The last 48 hrs have been chock full of WTF moments (Egypt’s first democratically-elected Parliament was dissolved, the emergency law was reinstated, and a whole lot of people suddenly started saying the word “coup”; Obama kinda sorta passed the Dream Act; and the ICC demanded the return of its detained staff members without once mentioning the word “immunity”), but my biggest spit-take of the week went to the U.S. government’s brand new amicus brief in Kiobel v. Royal Dutch Shell.
Kiobel is an Alien Tort Claims Act case (see my previous ATCA coverage here) currently before the Supreme Court. ATCA permits foreign citizens to sue in U.S. federal courts when they have suffered damages as a result of a “violation of the law of nations or a treaty of the United States.” In Kiobel, Nigerian citizens are suing the Dutch corporation for “aiding and abetting” abuses committed by the Nigerian government against civilians opposed to oil exploration.
The extent of the right to sue under ATCA is a hotly contested area of federal law. There are two big questions in ATCA jurisprudence: (1) what kind of conduct qualifies as a “violation of the law of nations,” and (2) who can be sued? The defendants in Kiobel allege that ATCA does not provide a right of action against corporations, only private individuals. (Bonus points to Royal Dutch Shell’s lawyers for not even blinking at the Citizens United induced irony here!)
The case was argued before the Supreme Court this spring, and the U.S. submitted an amicus brief saying, amongst other things, “Yes, definitely, ATCA applies to corporations the same as individuals and any company that does business in the U.S. can be sued in U.S. courts for its conduct abroad.” But instead of giving a decision, on March 5 the Court issued a surprise order for reargument, asking the parties to address the question of whether ATCA allows “a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” (Note: This is already intensely WTF-y on its own. Providing a cause of action for violations that occurred abroad is what ATCA does.)
The U.S. submitted its new brief this week, and lo and behold, the Obama administration now believes that when the connection to the U.S. is attenuated – such as when a foreign corporation is alleged to have aided and abetted a foreign government on foreign territory – ATCA does not apply.
This is an epic disappointment for human rights activists (and probably for U.S.-based corporations, too, who may now be held to a higher standard than their foreign competitors), and a confusing development for everyone else. It’s not clear how or why the reversal happened (although Trey Childress has some convincing guesses here), but the removal of the State Department’s signature between the first and second round of briefing suggests that the decision may have been contentious.