7 Case Studies of Business and Human Rights
7.2 Oil, Nigeria and the Alien Tort Statute
7.2.6 Extraterritoriality After Kiobel
The Supreme Court in Kiobel applied the domestic law presumption against extraterritoriality754 and hence adjudged that the ATS does not offer extraterritorial jurisdiction. Extraterritoriality is a complex field of law without distinct clear
747 United States District Court, D. Maryland, Greenbelt Division, Al-Quirashu v. Nakhla, No. Civ. No 08-1969, 2010 WL 2001986, (29 July 2010), 39.
748 United States C ourt of Appeals for the Second Circuit, Presbytarian Church of Sudan v. Talisman Energy Inc, 274 F.Supp. 2d 331, (2 October 2009), 335.
749 ibid 33.
750 ibid.
751 United States Court of Appeals, Second Circuit, Abdullahi v. Pfizer, Inc., 562 F3d 163 (30 January 2009), Majority Opinion, 78.
752 ibid 56.
753 United States Court of Appeals, Second Circuit, Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (12 October 2007), Majority Opinion, 13-14.
754 Kiobel v. Royal Dutch Petroleum (n 736), 1664.
guidelines or rules in place.755Its notion already goes against key features of international law, such as sovereignty and non-intervention. Although it has been seen to plausibly further human rights, extraterritoriality has also been criticised for threatening the core ideas of human rights and the foundations of international law.756
Jurisdiction, according to Oppenheim, ‘concerns essentially the extent of each state’s right to regulate conduct or the consequences of events’.757 758 Traditionally states were considered to have jurisdiction in accordance with the territoriality principle, as noted already in the Lotus case by the Permanent Court of International Justice.759 The principle of territoriality however is not absolute, as problems with jurisdiction only arise in situations which have a transnational quality, and derivation from territoriality is acceptable in accordance with the rules of international law.760International law governs the rules which determine whether extraterritorial jurisdiction can be applied to a specific instance.761 The Lotus case noted that domicile laws could be applied extraterritorially unless there are prohibitive rules in international law forbidding extraterritorial jurisdiction.762 Extraterritorial prescriptive jurisdiction is accepted if there is a connection between the state and the conduct it is regulating.763764 As noted certain international conventions accept extraterritorial jurisdiction.765
The Kiobel judgment not only disregarded extraterritoriality, but also universal jurisdiction, which is connected to serious infringements of human rights, as
755 Colangelo (n 57) 1021.
756 Austen L Parrish, ‘Reclaiming International Law from Extraterritoriality’ (2016) 93 Minnesota Law 815, 820.
757 Jennings and Watts (n 52) 456.
758 The objective territoriality principle and the effects principle are typically considered to fall within territoriality principle.
759 Permanent Court of International Justice, France v. Turkey (“Lotus”), Judgment No. 9, P.C.I.J. Reports 1928, Series A. No. 10, (7 September 1927), 18.
760 Mann (n 56) 14; Brownlie (n 53) 165.
761 O’Connell (n 58) 599.
762 “Lotus” (n 759) 19.
763 Lowe (n 59) 312; O’Neill (n 59) 353.
764 Such a connection must typically exist for extraterritoriality to be appropriate and a variety of situations can be considered in which the relation is considered to approve extraterritoriality. For example, the active and passive nationality principle allow states to have jurisdiction in cases where the offender or the victim is a national, whilst the protective principle gives jurisdiction to a state when its vital interests are at stake.
Specifically the active nationality principle is widely used by domicile courts as grounds for extraterritorial jurisdiction.
765 For example, The Convention Against Torture demands that states have jurisdiction over matters ‘when the alleged offender is a national of that State; or when the victim is a national of the State if it considers it appropriate’. However, as researched in the State Responsibilities to Regulate and Adjudicate Corporate Activities under the core UN Human Rights Treaties - the Individual report on the International Covenant on Civil and Political Rights, the HRC has not been eager to comment on the requirement for such actions from states. The HRC has also not noted that such actions would not be permitted. Therefore the actual obligation to set extraterritorially applying legislation is not clear.
jurisdiction arises solely from the nature of the crime without the demanded nexus as other principles of jurisdiction.766 The principle hence allows jurisdiction without any connection between the state and the offence. It therefore surpasses the basic rules of not only territoriality and sovereignty, but also extraterritoriality. Often the reasons for universal jurisdiction are that other states cannot exercise jurisdiction in accordance with the traditional rules and no other states have a direct interest, but the international community has an interest, which allows the state to act as a surrogate for the international community.767
The application of the presumption of extraterritoriality has been considered as misconstrued by a number of scholars.768 Firstly, the legal praxis regarding the ATS has mostly not been limited to territoriality. The presumption against extraterritoriality in ATS claims was first established in the Morrison judgment in which Australian plaintiffs sued an Australian bank for securities violations.769 However, the presumption was clearly not used in a variety of judgments in which the ATS was applied. In addition, the ATS specifically gives universal jurisdiction to the US courts over violations of international customary law. Already in Sosa v. Alvarez-Machain the universal jurisdiction in regard to the ATS was noted.770 Secondly and even more importantly, the ATS was initially constructed for claims regarding piracy to which international law notes universal jurisdiction can be applied.771 It is rather interesting according to Sarah Cleveland that universal jurisdiction could be applied to piracy in 1789, but not to matters which are also widely accepted to have universal jurisdiction, such as torture, in 2013.772 Justice Bryer noted that if the ATS should apply to piracy, it should also apply to the crimes of torture and genocide.773 The Court however concluded that there was no clear indication of extraterritoriality. The Kiobel judgment also does not attempt to explain why the Court has accepted extraterritoriality previously, but restrains it in this case.774
766 Bassiouni (n 62) 81; Colangelo (n 62) 150–151.
767 Bassiouni (n 62) 96.
768 Anthony J Colangelo, ‘The Alien Torture Statute and the Law of Nations in Kiobel and Beyond’ (2013) 44 Georgetown Journal of International Law 1329, 1332.
769 Supreme Court of the United Stataes, Morrison v. Nat’l Austl. Bank Ltd., 130 S. Ct. 2869, (24 June 2010).
770 Supreme Court of the United States, Sosa v. Alvarez-Machain, 542 U.S. 692 (29 June 2004), 732.
771 Cleveland (n 735) 18.
772 ibid 19.
773 Kiobel v. Royal Dutch Petroleum (n 736) Justice Bryer concurring opinion.
774 Stephens (n 66) 269.
7.2.6.1 The Touch and Concern Test
The Kiobel judgment itself does not fully exclude the future of foreign claims made under the ATS.775 The reasoning of the court was that ‘all the relevant conduct took place outside the United States’776 and hence the Court did not see that the case touched and concerned the territory of the US. The Court did not offer any real guidelines or rules to which situations could touch and concern the US with sufficient force. Justice Bryer even criticises the ruling for offering very limited assistance in understanding what facts would allow an extraterritorial claim.777 It can be assumed from the Court’s ruling that as long as the cases ‘touch and concern’
the US with sufficient force, the presumption again is that extraterritoriality may be replaced. What specifically is considered to pass the test is not answered in the judgment. Some judges have attempted to shine light on the ‘touch and concern’
requirement. Justice Bryer notes that for the presumption to be overruled, the alleged tort occurred on American soil, ‘the defendant is an American national, or 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’.778
Although universal human rights litigation may have stalled, domestic US companies can satisfy the said standards and can find themselves adjudicated for human rights violations. As R. G. Steinhardt points out, ‘the international law standards of prescriptive jurisdiction will provide at least analogical authority for determining which claims “touch and concern” the United States’.779 The ascent of the ATS has not faded, but might in fact continue to evolve, but only in regard to US-based multinational corporations and their actions. However the defendant in Kiobel was American, but the presumption was based on the fact that all the conduct occurred abroad. As many of the world’s largest and most influential corporations are US-based companies, the ATS might prove still to be highly influential and significant. It does however create a different set of rules for American and non-American companies. The ATS might even at a minimum level hence still influence at least the actions of US-based multinational companies when they are operating abroad.
775 Colangelo (n 768) 1345; Stephens (n 66) 271; Anthony J Colangelo, ‘What Is Extraterritorial Jurisdiction?’
(2014) 99 Cornell Law Review 1303, 1345; Kaki J Johnson, ‘Kiobel v Dutch Petroleum CO.: The Alien Torture Statute’s Presumption Against Extraterritoriality’ (2014) 60 Loyola Law Review 1689, 1890.
776 Kiobel v. Royal Dutch Petroleum (n 736) 1669.
777 Ibid 1673.
778 Ibid Justice Kennedy concurring opinion 1674.
779 Steinhardt (n 18) 843
In October 2017, the Supreme Court announced it would decide whether multinational corporations could actually be sued in accordance with the ATS for complicity in international crimes. With the judgment of Jesner v. Arab Bank, Plc, the Supreme Court adjudged that aliens cannot bring claims against foreign companies under the ATS and thus ending the conversation surrounding the possibility of extending ATS to forma level of corporate accountability.