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

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Supreme Court, US. —

FILED

JUN 13 2012

No. 10-1491 |

ee Te CLERK

In the Supreme Court of the United

States

ESTHER KIOBEL, et ai.,

Petitioners,

—

ROYAL DUTCH PETROLEUM Co., et al.,

Respondents.

On Writ of Certiorari to the United States Court of

Appeals for the Second Circuit

SUPPLEMENTAL BRIEF OF AMICI CURIAE

GERMAN INSTITUTE FOR HUMAN RIGHTS

AND INTERNATIONAL LAW EXPERTS IN

SUPPORT OF PETITIONERS

RICHARD R. WIEBE

Counsel of Record

LAW OFFICE OF RICHARD R. WIEBE

One California Street, Suite 900

San Francisco, CA 94111

415-433-3200 © wiebe@pacbell.net

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ................. iv

STATEMENT OF IDENTITY AND INTEREST OF

RAF COPE 9 ccc ce cceenesesevenenee 1

SUMMARY OF ARGUMENT................ 2

RPE, ov cvvctcceencecsesessueeeee 4

a INTERNATIONAL LAW ALLOWS US5S.

COURTS TO RECOGNIZE A CAUSE OF

ACTION FOR VIOLATIONS OF THE LAW

OF NATIONS OCCURRING WITHIN THE

TERRITORY OF A SOVEREIGN OTHER

THAN THE UNITED STATES WHEN A

GENERALLY RECOGNIZED BASIS OF

JURISDICTION EXISTS .............. 4

A. A. Permissible Bases o°

Jurisdiction Under International Law

Include Territory (Which in Civil

Matters Can Also Encompass

Presence, Domicile, Business Activity

or Assets), Nationality, the Protection

Of Other State Interests, and the

Protection of Certain Universal

ED on 03:0 0 00kh eee 5

B. In Exercising Universal Jurisdiction,

National Courts Act on Behalf of the

International Community of Sovereign

II.

States and thus an Infringement on

the Sovereign Rights of Other States

tai hn ew ue ag 26:60 13

Under The Principle Of Universal

Jurisdiction, the Extraterritorial

Exercise of Adjudicative Jurisdiction

Is Permissible in Situations Involving

Gross Violations of Well-Defined and

Universally Recognized Human Rights

Ee Ch a ee ko eae OO OO 15

The ATS Can Be Interpreted in Light

of the Principle Of Universal

Jurisdiction Regardless of Its Civil

td Ee 18

THE PRUDENTIAL DOCTRINE OF

INTERNATIONAL COMITY DOES NOT

PRECLUDE THE EXERCISE OF

JURISDICTION BASED

EM, cb oes eesececences 21

A. The Nature of International

I SS eae 21

B. Regardless of the Test Employed by

This Court, ATS Claims Will Rarely

Merit Dismissal Based Upon Concerns

of International Comity ......... 24

C. Even Where Concerns Over

International Comity Suggest

Deference to Foreign Nation,

Consideration of American Pubiic

Policy Will Likely Necessitate the

Retention of Jurisdiction Over an ATS

Ne eg or ol ee ee ae ae 28

Ill ANY REQUIREMENT UNDER

INTERNATIONAL LAW TO EXHAUST

LOCAL REMEDIES DOES NOT

CATEGORICALLY PRECLUDE A CLAIM

ol ee ee re 30

A. The Exhaustion Rule Applies to

Diplomatic Protection under

International Law .............. 31

B. The Exhaustion Rule Is a Procedural

Requirement for Individual Claims before

International Human Rights Bodies, but

Not a Procedural Requirement for ATS

Claims Before a Domestic Court ... 32

C. The Scope of the Rule is Limited to Local

I 3 aes Se oe laa aa kee aad 36

D. Exceptions To The Exhaustion Rule

Dn si ¢i¢-~tebeneeareeeeee ee 38

ID C2 ad oid ye GC tke ean ee 42

APPENDIX - LIST OF AMICI CURIAE GERMAN

INTERNATIONAL LAW SCHOLARS. ....... A-1

TABLE OF AUTHORITIES

Federal Cases

Bigio v. Coca-Cola Co..,

448 F.3d 176 (2d Cir. 2006) ........ 23, 24

Colorado River Water Conser. Dist. v. United

States, 424 U.S. 800 (1976) ........... 23

Demjanjuk v. Petrovsky,

776 F.2d 571 (6th Cir. 1985) 8 n.4,16 n.11

F. Hoffmann-La Roche Ltd. v. Empagran S.A.,

ee ee SE so peg ana neuweesuss 22

Gross v. German Found. Indus. Initiative,

456 F.3d 363 (3d Cir. 2006) ........... 24

Hartford Fire Insur. v. California,

ee ee. WE NS 0 6566 60 ehh sour 23, 26

Hilton v. Guyot,

er err 23

In re Estate of Marcos Human Rights Litig.,

25 F.3d 1467 (9th Cir. 1994) .......... 17

In re Maxwell Communication Corp. PLC,

93 F.3d 1036 (2d Cir. 1996) ........... 24

Int'l Transactions, Ltd. v. Embotelladora Agral

Regiomontana,

347 F.3d 589 (Sth Cir. 2003) .......... 23

Khulumani v. Barclay Nat'l Bank Ltd.,

504 F.3d 254 (2d Cir. 2007) ........ 22, 29

Kiobel v. Royal Dutch Petroleum Co.,

No. 10-1491 (U.S. Feb. 2, 2012) ........ 27

Laker Airways Ltd. v. Sabena, Belgian World

Airlines,

731 F.2d 909 (D.C. Cir. 1984) .......... 29

Mushikiwabo v. Barayagwiza,

No. 94 Civ. 3627, U.S. Dist. LEXIS 4409

TE EE og oie ee ee hee ee OR ae A 40

Pravin Banker Associates, Ltd. v. Banco Popular

Del Peru,

109 F.3d 850 (2d Cir. 1997) ........ 29, 30

Remington Rand Corp. v. Business Sys., Inc.,

830 F.2d 1260 (3d Cir. 1987) .......... 23

Sarei v. Rio Tinto, PLC,

487 F.3d 1193 (9th Cir. 2007) ......... 24

Societe Nationale Industrielle Aerospatiale v. U.S.

Dist. Court for Southern Dist. of Iowa,

ee re ee 22

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004).............. passim

Tel-Oren v. Libyan Arab Republic,

726 F.2d 774 (D.C. Cir. 1984) .......... 25

Ungaro-Benages v. Dresdner Bank AG,

379 F.3d 1227 (11th Cir. 2004) ..... 24, 27

German and Austrian Cases

Bundesgerichtshof [BGH] [Federal Court of

Justice]

July 2, 1991, Neue Juristische

Wochenschrift [NJW] 3092 (F.R.G.) .... 11

Bundesgerichtshof [BGH] [Federal Court of

Justice]

Nov. 12, 1990, Neue Juristische

Wochenschrift [NJW] 423 (F.R.G.) ..... 11

Oberlandesgericht [OLG] [Trial Court]

Nov. 28, 2011, 21 U 23/11

(Premmturt) (BSS) 2. occ ccc cece 11 n.7

Oberster Gerichtshof [OGH] [Supreme Court]

Nov. 7, 2002,. 6 Ob 174/02k (Austria) ... 12

Oberster Gerichtshof {|OGH] [Supreme Court]

Nov. 25, 1999, 8 Ob 105/99w (Austria) .. 12

Prosecutor v. Jorgic, Bundesverfassungsgericht

[Federal Constitutional Court]

Dec. 12, 2000, 2 BvR 1290/99

0 ere ee es ee ee 16 n.J1

International Cases

Akdivar v. Turkey,

23 Eur. Ct. H.R. 143 (19006) ........... 37

Ambatielos (Greece v. U.K.)

12 R. Int'l Arb. Awards 83 (1956) ... 34, 37

Arrest Warrant of 11 April 2000

(Dem. Rep. Congo v. Belg.),

gg ee GS Pe eee ee 8, 9

Att'y Gen. v. Eichmann,

36 1.L.R 277

(Isr. Sup. Ct. 1962) ........ 8 n.4,16 n.il

Barcelona Traction, Light and Power Co.

(Belg. v. Sp.), 1970 1.C.J. 3 (Feb. 5) ..... 17

Certain Norwegian Loans

Se, Wi Bis DE BER Oc 6 6h K See RSS 39

Davydou v. Ukraine, Judgment

(Bur. Cs. .e. COURT 1, BOI 2. cc cccces 37

Elettronica Sicula SpA (ELSI) (U.S. v. Italy),

1989 I.C.J. 15 (July 20) .......... 35, 39

Factory at Chorzow (Germany v. Pol.),

1927 P.C.1.J. (ser. A) No. 9 (July 26) .... 35

Vil

Interhandel (Switz. v. U.S.),

1959 1.C.J.6 (Mar. 21)......... 31, 35, 37

Mavrommatis Palestine Concessions (Greece v.

U.K.)

1924 P.C.I.J. (ser. A)

No. 2, at 12 (Aug. 30). ............ 32 n.20

North Sea Continental Shelf

(F.R.G. v. Den.; F.R.G. v. Neth.),

1969 I1.C.J. 3 (Feb. 20)................ 21

Prosecutor v. Furundzija,

Case No. IT-95-17/1-T, Judgment,

ee ee en peek eo hee bse 16 n.10

Prosecutor v. Ntuyahaga,

Case No. ICTR-90-40-T, Decision on the

Prosecutor's Motion to Withdraw the

Indictment (Mar. 18, 1999) ....... 16 n.11

Prosecutor v. Tadic,

Case No. IT-94-1-AR72,

Judgment (Oct. 2, 1995) .......... 16n.11

Robert E. Brown

(U.S. v. U.K.), 6 R. Int’] Arb. Awards 120

(Gr. Brit.-U.S. Arb. Trib. 1923) ........ 40

S.S. “Lotus” (Fr. v. Turk.),

1927 P.C.1.J. (ser. A) No. 10 (Sept. 7) . 5n.2

vill

Salem

(U.S. v. Egypt) 2 R. Int'l Arb. Awards 1161

(U.S.-Egypt Special Claims

I coe ks 6 o's owe Bie 32

The Geneva Arbitration

(U.S. v. U.K.), Decision and Award

(Sept. 14, 1872), reprinted in Thomas Balch,

The Alabama Arbitration (1969) ..... 21-22

The Loewen Group, Inc. v. United States of

America, ICSID Case No. ARB(AF)/98/3,

June 26, 2003,

7 ICSID (W. Bank) 442 (2003) ......... 39

Statutes

Alien Tort Statute, 28 U.S.C. 1350 ...... passim

Jurisdiktionsnorm [JN] [Courts Jurisdiction Act]

Reichsgesetzblatt [RGBI]

No. 1895/111, art. 99 (Austria)......... 12

Torture Victim Protection Act,

Pub. L. 102-256, 106, Stat. 73 (1991). 30, 36

Zivilprozessordung [ZPO][Code of Civil Procedure},

Jan. 30, 1877, § 23 (F.R.G.) ..... 10, 11, 12

Treaties and Conventions

American Convention on Human Rights,

Nov. 22, 1969, 1144 U.N.T.S. 123 .. 34n.21

Convention Against Torture and Other Cruel,

Inhuman or Degrading Treatment or

Punishment,

G.A. Res. 39/46,

U.N. Doc. A/39/51 (1984) ......... 16 n.10

Convention for the Protection of Human Rights

and Fundamental Freedoms,

Nov. 4, 1950, 213 U.N.T.S. 221 ...... 33-34

Geneva Convention for the Amelioration of the

Condition of the Wounded and Sick in

Armed Forces in the Field,

Aug. 12, 1949, 75 U.N.T.S. 31 ..... 16 n.12

Geneva Convention for the Amelioration of the

Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at

Sea, ,

Aug. 12, 1949, 75 U.N.T.S. 85 ..... 16 n.12

Geneva Convention Relative to the Protection of

Civilian Persons in Time of War,

Aug. 12, 1949, 75 U.N.T.S. 287 .... 16n.12

Geneva Convention Relative to the Treatment of

Prisoners of War,

Aug. 12, 1949, 75 U.N.T.S. 135 .... 16n.12

Nuremberg Charter of the Military Tribunal,

Aug. 8, 1945, 8 U.N.T.S.279 ... 16-17n.13

Optional Protoco] to the International Covenant on

Civil and Political Rights,

Dec. 16, 1966, 99 U.N.T.S. 171 ........ 33

Treaty Concerning the Encouragement and

Reciprocal Protection of Investment,

U.S.-Rwanda, Feb. 19, 2008,

S. Treaty Doc. No. 110-23 (2008) ... 39 n.25

Articles and Books

William Blackstone, Commentaries .......... 13

Michael Akehurst, Jurisdiction in International

Law,

46 Brit. Y.B. Int'l. L. 145 (1974) ......... g

Daniel Augenstein, Univ. of Edinburgh, Study of

the Legal Framework on Human Rights and

the Environment Applicable to European

Enterprises Operating Outside the European

I aS el ees ee es 41

Ilias Bantekas, Criminal Jurisdiction of States

under International Law, in Max Planck

Encyclopedia of Public International Law

(Ridiger Wolfrum ed., 2012) ....... 14n.8

lan Brownlie, Principles of Public International

Law

OM re 6 n.3, 7, 10, 15

Antonio Cassese, International Law

I 2 ea ea ae eae wee 6

Donald Earl Childress, Comity as Conflict:

Resituating International Comity as Conflict

of Laws,

44 U.C. Davis L. Rev. 11 (2010) ........ 23

Hugo Grotius, De iure belli ac pacis libri tres, in 2

The Classics of International Law

(James Scott ed., 19064) .......ccceees 21

Magdalena Kmak, The Scope and Application of

the Principle of Universal Jurisdiction

oa ks doe GR ESE A ETA eS 8

J. Crawford and T. Grant, Local Remedies,

Exhaustion of, in Max Planck Encyclopedia

of Public International Law

(R. Wolfrum, ed.) (2012) .......... 31n.18

Menno T. Kamminga, Extraterritoriality, in Max

Planck Encyclopedia of Public International

Law

(Rudiger Wolfrum ed., 2012) ........... 9

Jurgen Mark & Hans-Joérg Ziegenhain, Der

Gerichtsstand des Vermogens im

Spannungsfeld zwischen Vélkerrecht und

deutschem internationalen Prozessrecht,

ee coun eeu ll

Xll

D. Mummery, The Content of the Duty to Exhaust

Local Judicial Remedies,

58 Am. J.Int’] L. 389 (1964) ....... 34 n.23

Oppenheim’s International Law

(Robert Jennings & Arthor Watts eds.,

fe er ere 21

Andreas Paulus, Die internationale Gemeinschaft

im Volkerrecht (2001) ............. 14n.9

Michael Rosenthal & Stefan Thomas, European

pg 9

Herbert Roth, § 23, in Kommentar zur

Zivilprozessordnung

(F. Stein & M. Jonas eds.,

ee ee ea ee ae 11-12 n.7

Malcolm M. Shaw, International Law

ee ee 6, 8,18

Bruno Simma, From Bilateralism to Community

Interest in International Law,

250 Recueil des Cours 217 (1994) ... 14n.9

A. Cancado Trindade, The Application of the Rule

of Exhaustion of Local Remedies in

International Law (1983) ......... 34 n.22

Wolfgang Graf Vitzthum, Vélkerrecht

TS ar rr rere er 21

Rudolf Waizenegger, Der Gerichtsstand des § 23

ZPO und seine geschichtliche

Entwicklung (1915) .........cc006- 11n.6

Other Authorities

Brief of E.U. Commission as Amicus Curiae in

Support of Neither Party,

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) (No. 03-339) ... 19n.15

Brief of the Federal Republic of Germany as

Amicus Curiae in Support of Respondents,

Kiobel v. Royal Dutch Petroleum Co.,

No. 10-1491 (U.S. Feb. 2, 2012) . 19n.14, 25

Council Regulation 44/2001,

GP ae ee 19-20 n.15

Council Regulation 864/2007,

ee Gs Oe TD ovo sé eo cmekeevecs 40

Int'l Law Comm’n, Draft Articles on Diplomatic

Protection,

U.N. GAOR, 61st Sess., Supp. No. 10,

U.N. Doc. A/61/10 (2006) 18, 31 n.19, 38, 39

Int’] Law Comm’n, Draft Articles on Responsibility

of States for Internationally Wrongful Acts,

G.A. Res. 56/83, Annex,

U.N. Doc. A/RES/56/83

a ee es Se a de 17-18, 35

XiV

Int'l Law Commission (Forty-eighth Session),

U.N. GAOR, 51st Sess., Supp. No. 10,

U.N. Doc. A/51/10 & Corr.]. (1996) .. 35 n.24

Proposal for a Regulation of the European

Parliament and the Council on the law

applicable to non-contractual obligations

(“Rome II”),

COM (2003) 427 final (July 22, 2003) ... 41

Report of the Special Representative of the

Secretary-General on the issue of human

rights and transnational corporations and

other business enterprises, John Ruggie,

U.N. Doc. A/HRC/14/27 (Apr. 9, 2010)... 41

Restatement (Third) of Foreign Relations Law of

the United States (1987) ... 13,17n.13,18

SS YY fs aaa ee 29-30

STATEMENT OF IDENTITY AND INTEREST

OF AMICI CURIAE'

The German Institute for Human Rights

(Deutsches Institut fiir Menschenrechte, DIMR) is

Germany's accredited independent nonprofit

National Human Rights Institution in compliance

with the U.N. Paris Principles. The Institute‘s

function is to contribute to the promotion and

protection of human rights in Germany and

internationally. Since its founding in 2001, the

Institute plays an active role in shaping German

politics and public opinion on all human rights

issues as well as on the UN and European level. The

Institute gives research-based policy advice on

integrating human rights into domestic and

international policies. Furthermore, it monitors the

human rights-sensitive activities of the German

Government outside the country. The Institute has

the power and responsibility to submit to any

competent body, on an advisory basis, legal opinions

on any matters concerning the promotion and

protection of human rights. In particular, it has an

interest in the present case because the German

Government, in its amicus curiae brief in support of

respondents, erred in the relationship between state

sovereignty and the state duty to protect human

rights.

' No counsel for any party authored this brief in

whole or in part, and no person or entity other than amici

curiae or their counsel contributed money to the preparation

or submission of this brief. Both parties have given blanket

consent for filing amicus briefs.

Amici are also international law experts and

scholars from leading German institutions of higher

learning and formally independent and nonprofit

research institutes with global reputations in the

field. They have extensive knowledge and experience

in international law, human rights law, and

comparative law. In addition to researching and

teaching these subjects, they regularly advise

governments, organizations, and others on

international legal issues. As legal scholars working

in Germany, they consider it their responsibility to

respectfully submit this brief in order to assist the

Court in coming to an understanding that better

reflects the opinions of German legal scholars on the

important issues raised in this case. Short

summaries of their biographies are appended in the

Appendix to this brief.

SUMMARY OF ARGUMENT

International law is not opposed to the Alien Tort

Statute (ATS), 28 U.S.C. §1350, which allows U.S.

courts to hear lawsuits for certain violations of

international law on foreign soil.

First, international law permits U.S. courts to

recognize a cause of action for violations of the law of

nations occurring within the territory of a sovereign

other than the U.S. as long as a generally recognized

basis of jurisdiction exists. Accepted and frequently

applied bases of jurisdiction in both civil and

criminal matters include territory, nationality, the

protection of other state interests, and the protection

of certain universal interests (i.e. universal

jurisdiction).

Under the principle of universal jurisdiction, the

extraterritorial exercise of adjudicative jurisdiction

is permissible in situations involving gross violations

of universally recognized human rights norms. This

is compatible with the Court’s own requirements for

actionable norms under the ATS as laid down in

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

compelled by the fact that international law in

general relies heavily on domestic implementation.

Universal jurisdiction can be exercised through

criminal and civil law. In practice, the principle of

universal jurisdiction is often applied in combination

with other recognized bases of jurisdiction. In such

situations, the range of actionable norms is not

limited to gross violations of universally recognized

human rights norms.

Irrespective of the principle of universal

jurisdiction, various national legal systems have

jurisdiction legislation encompassing extraterritorial

elements in civil disputes. International law

jurisdiction principles are drawn from these. A broad

understanding of the territoriality principle that

affords jurisdiction not only based on the location

where a harmful event occurred, but also according

to the place of the respondent’s assets or business

activity is for instance not unknown to German and

Austrian civil procedure.

Second, the prudential doctrine of international

comity does not preclude the exercise of jurisdiction

based upon the ATS. From the perspective of

international law, the comity of nations is neither a

source of law nor legally binding. It cannot give rise

to state liability. Moreover, given that the ATS aims

at enforcing a limited number of the most important

and universally recognized norms of international

law, there is a general presumption according to

which its application will not jar with the interests of

other states. But even where concerns regarding

international comity might suggest deference to a

foreign nation, consideration of American public

policy will hkely necessitate the retention of

jurisdiction over a §1350 claim.

Third, any requirement under international law

to exhaust local remedies does not categorically

preclude a claim under the ATS. The exhaustion rule

in international law is only applicable in the field of

diplomatic protection and regarding individual

complaint procedures under international human

rights institutions, such as UN human rights treaty

bodies. It is not a legal requirement coordinating the

exercise of civil jurisdiction in the international

arena. Further or alternatively, there are well-

established exceptions to the exhaustion rule.

ARGUMENT

I. INTERNATIONAL LAW ALLOWS USS.

COURTS TO RECOGNIZE A CAUSE OF

ACTION FOR VIOLATIONS OF THE

LAW OF NATIONS OCCURRING

WITHIN THE TERRITORY OFA

SOVEREIGN OTHER THAN THE

UNITED STATES WHEN A

GENERALLY RECOGNIZED BASIS OF

JURISDICTION EXISTS

A, Permissible Bases of Jurisdiction

Under International Law Include

Territory (Which in Civil Matters

Can Also Encompass Presence,

Domicile, Business Activity or

Assets), Nationality, the

Protection Of Other State

Interests, and the Protection of

Certain Universal Interests

In international legal practice, the exercise of

domestic jurisdiction over conduct or incidents

occurring within the territory of another sovereign

requires a recognized basis of jurisdiction. Even if

not strictly required by the International Court of

Justice or its predecessor, this helps to avoid

"The Permanent Court of International Justice

famously held that international law leaves room for

extraterritorial jurisdiction.

Far from laying down a general prohibition to the effect

that States may not extend the application of their laws

and the jurisdiction of their courts to persons, property

and acts outside their territory, it leaves them in this

respect a wide measure of discretion which is only limited

potential conflicts with foreign jurisdictions. Besides

a territorial connection, other generally accepted and

frequently applied bases of jurisdiction in both civil

and criminal matters are: nationality, the protection

of other state interests, and the protection of certain

universal interests. See Antonio Cassese,

International Law 50 (2d ed. 2005); Malcolm M.

Shaw, International Law 651-73 (6th ed. 2008).

This does not imply that a court’s adjudication of

claims beyond these bases is necessarily unlawful. It

is, however, more likely to intervene unduly in the

internal affairs of another state. Jurisdictional

competence under international law thus is a

relational concept, which in a community of

sovereign nation states has to be applied with the

principle of non-intervention as its ultimate legal

limitation.°

There are two noteworthy aspects of the doctrine

of jurisdictional competence in this context. First,

jurisdictional competence is not based on a principle

in certain cases by prohibitive rules; as regards other

cases, every State remains free to adopt the principles

which it regards as best and most suitable.

S.S. “Lotus” (Fr. v. Turk.), Judgment, 1927 P.C.I.J. (ser. A)

No. 10, at 19 (Sept. 7). This has not been reversed by the

International Court of Justice.

> Specific treaty rules limiting jurisdiction may of

course apply. See generally lan Brownlie, Principles of

Public International Law 299, 312 (7th ed. 2008) (discussing

the principle of non-intervention as an outer limit to

jurisdictional competence).

of exclusiveness. As Professor Brownlie makes clear,

“the same acts may be within the lawful ambit of one

or more jurisdictions.” lan Brownlie, Principles of

Public International Law 312 (7th ed. 2008).

Secondly, the various bases of jurisdiction often

interweave in practice and are used in combination

with one another. Jd. at 308. A lesser link to the

territory of a state in a particular case can be

complemented, for instance, by an indirect link to

nationals of that state in order to justify jurisdiction

cumulatively. Alternatively, the protection of

universal interests as a basis of criminal jurisdiction

could complement a less substantial connection to

the territory of a state (e.g. physical presence or

economic activity in the country).

From the perspective of international law, U.S.

courts are thus free to recognize claims brought

under the Alien Tort Statute (ATS), 28 U.S.C. §

1350, for violations of the law of nations if at least

one of these generally recognized bases for

jurisdiction exists: territory, nationality, the

protection of other state interests, or the protection

of certain universal interests.

Given that the ATS concerns the original

jurisdiction of U.S. courts, the more restrictive

international legal regime concerning extraterritorial

enforcement (as opposed to adjudication) does not

apply. Hence, even in cases in which no substantial

connection to the territory or nationals of the United

States can be identified, U.S. courts may exercise

adjudicative jurisdiction for the protection of specific

universal interests, such as combating piracy,

slavery, and gross violations of certain human rights

norms, namely torture, genocide, crimes against

humanity, and specific war crimes. See Shaw, supra,

at 668-671; Magdalena Kmak, The Scope and

Application of the Principle of Universal Jurisdiction

93 (2011). Indeed, the law of nations relies primarily

on decentralized (i.e. domestic) implementation of

international norms, especially regarding the

provision of civil remedies.

In practice, the principle of universal jurisdiction

is often applied in combination with other recognized

bases of jurisdiction.’ Yet, the infrequent exercise of

pure universal jurisdiction does not imply that such

an exercise would be unlawful. Arrest Warrant of 11

April 2000 (Democratic Republic of the Congo v.

Belgium), Judgment, 2002 1.C.J. 3, § 45 (Feb. 14)

(joint separate opinion of Judges’ Higgins,

Kooijmans, and Buergenthal). To the contrary,

states’ consistent practice in this field is a testament

to the general acceptance of universal jurisdiction.

As Judges Higgins, Kooijmans, and Buergenthal

point out, “There are, moreover, certain indications

‘Such scenarios might include nationals as victims,

defendants as economic actors within the territory of the

state assuming jurisdiction, or defendants with a temporary

physical presence within the state’s territory. See, e.g., Att'y

Gen. v. Eichmann, 36 1.L.R 277, 303-04 (Isr. Sup. Ct. 1962);

Demjanjuk v. Petrovsky, 776 F.2d 571, 582-583 (6th Cir.

1985), cert denied, 475 U.S. 1016 (1986).

that a universal criminal jurisdiction for certain

international crimes is clearly not regarded

unlawful.” Jd. § 46. This applies a fortiori to civil

jurisdiction.

It needs to be emphasized that there is no doubt

as to the legality of the exercise of universal

jurisdiction once additional connections to the

country assuming jurisdictional competence can be

identified. With respect to the factual links required

under other bases of jurisdiction such as territory,

nationality, or national interests, contemporary

trends show a lowering of thresholds in the form of

the “effects,” “impact,” and “doing business”

doctrines. See id. {§ 47 (discussing general

developments); Menno T. Kamminga,

Extraterritoriality, in Max Planck Encyclopedia of

Public International Law § 27 (Riidiger Wolfrum ed.,

2012) (recognizing that “the exercise of

extraterritorial jurisdiction by way of prescription

and adjudication is on the rise”); Michael] Rosenthal

& Stefan Thomas, European Merger Control 11-12

(2010) (discussing effects doctrine).

Particularly in civil matters, states often assert

judicial jurisdiction on broad grounds that look

beyond the location where an act or event took place.

See Michael Akehurst, Jurisdiction in International

Law, 46 Brit. Y.B. Int'l. L. 145, 170-177 (1974).

Various national legal systems have legislation with

extraterritorial effect. This is relevant because the

principles of jurisdiction under international law rest

on a generalized amalgam of national provisions. See

Brownlie, supra, at 308. A wide understanding of the

territoriality principle is for instance not unknown to

German civil procedure. Section 23 of the German

Code of Civil Procedure was enacted in 1877 in order

to facilitate civil claims, including actions for

damages under tort law against respondents neither

domiciled in Germany nor having statutory or

administrative seat or branch offices within German

territory. Zivilprozessordung [ZPO][Code of Civil

Procedure], Jan. 30, 1877, § 23 (F.R.G.).° Section 23

of the ZPO does not stipulate requirements as to the

cause of action, the location where an act or event

occurred, or the nationality or domicile of the

plaintiff or respondent. All that is required for

German courts to exercise jurisdiction under this

provision is that an asset of the respondent is located

in Germany and that the dispute has a “further

* The translation endorsed by the German Federal

Ministry of Justice reads:

For complaints under property law brought against a

person who has no place of residence in Germany, that

court shall be competent in the jurisdiction of which

assets belonging to that person are iocated, or in the

jurisdiction of which the object being laid claim to under

the action is located. Where claims are concerned, the

debtor's place of residence and, in cases in which an

object is liable for the claims as collateral, the place at

which the object is located shall be deemed to be the

location at which the assets are located.

domestic connection” to Germany.’ In 1991, the

German Federal Court of Justice held that this was

in accordance with the general principle of non-

intervention derived from international law.

Bundesgerichtshof [BGH] {Federal Court of Justice]

July 2, 1991, Neue Juristische Wochenschrift [NJW]

3092. At the time, the Federal Court did not discuss

in detail the nature of the required link to Germany.

Legal scholars interpreting the 1991 decision have

argued that a sufficient “domestic connection” exists,

for example, when the defendant is doing business in

Germany. See Jtirgen Mark & Hans-Jérg

Ziegenhain, Der Gerichtsstand des Vermégens im

Spannungsfeld zwischen Volkerrecht und deutschem

internationalen Prozessrecht, 1992 NJW 3062, 3064-

3065. The Federal Court previously had ruled that

Section 23 of the ZPO is applicable when the

respondent operates a branch on German territory,

as this would imply that sufficient assets were

present. See Bundesgerichtshof [BGH] [Federal

Court of Justice] Nov. 12, 1990, Neue Juristische

Wochenschrift [NJW] 423.’

Cf Rudolf hiineaiiein: Der Gerichtsstand des § 23

ZPO und seine geschichtliche Entwicklung (1915).

’ A later decision of the Higher Regional Court of

Frankfurt/Main considered the domestic connection

requirement to be satisfied where a defendant simply had

assets in Germany and was being sued by a plaintiff

domiciled in Germany. Oberlandesgericht {[OLG] Nov. 28,

2011, 21 U 23/11 (Frankfurt). The case is currently pending

at the Federal Court of Justice. BGH, iI] ZR 282/11. Legal

scholars have rightly pointed out that the “further domestic

Several other European states furnish their

courts with jurisdiction that is not limited to acts or

events occurring within their territory. Article 99 of

the Austrian Court Jurisdiction Act, for instance,

includes another example of asset-based jurisdiction.

Jurisdiktionsnorm [JN] [Courts Jurisdiction

Act],Reichsgesetzblatt [RGB1] No. 1895/111. Along

the lines of Section 23 of the German ZPO, Article 99

provides for the jurisdiction of Austrian courts when

assets (or a branch) belonging to the respondent are

located in Austria. Austrian courts state that this

provision does not require any further connection

between Austria and either the plaintiff or the

respondent. See Oberster GerichtshofOberster

Gerichtshof [OGH] [Supreme Court] Nov. 7, 2002,.6

Ob 174/02k. In explaining its interpretation of

Article 99, the Austrian Supreme Court refers to

Article 27a(2) of the same Act, which states that

Austrian jurisdiction shall be provided as long as

there is ne conflict with international law. The

Austrian Supreme Court does not consider, for

example, international law to prohibit such an

exercise of adjudicative jurisdiction whenever a

branch is located in Austria. See Oberster

Gerichtshof [OGH] [Supreme Court] Nov. 25, 1999,

8 Ob 105/99w .

connection” can be fulfilled by, but does not necessarily

require, a German domicile, since this would deprive Section

23 of the ZPO of its relevance and would contradict the will

of the legislature. See Herbert Roth, § 23 at 4 12, in

Kommentar zur Zivilprozessordnung (F. Stein & M. Jonas

eds., 22d ed. 2004).

In conclusion, domestic courts are free to

recognize claims for violations of international law if

at least one generally accepted basis for jurisdiction

exists.

B. In Exercising Universal

Jurisdiction, National Courts Act

on Behalf of the International

Community of Sovereign States

and thus an Infringement on the

Sovereign Rights of Other States

Is Unlikely

The principle of universal jurisdiction evolved as

a specific basis of jurisdiction in order to enable

states to define and punish the violation of rules of

universal concern, such as the prohibitions on piracy

and the slave trade. See Sosa, 542 U.S. at 715-720,

723-725; 4 William Blackstone, Commentaries *68;

Restatement (Third) of Foreign Relations Law of the

United States § 404 (1987). This had taken shape as

a general principle of international law before the

ATS was passed by Congress. As to the evolution of

this principle in customary international law, two

main motives have been identified as the reason why

the community of sovereign states would allow this

particular form of extraterritorial jurisdiction: (i) in

order to punish offenses like piracy, which are often

perpetrated on the high seas and thus outside of

domestic jurisdictional reach, and (ii) to allow for the

national prosecution and punishment of particularly

heinous and repugnant violations of the law of

nations, such as the slave trade, even if this is

undertaken in a location beyond the jurisdictional

reach of states.* It was precisely the prohibition of

the slave trade in the nineteenth century that

introduced a new dynamic element into the ambit of

norms covered by the principle of universal

jurisdiction: international legal norms that protect

human dignity as the cornerstone of human rights.

Conceptually, the exercise of jurisdiction based

on the principle of universal jurisdiction must be

differentiated from the other generally accepted

bases for jurisdiction regarding an incident or

conduct occurring on foreign soil. Its central

rationale is to put into effect a limited number of

elementary rules of the law of nations through

domestic prescription, adjudication, and

enforcement. In doing so, domestic institutions seek

to uphold shared interests of the community of

sovereign states,’ recognizing that it is in the

interest of each individual sovereign nation that the

most egregious violations of international law are

addressed effectively.

* See Ilias Bantekas, Criminal Jurisdiction of States

under International Law, in Max Planck Encyclopedia of

Public International Law 4 23 (Riidiger Wolfrum ed., 2012).

* Cf. Bruno Simma, From Bilateralism to Community

Interest in International Law, 250 Recueil des Cours, 217

(1994); Andreas Paulus, Die internationale Gemeinschaft im

Volkerrecht (2001) (discussing the notion of international

community in international law).

Consequently, universal jurisdiction by its very

nature is a basis for jurisdiction that is less

concerned with the question of whether or not other

sovereigns might have a specific or more justified

national interest in exercising jurisdiction. Every

state can impose liability for any of these violations

of universal concern at any time, unless the

perpetrators have already been adequately punished

(ne bis in idem), have already adequately

compensated the victims, or are currently facing

possible judicial sanction in another court. See

Brownlie, supra, at 308. In contrast to the other

bases of jurisdiction, the principle of universal

jurisdiction, if appled as the only basis of

jurisdiction, allows U.S. courts to recognize a cause

of action for the protection of certain universal

interests, embodied in a limited number of norms

under the law of nations.

Cc. Under The Principle Of Universal

Jurisdiction, the Extraterritorial

Exercise of Adjudicative

Jurisdiction Is Permissible in

Situations Involving Gross

Violations of Well-Defined and

Universally Recognized Human

Rights Norms

Universal jurisdiction does not apply to all norms

forming part of customary international law. Besides

piracy and slavery, universal jurisdiction in state

practice is exercised over torture,'® genocide,'' war

crimes,'* and crimes against humanity.'* Since the

'’ Universal jurisdiction over acts of torture is

permitted under customary international law. See

Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment,

¥ 156 (Dec. 10, 1998). Universal jurisdiction is compulsory

under Article 5(2) of the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment, G.A. Res. 39/46, U.N. Doc. A/39/51 (1984).

''Universal jurisdiction over acts of genocide is

recognized by customary international law. See Prosecutor v.

Ntuyahaga, Case No. ICTR-90-40-T, Decision on the

Prosecutor's Motion to Withdraw the Indictment (Mar. 18,

1999); Prosecutor v. Tadic, Case No. IT-94-1-AR72,

Judgment, § 62 (Oct. 2, 1995). For the practice of national

courts, see Eichmann, 36 I.L.R. at 303-04; Demjanjuk, 776

F.2d at 582-583, and Prosecutor v. Jorgic,

Bundesverfassungsgericht [BverfG] [Federal Constitutional

Court] Dec. 12, 2000, 2 BvR 1290/99, 9] 15-17 (Germany).

"Universal jurisdiction is compulsory under

international humanitarian law for grave breaches. Geneva

Convention for the Amelioration of the Condition of the

Wounded and Sick in Armed Forces in the Field art. 49,

Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention for the

Amelioration of the Condition of Wounded, Sick and

Shipwrecked Members of Armed Forces at Sea art. 50, Aug.

12, 1949, 75 U.N.T.S. 85; Geneva Convention Relative to the

Treatment of Prisoners of War art. 129, Aug. 12, 1949, 75

U.N.T.S. 135; Geneva Convention Relative to the Protection

of Civilian Persons in Time of War art. 146, Aug. 12, 1949,

75 U.N.T.S. 287.

‘Crimes against humanity were recognized in

Article 6(2)(c) of the Nuremberg Charter of the Military

Nuremberg trials, gross violations of the integrity

and dignity of individuals have gradually evolved

into issues of universal concern. The content of these

norms has been specified both by abundant

international treaty practice and by pronouncements

of national and international judges on these

violations. They can be interpreted as specific,

universal, and obligatory international law norms in

accordance with this Court’s judgment in Sosa. 542

U.S. at 732 (citing In re Estate of Marcos Human

Rights Litig., 25 F.3d 1467, 1475 (9th Cir. 1994)).

This trend toward universal jurisdiction

corresponds to doctrinal developments in the area of

state responsibility. As was famously held in the

Barcelona Traction case, a number of fundamental

rules protecting the “basic rights of the human

person” create obligations by each state to all other

states, so called erga omnes obligations. Barcelona

Traction, Light and Power Co. (Belg. v. Sp.),

Judgment, 1970 ICJ Rep. 3, 4 34. Today it is

practically undisputed that each state, even if it is

not affected by a breach of such an obligation, has a

right to invoke the responsibility of another state for

heinous human rights violations. See Int] Law

Tribunal, August 8, 1945, 8 U.N.T.S. 279. They encompass

murder, extermination, enslavement, deportation, and other

inhumane acts. This category of violations is today a norm of

international customary law, which is recognized as giving

rise to universal jurisdiction. See Restatement (Third) of

Foreign Relations Law §701 & reporters’ note 3; §702 emt. o.

Comm'n, Draft Articleson Responsibility of States for

Internationally Wrongful Acts, G.A. Res. 56/83,

Annex, U.N. Doc. A/RES/56/83 (Dec. 12, 2001).

In state practice, universal jurisdiction so far has

only been applied to vindicate gross violations of

human rights. See Restatement (Third) of Foreign

Relations Law § 702 cmt. m.

In sum, in order to be consistent with

international law, judges exercising jurisdiction

under the ATS based on the universality principle

alone can adjudicate gross violations of well-

established international human rights norms such

as the prohibition of genocide and slavery. Whenever

a case implicates any other recognized basis for

jurisdiction as outlined above, any violation of the

law of nations satisfying the further criteria

developed by this Court in Sosa, 542 U.S. at 732,

could be vindicated by U.S. courts.

D. The ATS Can Be Interpreted in

Light of the Principle Of

Universal Jurisdiction Regardless

of Its Civil Law Nature

Universal jurisdiction is exercised through

criminal and civil law. Restatement (Third) on

Foreign Relations Law § 404 cmt. b; Shaw, supra, at

652 (recognizing the rarity of diplomatic protests in

civil matters). Even tlough universal criminal

jurisdiction is more common than universal civil

jurisdiction, the latter is fully in line with the

principles underlying the concept of universal

jurisdiction. Notably, the general propriety of the

ATS has gone undisputed in these proceedings. As

amicus curiae briefs in this case demonstrate, even

states that support Respondents have not claimed

that the ATS in itself necessarily violates the law of

nations. What these states seek is a more “cautious”

approach in applying the ATS, not the removal of the

statute from the books."* Indeed, a great majority of

states supports sanctioning the most heinous

violations of international law through national

courts.

Furthermore, there is a general trend toward

convergence between criminal and civil remedies in

many national legal orders. German law as well asa

number of other European legal systems provide for

the possibility of civil (i.e. tort-based) compensation

in connection with criminal proceedings.’® The

'4 See, e.g., Brief of the Federal Republic of Germany

as Amicus Curiae in Support of Respondents at 15, Kiobel v.

Royal Dutch Petroleum Co., No. 10-1491 (U.S. Feb. 2, 2012).

'S See, e.g., Germany, Austria, Belgium, Denmark,

France, Luxembourg, the Netherlands, Portugal, and

Sweden have such provisions. See Brief of E-U. Commission

as Amicus Curiae in Support of Neither Party at 21, Sosa v.

Alvarez-Machain, 542 U.S. 692 (2004) (No. 03-339)

(providing an overview of European countries); see also

Council Regulation 44/2001, art. 5(4), 2000 O.J. (L 12)

(regarding jurisdiction and recognition and enforcement of

former strict procedural separation between criminal

law and civil law in continental legal orders is

increasingly giving way to a merger of criminal

sanctions and requests for damages in a single case.

Hence, courts exercising universal criminal

jurisdiction can often hear ancillary claims for

damages. Lastly, from an international law

perspective, no general exclusion of universal civil

jurisdiction can plausibly be argued. As this Court

recognized in Sosa, “modern international law is

very much concerned with just such questions, and

apt to stimulate calls for vindicating private right in

§1350 cases.” 542 U.S. at 727.

The principle of universal jurisdiction exists so

that nations can provide an effective legal remedy for

egregious human rights violations; it does so without

specifying domestic procedural requirements. In this

regard, punishment and compensation are

complementary reactions to illegal conduct. It follows

precisely from the idea of decentralized adjudication

and enforcement that the choice of procedure

remains within the sovereign discretion of each

state. One also should note that civil compensation

is generally less intrusive for the defendant than

criminal sanction. Given that universal criminal

jurisdiction is generally accepted in situations of

gross violations of certain well-defined human rights

norms, universal civil jurisdiction in these cases can

judgments in civil and commercial matters).

a fortiori be recognized as a legitimate concretization

of the same general principle.

Il. THE PRUDENTIAL DOCTRINE OF

INTERNATIONAL COMITY DOES NOT

PRECLUDE THE EXERCISE OF

JURISDICTION BASED UPON THE

ATS

A. The Nature of International

Comity

International comity signifies traditions or habits

of politeness, convenience, and goodwill. Lacking

opinio juris, this comity of nations is neither a source

of international law nor legally binding. See North

Sea Continental Shelf (F.R.G. v. Den.; F.R.G. v.

Neth.), 1969 I.C.J. 3, | 77(Feb. 20); Wolfgang Graf

Vitzthum, V6lkerrecht 29 (5th ed. 2010);

Oppenheim’s International Law 51 (Robert Jennings

& Arthur Watts eds., 9th ed. 2011) (calling the

difference between rules of international law and

international comity “clear-cut in logic”). The

distinction between international law proper and

considerations of courtesy, deference, or expediency

in interstate relations is venerable and firmly

established. Cf. Hugo Grotius, De iure belli ac pacis

libri tres, in 2 The Classics of International Law 4

41(James Scott ed., 1964); The Geneva Arbitration

(United States v. Great Britain), Decision and Award

(September 14, 1872), reprinted in Thomas Balch,

The Alabama Arbitration 136 (1969). From the

perspective of international law, a contravention of

international comity can amount, at most, to an

unfriendly political act. It cannot give rise to state

liability. Accordingly, even if the ATS were in

disregard of international comity, which is

questionable, it would not be in breach of

international law.

Moreover, international comity is a “doctrine

more easily invoked than defined.” Khulumani v.

Barclay Nat'l Bank Lid., 504 F.3d 254, 298 (2d Cir.

2007) (Korman, J., concurring in part and dissenting

in part). This Court has recently described comity as

“the spirit of cooperation in which a domestic

tribunal approaches the resolution of cases touching

the laws and interests of other sovereign states,”

Societe Nationale Industrielle Aerospatiale v. U.S.

Dist. Court for Southern Dist. of Iowa, 482 U.S. 522,

544 n.27 (1987), and as a concept that leads “each

nation to respect the sovereign rights of other

nations by limiting the reach of its laws and their

enforcement.” Sosa, 542 U.S. at 761 (Breyer, J.,

concurring). The application of comity is meant to

“ensure that ‘the potentially conflicting laws of

different nations’ will ‘work together in harmony.”

Id. at 761 (quoting F. Hoffmann-La Roche Ltd. v.

Empagran S.A., 542 U.S. 155, 164 (2004)).

As already noted above, deference to the interests

of other nations, however, is “neither a matter of

absolute obligation, on the one hand, nor of mere

courtesy and good will, upon the other.” Hilton v.

Guyot, 159 U.S. 113, 163-64 (1895). Rather, it is

normally a matter of discretion for the court. See

Bigio v. Coca-Cola Co., 448 F.3d 176, 178 (2d Cir.

2006); Int'l Transactions, Ltd. v. Embotelladora

Agral Regiomontana, 347 F.3d 589, 593 (Sth Cir.

2003); Remington Rand Corp. v. Business Sys., Inc.,

830 F.2d 1260, 1266 (3d Cir. 1987). However, as is

the case with any doctrine that results in a denial of

jurisdiction on prudential grounds, it is a discretion

that may be employed lightly, since there exists a

“virtually unflagging obligation of the federal courts

to exercise the jurisdiction given them.” Colorado

River Water Conser. Dist. v. United States, 424 U.S.

800, 817 (1976).

The circumstances under which a federal court

may exercise its discretion and deny jurisdiction

based upon international comity are far from clear.

See Donald Earl Childress, Comity as Conflict:

Resituating International Comity as Conflict of

Laws, 44 U.C. Davis L. Rev. 11, 48 (2010). In

instances where the extraterritoriality of a federal

statute is at issue, the only question is whether a

true conflict exists between foreign and domestic

law. See Hartford Fire Insur. v. California, 509 U.S.

764, 798 (1993). In applying this standard (or

choosing not to), the circuit courts are not of one

mind. Both the Ninth and Third Circuits apply the

“true conflict” test in virtually all comity cases. See

Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1211-12 (9th

Cir. 2007); Gross v. German Found. Indus. Initiative,

456 F.3d 363, 393 (3d Cir. 2006). The Eleventh

Circuit distinguishes between two different forms of

the comity doctrine (retrospective and prospective),

both concerned with “foreign governments interests,

fair procedures, and American public policy.”

Ungaro-Benages v. Dresdner Bank AG, 379 F.3d

1227, 1238 (11th Cir. 2004). The Second Circuit

likewise differentiates between two separate

categories. In Hartford-type cases involving the

extraterritoriality of a federal statute, the Second

Circuit applies the “true conflict” test. In re Maxwell

Communication Corp. PLC, 93 F.3d 1036, 1049 (2d

Cir. 1996). However, where the decision concerns

whether or not a legal action would be more

“properly adjudicated in a foreign state”, id. at 1047,

the Second Circuit chooses to focus on whether the

exercise of federal jurisdiction would offend the

“amicable working relationship” with that foreign

state. Bigio, 448 F.3d at 178.

B. Regardless of the Test Employed

by This Court, ATS Claims Will

Rarely Merit Dismissal Based

Upon Concerns of International

Comity

It is questionable whether any of the tests would

require the dismissal of an ATS action. The class of

international norms actionable under the ATS has

been described as “narrow” by this Court. Sosa, 542

U.S. at 729. In Sosa, this Court *ited with approval

the contention that the reach of the ATS extended

only so far as to cover a “handful of heinous

actions—each of which violates definable, universal

and obligatory norms”. Jd. at 732 (quoting Tel-Oren

vu. Libyan Arab Republic, 726 F.2d 774, 781 (D.C. Cir.

1984) (Edwards, J., concurring)). These obligatory

norms of international law protecting human dignity

are universally recognized, and as such all nations

have acommunity interest in their enforcement. For

instance, the Federal Republic of Germany in its

amicus brief expressly holds itself out as a “strong

defender” and promoter of human rights, while not

submitting any actual, concrete comity concerns

beyond a very general suggestion that the ATS

“could potentially interfere” with Germany’s

sovereignty—and even then only if the statute is

applied in an “unreasonable” manner. Brief of the

Federal Republic of Germany as Amicus Curiae in

Support of Respondents at 1, 10, Kiobel v. Royal

Dutch Petroleum Co., No. 10-1491 (U.S. Feb. 2,

2012). Moreover, jurisdiction and sovereignty are not

coextensive.

The “heinous” nature of the actions within the

province of the ATS dictate that very few, if any,

legitimate ATS cases will merit dismissal under any

of the specific comity standards employed in the

circuit courts. For example, the “true conflict” test

developed in Hartford Fire states that international

comity is only appropriate where a “true conflict”

exists between the American and foreign law, and

that no such conflict exists where the person subject

to both laws is able to comply with both

simultaneously. 509 U.S. at 798-99. Given that any

meritorious cause of action brought under the ATS

will involve actions that are based on norms that are

both universal and obligatory, and thus necessarily

illegal in every nation, it is unlikely that there could

exist such a “true conflict” that would make a

dismissal based upon comity appropriate.

Furthermore, any legitimate ATS case also will

satisfy the Second Circuit’s “amicable working

relationship” test, which is mainly concerned with

not offending foreign relations with a particular

foreign nation. The obligatory and universal nature

of the international norms at issue here dictate that

all foreign nations necessarily have aligned interests

in their enforcement, and the exercise of jurisdiction

by the federal courts “will not significantly threaten

the practical harmony that comity principles seek to

protect.” Sosa, 542 U.S. at 762 (Breyer, J.,

concurring).

Similarly, the applicable international comity

test arising from Eleventh Circuit jurisprudence also

will rarely, if ever, require the dismissal of an ATS

action. Retrospective application involves cases

where either parallel foreign proceedings or a foreign

court judgment already exists, neither of which is

true in the present case. Ungaro-Benages, 379 F.3d

at 1238. The prospective comity doctrine concerns

“whether to dismiss or stay a domestic action based

on the interests of our government, the foreign

government and the international community in

resolving the dispute in a foreign forum.” Jd. at 1238.

That the jurisdiction of the foreign nation has not

been invoked in a case involving universally

recognized human rights claims is the conscious

choice of the individual filing the ATS claim. Such

individual choice is legally permissible and is

deserving of some deference itself.’® After all, courts

all over the world tend to assume jurisdiction where

national procedural codes see fit, as long as they

consider their jurisdiction reasonable and based on

sufficient connections to their forum according to

their municipal law.

Moreover, the mere application of the Eleventh

Circuit test itself is not without difficulties.

'° In ordinary transnational litigation among

businesses or individuals based or residing in different

countries, it is commonplace and perfectly legitimate that a

civil claim is brought in a forum where the plaintiffs can

expect the most favorable adjudication of their claim or

where the defendant has sufficient assets so that the

effective enforcement of the judgment can be ensured.

Establishing whether the interests of a foreign

nation deserve deference from the federal judicial

branch requires U.S. courts to not only evaluate, but

also determine the legitimacy and _ relative

importance of these foreign interests vis-a-vis U.S.

interests . This is an evaluation that is fraught with

potential diplomatic landmines. The entire process of

evaluating and weighing the interests of foreign

nations in the name of international cooperation and

harmony appears as likely to upset that harmony as

ensure it.

Ge Even Where Concerns Over

International Comity Suggest

Deference to Foreign Nation,

Consideration of American Public

Policy Will Likely Necessitate the

Retention of Jurisdiction Over an

ATS Claim

Nevertheless, exceptional circumstances

occasionally do exist where the interests of a foreign

nation are of such importance that the exercise of

jurisdiction over a particular ATS case will

potentially provoke disharmony between the United

States and that foreign nation. In such a case, it is

likely that the United States Department of State

will inform the court of its concerns in this respect.

These concerns, while entitled to great respect,

however, are not dispositive.'’ See Khulumani 504

F.3d at 263-64. Yet, even in these circumstances, it

is not entirely clear that a dismissal of an ATS claim

under the international comity doctrine would be

appropriate.

“No nation is under an unremitting obligation to

enforce foreign interests which are fundamentally

prejudicial to those of the domestic forum.” Laker

Airways Ltd. v. Sabena, Belgian World Airlines, 731

F.2d 909, 937 (D.C. Cir. 1984). Federal courts will

not defer to foreign interests where “doing so would

be contrary to the policies or prejudicial to the

interests of the United States.” Pravin Banker

Associates, Ltd. v. Banco Popular Del Peru, 109 F.3d

850, 854 (2d Cir. 1997). Given the particularly

heinous character of the actions justiciable under the

ATS and their status as universal and obligatory

norms of international law, it is likely that choosing

not to enforce those international norms would be

against the public policy of the United States.

Torture, for instance, is itself against the stated

public policy of the United States. See, e.g., S. Rep.

No. 249, at 3 (1991) (Senate Report for Torture

Victim Protection Act noting that “no state commits

'? Naturally, in exercising jurisdiction over a case

that impacts the foreign relations of the United States,

questions concerning the proper separation of powers

between the executive and judicial branches will arise. As

these issues do not bear upon international law or comity,

they are not dealt with in this brief.

torture as a matter of public policy”). It follows that

voluntarily not enforcing the international norm

against torture where the exercise of jurisdiction

over that norm is both possible and an “unflagging

obligation” of the federal courts would also be

against domestic public policy. Considering that the

ATS will largely involve instances of gross violations

of human rights, this is arguably the case with

nearly every claim brought under that statute. In

such circumstances, the interests of international

comity, regardless of their strength, must take a

backseat to domestic public policy interests. Pravin

Banker Associates, Ltd., 109 F.3d at 854.

lil, ANY REQUIREMENT UNDER

INTERNATIONAL LAW TO EXHAUST

LOCAL REMEDIES DOES NOT

CATEGORICALLY PRECLUDE A

CLAIM UNDER THE ATS

This Court has indicated that it might consider

an exhaustion requirement akin to that of the

Torture Victim Protection Act, Pub. L. 102-256, 106

Stat. 73 (1991) (“TVPA”) in an “appropriate case”.

Sosa, 542 U.S. at 733 n.21, thus indicating that there

are cases where the exhaustion of local remedies

would be inappropriate. An ATS suit is generally not

a situation in which the exhaustion rule of

international law is appropriate.

A. The Exhaustion Rule Applies to

Diplomatic Protection under

International Law

Historically, the international law principle

concerning the exhaustion of local remedies is rooted

in the practice of sovereigns protecting their subjects

when they are injured abroad.’® Exhaustion was

originally conceived as a precondition for requesting

one’s own prince to espouse a claim against a foreign

state on one’s behalf. This would be accomplished

through the mechanism of diplomatic protection,

whereby the home state of an injured person takes

up his or her case and obtains reparation for an

internationally wrongful act committed by a foreign

state through diplomatic action or other peaceful

means of dispute resolution.’* As encapsulated by the

International Court of Justice, the underlying

rationale of the exhaustion requirement is that “the

State where the violation occurred should have an

opportunity to redress it by its own means, within

the framework of its own domestic system”.

Interhandel (Switz. v. U.S.), 1959 1.C.J. 6, 27 (Mar.

21) (Preliminary Objections).

'® See J. Crawford and T. Grant, Local Remedies,

Exhaustion of, in Max Planck Encyclopedia of Public

International Law (R. Wolfrum, ed.), 4G 1, 42 (2012).

'°Cf. Int'l Law Commission, Draft Articles on

Diplomatic Protection arts. 1, 14 U.N. GAOR, 61st Sess.,

Supp. No. 10, U.N. Doc. A/61/10 (2006).

Private tort claims, such as those brought under

the ATS, do not involve diplomatic protection

because tort plaintiffs are not asking their sovereign

to present a claim against another state on their own

behalf in respect of an injury suffered. The present

case illustrates the point. Clatmants are seeking

redress against violations allegedly committed by a

corporation in complicity with their own state. The

fiction that their ill-treatment injures their home

state," which is the rationale for traditional

diplomatic protection, makes little sense when

residents of Nigeria claim that various corporations

aided and abetted the Nigerian government in

committing violations of the law of nations. Nor can

they be taken to have willingly accepted foreign

mechanisms upon going abroad, which is another

justification for the exhaustion rule. Salem (U.S. v.

Egypt) 2 R. Int'l] Arb. Awards 1161, 1202(U.S.-Egypt

Special Claims Tribunal 1932). There is no “sending”

or “receiving” state in a typical ATS suit and hence

no tacit submission.

B. The Exhaustion Rule Is a Procedural

*° The Permanent Court of International Justice put

it as follows: “by taking up the case of one of its subjects and

by resorting to diplomatic action or international judicial

proceedings on his behalf, a State is in reality asserting its

own right, the right to ensure, in the person of its subjects,

respect for the rules of international law”. Mavrommatis

Palestine Concessions (Greece v. U.K.) 1924 P.C.1.J. (ser. A)

No. 2, at 12 (Aug. 30).

Requirement for Individual Claims

before International Human Rights

Bodies, but Not a Procedural

Requirement for ATS Claims Before a

Domestic Court

Beyond diplomatic protection, exhaustion of local

remedies plays a role when private individuals bring

proceedings in their own right against states on the

international plane, in particular based on

international conventions for the protection of

human rights. Under the International Covenant on

Civil and Political Rights, for example, the Human

Rights Committee may accept individual

communications claiming that a State party has

violated the treaty only by exhausting all available

domestic remedies, as long as they are not

unreasonably prolonged. Optional Protocol to the

International Covenant on Civil and Political Rights

arts. 2, 5(2)(b), Dec. 16, 1966, 99 U.N.T.S. 171.

Similarly, the European Convention on Human

Rights states in its admissibility criteria that the

European Court of Human Rights may only

adjudicate “after all domestic remedies have been

exhausted, according to the generally recognised

rules of international law ... .” Convention for the

Protection of Human Rights and Fundamental

Freedoms art. 35(1), Nov. 4, 1950, 213 U.N.T:S.

221.** Crucially, these regimes envisage that

exhaustion of local remedies contributes to the

effective vindication of human rights claims, rather

than being a mechanistic barrier thereto.** The

ultimate point is actual redress. For the same

reason, those regimes only require exhaustion of

effective domestic remedies. See infra Part III.D.

In such situations, the exhaustion of local

remedies features as a _ prerequisite for the

admissibility of non-domestic claims in international

courts and tribunals. In the classic formulation of the

Commission of Arbitration: “[The rule] means that

the State against which an international action is

brought for injuries suffered by private individuals

has the right to resist such an action if the persons

alleged to have been injured have not first exhausted

all the remedies available to them under the

municipal law of that State.” Ambatielos (Greece v.

U.K.) 12 R. Int'l Arb. Awards 83, 118-119 (1956)

(emphasis added). In short, the rule serves to

demarcate the line between the jurisdiction of

international and national courts.**

*! See also American Convention on Human Rights

art. 46(1)(a), Nov. 22, 1969, 1144 U.N.T.S. 123.

“** See A. Cancgado Trindade, The Application of the

Rule of Exhaustion of Local Remedies in International Law 4

(1983).

*> See D. Mummery, The Content of the Duty to

Exhaust Local Judicial Remedies, 58 Am. J. Int'l L. 389, 390

It is important to note in this respect that in its

codification efforts on state responsibility, the

International Law Commission (ILC) has explicitly

rejected the notion of exhaustion as a substantive

element of a breach of an international obligation. In

Article 44(b) of the final version of the ILC’s Draft

Articles on the Responsibility of States for

Internationally Wrongful Acts, which were approved

by the UN General Assembly, exhaustion is

expressly treated as a matter of admissibility.** This

procedural approach fits with the jurisprudence of

the International Court of Justice, which stated that

“for an international claim to be admissible, it is

sufficient if the essence of the claim has been

brought before the competent tribunals and pursued

as far as permitted by local law and procedures, and

without success.” Elettronica Sicula SpA (ELSI)

(U.S. v. Italy), 1989 I.C.J. 15 (July 20). See also

Interhandel, 1959 1.C.J. at 26-27; Factory at Chorzéw

(Germany v. Pol.), 1927 P.C.I.J. (ser. A) No. 9, at 26

(July 26).

(1964).

** The first reading of the draft articles of 1996,

ultimately rejected, had instead insisted in that “there is a

breach of the obligation only if the aliens concerned have

exhausted the effective local remedies available to them .. .

.’ Int'l Law Commission (Forty-eighth Session), U.N. GAOR,

5lst Sess. at 125-151, Supp. No. 10, U.N. Doc. A/51/10 &

Corr.|. (1996).

A civil suit under the ATS is a domestic action

before a domestic court. That the alleged conduct

violating a substantive norm of international law

took place abroad is immaterial in this respect. A

U.S. torts claim brought by individuals in a U.S.

court against private entities is not one to which the

international law rule on exhausting local remedies

applies. Of course, the domestic legal system of the

U.S. might otherwise impose limiting elements on

ATS claims. But it is neither required by

international law, nor desirable in principle, for this

Court to evaluate the municipal law and procedure

of other states in order to determine whether

plaintiffs in a situation such as the present have

exhausted available local remedies. For good reason,

§1350 itself does not contain a requirement for U.S.

courts to evaluate the capability of foreign courts.

C. The Scope of the Rule is Limited to

Local Remedies

Even if the international law principle on the

exhaustion of remedies were considered applicable in

an ATS suit, the scope of the rule would be limited to

local remedies, i.e. domestic remedies of the state in

which the conduct giving rise to the claim occurred.

By analogy, the TVPA fittingly speaks of claimants

exhausting “adequate and available remedies in the

place in which the conduct giving rise to the claim

occurred” (emphasis added). Pub. L. 102-256 §2(b).

Such an interpretation is in accordance with the

leading international law cases. The tribunal in

Ambatielos, 12 R. Int’l Arb. Awards at 119, spoke of

private individuals having recourse to “all the

remedies available to them under the municipal law

of that State [i.e the state against which an

international action is brought]”. Likewise,

Interhandel, 1959 1.C.J. at 27, ruled that “the State

where the violation occurred should have an

opportunity to redress it by its own means, within

the framework of its own domestic system”.

Moreover, it is established case law of the European

Court of Human Rights that the exhaustion of

domestic remedies demands that the national legal

remedies of the respondent state are used. Akdivar

v. Turkey, 23 Eur. Ct. H.R. 143, 182 (1996).

This clearly defined scope makes sense in light of

the basic rationale of the requirement: the host state,

i.e. the sovereign within whose territory the alleged

violation takes place, should have a _ proper

opportunity to settle the dispute through its own

legal system. See, e.g., Davydov v. Ukraine,

Judgment at § 247 (Eur. Ct. H.R. July 1, 2010),

i a fon in oe fe ee Se a t

http://cmiskp.echr.coe.int/tkp197/view.asp?action=

html& documentIld=870753&portal=hbkm&source=

externalbydocnumber&tabl. This harks back to the

basic rationale behind the exhaustion rule: to give

local courts the opportunity to decide a case prior to

an international forum. It assumes a binary contest.

The rule does not, even if applied analogously, solve

cases of concurrent national jurisdiction. It cannot,

for instance, coordinate between the location in

which an act occurred, where the harm manifested,

or where the respondent was domiciled, registered or

headquartered.

D. Exceptions To The Exhaustion Rule

Exist

In any event, it is well-established that such

recourse is excused in certain cases. Art. 15 of the

International Law Commission’s Draft Articles on

Diplomatic Protection succinctly summarizes the

pertinent international law. The exhaustion

requirement does not apply whenever local remedies

are neither reasonably available nor capable of

providing effective redress. The aggrieved individual

must not be manifestly precluded from pursuing

local remedies. Undue delay constitutes another

exception. That the requirement is not immutable is

further borne out by the fact that states against

which an international action is brought can waive

it. U.N. Doc. A/61/10 (2006). This practice is, for

example, abundantly common in _ bilateral

investment treaties, including those of the U.S.,

which among other things afford private investors

from each treaty party the right to submit an

investment dispute with the host state to

international arbitration without having to use local

courts.*°

In short, the remedy must not just exist on paper.

While it is generally asked that the essence of a case

was brought and unsuccessfully pursued as far as

permitted by local law, e.g., ELSI, 1989 1.C.J. at 15,

there must at least be a “reasonable possibility” of

redress. Certain Norwegian Loans (Fr. v. Nor.) 1957

I.C.J. 9, 39 (Separate Opinion of Lauterpacht, J.);

Draft Articles on Diplomatic Protection (2006) art.

15(a). It must further not be unfair or unreasonable

to require that an injured alien should be required to

exhaust local remedies. As noted by a NAFTA

tribunal, what is demanded is that remedies are

effective, adequate and reasonably available. The

Loewen Group, Inc. v. United States of America,

ICSID Case No. ARB(AF)/98/3, June 26, 2003, 7

ICSID (W. Bank) 442, 4165 (2003). Whether or not

this is the case can be presumed from the actual

circumstances.

Local proceedings are not, for example, required

when the domestic courts have no jurisdiction over

the complaint or when host state legislation will not

be reviewed by the domestic courts. Moreover, where

there is evidence that the independence of the

judiciary is doubtful in lght of the capricious

*> See, e.g., Treaty Concerning the Encouragement

and Reciprocal Protection of Investment , U.S.-Rwanda,

arts. 24-25, Feb. 19, 2008, S. Treaty Doc. No. 110-23 (2008).

authority of the executive, there is simply no justice

to exhaust. Robert E. Brown (U.S. v. U.K.), 6R. Int’l

Arb. Awards 120, 129 (Gr. Brit.-U.S. Arb. Trib.

1923); see also Mushikiwabo v. Barayagwiza, No. 94

Civ. 3627, 1996 U.S. Dist. LEXIS 4409, at *5

(S.D.N.Y. Apr. 9, 1996) (plaintiffs fulfilled the

exhaustion requirement of the TVPA by showing

that the Rwandan judicial system was virtually

inoperative and unable to deal with civil claims in

the near future).

Less drastic but no less significant, exhaustion is

no bar when local] proceedings would be ineffective.

It has been contended in the present proceedings

that states other than Nigeria, in particular the

states in which the respondent transnational

corporations are headquartered or have their

registered office, provide adequate access to their

own courts and to appropriate legal remedies for

non-European nationals who have been victims of

serious human rights violations abroad. However,

the general rule under the harmonized European

conflict of laws provides that the law applicable to a

non-contractual obligation arising out of a tort or

delict is the law of the country in which the damage

occurs, which is most likely the injured party’s

country of residence. See Council Regulation

864/2007, on the law applicable to non-contractual

obligations (“Rome II”), art. 4(1) 2007 O.J. (L199) 40,

44. As the European Commission stated in its

preparatory memorandum, this basic rule is a

codification of prominent member states’ conflict

rules, including—but not limited to—the solutions

previously applied in the Netherlands, the United

Kingdom, France, and Switzerland. Proposal for a

Regulation of the European Parliament and the

Council on the law applicable to non-contractual

obligations (“Rome II”), at 11, COM (20038) 427 final

(July 22, 2003). It also mirrors the basic principle of

the harmonized European jurisdiction regime, thus

reflecting general European practice. This may very

well engender the problems outlined above

concerning effective redress. Moreover, a recent

study published by the European Commission

seriously questioned the ready and _ practical

availability of effective legal remedies within the

E.U. in a situation like the present in more general

terms and proposed to reform E.U. legislation in that

respect. Daniel Augenstein, Univ. of Edinburgh,

Study of the Legal Framework on Human Rights and

the Environment Applicable to European Enterprises

Operating Outside the European Union, at 76 (Oct.

2010) (report commissioned and published by

European Commission); Report of the Special

Representative of the Secretary-General on the issue

of human rights and transnational corporations and

other business enterprises, John Ruggie, at 4 109-

112, U.N. Doc. A/HRC/14/27 (Apr. 9, 2010).

In conclusion, even if applicable, any

requirement under international law to exhaust local

remedies does not categorically preclude a claim

under the ATS.

CONCLUSION

For the foregoing reasons, application of the

Alien Tort Statute in cases involving torts in

violation of the law of nations is consistent with

international law. The Court should therefore

reverse the decision of the United States Court of

Appeals for the Second Circuit and uphold

jurisdiction in this case.

DATED: June 13, 2012

Respectfully submitted,

/s/ Richard R. Wiebe

RICHARD R. WIEBE

Counsel for Amici Curiae

LAW OFFICE OF RICHARD R.

WIEBE

One California Street, Suite 900

San Francisco, CA 94111

415-433-3200

APPENDIX - LIST OF AMICI CURIAE

GERMAN INTERNATIONAL LAW

SCHOLARS

The German Institute for Human Rights has co-

operated with the following Law Clinic and

individuals as authors of the brief:

Jochen von Bernstorff holds a chair for

international law and human rights at the

University of Tibingen, Germany. He was a member

of the German delegation to the UN Commission on

Human Rights (2003-2005) and the UN Human

Rights Council (2006). Recent publications include

The Public International Law Theory of Hans Kelsen:

Believing in Universal Law (Cambridge Univ. Press,

2010); The Exercise of Public Authority by

International Institutions. Advancing International

Institutional Law (Springer, 2010) (ed. together with

A. von Bogdandy, R. Wolfrum et al.); Business and

Human Rights: On the Expansion of International

Human Rights Obligations to Abusive Corporate

Practices, in Corporate Social Responsibility and

Social Rights 35-52 (Nomos, 2010) (K. Lachmeyer

ed.).

Eva Kocher holds a chair for civil law, labor law

and procedural law at the European University

Viadrina of Frankfurt (Oder), Germany. She has

done research and published on questions of

transnational labor law and Corporate Social

A-]

Responsibility. Publications in English include: Legal

Instruments for Corporate Duties to Disclose Working

and Employment Conditions (Foundation Friedrich

Ebert, 2012); Private standards in the North - effective

norms for the South?, in Non-State Actors as

Standard Setters 409-430 (Cambridge University

Press, 2009) (A. Peters, L. Koechlin, T. Forster, G.

Fenner Zinkernagel ed.)

John Henry Dingfelder Stone is a Research

Fellow at the Max Planck Institute for Comparative

Public Law and International Law in Heidelberg,

Germany, where he is a member of the Africa

projects team. He is a Lecturer at the Ruprecht-

Karls-Universitat Heidelberg School of Law and the

Johannes Gutenberg Universitat Mainz School of

Applied Linguistics and Cultural Studies.

Marc Jacob is a Senior Research Fellow at the Max

Planck Institute for Comparative Public Law and

International Law in Heidelberg, Germany. He isa

Lecturer in international law at the University of

Tubingen and was an internal advisor to the Max

Planck Encyclopedia of Public International Law

(Oxford Univ. Press, 2012). He has written and

advised on a wide variety of issues including state

liability, human rights, diplomatic immunity,

international economic law, and _ international

adjudication.

Antje C. Berger is an attorney-at-law and advisor

in the field of public international law, international

A-2

Jabour law and human rights. She currently works

for the German Institute of Human Rights as legal

advisor on the subject of development and human

rights. She is a former research fellow of the legal

editorial team of the Max Planck Encyclopedia of

Public International Law (Oxford Uni. Press 2012).

The Humboldt Law Clinic for Human Rights

(Grund- und Menschenrechte) was established in

October 2010 and is the first human rights law clinic

in Germany. The Clinic works together with

students and partner civil society organisations on a

range of human rights matters before domestic and

international courts, focusing on human rights

issues related to Germany, and anti-discrimination

law. The Clinic is part of the Humboldt University

Faculty of Law and operates under the Chair of

Public Law and Gender Studies of Sarah Elsuni.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.