Amicus Curiae Brief — Kiobel v. Royal Dutch Petroleum Co.

No. 10-1491

3n The

Supreme Court of the Anited States

4

ESTHER KIOBEL, ET AL..,

Petitioners,

v.

ROYAL DUTCH PETROLEUM CO., ET AL.,

Respondents.

®

On Writ Of Certiorari To The

United States Court Of Appeals

For The Second Circuit

s

BRIEF FOR AMICI CURIAE LAW

PROFESSORS OF CONSTITUTIONAL

AND FEDERAL CIVIL PROCEDURE LAW

IN SUPPORT OF RESPONDENTS

.

RICHARD A. EDLIN

Counsel of Record

KAREN I. BRAY

CHRISTOPHER L. HARBIN

GREENBERG TRAURIG LLP

200 Park Avenue

New York, NY 10116

(212) 801-9200

edlinr@gtlaw.com

Counsel for Amici Curiae

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

AYR Cal OO T Perr 14m) 249 9891

]

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE ......................... 1

INTRODUCTION AND SUMMARY OF ARGU-

INT id isndiccadu ciaiebdianadyacbandaaetnishainkseuiidiaanlgiaiasieadson 2

ITE ieicrecictuisiabtsichasiiiteatinaniineicinaieeeealbcastdpmbsaiipaditinen 3

I. ARTICLE III JURISDICTION DOES NOT

EXIST FOR “FOREIGN-CUBED” ATS

TEE wstisicncntudsepksnliescssensguineninaseiceuier 3

A. The Foreign Diversity Clause Does

Not Reach Suits Between Aliens......... 4

B. Violations of the “Law of Nations”

Do Not Confer “Arising Under” Juris-

a 8

Il. THE ATS DOES NOT PROVIDE STAT-

UTORY SUBJECT MATTER JURIS-

DICTION OVER ‘“FOREIGN-CUBED”

EE ices ernenninrescinsnitinneetintionnpenianeni 15

A. The ATS Must be Narrowly Con-

strued to Exclude “Foreign-Cubed”

IND scidcstiicinititecessnitsienanabadatiabbaatiiiintenin 15

B. The Law of Nations Does Not, by

its Own Definition, Include “Foreign-

Baia Ea ge SSE PS eee 16

FRE RES SSO ate me ee ener eT eee eatD 23

APPENDIX

LIST OF AMICI CURIAR ...0..........0:.0c.c0+.s00s00.0« App. 1

i

TABLE OF AUTHORITIES

Page

CASES

Erie Railroad Co. v. Thompkins, 304 U.S. 64

SUTIN niuictisid senhenlaitescseercdbanlighicaatsla cusea tien Sodanesondsiabeanenotanaibia 13, 14

Ex parte McCardle, 74 U.S. (7 Wall.) 506 (1868)......... 2

Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir.

SP vasdiiscdsticitchinith-tbsedcvacebboesnietasbennceesasmisibiniaresibgdliiadasesamsaubecnisanes 13

Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303

SERENE Saeed ee OREO CNS 5, 7, 15, 16

Ker v. Illinois, 119 U.S. 436 (1886) ...........00...000cccc ce. 13

Kline v. Burke Construction Co., 260 U.S. 226

UTI «ssc inssiasuictaintecauansdiatencbiead ipcedsaibadmaebaindbibintaicaniaiialtcdadcotcas 5

Kokkonen v. Guardian Life Ins. Co. of America,

Pe IE: SID IO Sao ci os vias armmoeensiauiciadiconipitinsstcdanisicona ies 2

Mesa v. California, 489 U.S. 121 (1989)... 9

Montalet v. Murray, 8 U.S. 46 (1807) .............. 7, 15, 16

Morrison v. Nat'l Austl. Bank Ltd., 130 S. Ct.

SRG EERE ee ENS EE OA ee ESR PO NaC? 2

Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d

By I a a ed 2

Mossman v. Higginson, 4 U.S. 12 (1800)....6, 7, 10, 15, 16

New York Life Insurance Co. v. Hendren, 92

tA SSIS Rea inern cents Were ae 12,13

Rose v. Himeley, 8 U.S. (4 Cranch) 241 (1808) ....20, 21

Sarei v. Rio Tinto, No. 02-56256, slip op. 19321

(9th Cir. Oct. 25, 2011) (en banc), petition for

cert. pending (No. 11-649) (Nov. 23, 2011) .....passim

lil

TABLE OF AUTHORITIES - Continued

Page

Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) .... passim

Steel Co. v. Citizens For Better Env’t, 523 U.S.

a TTT cecechnenbhdsiisdstacnjudiheentsariasedisniites site didasllinithdee as cs itch ced 2

The Antelope, 23 U.S. (10 Wheat.) 66 (1825)....... 21, 22

The Apollon, 22 U.S. (9 Wheat.) 362 (1824) .............. 20

The Neriede, 13 U.S. (9 Cranch) 388 (1815).............. 13

The Paquete Habana, 175 U.S. 677 (1900)................ 13

The Propeller Genesee Chief v. Fitzhugh, 53 U.S.

I iiicisniiniabditiicctei cei ck Lt eae 9

U.S. Steel Corp. v. Multistate Tax Comm’n, 434

ft PN RECS Sas Omen a ite che 17

Verlinden, B.V. v. Cent. Bank of Nigeria, 461

ON) SR Re DSS pear ee Sane 5, 9, 10

CONSTITUTIONAL PROVISIONS

of ee ee. ee Oe Be eee eee ee ee ll

vs Bee 8 Oe eS eae passim

Se Hs sR ist ndotecssenteecchec tte eae 11, 14

U.S. STATUTES

Act of Sept. 24, 1789, ch. 20, § 9, 1 Stat. 77................. 6

Act of Sept. 24, 1789, ch. 20, § 11, 1 Stat. 78............... 6

Alien Tort Statute, 28 U.S.C. § 1350 ......0000000000.. 1,6,8

iV

TABLE OF AUTHORITIES — Continued

Page

OTHER AUTHORITIES

Anthony J. Bellia Jr. & Bradford R. Clark, The

Alien Tort Statute and the Law of Nations,

2 fa | RRB cen enneeencen puna 13

Curtis A. Bradley, The Alien Tort Statute and

Article III, 42 Va. J. Int’] L. 587 (2002) ............ 11, 17

Curtis A. Bradley & Jack L. Goldsmith III,

Customary International Law as Federal

Common Law: A Critique of the Modern Posi-

tion, 110 Harv. L. Rev. 815 (1997) ....................0000.. 14

Donald J. Kochan, Constitutional Structure as

a Limitation on the Scope of the ‘Law of

Nations’ in the Alien Tort Claims Act, 31

CE GEE Bits Gis IE Bi iicnatevccsivcsctnnceccesiscccnccsos 12

James Madison, The Federalist, No. 83 (1788)......... 12

Peter Onuf & Nicholas Onuf, FEDERAL UNION,

MODERN WORLD: THE LAW OF NATIONS IN AN

AGE OF REVOLUTIONS, 1776-1814 (1993).......0......... 16

E. de Vattel, THE LAW OF Nations, bk. II, ch. IV ........ 18

E. de Vattel, THE LAW OF NATIONS, bk. II, ch. V1........ 19

E. de Vattel, THE LAw or NATIONS, Preliminar-

Arthur M. Weisburd, The Executive Branch and

International Law, 41 Vand. L. Rev. 1205

| Rada R RESET RSE ERS SCALES ERE SABIE Eee een ae oR a 12

1

INTEREST OF AMICI CURIAE

This brief amicus curiae is respectfully submitted

pursuant to Supreme Court Rule 37 in support of the

Respondents.’ Amici (listed in the Appendix) are

constitutional and federal civil procedure law profes-

sors who have an interest in the proper jurisdictional

limitations being applied to the Alien Tort Statute,

28 U.S.C. § 1350.

Before reaching the substantive merits of this

case, this Court must first determine the threshold

question of whether federal courts have Article III

subject-matter jurisdiction over “foreign-cubed” law-

suits brought under the Alien Tort Statute — that is,

lawsuits where foreign defendants are sued by for-

eign plaintiffs for conduct committed exclusively in

foreign countries. Because the Constitution precludes

such jurisdiction, Amici respectfully ask this Court to

affirm the decision of the United States Court of

Appeals for the Second Circuit.

¢

' No counsel for a party authored this brief in whole or in

part, and no such counsel or party made a monetary contribu-

tion intended to fund the preparation or submission of this brief.

No persons other than the Amici or their counsel made a

monetary contribution to this brief’s preparation or submission.

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

Although this Court’s grant of certiorari princi-

pally concerns the question of whether corporations

can be held liable for actions brought pursuant to the

Alien Tort Statute (the “ATS”), a necessary precedent

question is whether the federal courts have subject-

matter jurisdiction over “foreign-cubed” ATS lawsuits.’

“Federal courts are courts of limited jurisdiction.

They possess only that power authorized by Consti-

tution and statute, which is not to be expanded by

judicial decree.” Kokkonen v. Guardian Life Ins. Co. of

America, 511 U.S. 375, 377 (1994); see also Ex parte

McCardle, 74 U.S. (7 Wall.) 506, 512 (1868) (“[t]he

first question necessarily is that of jurisdiction for .. .

it is useless, if not improper, to enter into any discus-

sion of other questions” if jurisdiction is absent); Steel

Co. v. Citizens For Better Env’t, 523 U.S. 83, 93 (1998)

(“statutory arguments, since they are ‘jurisdictional,’

would have to be considered by this Court even

though not raised earlier in the litigation — indeed,

this Court would have to raise them sua sponte”).

Unless a case or controversy falls within one of the

* See Morrison v. Nat'l Austl. Bank Ltd., 130 S. Ct. 2869,

2894 n.11 (2010) (Stevens, J., concurring) (defining “foreign-

cubed” actions under the Securities Exchange Act as those in

which “(1) foreign plaintiffs |are|] suing (2) a foreign issuer in an

American court for violations of American securities laws based

on securities transactions in (3) foreign countries”) (alteration in

original) (quoting Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d

167, 172 (2d Cir. 2008)).

3

grants enumerated in Article III, the federal courts

have no power to hear it.

The threshold question of jurisdiction is not “a

mere doorsill but a formidable obstacle.” Sarei v. Rio

Tinto, No. 02-56256, slip op. 19321, 19465 (9th Cir.

Oct. 25, 2011) (en banc) (Ikuta, J., dissenting). As four

dissenting judges in the Ninth Circuit Court of

Appeals recognized in Rio Tinto, “foreign-cubed” ATS

lawsuits, such as this case, fail to meet this threshold

requirement. See generally Rio Tinto, slip op. at

19465.

For the reasons explained below, the federal

courts lack both Article III and statutory subject

matter jurisdiction over such lawsuits, including this

suit, and the proper result in this case should be

dismissal for lack of subject matter jurisdiction.

a

ARGUMENT

I. ARTICLE III JURISDICTION DOES NOT

EXIST FOR “FOREIGN-CUBED” ATS LAW-

SUITS

The Kiobel lawsuit was brought by twelve citizens

of Nigeria against three foreign corporations: Royal

Dutch Petroleum Company, now Shell Petroleum

N.V., a Dutch corporation, the “Shell” Transport and

Trading Company p.l.c., now the Shell Transport and

Trading Company, Ltd. (collectively with Shell Petro-

leum N.V., “Shell”), an English Corporation, and the

Shell Petroleum Development Company of Nigeria,

4

Ltd. (““SPDC”), a Nigerian corporation. Kiobel alleges

that Shell, through its indirect subsidiary SPDC,

“aided and abetted the Nigerian government in com-

mitting human rights abuses directed at plaintiffs.”

(See Pet. App. A-22 & n.25.) Kiobel’s claims against

Shell include charges of: extrajudicial killing; crimes

against humanity; torture or cruel, inhuman, and de-

grading treatment; arbitrary arrest and detention;

violation of the rights to life, liberty, security, and

association; forced exile; and property destruction.

(Id. at A-23.) No relevant act occurred within the

United States; no plaintiff was a citizen or resident of

the United States at the time the alleged torts were

committed; and no defendant was incorporated or had

its principal place of business — or any business

operations whatsoever — in the United States. Yet,

despite no connection between the United States and

the conduct, plaintiffs, or defendants, Petitioners seek

to have a United States federal court adjudicate their

claims.

A. The Foreign Diversity Clause Does Not

Reach Suits Between Aliens

Article III, section 2, clause 1 of the United States

Constitution limits the federal judicial power to:

... all Cases, in Law and Equity, arising un-

der this Constitution, the Laws of the United

States, and Treaties made, or which shall be

made, under their Authority; — to all Cases

affecting Ambassadors, other public Minis-

ters and Consuls; — to all Cases of admiralty

i)

and maritime Jurisdiction; — to Contro-

versies to which the United States shall be

a Party; — to Controversies between two or

more States; — between a State and Citizens

of another State; — between Citizens of dif-

ferent States; — between Citizens of the

same State claiming Lands under Grants of

different States, and between a State, or the

Citizens thereof, and foreign States, Citizens

or Subjects.

U.S. Const. art. ITI, § 2, cl. 1. “This Court’s cases firmly

establish that Congress may not expand the juris-

diction of the federal courts beyond the bounds estab-

lished by the Constitution.” Verlinden, B.V. v. Cent.

Bank of Nigeria, 461 U.S. 480, 491 (1983) (citing

Hodgson v. Bowerbank, 9 U.S. (5 Cranch) 303 (1809)

and Kline v. Burke Construction Co., 260 U.S. 226,

234 (1922)).

Unless a case or controversy falls within one of

the grants enumerated in Article III, the federal courts

have no power to hear it. The final clause of Article

III, on its face, extends the federal judicial power to

cases brought by “foreign States, Citizens or Subjects”

only when the adversary is a State or one of its

citizens. Unless a “foreign-cubed” ATS case satisfies

some other grant of jurisdiction in Article III (e.g.,

cases arising under maritime law, cases involving

ambassadors), Article III jurisdiction is absent.

In the original Judiciary Act of 1789, the First

Congress established the statutory jurisdiction of the

federal courts, cabined, of course, by Article III. The

6

original version of the ATS, now codified at 28 U.S.C.

§ 1350, was contained in Section 9 of the Judiciary

Act, and provided the district courts with “cognizance”

of “all causes where an alien sues for a tort only

in violation of the law of nations or a treaty of the

United States.” Act of Sept. 24, 1789, ch. 20, § 9, 1

Stat. 77.°

In Section 11 of the Judiciary Act, the First Con-

gress provided the district courts with jurisdiction

over “all suits of a civil nature at common law or in

equity, where ... an alien is a party.” Act of Sept. 24,

1789, ch. 20, § 11, 1 Stat. 78. Neither Section 9 (the

ATS) nor Section 11 specifies that the party adverse

to an alien must be a citizen of the United States.

Nevertheless, several early decisions of this Court

hold that the alienage jurisdiction provided by the

Judiciary Act cannot expand federal jurisdiction to

cases by aliens against aliens, in contravention of

Article III. Therefore, the Judiciary Act must be read

narrowly, within its Constitutional confines.

For example, in Mossman v. Higginson, 4 U.S. 12

(1800), a British citizen sued persons whose citizen-

ship was not disclosed in the pleadings. Counsel for

petitioner argued, “that the jurisdiction of the court,

did not appear upon the record, as there was no

* The statute has been modified since its original enactment.

It now reads: “The district courts shall have original jurisdiction

of any civil action by an alien for a tort only, committed in viola-

tion of the law of nations or a treaty of the United States.” 28

U.S.C. § 1350 (2006).

7

designation of the citizenship of the defendants.” Jd.

at 13. This Court agreed, holding:

[T]he 11th section of the judiciary act can,

and must, receive a construction, consistent

with the constitution. It says, it is true, in

general terms, that the Circuit Court shall

have cognizance of suits “where an alien is

a party”; but as the legislative power of con-

ferring jurisdiction on the federal Courts, is,

in this respect, confined to suits between citi-

zens and foreigners, we must so expound the

terms of the law, as to meet the case, “where,

indeed, an alien is one party,” but a citizen is

the other.

Id. at 14; see also Montalet v. Murray, 8 U.S. 46, 47

(1807) (“The Court was unanimously of the opinion

that the courts of the United States have no jurisdic-

tion of cases between aliens”); Hodgson v. Bowerbank,

9 U.S. (5 Cranch) 303, 304 (1809) (holding federal

courts lacked jurisdiction over suit by British citizen

against persons of unknown citizenship because

Section 11 of the Judiciary Act “cannot extend the

jurisdiction beyond the limits of the constitution”).

Just as Section 11 of the Judiciary Act cannot

create Article III jurisdiction for suits between aliens,

neither can Section 9, which contains the ATS. See

Rio Tinto, slip op. at 19481-83 (Ikuta, J., dissenting).

8

B. Violations of the “Law of Nations”

Do Not Confer “Arising Under” Juris-

diction

Because the alienage grant in Article III does not

confer jurisdiction over suits between aliens, and

because Petitioners’ lawsuit does not fall within any

other specific grant of jurisdiction under Article III,

the only remaining ground for Article III jurisdiction

would be the grant of jurisdiction over cases “arising

under this Constitution, the Laws of the United

States, and Treaties made, or which shall be made,

under their Authority.” U.S. Const. art. ITI, § 2, cl. 1.

However, no constitutional or treaty-based claim is

present here. Therefore, the “arising under” clause

would provide a basis for Article III jurisdiction over

Petitioners’ claims only if those claims arise under

the “Laws of the United States.” However, claims for

violations of the law of nations do not “arise under”

federal law, for several reasons.

First, the ATS is not itself a “Law| ] of the United

States” capable of creating “arising under” jurisdic-

tion. As this Court held in Sosa v. Alvarez-Machain,

the ATS is a purely jurisdictional statute that creates

no causes of action. 542 U.S. 692, 712 (2004) (“we

agree the statute is in terms only jurisdictional”); id.

at 724 (“the ATS is a jurisdictional statute creating no

new causes of action”); id. at 729 (“All Members of the

Court agree that § 1350 is only jurisdictional”); id.

at 713 (“[Petitioner] says the ATS was intended not

simply as a jurisdictional grant, but as authority for

the creation of a new cause of action for torts in

9

violation of international law. We think that reading

is implausible”). As such, the ATS cannot itself pro-

vide a basis for Article III “arising under” jurisdiction:

a statute that is merely jurisdictional by definition

does not set forth substantive law supporting a cause

of action “arising under th[e] ... Laws of the United

States.” U.S. Const. art. III, § 2, cl. 1; see Mesa v.

California, 489 U.S. 121, 136 (1989) (“Section 1442(a)

. iS a pure jurisdictional statute, seeking to do

nothing more than grant district court jurisdiction

over cases in which a federal officer is a defendant.

Section 1442(a), therefore, cannot independently sup-

port Art. III ‘arising under’ jurisdiction.”); The Propel-

ler Genesee Chief v. Fitzhugh, 53 U.S. 443, 452 (1851)

(rejecting the view that the jurisdictional statute

at issue itself provided a basis for “arising under”

jurisdiction because “the jurisdiction to administer

the existing laws upon [the subjects of commerce and

navigation] is certainly not a regulation within the

meaning of the Constitution. And this act of Congress

merely creates a tribunal to carry the laws into

execution but does not prescribe them.”).

This Court’s analysis of the scope of a congres-

sional grant of jurisdiction through the creation of a

body of substantive laws, as opposed to a mere con-

ferral of jurisdiction over a specific category of suits,

was expressed in Verlinden, B.V. v. Cent. Bank of

Nigeria, 461 U.S. 480 (1983).

In Verlinden, this Court addressed whether Con-

gress had exceeded the scope of Article III by autho-

rizing suits by foreigners against foreign sovereigns,

10

under the Foreign Sovereign Immunities Act (“FSIA”).

Citing Mossman, this Court held that Article III’s for-

eign diversity clause did not provide sufficient grounds

for the FSIA’s authorization of suits by aliens against

aliens, and then proceeded to consider whether the

FSIA’s grant of jurisdiction could be justified under

Article III’s “arising under” clause. Verlinden, 461

U.S. at 482. The Court concluded that if the FSIA

“sought to do nothing more than grant jurisdiction

over a particular class of cases,” the FSIA’s grant of

jurisdiction for aliens to sue aliens would be unconsti-

tutional. Jd. at 496. However, because Congress, in

enacting the FSIA, “expressly exercised its power to

regulate foreign commerce,” Article III’s “arising

under” provision was sufficient to justify the FSIA’s

jurisdictional grant. Jd. at 482.

The Court in Verlinden further noted that the

FSIA expressly “codifies the standards governing for-

eign sovereign immunity as an aspect of substantive

federal law,” and was binding on the state courts as

well as the federal courts. Jd. at 494. Thus, by exer-

cising its Article I foreign commerce power to create a

comprehensive and substantive body of federal law

governing foreign entities and foreign relations, the

FSIA was properly within Article III’s arising under

jurisdiction. Id. at 495; see also Rio Tinto, slip op. at

19481-83 (Ikuta, J., dissenting).

The ATS, in sharp contrast, is purely jurisdic-

tional, doing nothing more than granting “federal

courts jurisdiction over a species of claims that in-

corporate ‘the law of nations.” Jd. at 19469, and

11

therefore cannot provide a basis for “arising under”

jurisdiction.

Second, the Constitution itself does not include

the law of nations as part of the laws of the United

States. Although Articles III and VI include treaties

as a source of supreme federal law, see U.S. Const. art.

III, § 2, cl. 1 and art. VI, they do not include any

mention of the “law of nations.” Indeed, the only

mention of the law of nations in the Constitution is

contained

in Article I, which gives Congress, not the courts,

the discretionary authority to “define and punish” —

and thereby incorporate into federal law — “Offences

against the Law of Nations.” U.S. Const. art. I, § 8,

cl. 10.

The omission of the “law of nations” from Articles

III and VI, is made even more significant by the fact

that at least two proposed drafts of the Constitution

would have granted the federal judiciary the authority

to hear cases arising under the law of nations. See

Curtis A. Bradley, The Alien Tort Statute and Article

ITI, 42 Va. J. Int'l L. 587, 597-98 (2002) (“The Pinck-

ney Plan would have given the Supreme Court appel-

late jurisdiction over state court decisions ‘in all

Causes wherein Questions shall arise .. . on the Law

of Nations” and “there is evidence suggesting that the

New Jersey Plan would have given the federal judici-

ary authority to hear, on appeal, all cases ‘which may

arise ... on the Law of Nations, or general commer-

cial or marine Laws’”); see also Rio Tinto, slip op. at

19472-73 (Ikuta, J., dissenting).

12

In contrast to the Constitution’s grant to Con-

gress of the power to define and punish violations of

the law of nations, the Framers conceived of a federal

judiciary with limited jurisdiction, “declared by the

constitution to comprehend certain cases particularly

specified.” James Madison, The Federalist, No. 83

(1788). The “particularly specified” grants extending

to matters within the law of nations include jurisdic-

tion over: “Treaties made, or which shall be made .. .

all Cases affecting Ambassadors, other public Minis-

ters and Consuls [and] all Cases of admiralty and

maritime Jurisdiction.” U.S. Constitution, art. III, sec.

2. The argument that, because the law of nations is

incorporated into federal common law, cases based on

the law of nations arise under the laws of the United

States, see, e.g., Sarei v. Rio Tinto, slip op. at 19342-

51, is inconsistent with the structure of the Consti-

tution itself. If law of nations claims arise under the

laws of the United States, the specific jurisdictional

grants over cases involving treaties, ambassadors,

admiralty law and maritime law would have been

superfluous. See generally, Donald Kochan, Constitu-

tional Structure as a Limitation on the Scope of

the ‘Law of Nations’ in the Alien Tort Claims Act,

31 Cornell Int'l] L. J. 153, 170-76 (1998); Arthur

Weisburd, The Executive Branch and International

Law, 41 Vand. L. Rev. 1205, 1223 (1988).

Third, this Court has held that uncodified inter-

national law, such as the law of nations, does not

present a federal question or comprise the laws of the

United States for jurisdictional purposes. See New

13

York Life Insurance Co. v. Hendren, 92 U.S. 286 (1875).

In Hendren, this Court dismissed for lack of jurisdic-

tion a suit for dissolution of an insurance contract

based on “the general laws of war, as recognized by

the law of nations applicable to this case,” as the suit

was “premised upon principles of general law alone”

and that it “nowhere appear|ed] that the constitution,

laws, treaties, or executive proclamations|[ | of the

United States were necessarily involved” in reaching

a decision. 92 U.S. at 286-87; see also Ker v. Illinois,

119 U.S. 436, 444 (1886) (the decision of whether

“forcible seizure in another country” prevents the

criminal prosecution in the United States of the

person seized is “as much within the province of the

State court, as a question of common law, or the law

of nations, of which that court is bound to take notice,

as it is of the courts of the United States” and is “one

... Which we have no right to review”).

Fourth, cases prior to this Court’s decision in Erie

Railroad Co. v. Thompkins, 304 U.S. 64 (1938), that

recognized the law of nations as “part of our law,” The

Paquete Habana, 175 U.S. 677, 700 (1900), or as “a

part of the law of the land,” The Neriede, 13 U.S. (9

Cranch) 388, 423 (1815), on which courts have relied

in asserting that the law of nations provides an

Article III basis for ATS suits, see, e.g., Filartiga v.

Pena-Irala, 630 F.2d 876, 886-87 (2d Cir. 1980), are

not to the contrary. “In the eighteenth and nineteenth

centuries, the law of nations was considered to be a

form of general law.” Anthony J. Bellia Jr. & Bradford

R. Clark, The Alien Tort Statute and the Law of

14

Nations, 78 U. Chi. L. Rev. 445, 528 n.396 (2011).

As Sosa explained, when the First Congress enacted

the ATS and until this Court’s decision in Erie, “the

accepted conception was of the common law as ‘a

transcendental body of law outside of any particular

State but obligatory within it unless and until changed

by statute.” Sosa, 542 U.S. at 725. This general com-

mon law “was not federal law under the Supremacy

Clause” and it did not by itself confer jurisdiction on

the federal courts. Jd. at 740 (Scalia, J., concurring).*

In Erie, this Court rejected the ability of the fed-

eral courts to apply the general common law, instead

requiring federal courts to apply either state or fed-

eral substantive law. 304 U.S. at 78. As a result,

federal courts can no longer create substantive feder-

al common law except in limited circumstances not

relevant here. Jd. Any contention that, as a result of

Erie, federal courts can now manufacture their own

“arising under” jurisdiction by decreeing federal com-

mon law would be entirely antithetical to Erie, and

inconsistent with Sosa’s admonition that federal

* See also Curtis A. Bradley & Jack L. Goldsmith III, Cus-

tomary International Law as Federal Common Law: A Critique

of the Modern Position, 110 Harv. L. Rev. 815, 823 (1997) (“gen-

eral common law was not part of the ‘Laws of the United States’

within the meaning of Articles III and VI of the Constitution:

federal court interpretations of general common law were not

binding on the states, and a case arising under general common

law did not by that fact alone establish federal question juris-

diction”); Jd. (explaining that both pre- and post-Erie customary

international law is not federal law).

15

common law is generally limited to areas “defined by

express congressional authorization” or “interstitial

areas of particular federal interest.” 542 U.S. at 725.

Il. THE ATS DOES NOT PROVIDE STATU-

TORY SUBJECT MATTER JURISDICTION

OVER “FOREIGN-CUBED” LAWSUITS

The ATS does not provide statutory subject-

matter jurisdiction over “foreign-cubed” suits for two

reasons: (1) if inconsistent with Article III’s grant, the

ATS must be narrowed in a way to render it constitu-

tional; and (2) the “law of nations” is not synonymous

with “international law,” and excludes “foreign-cubed”

torts by definition.

A. The ATS Must be Narrowly Construed

to Exclude “Foreign-Cubed” Lawsuits

The ATS, like the statutory grant of alienage

jurisdiction contained in Section 11 of the Judiciary

Act of 1789, purports to grant statutory jurisdiction

over suits by aliens, regardless of the citizenship of

the adverse party. As discussed supra at I.A, when

confronted with the problem that Section 11’s statu-

tory grant appeared to exceed Article III’s grant, by

providing for jurisdiction in suits between aliens, this

Court narrowed Section 11’s literal language to make

it consistent with the Constitution. Thus, in Moss-

man, Montalet and Hodgson, the Court repeatedly

constricted the language of Section 11 so that it was

“confined to suits between citizens and foreigners,”

16

despite the statute’s broader literal reading. Mossman,

4 U.S. at 14; Hodgson, 9 U.S. at 304; Montalet, 8 U.S.

at 47. That same result must apply to the ATS; there

is no reason to treat Sections 9 and 11 of the Judici-

ary Act differently.

B. The Law of Nations Does Not, by its

Own Definition, Include “Foreign-

Cubed” Torts

No nation has an obligation to adjudicate claims

that do not involve it. Indeed, the law of nations com-

pels nations to refrain from purporting to adjudicate

controversies as to which they have no connection, be-

cause each must respect the sovereignty of the others.

In Sosa, this Court was careful not to confuse the

“law of nations” with “international law.” The law of

nations concerns: (1) “‘the rights subsisting between

nations or states, and the obligations correspondent

to those rights,’ ... [which] occupie[s] the executive

and legislative domains, not the judicial”; and (2) “a

body of judge-made law regulating the conduct of

individuals situated outside domestic boundaries and

consequently carrying an international savor.” 542

U.S. at 714-15 (quoting E. de Vattel, THE LAW OF

NATIONS, Preliminaries § 3 (emphasis added)).° The

* Vattel’s landmark work, The Law of Nations, first pub-

lished in 1758, “was unrivaled among such treatises in its

influence on the American founders.” Peter Onuf & Nicholas

Onuf, FEDERAL UNION, MODERN WORLD: THE LAW OF NATIONS

IN AN AGE OF REVOLUTIONS, 1776-1814, at 11 (1993). See also

(Continued on following page)

17

Court noted that the law of nations implicated indi-

viduals as to a “narrow set of violations” only, where a

nation’s failure to provide redress for an offense

“threaten[ed] serious consequences in international

affairs.” Id. at 715.

Historically, “nations were responsible under the

law of nations to punish and compensate offenses

committed by their citizens; although there might also

have been circumstances under which nations had

an obligation to punish offenses by foreign citizens

committed in their territory, nations were not them-

selves liable for the damages caused by such foreign

citizens.” Curtis A. Bradley, The Alien Tort Statute and

Article III, 42 Va. J. Int’] L. 587, 630 (2003). However,

the law of nations imposed no duty on any nation to

provide redress for injuries caused by aliens within

the territory of another nation. Indeed, the “law of

nations” as it existed in the 18th and 19th centuries

would have viewed the prosecution of a “foreign-

cubed” lawsuit as a direct infringement of one na-

tion’s sovereignty by another:

U.S. Steel Corp. v. Multistate Tax Comm'n, 434 U.S. 452, 462

n.12 (1978) (“The international jurist most widely cited in the

first 50 years after the Revolution was Emmerich de Vattel. 1 J.

Kent, Commentaries on American Law 18 (1826). In 1775,

Benjamin Franklin acknowledged receipt of three copies of a

new edition, in French, of Vattel’s Law of Nations and remarked

that the book ‘has been continually in the hands of the members

of our Congress now sitting....’ 2 F. Wharton, United States

Revolutionary Diplomatic Correspondence 64 (1889).”).

18

It is an evident consequence of the liberty

and independence of nations, that all have a

right to be governed as they think proper,

and that no state has the smallest right to

interfere in the government of another. Of all

the rights that can belong to a nation, sover-

eignty is, doubtless, the most precious, and

that which other nations ought the most

scrupulously to respect, if they would not do

her an injury.

E. de Vattel, THE LAw oF NatTIons, bk. II, ch. IV, § 54.

In the present case, judging the liability of Re-

spondents necessarily requires judging the conduct of

a foreign sovereign. In this case, Petitioners allege

that Shell, through its Nigerian subsidiary, SPDC,

aided and abetted the Nigerian government by, for

example, reporting that oil pipelines have been sabo-

taged, providing the use of helicopters to transport

Nigerian government personnel, coming to a prison to

identify perpetrators of violence (which SPDC alleg-

edly failed to do), and hosting a cocktail party for

witnesses at trial, which resulted in verdicts of death.

Judging the liability of Respondents necessarily re-

quires judging the Nigerian government’s actions

within Nigeria against Nigerians. J.A. 60-77.

The law of nations places obligations on states,

not individuals. “[I}t would be unjust to impute to the

nation or the sovereign every fault committed by the

citizens. We ought not, then, to say, in general, that

we have received an injury from a nation because we

19

have received it from one of its members.” E. de

Vattel, THE LAW oF NATIONS, bk. II, ch. VI, § 73.

However, when a nation “refuses to cause reparation

to be made for the damage done by his subject, or to

punish the offender, or, finally, to deliver him up,

[that sovereign] renders himself in some measure an

accomplice in the injury, and becomes responsible for

it.” Id. at § 77. The law of nations is therefore not

violated simply because a private citizen injures a

foreigner; it is violated when the nation whose citizen

has caused the injury fails to provide adequate re-

dress. See Rio Tinto, slip op. at 19475-77 (Ikuta, J.,

dissenting).

Thus, the meaning of the phrase “in violation of

the law of nations” contained within the ATS does not

— and cannot — encompass torts committed by for-

eigners, against foreigners, in a foreign country. In

Sosa’s terms, there is no “obligatory” norm requiring

enforcement by the United States. 542 U.S. at 732.

As Judge Kleinfeld, dissenting in Sarei v. Rio Tinto,

put it, asserting jurisdiction under the ATS over a

“foreign-cubed” lawsuit:

violates the most long established, central

and fundamental principle of the law of

nations: “equality of sovereignty,” as it is

called, meaning each sovereign’s authority

over its subjects in its own territory equals

that of other sovereigns within their re-

spective territories, and excludes other sov-

ereigns’ authority within that sovereign’s

territory. Whether this is always a good

rule as a matter of policy is debatable, but

20

whether it is historically the most funda-

mental rule of the law of nations is not.

Sarei v. Rio Tinto, slip op. at 19431. The United States

would not have had — and still does not have — any

duty or obligation under the law of nations to provide

redress for such a tort, and therefore, the failure of

the United States to provide such redress does not

constitute a violation of the law of nations. To the

contrary, a decision of the United States to adjudicate

such a claim would constitute a breach of the law of

nations, of exactly the type the First Congress sought

to avoid.

Early decisions of this Court embody the funda-

mental principle set out in Vattel. For example, in

The Apollon, 22 U.S. (9 Wheat.) 362, 370 (1824), a

French ship destined for Charleston was diverted to a

Spanish port in Florida, in an attempt to avoid cus-

toms duties due to the United States. The ship had to

traverse the St. Mary’s River, which was the dividing

line between the United States and the territory of

Spain. After concluding that the river had the charac-

ter of international territory, the Court concluded

that even though the cargo was bound for the United

States by subterfuge, the laws of the United States

could not authorize the seizure of the ship or its cargo,

because “[t]he laws of no nation can justly extend be-

yond its own territories, except so far as regards its

own citizens.” Jd. at 370.

In Rose v. Himeley, 8 U.S. (4 Cranch) 241, 277-

79 (1808), a tribunal in Santo Domingo issued a

21

judgment of condemnation as to a cargo of coffee

seized in international waters, which thereafter never

entered the sovereign territory of Santo Domingo.

Starting from the proposition “that the legislation of

every country is territorial; that beyond its own ter-

ritory, it can only affect its own subjects or citizens,”

the Court held that because the Santo Domingo

tribunal had “exercise[d] a jurisdiction which, accord-

ing to the law of nations, its sovereign could not

confer, however available its sentences may be within

the dominions of the prince from whom the authority

is derived, they are not regarded by foreign courts.”

Id.

Finally, in The Antelope, 23 U.S. (10 Wheat.) 66,

122 (1825), Chief Justice Marshall, for a unanimous

Court, held that:

No principle of general law is more univer-

sally acknowledged than the perfect equality

of nations. Russia and Geneva have equal

rights. It results from this equality that no

one can rightfully impose a rule on another.

Each legislates for itself, but its legislation

can operate on itself alone. A right, then,

which is vested in all by the consent of all

can be devested only by consent, and this

trade, in which all have participated, must

remain lawful to those who cannot be induced

to relinquish it. As no nation can prescribe

a rule for others, none can make a law of

nations, and this traffic remains lawful to

22

those whose governments have not forbidden

it.°

Id.

The failure of the United States to provide a

forum to adjudicate “foreign-cubed” lawsuits does not

constitute a violation of the law of nations. According-

ly, the ATS’s grant of jurisdiction over torts committed

“in violation of the law of nations” does not provide

jurisdiction over “foreign-cubed” claims.

¢

* The development of treaty law, particularly multilateral

treaties formulated under the auspices of the United Nations,

is the way the modern world has implemented Justice Mar-

shall’s “devested by consent” requirement. There presently are

multilateral treaties and conventions covering a multitude of

subjects, including torture, extrajudicial killing, cruel, inhuman

and degrading treatment, and other abuses of human rights.

Under the constitutional framework in the United States, the

treaty power is reserved to the President, with the advice and

consent of the Senate — not the courts. In almost all cases, the

United States’ adoption of treaties has been with the reservation

that they are not self-executing. As Justice Scalia noted in his

concurrence in Sosa, were the courts to rely on the law of

nations to create private rights of action where the Executive

and Legislative branches have expressly refused to do so would

put the courts “directly into confrontation with the political

branches” to whom the Constitution has entrusted those mat-

ters. 542 U.S. at 748.

23

CONCLUSION

This case should be dismissed for lack of subject

matter jurisdiction.

Respectfully submitted,

RICHARD A. EDLIN

Counsel of Record

KAREN I. BRAY

CHRISTOPHER L. HARBIN

GREENBERG TRAURIG LLP

200 Park Avenue

New York, NY 10116

(212) 801-9200

edlinr@gtlaw.com

Counsel for Amici Curiae

Dated: February 3, 2012

App. 1

APPENDIX

LIST OF AMICI CURIAE*

James Duane

Professor of Law, Regent University School of Law

Professor Duane has taught at Regent Law School

since 1991 in the areas of Evidence, Civil Procedure,

Trial Practice, and Appellate Advocacy, and has pub-

lished more than thirty articles in those fields.

Leslie Y. Garfield

Professor of Law, Pace University School of Law

Professor Garfield has taught at Pace University

School of Law since 1990, and published numerous

articles on Constitutional and Tort Law.

* Affiliations are provided for identification purposes only.