discovery. The relevant federal rules of civil procedure allow discovery on any matter that is relevant to the party's claims; for good cause shown, the court may order discovery of any matter relevant to the subject matter involved in the action. This broad scope is limited, however, by evidentiary privileges, such as that between priest and penitent as set forth in California law.

This website contains information and a searchable database on priests accused of abuse (list of names above). Stay Tuned!

Go On! AALS hot topic: "Cutting Edge of Extraterritoriality," featuring 2 IntLawGrrls

(Delighted to welcome back alumna Hannah Buxbaum, who contributes this Go On! guest post respecting the annual meeting of the Association of American Law Schools, which, as Rebecca Bratspies posted, begins today and includes many IntLawGrrls speakers)

Anyone attending the AALS and looking for an international-law related program to attend first thing Friday morning might try “The Cutting Edge of Extraterritoriality” (p. xxxi). This is one of the “Hot Topics” panels on late-breaking developments. The speakers are: yours truly, Hannah Buxbaum (Indiana) (left); another IntLawGrrls alumna, Chimène Keitner (California-Hastings) (middle); and our colleagues Anthony Colangelo (Southern Methodist) and Bill Dodge (California-Hastings).
The panel runs from 8:30 to 10:15 Friday morning in the Yosemite C Room on the ballroom level of the Hilton.
Here's the program description:
How far does (and should) U.S. law reach in regulating conduct or transactions that take place overseas?
This question of the “extraterritorial” application of U.S. law arises in a wide range of contexts, including the regulation of international economic markets, human rights litigation, jurisdiction over terrorist acts abroad, and the availability of constitutional protections in connection with the “war on terror.”
In its June 2010 opinion in Morrison v. National Australia Bank, which limited the application of antifraud provisions under U.S. securities law to transactions taking place in the United States, the Supreme Court articulated an unexpectedly expansive version of the “presumption against extraterritoriality,” a rule of statutory construction. Lower courts have already applied this revamped presumption to other statutes, such as RICO.
And, as IntLawGrrls posted here and here, the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. recently addressed another issue with far-reaching implications; that is, the respective roles of national and international law in defining the scope of corporate liability under the Alien Tort Statute for human rights violations abroad.
The panelists will use Morrison as the starting point to address shifting understandings of the geographic reach of American law and the role of national law in an increasingly global system.
Hope to see you there!

On December 4

On this day in ...
... 1980 (30 years ago today), just off the side of a dirt road, "in a crude grave 25 miles southeast of" San Salvador, capital of El Salvador, were found the bodies of 4 American women, 3 of them Roman Catholic nuns and the other a lay missionary. Dead were Jean Donovan (top left) and Sisters Dorothy Kazel (bottom right), Ita Ford (top right), and Maura Clarke (bottom left). Occurring amid continuing political violence in the Central American country, the discovery followed deaths of 11 priests over the course of the year, as well as the fatal shooting of 20 persons in the prior 24 hours. Decades later, as IntLawGrrl Beth Van Schaack has posted, the women's killings were the subject of an unsuccessful Alien Tort Statute suit litigated in Florida.

(Prior December 4 posts are here, here, and here.)

Miami midyear musings

Some intriguing scenes at last weekend's midyear meeting of the American Society of International Law, held for the 1st time in recent memory outside of Washington, D.C.
The setting was southern Florida, awash in warm sun at the very same time that a foot of snow blanketed northern climes. The 2-day conference took place at host University of Miami School of Law and at the Biltmore Hotel - Coral Gables, a mammoth relic of America's Jazz Age.
Of particular interest to this 'Grrl were panels on criminal and human rights adjudication.
► In "Revisiting the Place of International Law in Domestic Law," panelists discussed the challenges posed when cases of transnational nature land in courts within the United States. Judge Adalberto Jordan, U.S. District Court for the Southern District of Florida, described the process by which he reached his ruling denying a motion to dismiss in Mamani, et al. v. Sánchez de Lozada and Mamani, et al. v. Sánchez Berzain, an Alien Tort Statute matter arising out of killings in Bolivia in 2003. (As we've posted, in another Alien Tort case, Judge Jordan awarded a $22.5 million default judgment against "Chuckie" Taylor, son of the former Liberian President.) It's now on appeal before the 11th Circuit. Meanwhile a judge of that circuit, the Honorable Rosemary Barkett, wondered how Oklahoma could enforce State Question 755, a law just passed by voters, subsection C of which declares that the state's judges "shall not consider international law or Shariah Law." (On Monday, Chief U.S. District Judge Vicki Miles-LaGrange will hear arguments on whether to grant a preliminary injunction against the law in her Oklahoma City courtroom.)
► In "National, Regional, and International Perspectives on International Criminal Accountability," I was honored to moderate a discussion between Olivia Swaak-Goldman, International Cooperation Adviser at the Office of the Prosecutor, International Criminal Court, and George Washington University Law Professor Dinah Shelton, since 2009 a member of the Inter-American Commission on Human Rights. Explored were the role that the ICC and regional institutions play in achieving accountability for perpetrators and redress for victims.
► The dinner keynote was "Justice and Leadership Dilemmas in Shakespeare," by the Honorable Theodor Meron, Shakespearean scholar and Judge of the International Criminal Tribunal for the former Yugoslavia. Of particular interest was the discussion of the predicament that Hubert de Burgh -- whom Meron described as a "legal adviser" -- faced when the eponymous King John ordered an unjust killing.

Sharing Biltmore breakfast space with us on the last day, the former President at left (that's Jeb behind him).

A small world, indeed.

U.S. Contact Point & corporate accountability

(Many thanks to IntLawGrrls for the opportunity to contribute this guest post.)

Corporate accountability for environmental and human rights abuses abroad is often elusive.
As IntLawGrrls Rebecca Bratspies and Naomi Roht-Arriaza have posted (here and here), recent court rulings now limit the scope of the Alien Tort Claims Act in some jurisdictions, at least temporarily. Non-judicial, ‘soft law’ mechanisms thus have become even more important.
Among the latter accountability mechanisms is the U.S. National Contact Point, or NCP, an office of the Department of State created to take complaints regarding corporate compliance with the Guidelines for Multinational Enterprise issued in 2008 by OECD, the Organization for Economic Co-Operation and Development.
The United States is required to maintain the NCP to resolve disputes about the OECD Guidelines, which cover human rights, environmental, labor, and consumer issues, as well as other topics. Like other countries' NCPs, the U.S. office is tasked not only with assisting to resolve disputes about corporate compliance with the Guidelines, but also with issuing Final Statements about compliance at the end of the process. In the language of international financial institution accountability mechanisms, this gives NCPs both a problem-solving and compliance review function.
To date, the U.S. NCP has never assisted in the resolution of a single case. In contrast, as IntLawGrrl Christiana Ochoa has posted in other countries like the United Kingdom, NCPs have successfully participated in the resolution of major global issues. If transformed, the U.S. NCP could be a valuable tool for communities around the world. Among those communities are clients of my organization, Accountability Counsel, which represents persons harmed by U.S.-headquartered multinational enterprises.
Over the past year, Accountability Counsel has led a coalition of civil society groups to reform the U.S. NCP. Our direct talks spurred the office to published its rules of procedure. As we had anticipated, those rules:
► Fail to meet basic standards for transparency and independence;
► Lack details sufficient to result in a predictable process; and
► Are unlikely to lead to effective results.
The official State Department review is under way, with a new policy governing the U.S. NCP is expected sometime in 2011. In Washington, a public meeting will be held today, November 2, and comments on the U.S. NCP will be accepted at input@state.gov until this Friday, November 5.
Accountability Counsel already has submitted its comments to the State Department regarding suggestions for reform of the U.S. NCP. Based on our work with similar mechanisms at the World Bank Group, the regional development banks, and study of other NCPs, we demonstrated that key elements that are needed to bring this accountability mechanism to the ‘best practice’ level that civil society groups have worked decades to create. Our recommendations focus on:
► Increasing transparency;
► Setting timelines and rules of procedure;
► Providing for review of decisions; and
► Monitoring and enforcement in the event of a finding of non-compliance.

Accountability Counsel is also working on these issues as a member of the State Department’s Advisory Committee on International Economic Policy, which will issue a report with recommendations for reform. Similarly, our group has worked with the United Nations' Special Representative on Business and Human Rights, Professor John Ruggie (prior IntLawGrrls posts), to create a page on the Business and Society Exploring Solutions site for the posting of comments and for debate about the U.S. NCP. The effort is aimed at improving transparency around this review.

A bad September for suits against corporations under the Alien Tort Statute

First there was Citizens United (2010), in which the U.S. Supreme Court gave corporations more ability to influence our politics. Now, one of the few avenues for holding bad corporate actors responsible for overseas violations of basic human rights has been seriously undermined. In a pair of cases from two highly influential federal courts, plaintiffs have lost appeals in cases involving corporate defendants under the Alien Tort Statute (prior posts).
Issuing the 1st decision was the U.S. Court of Appeals for the 9th Circuit.
In a mid-September decision, the 9th Circuit denied plaintiffs’ appeal from an adverse jury verdict in Bowoto v. Chevron (prior posts here and here). A jury in December 2008 had found Chevron not liable for the death of one protester and injuries to others when security forces, at Chevron’s request, attacked a group of protesters on an oil rig in the Niger Delta. Plaintiffs appealed on a number of grounds, including faulty jury instructions and the judge’s failure to allow a number of claims. (credit for photo above right)
The appeals court decision in Bowoto, from a panel consisting of 9th Circuit Judges Mary M. Schroeder, Jay Bybee (yes, that Bybee, the one who signed off on the torture memos) and District Court Judge Owen Panner, threw out all of plaintiffs’ claims. The opinion for the panel, written by Judge Schroeder (right):
► Held that the summary execution claim is not allowable under the ATS because it is preempted by the Death on the High Seas Act – a somewhat ironic result given that piracy on the high seas was one of the first, and most enduring, types of ATS claims. The court recognized the possibility of piracy claims but nonetheless held that all plaintiffs’ claims for wrongful death and survival had been preempted.
► Also dismissed all the allegations of improper jury instructions.
These rulings are disappointing, but case-specific enough to have limited application elsewhere.
► Not so the court’s ruling that corporations cannot be sued under the Torture Victims Protection Act. The TVPA applies to cases of torture or summary execution committed under color of foreign law. In Bowoto the 9th Circuit undertook to construe the statute's extension of liability to “an individual who…subjects an individual to torture.” The court held that use of the word “individual” rather than “person” to characterize both potential plaintiffs and defendants made clear that Congress meant to exempt corporations from the ambit of the law. Future TVPA cases therefore may sue individual defendants only.
(This ruling is now definitive for cases in the 9th Circuit (comprising Alaska, Arizona, California, Guam, Hawai'i, Idaho, Montana, Nevada, Northern Marianas Island, Oregon, and Washington); it is in conflict with the only other appeals court to consider the issue, the 11th Circuit.)
Issuing the 2d decision was the U.S. Court of Appeals for the 2d Circuit.
The 2d Circuit's late-September decision in Kiobel v. Royal Dutch Petroleum Co. (prior post) compounded the blow dealt by the 9th Circuit in Bowoto.
Kiobel is a companion case to Wiwa v. Shell, both brought by family of Nigerian activists killed for their protest activities against oil drilling in the Niger Delta, allegedly with the complicity and connivance of Shell officials. (photo credit) Wiwa settled in 2009 for $15.5 million, but the panel in Kiobel, led by Judge José Cabranes, decided to request supplemental briefing on the issue of whether corporations could be sued at all under the ATS. In the Kiobel decision, the panel decided that they cannot.
Thus, in the 2d Circuit, which includes New York, corporations have a liability-free zone for depredations abroad.
How could this happen, after a decade of litigation against corporations under the ATS and a number of settlements and jury trials, without the issue ever arising before?
Here’s one chronology:
Back in 2002, there was the Unocal case, involving allegations of forced labor, slavery and other rights violations as part of a pipeline project in Burma. (photo credit) As part of the years of legal skirmishing in that case, a 9th Circuit panel split on the question of whether it was international law or domestic legal doctrines that governed ancillary issues arising under the ATS. (Prior posts here and here.) That is, everyone agreed that the core definition of the “violation of the law of nations” came from international law.
But what about the innumerable other issues, like who can be sued and under what definitions of liability?
► Judge Harry Pregerson held that those questions were governed by international law, and looked to the jurisprudence of the International Criminal Tribunal for the former Yugoslavia to answer the question of how to define “aiding and abetting” for purposes of ATS liability.
► Judge Stephen Reinhardt thought that domestic doctrines of agency, unjust enrichment and tort were more than sufficient and should be used to fill in all the necessary gaps in international law.
At the time, it was not clear to litigators what the implications of this choice could be, since both international and domestic law pointed in the same direction.
Because the panel decision was eventually withdrawn for unrelated reasons, the Unocal case created no precedent. It was up to the 2d Circuit to define the issue.
At first, the 2nd Circuit had as much trouble as the 9th. In Khulumani v. Barclay Int'l Bank Ltd., 504 F.3d 254 (2007), involving allegations of corporate complicity in shoring up the apartheid regime in South Africa, the judges split again. (prior post) (image credit) Judge Robert Katzmann, on the question of aiding and abetting, found that ancillary issues were governed by international law. Rather than look to the ICTY, however, he looked at the Rome Statute of the International Criminal Court, and concluded that aiding and abetting had a “purpose” requirement in international law, one not found in domestic law. Thus, turning to international law had the effect of raising the bar for what plaintiffs needed to prove.
A 2d Circuit panel that included Judge Cabranes agreed with this analysis in a subsequent decision in Presbyterian Church of Sudan v. Talisman Energy, Inc. (October 2009). It dismissed the case on grounds that the plaintiffs could not show that Talisman Energy had the purpose of aiding and abetting the crimes of the Sudanese security forces, even though the oil company knew about the violations and acted despite that knowledge. Plaintiffs’ certiorari petition was set for review by the U.S. Supreme Court at the end of September, but the Court seems not yet to have decided whether to weigh in.
Judge Cabranes’ decision in Kiobel took the reasoning in these earlier cases one step further: if we look for the definition of “aiding and abetting” in international law, then logically we should look for the answer to whether corporations are entities capable of committing actionable violations in international law as well.
Judge Cabranes, predictably, could find few cases in which corporations as such (as opposed to their officers and owners) were held criminally liable for international crimes. He too used the ICC Statute against plaintiffs, using the decision of the Rome Statute drafters not to allow prosecutions of legal persons as evidence of a customary norm excluding corporate liability. (This even though the Rome Statute makes clear that it does not necessarily follow customary law.)
Unfortunately, because of the very nature of international law, it is unlikely to provide answers to lots of questions – including this one – which have always been considered to be issues of domestic law.
As Judge Pierre Leval, concurring in the judgment in Kiobel, put it:

So long as they incorporate (or act in the form of a trust), businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot's political opponents, or engage in piracy – all without civil liability to victims.

Let’s hope this new month of October brings better news on the ATS litigation front.

No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

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.

In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.

Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.

In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.

The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria

has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.

Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)

Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)

Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,

the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.

This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.

Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.

The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

Extraterritoriality in flux?

In a just-published ASIL Insight, our colleague Paul B. Stephan sees more than securities laws at stake in the recent U.S. Supreme Court trimming of extraterritoriality.

Stephan, both the John C. Jeffries, Jr., Distinguished Professor of Law and the Elizabeth D. and Richard A. Merrill Professor of Law at the University of Virginia, deftly detailed Justice Antonin Scalia's opinion for the 5-member majority in Morrison v. National Australia Bank Limited (June 24, 2010). (credit for below left photo) Other thought-provoking discussions of this decision were posted here, here, here, and here at Opinio Juris.

In Morrison, the Court affirmed dismissal of a lawsuit alleging civil fraud in violation of § 10(b) of the Securities and Exchange Act of 1934 and its implementing Rule 10b-5. The suit, to quote Stephan's Insight, "involved only foreign plaintiffs, securities issed by a foreign company, and transactions in those securities that took place exclusively in a foreign country." Scalia's opinion underscored that there is a presumption against extraterritoriality, one that requires "Congress to clearly indicate when it wanted its rules to apply to foreign conduct."

Stephan termed the decision "a firm and unambiguous rebuke" of the tendency by some lower courts to give securities laws greater extraterritorial reach. That pronouncement pretermits the contrary viewpoints of the 3 remaining Justices (Sonia Sotomayor did not participate): Stephen G. Breyer, in a separate opinion that suggested the suit yet might go forward under other federal statutes, concurred only in part, while John Paul Stevens and Ruth Bader Ginsburg concurred only in the judgment and not at in the majority's reasoning; indeed, their joint opinion opened with the declaration that they

would adhere to the general approach that has been the law in the Second Circuit, and most of the rest of the country, for nearly four decades.

Nonetheless, the pronouncement is accurate as a matter of counting current Court noses.

As interesting as the description of the judgment is Stephan's additional observation. He rightly wrote that

one must wonder what Morrison implies about other statutes.

Particularly noted is the means by which noncitizen plaintiffs have sought relief in U.S. federal courts for torts committed in violation of the law of nations or U.S. treaties. That means, of course, is Alien Tort Statute (prior IntLawGrrls posts). Alien Tort cases have involved events in all corners of the earth. "The Justice Department in several briefs has argued that the presumption against extraterritoriality applies to this statute," Stephan wrote (citing this 1 U.S. amicus brief, which dates from the 2d term of President George W. Bush). The Insight adds that "[s]cholarly support exists" for such a position. All may be tested soon: Stephan noted that the question's presented in Talisman Energy (photo credit), an Alien Tort case involving the oil field in Sudan, which the Supreme Court has been asked to review.

Another thought jumps to mind:

Any chance that a Court cutback campaign might reach to a sector in which extraterritoriality has grown steadily, with judicial approval, in the years of the so-called wars on drugs and terror? That is, to extraterritorial criminal jurisdiction?

Human rights claims clear immunity hurdle

(My thanks to IntLawGrrls for the opportunity to contribute this guest post discussing a case on which I worked while an intern at the Center for Justice & Accountability)

The U.S. Supreme Court unanimously has rejected certain claims to immunity against civil actions alleging human rights violations. Still, questions remain.

In Samantar v. Yousuf, the Court held last week that the Foreign Sovereign Immunities Act does not shield former government officials from liability for suits filed under either the Torture Victim Protection Act or the Alien Tort Statute.

As IntLawGrrls have posted (here, here, and here), during the late 1980s petitioner Mohamed Ali Samantar served as the First Vice President and Minister of Defense of Somalia for the regime headed by President Siad Barre. Under Samantar's direction, the Somali military subjected the seven respondents/plaintiffs, or their family members, to torture, cruel, inhuman and degrading treatment, or extrajudicial killings. These victims’ only "offense" was membership in the Isaaq clan, a prosperous and independent group perceived by the regime as a likely source for potential political rivals.
After the Barre regime collapsed, Samantar moved to the United States and took up residence in Virginia. In 2004 respondents filed suit under the Torture Victim Protection Act and the Alien Tort Statute. These laws confer jurisdiction on federal courts to hear cases regarding foreign torts committed in violation of international law -- in this case, torture and extrajudicial killing. Samantar moved to dismiss. The federal district court granted his motion, reasoning that he was acting within the scope of his authority as a foreign official and, therefore, that the FSIA shielded him from liability. The U.S. Court of Appeals for the Fourth Circuit reversed, and the Supreme Court granted respondents' petition for certiorari.
The high court’s just-issued decision is a victory for human rights advocates in this country, because it prevents former foreign officials from claiming immunity under the FSIA for their human rights abuses.

The principal opinion, authored by Justice John Paul Stevens (left), rests on a very detailed and technical reading of the terms “agency or instrumentality” and “foreign state” in the FSIA. “Agency or instrumentality,” as defined by the statute itself, is an “entity,” “separate legal person, corporate or otherwise,” or an “organ” of the state -- language the Court interprets to mean an organization or corporation, not an individual official.

Stevens wrote (slip op. at 16):

Reading the FSIA as a whole, there is nothing to suggest we should read 'foreign state' in § 1603(a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted.

As a result, the Court ruled that the petitioner/defendant does not qualify as an agency or instrumentality of a foreign state, even if he was acting within the scope of his official authority. Thus he cannot rely on the FSIA to protect him from liability.
The Court also looked to the legislative history and intent of the FSIA to bolster its reading of the statute. Examining the complicated interplay between immunity for foreign states and for foreign officials, it held that Congress intended to leave immunity for foreign officials outside the scope of the act. Not surprisingly, in separate concurring opinions, Justices Samuel A. Alito Jr., Antonin Scalia, and Clarence Thomas took exception to the Court’s use of legislative history in its interpretation of the statute.
With this very narrow judgment the Court left open a series of important and niggling questions; for example:

► Do former government officials have immunity stemming from the common law?

► If so, what form does that immunity take and who determines it?

The Office of the Solicitor General has argued consistently that the Executive Branch, and more specifically the U.S. State Department, has the power to determine common law immunity, not the courts.

This is an interesting and infrequently litigated area, which will no doubt garner much debate in the coming years.

Chuckie Taylor Update

To close the loop on some prior stories we’ve been covering, a Florida-based federal judge has entered a final, multimillion-dollar default judgment in a civil suit against Charles Taylor’s son, Charles McArthur “Chuckie” Taylor (right).
As you’ll recall, Chuckie was arrested while entering the U.S. and prosecuted for torture and conspiracy to commit torture in connection with his role as commander of the so-called “Demon Forces” anti-terrorism paramilitary unit in Liberia (map at left). In 2008, a federal jury in the Southern District of Florida had found Taylor guilty, and a judge sentenced him to 97 years in prison.
The World Organization for Human Rights (USA) subsequently filed a civil suit against him on behalf of some of his Liberian victims. The suit ultimately resulted in a default judgment in the amount of $22.5 million.
Plaintiffs had sought class certification as a damages class action under FRCP 23(b)(3), but U.S. District Judge Adalberto Jordan ruled that the questions of law and fact common to the proposed class did not predominate over the individual issues. See Kpadeh v. Emmanuel, 261 F.R.D. 687 (S.D. Fl. 2009).
In so ruling, the judge considered, but declined to follow, two prior certification rulings in human rights cases: Hilao v. Estate of Marcos, 103 F.3d 767 (9th Cir. 1996), and Doe v. Karadzic, 1176 F.R.D. 458 (S.D.N.Y. 1997). Hilao made waves for the 9th Circuit's acceptance of a decision below to use statistically significant sampling and damages schedules to apportion damages to different sub-groups of plaintiffs. Judge Jordan ruled that such an approach would fall below the due process owed to the defendant and to each individual plaintiff. 261 F.R.D. at 692. Judge Jordan reasoned nothing prevented other potential plaintiffs from filing additional suits against Taylor. He noted that while contingency fees are probably unavailable given that the first judgment is unlikely to be executed in full, human rights clinics would undoubtedly be willing to bring additional cases against Taylor pro bono.
Documents concerning the case, including the federal indictment and several amicus briefs, are available here.

In Passing: Rhonda Copelon

It is with a heavy heart that I write to tell you that my beloved CUNY colleague, friend, and mentor Professor Rhonda Copelon, died on May 6th, 2010 after a four year struggle with ovarian cancer. She will be greatly missed.
As a lawyer with the Center for Constitutional Rights, Rhonda’s groundbreaking work in Filártiga v. Peña-Irala (2d Cir. 1980) gave victims of international human rights abuses access to justice in United States courts. This case established that torture was a violation of the law of nations, a principle of which we seem to have lost sight in recent times. Using a hitherto obscure federal statute, the Alien Tort Claims Act, Rhonda’s advocacy paved the way for many high profile human rights cases, including the recently settled suit brought by Ken Saro Wiwa’s family against Shell Oil. Harold Koh has called this case the Brown v. Board of Education of International Human Rights.
Rhonda was also lead counsel in Harris v. McRae (1980), a pivotal case concerning the reproductive rights of poor women. Although successful in the lower courts, Rhonda’s loss at the Supreme Court haunted her for the rest of her life.
As a founding member of CUNY Law School, Rhonda poured her energy into establishing the International Women's Human Rights Clinic. Every year, students in the clinic work to protect the rights of women around the world and in the United States. The CUNY website has a marvelous video of Rhonda discussing her remarkable career in human rights.
In 2009, Rhonda was awarded the M. Shanara Gilbert Human Rights Award by the Society of American Law Teachers. On April 20, 2010, the Center for Constitutional Rights honored Rhonda for her life’s work and established the Copelon Fund for Gender Justice.
Rhonda was not just a great lawyer, she was also a generous mentor and friend to students, and young professionals. Her tireless advocacy on behalf of women will never be forgotten.
I've included below just a couple of tributes from women in international law whose lives Rhonda touched, and welcome you to add your thoughts in the comments section.

What a loss to the clinical community and to the ongoing struggle for women's human rights! Rhonda was an amazing, passionate, committed advocate for women's human rights. I first met her when I was at AU. Rather than being territorial towards a newcomer, she was supportive of all persons with a commitment to women's human rights, and worked tirelessly for the cause. She was loved and respected around the world. I saw her in action in Beijing at the Women's Conference in 1995, and had the opportunity to work together on a project with women's rights advocates from throughout Latin America to integrate a gender perspective into legal education. She was universally respected and admired and her legacy will be everlasting.

--Lauren Gilbert

I am so saddened at the passing of Rhonda Copelon. She was a brilliant lawyer and an inspiring teacher and a warm and generous person. I met Rhonda during the preparations for the Fourth World Conference on Women. I was not yet a lawyer and new to the world of U.N. conferences and human rights advocacy, and she was unfailingly supportive and always willing to share her expertise in navigating complicated issues and institutions. She has served as a model of engagement and accessibility to me and so many others. Her passing is a huge loss.

-- Rachel Rosenbloom

Comparative colloquy at the Court

Law beyond borders unexpectedly emerged as a topic for discussion at the Supreme Court a few days ago.
That foreign context would be discussed in Samantar v. Yousuf, the Alien Tort Statute case argued Wednesday (prior posts here and here), was a given. But who thought that practices abroad might inform discussion a day earlier of whether the 2d Amendment limits local gun control laws? Yet they did, and more than once.
The official transcript shows that early in oral argument, the attorney for petitioners in McDonald v. City of Chicago, Alan Gura, contended that owning a gun not only is guaranteed by the 2d Amendment, but also is among the unenumerated "privileges and immunities" guaranteed by the 1st section of the 14th Amendment. His likening of gun ownership to other privileges and immunities he said are enjoyed by U.S. citizens prompted this exchange with Justice Ruth Bader Ginsburg (below right), who concurs with the Court's occasional efforts at comparative constitutionalism but who dissented in last Term's gun-rights case, District of Columbia v. Heller:

JUSTICE GINSBURG: Did married women at that time across the nation have the right to contract, to hold property, to sue and be sued?
MR. GURA: Married women were considered citizens of the United States, just like children were considered citizens. However, the law did not always protect people fully, and we've made great strides in this country giving a greater level of protection to certain rights. We understand certain rights better today than we did 140 years ago, and the fact that First Amendment rights were not fully respected, Second Amendment rights were not always respected, Fourth Amendment rights were not always understood well –
JUSTICE GINSBURG: Does it work just one way? I mean, if the notion is that these are principles that any free society would adopt, well, a lot of free societies have rejected the right to keep and bear arms.
MR. GURA: ... American history and tradition are important to consider what rights are protected in this country. It's true that our friends overseas who have more or less civilized, free societies don't respect rights to the same level that we do. For example, England, which is a free society, has a monarchy. They have hereditary lords in parliament. They don't have First Amendment protection.
JUSTICE GINSBURG: But then it's not one expression of this unenumerated rights, natural rights, or the rights that any free society -- basic to a free society. So you -- you have to trim your definition. It's not basic to any free society. (pp. 9-10)

Analogous inquiry arose later. Chicago's attorney, James A. Feldman, asserted that no right could be held to constrain states and local governments unless it was "implicit in the concept of ordered liberty"; that is, unless it satisfied a time-honored substantive due process test, one that the Court at times has applied after consulting foreign context (a methodology about which I've written here and here). Justice Antonin Scalia (below left), author of the majority opinion in Heller, countered. He referred to the United States' jury-trial right, one that the Court, reversing precedent, held to be fundamental in Duncan v. Louisiana (1968):

JUSTICE SCALIA: Is the right to trial by jury implicit in the concept of ordered liberty? ... My goodness ... there are a lot of countries that don't give the right to trial by jury, even England does not give it in all criminal cases.
MR. FELDMAN: I think it is in the following sense, when you are talking about a procedural right that is embedded in a particular procedural system, you have to look at how that system operates and how the -- the right works within that particular system. (p. 30)

Agreement came from Chief Justice John G. Roberts, Jr. (below right), who joined the majority in Heller and who'd spoken against consulting foreign law during his confirmation hearings:

CHIEF JUSTICE ROBERTS: I think that's exactly -- that's exactly right. And that is what the Court elaborated on in Duncan. I do think the focus is our system of ordered liberty, not any abstract system of ordered liberty. You can say Japan is a free country, but it doesn't have the right to trial by -- by jury.
The -- the -- the concept only makes sense, I think, if you limit it to our system.
Under our system, as you said, the -- the right to a jury is essential.
MR. FELDMAN: I -- I agree -- I -- I -- I think that's right. ...

At this rather hesitant concession, the Chief Justice jumped in:

CHIEF JUSTICE ROBERTS: Well, if you think that's right, why wouldn't you think, for all the reasons given in Heller, that the Second Amendment right is essential to our system, whatever it may be with respect to France or England or anywhere else? (p. 31)

Roberts' rejoinder well may have left Feldman regretting this half-step into comparative constitutionalism on the matter of individual gun ownership and state regulations intended to protect public safety.

On March 5

On this day in ...
... 1985, the mutilated body of Enrique "Kiki" Camarena was discovered in Guadalaja, Mexico, where the 37 year old (below left) had been working as an undercover agent for the U.S. Drug Enforcement Administration. (image credit) Law enforcement operations put into effect following his death culminated in 3 Supreme Court cases that remain landmarks on account of their holdings respecting extraterritoriality and U.S. laws: United States v. Verdugo-Urquidez (1989), in which the Court held that 4th Amendment was not violated by the overseas warrantless search of property belonging to Mexican nationals with no ties to the United States; United States v. Alvarez-Machain (1992), in which the Court held that the Due Process Clause was not offended by the cross-border kidnapping of the defendant, a Mexican physician charged with having monitored and thus helped to prolong his torture, in order to secure personal jurisdiction over him; and Sosa v. Alvarez-Machain (2004), in which the Court established a framework for analyzing claims brought under the Alien Tort Statute in the course of rejecting the claim by the physician, whom a federal judge had acquitted of all charges.

(Prior March 5 posts are here, here, and here)