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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2013
- **Citation:** 569 U.S. 108

## Text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385015_0700%3A036. Public record. Not legal advice.