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

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<2 JUN 1 3 2012

No. 10-1491 OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

ESTHER KIOBEL, ET AL.,

PETITIONERS

ROYAL DUTCH PETROLEUM CO., ET AL.,

RESPONDENTS

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF ON REARGUMENT OF AMICI CURIAE

INTERNATIONAL HUMAN RIGHTS

ORGANIZATIONS IN SUPPORT OF PETITIONERS

KATHERINE GALLAGHER

Counsel of Record

PETER WEISS

Center for Constitutional

Rights

666 Broadway, 7th floor

New York, NY 10012

(212) 614-6455

kgallagher@ccrjustice.org

Library of Congres:

Law Library

TABLE OF CONTENTS

Page

TABLE, OF ALTTIBORITUIB .....2.00<.0000000000000000000000000: iii

SU ATTIIIITE CP IIIT acess coc ccseescinscccssceccesscesseseses 1

INTRODUCTION AND SUMMARY OF

TLE LTC CA RA EN 2

EELS ES ESS EER Ee Oe ES 6

I. UNDER INTERNATIONAL LAW,

A STATE HAS THE AUTHORITY,

AND AT TIMES THE OBLIGATION,

TO ASSERT ITS JURISDICTION

EXTRATERRITORIALLY...............00000000+ 6

A. The Basic Principles Governing the

Exercise of Jurisdiction Recognize

that States have Rights and

Responsibilities Beyond Their

ERE ES eae ser ve ee Re 6

B. International Law Recognizes

Extraterritorial Jurisdiction under

Longstanding Principles .................. 9

Il. THERE IS WIDE-SPREAD PRACTICE

REFLECTING THE ACCEPTANCE OF

EXTRATERRITORIAL JURISDICTION

UNDER INTERNATIONAL LAW ........... 18

A. The Rights and Responsibilities

Assumed By States Through Their

International Treaty Obligations

Demonstrates Widespread

Acceptance of the Exercise of

Extraterritorial Jurisdiction ......... 18

B. State Practice Demonstrates

Widespread Acceptance of the

Exercise of Extraterritorial ........... 28

SoU IEIENUIIET - seirinnnininnssissencisinmssanniitenniicniaioiedeiestineiinia 39

APPENDIX A

i A-1

TABLE OF AUTHORITIES

FEDERAL CASES

Doe v. Unocal Corp.,

395 F.3d 932 (9th Cir. 2002) .............c cece eee. 30

Sosa v. Alvarez-Machain,

ee Rs GT IID cnisitccecccccsacecacions 2, 14, 15, 36

FEDERAL STATUTES

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

FOREIGN AND INTERNATIONAL CASES

Al-Jedda v. United Kingdom, App. No. 27021/08,

2011 Eur. Ct. H.R. 1092 (2011)...................... 22

Al-Skeini v. United Kingdom, App. No. 55721/07,

Fe fF | t . RR ennereeen: 22

Application of the Convention on the Prevention

and Punishment of the Crime of Genocide

(Bosn. & Herz. v. Yugo.), Preliminary

Objections, Judgment, I.C.J. Reports 1996 (IID

Ie oe 19-20

Armando Alejandre Jr. and Others v. Cuba,

Case 11.589, Report No. 86/99,

OAS/Ser.L/V/1I.104 doc. 10 (1999) ................. 23

Barcelona Traction, Light and Power Company,

Limited, (Belg. v. Spain), Judgment,

Ns Ti sadenisisnnniecanetininnsasinninipanmincncceeseneucss 12

Bil’in (Village Council) v. Green Park Ltd., [2009]

QCCS 4151, (Can. Qué. Sup. Ct.) ............ 31, 32

Case Concerning the Arrest Warrant of

11 April 2000 (Dem. Rep. Congo v. Belg.)

2002 1.C.J. 63 (Reb. 14) .......cccccccceccsesees 8, 13, 14

The Case of S.S. ‘Lotus’ (Fr. v. Turk.),

1927 P.C.1.J., (ser. A) No. 10

IG iittala dni ahainleuiinanenametemibeineienniinndis 6,7

Case C-281/02, Owusu v. Jackson,

I el 32

Choc. v. HudBbay Minerals Inc., [2011] O.J. No. 3417

(Can. Ont. Sup. Ct.) (QL) ...............cceeeee eee 29, 30

Coard et al v. United States,

Case 10.951, Inter-Am. Comm’n H.R..,

Report No. 109/99,

OEA/ser.L/V/11.106 (1999).............cccceeseseeeeees 23

Connelly v. R.T.Z. [1997] UKHL 30 ..........0.00..000002.. 29

Dagi v. BHP, [1997] 1 VR 428 (Austl.) ..........0.......... 29

El-Hojouj/Derbal, Rechtbank [Rb.}

[Court of First Instance], The Hague,

BD, Siig SEE CED cescccnsercscocseccevceseecee 38, 39

Flores v. BP Exploration Co. (Colombia),

Claim No. HQ08X00328 [Filed Dec. 1, 2008}

CP GED cicescennssnssimmnunainiimaannaee 29

Guerrero & Ors v. Monterrico Metals Plc.

[2010] EWHC 3228 (QB) ...................cceeeeeeees 29

Joseph Mpambra Case, Judgment,

LJN: BRO686, District Court The Hague,

22-0026 3-09, 212 (Neth.)

GRE Fe TRIED cnienseccicictenssuioccsesisnietniiiiimimiamemaanae 38

Jurisdictional Immunities of the State (F._R.G. v. Italy),

Shee |. F ee 13, 14

Lubbe v. Cape Plic., [2000] 1 WLR 1545 (H.L.)......... 29

Motto & Ors v. Trafigura Ltd & Anor,

[2011] EWCA Civ 1150 (Eng.)........................ 30

Nottebohm (Liech. v. Guat.),

See Bae G, Be I © ccctckcsretivinsntiniimmann 10

Oguru v. Royal Dutch Shell, Court of The Hague,

Dec. 30, 2009, Case No. 330891/Docket No.

HA ZA 09-0579 (Neth.) .............cccceceeeeceeeeeeeees 33

Ordonnance Disant y Avoir Lieu a Informer

(Decision on Request to Compel Information

in Favor of the Plaintiff), May 23, 2012......... 35

Plainte Avec Constitution de Partie Civile

(FIDH Civil Compl.) Oct. 19, 2011................. 35

Prosecutor v. FurundZija, Judgement,

Case IT-95-17/1-T, Dec. 10, 1998............... 12,13

Prosecutor v TotalFinaElf et al.,

Cour de cassation de Belgique, Arrét,

28 March 2007 Pas. No. P.07.0031.F(2007)...30

Public Prosecutor v. Van Anraat,

Judgment, District Court of The Hague, LJN:

AX6406, 09/751003-04 (Dec. 23, 2005) .......... 34

Rv. Hape, (2007] 2 S.C.R. 292 (Can.)...................004 31

Report No. 38/99, OEA/Ser.L/V/I1.95 doc. 7 (1998)..23

Saldario v. Argentina, Inter-Am. Comm’n H.R.,

Report No. 38/99, OEA/Ser.L/V/11.95 ...... 22, 23

Scilingo, S.T.S., Sala de lo Penal, Oct. 1, 2007

EE 35

INTERNATIONAL TREATIES

Basic Principles and Guidelines on the Right

to a Remedy and Reparation for Victims

of Gross Violations of International

Human Rights Law and Serious Violations

of International Humanitarian Law,

G.A. Res. 60/147, Preamble, |

U.N. Doc. A/RES/60/147 (Dec. 16, 2005)........ 16

Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment

or Punishment, 1465 U.N.T.S. 85

(entered into force 26 June 1987) ............ 24, 25

Convention on the Physical Protection

of Nuclear Material art. 10, Oct. 26, 1979,

SR AD: Be ccierscncnniciintditinnsnacenisiiditiiiaiiaias 26

Convention on the Prevention and Punishment

of the Crime of Genocide, Dec. 9, 1948,

I, ii 20

Convention on Psychotropic Substances,

Feb. 21, 1971, 1019 U.N.T.S. 175................... 25

Convention for the Suppression of the Illicit

Traffic in Dangerous Drugs, June 26, 1936,

a I wainciciithiicsiinctnnisiiinictitdapiiaenindaiainsiiiii 27

Convention for the Suppression of Unlawful

Seizure of Aircraft, Dec. 16, 1970,

22 U.S.T. 1641, 860 U.N.T.S. 105.................. 25

Convention for the Suppression of Unlawful

Acts Against the Safety of Civil Aviation

art. 7, Sept. 23, 1971,

24 U.S.T. 564, 974 U.N.T.S. 177................006 25

Council Regulation 44/2001 of 22 December 2000

on Jurisdiction and the Recognition

and Enforcement of Judgments in Civil

and Commercial Matters, O.J. (L. 12) 3...33, 34

Vill

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.................. eee 19

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............ 19

Geneva Convention Relative to the Treatment

of Prisoners of War, Aug. 12, 1949,

I a easieeeteiani 19

Geneva Convention Relative to the Protection

of Civilian Persons in Time of War,

Aug. 12, 1949, 75 U.N.T.S. 287...................04. 19

International Convention for the Protection of

All Persons from Enforced Disappearance,

adopted on Dec. 20, 2006, U.N. Doc.

Sa TIITTETTET scitinssscitepesteidetasiaidetaieestsieniaitpidisindiaidainiiniitinsii 28

International Convention for the Suppression

of Counterfeiting Currency, Apr. 20, 1929,

ELITE TUTTE eciiciintemenicbenicnindeinniadnamicndiaasinacin 26

International Convention for the Suppression

of the Financing of Terrorism, Dec. 9, 1999,

U.N. Doc. AJRES/54/109 00000... .ee ee eecceeeeeeeeeees 26

International Convention on the Suppression

and Punishment of the Crime of Apartheid,

Nov. 30, 1973, 1015 U.N.TLS. ...........cccccscssseees 20

International Convention for the Suppression

of Terrorist Bombings, Dec. 15, 1997,

TG ee itterninncciieimsinnatantintinsamiinmaniaia 25

International Convention Against the Taking

of Hostages, Nov. 17, 1979,

1316 U.N.T.S. 205 (1985) .............. cece eee 26

International Covenant on Civil and

Political Rights, Sept. 8, 1992,

SR eel euaentl 20

Statute of the International Court of Justice,

June 26, 1945, 33 U.N.T.S. 998 .........0.0......... 8

Int] Law Comm’n, Preliminary Report

on the Obligation to Extradite or Prosecute

(“aut dedere aut judicare”), UN Doc. A/CN4/571,

FF Ey TE ddinsiidtiepinsinsatecenanecnsemnaniedainaiaiiaeniines 11

Maastricht Principles on Extraterritorial

Obligations of States in the Area of

Economic Social and Cultural Rights,

"2 | Ree 17

Montreal Convention for the Suppression of

Unlawful Acts Against the Safety of

Civil Aviation, Sept. 23, 1971,

ey II: TUTOTT Siibsideiitnicecibaaiaaieenintiehcuinnhtapaiiittgunt 25

Protocol Additional to the Geneva Conventions

of 12 Aug. 1949, and Relating to the

Protection of Victims of International

Armed Conflicts, June 8, 1977,

al 19

I 8

OTHER AUTHORITIES

Amnesty Int'l, International Law Commission:

The Obligation to Extradite or Prosecute

(Aut Dedere Aut Judicare), AI Index IOR

40/001/2009, Feb. 3, 2009.......................... 25-26

Amnesty Int'l, Universal Jurisdiction:

The Scope of Civil Universal Jurisdiction,

Al Index: 53/008/2007, (July 2007) ................ 36

Ian Brownlie, Principles of Public International

Law (6th ed. 20038) ....................20008 9, 10, 11, 14

Antonio Cassese, International Law (2001)..... passim

Br. of Chevron Corp. et. al., as Amicus Curiae

in Support of Resp’t (No. 10-1491)

I Ce i a ccchleincetcii 7,14

Committee Against Torture, 46th Sess.,

Working Document on Article 14 for

Comments (June 3, 2011) ..............cccceeeeeeeeeeees 24

Olivier De Schutter, Asbern Eide,

Ashfaq Khalfa, Marcos Orellana,

Margot Salomon & Ian Siederman,

Commentary to the Maastricht Principles on

Extraterritorial Obligations of States in the

Area of Economic, Social, and Cultural Rights,

34 Hum. Rts. Q. (2012) (forthcoming............. 17

Donald F. Donovan and Anthea Roberts,

The Emerging Recognition of Universal

Civil Jurisdiction, 100 Am. J. Int’] L. 142

Ii isnbsnnsidiaciaienieuieteenbianeidapepeaedpiidmimnibaual 5, 14, 16

Ernestine Fitz-Maurice, Convention for the

Suppression of Counterfeiting Currency: An

Analysis, 26 Am. J. Int'l L. 533 (1932)........... 28

Fourth report on the obligation to extradite or

prosecute (aut dedere aut judicare),

Int’] Law Comm’n, U.N. Doc. A/CN.4/648

(May 31, 2011) (by Zdislaw Galick)) ............ 8-9

Human Rights Committee, General Comment 31:

Nature of the Legal Obligation on States

Parties to the Covenant, U.N. Doc.

CCPR/C/21/Rev.1/Add.13 (2004).............. 21, 22

Int'l Bar Ass’n, Report of the Task Force on

Extraterritorial Jurisdiction 5

LS RS eeee 16, 17, 18, 37

International Federation for Human Rights (FIDH),

Ely Ould Dah Condamné: Premiére

condamnation pour torture en France fondée

sur le mécanisme de compétence universelle

I, iinet ellantetal ei alin aliaitailaiinins 38

International Federation for Human Rights (FIDH),

Libya: Looking Back on the Amesys Case,

EE: SE ictivisnnacsnvensavennnceinebiipeiienintdiatanadeenes 35

Int'l Law Comm’n, Preliminary Report

on the Obligation to Extradite or Prosecute (“aut

dedere aut judicare”), UN Doc. A/CN4/571,

Fe Se iteintisecntincsitiininicntinisisiaiiniiniatintmmnnnens 11

Nicola M.C.P. Jagers & Marie van der

Heijden, Corporate Human Rights

Violations: The Feasibility of Civil Recourse

in The Netherlands, 33 Brook. J. Int’] L. 833

International Federation for Human Rights

(FIDH) c/ Amesys 3877/12/23 ..............cccceeceeeee 35

Joint FIDH-LIDHO-MIDH Report on the Trafigura

I, SITE sins iininatendesitnemmnininisiniaesininaenbiveieninii 31

Claire Mitchell, Aut Dedere, aut Judicare: The

Extradite or Prosecute Clause in International

Law, (The Graduate Inst., Geneva

Publications, 2009) ................ccccceeececeeeeeees 25, 26

Arnaud Nuyts, Study on Residual Jurisdiction,

Review of the Member States’ Rules

Concerning the “Residual Jurisdiction” of their

Courts in Civil and Commercial Matters

Pursuant to the Brussels I and II , Prepared

for the European Commission,

Bleomt. B, BOOT ...<<.acececsececscsecesceceseceeseceseeeeses 37, 38

Press Release, FIDH, Ely Ould Dah Convicted After

Six Years of Proceedings. Our Perseverance

Paid Off!, FIDH (Dec. 10, 2008)..................... 37

Kenneth C. Randall, Universal Jurisdiction

Under International Law,

66 Tex. Law Rev. 788 ...................-. 3, 10, 11, 20

REDRESS/International Federation for Human

Rights (FIDH), Extraterritorial Jurisdiction

in the European Union: A Study of the Laws

and Practice in the 27 Member States of the

European Union, Dec. 2010................ 34, 35, 36

REDRESS & World Organization Against

Torture, Written Comments as Intervenors in

European Court of Human Rights Case Nait

Liman v. Switzerland (No. 51357/07), Sept. 15,

aT sinnnanssctieiceenadenmianninandadieasentnddineeenment 38, 39

Restatement (Third) of the Foreign Relations

EE anya aN ee 3, 9, 10

Ann Riley, France Court Awards Bosnia

Civil War Victims Damages for Injuries,

Pe eae 38

Statute of the International Court of Justice,

June 26, 1945, 33 U.N.T.S. 98 ......................... 7

Beth Stephens, Translating Fildrtiga: A

Comparative and International Law Analysis

of Domestic Remedies For International

Human Rights Violations,

ff Fe | eT — ere 14

Supplemental Brief of Professor Juan Méndez,

U.N. Special Rapporteur on Torture as Amicus

Curiae Supporting Petitioners, Esther Kiobel

v. Royal Dutch Shell Petroleum Co. .............. 24

Robert C. Thompson, Anita Ramasastry &

Mark B. Taylor, Translating Unocal:

The Expanding Web of Liability for

Business Entities Implicated in

International Crimes,

40 Geo. Wash. Int’! L. Rev. 841 (2009) .......... 37

Trafigura Found Guilty of Exporting Toxic Waste,

I a a 31

U.N. International Law Commission,

Survey of Multilateral Conventions on the

topic “The obligation to extradite or

prosecute (aut dedere aut judicare),

U.N. Doc. A/CN.4/630 (June 18, 2010) .......... 26

Jan Wouters & Cedric Ryngaert,

Litigation for Overseas Corporate Human

Rights Abuses in the European Union: The

Challenge of Jurisdiction,

40 Geo. Wash. Int’] L. Rev. 939 (2009) .......... 33

INTEREST OF AMICI CURIAE!

Amici curiae Center for Constitutional Rights,

Canadian Centre for International Justice,

International Association of Democratic Lawyers,

International Commission for Labor’ Rights,

International Federation for Human Rights (FIDH),

RAID, Redress Trust (REDRESS) and World

Organisation Against Torture (OMCT) (listed in the

Appendix) are international human rights

organizations which have an interest in the proper

understanding, assessment and application of

adjudicative jurisdiction over a cause of action for

violations of the law of nations occurring outside the

territory of the adjudicating sovereign.

Amici regularly examine the scope of

jurisdiction under international law and, in

particular, the contours of extraterritorial

jurisdiction, and have worked on numerous cases in

the United States and foreign courts in which

principles of extraterritorial jurisdiction have been

adjudicated. Amici’s understanding of international

jurisdictional principles is properly informed by the

international legal system’s continued affirmation of

legal principles committed to the elimination of

impunity for grave human rights violations.

1 Written consents to the filing of amicus curiae briefs in

support of either party are on file with the Clerk. No counsel

for any party authored this brief in whole or in part, and no

person or entity other than the amici or their counsel made a

monetary contribution to this briefs preparation or submission.

Amici write in support of Petitioners because

the principles of jurisdiction under international law

and State practice demonstrate that courts can, and

regularly do, exercise jurisdiction over conduct

occurring in another sovereign’s territory. Amici

stress that the recognition of extraterritorial

jurisdiction, in the context of egregious conduct that

violates international law, reflects an understanding

that certain universally condemned conduct

transcends borders and all States have the right and,

in some cases the responsibility, to suppress and

punish breaches.

INTRODUCTION AND

SUMMARY OF THE ARGUMENT

The Alien Tort Statute (“ATS”), 28 U.S.C.

§ 1350, provides federal courts with jurisdiction “over

any civil action for a tort only, committed in violation

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

This Court has found that the ATS recognizes a

‘modest number” of claims “based on the present-day

law of nations” that have no less “definite content”

and “acceptance among civilized nations” than the

claims familiar to Congress at the time the statute

was enacted. Sosa v. Alvarez-Machain, 542 U.S.

692, 724-25, 732 (2004). Because the substantive

law applied under the ATS is international law, it is

appropriate to look to international law principles to

address the question of extraterritorial jurisdiction.

The exercise of jurisdiction is a fundamental

component of sovereignty. It includes the authority

to prescribe rules, adjudicate rights and liabilities of

parties, and enforce judgments. See Restatement §

401; Antonio Cassese, Jnternational Law 49 (2d. ed.

2005). The ATS does not apply American law, but

rather provides jurisdiction over claims arising under

international law. As such, it does not implicate

prescriptive jurisdiction; it does not seek to apply or

impose rules of conduct defined under American law

extraterritorially. Rather, it is a form of adjudicative

jurisdiction covering acts condemned by all nations.

This Court asked for supplemental briefing on

the question, “[wjhether and under’ what

circumstances the Alien Tort Statute, 28 U.S.C.

§ 1350, allows 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.”

Amici respectfully submit that international

law permits courts to recognize a cause of action for

violations that occurred within the territory of

another sovereign under a number of longstanding

and noncontroversial principles. This recognition,

uniformly acknowledged by the most highly regarded

jurists, is reflected in international treaties and borne

out by State practice sufficient to establish a

customary international law norm. This includes the

2 As discussed herein, the jurisdiction to adjudicate reflects

“the power to settle legal disputes through binding decisions.”

See, e.g., Restatement (Third) of the Foreign Relations Law, §

401(b) (1987) Gurisdiction to adjudicate is the power a State has

to “subject persons or things to the process of its courts...

whether in civil or criminal proceedings.”); Kenneth C. Randall,

Universal Jurisdiction Under International Law, 66 Tex. Law

Rev. 785, 786 (1988).

exercise of jurisdiction over acts by foreigners against

foreigners in foreign territory.

Various principles exist for asserting

jurisdiction over particular conduct occurring

extraterritorially, including the principle of

universality. The principle of universality, in turn,

recognizes that some conduct, defined under

international law, is of such an egregious nature that

it is condemned by all nations and can be adjudicated

within the courts of all nations. The causes of action

that arise under the ATS are generally of this nature,

and accordingly, trigger U.S. responsibilities under

the universality principle.

As set forth below, the application of a court’s

jurisdiction to matters that occurred in the territory

of another sovereign is not only permissible under

international law, but it is common, and, in some

instances, obligatory. While courts regularly

adjudicate civil matters based on a nexus to the

territory, nationality of the victim or offender, and to

protect national interests, courts also recognize and

adjudicate violations of the law of nations based on

the principle of universality. Adjudication under the

universality principle, whether under criminal law

with a concurrent proceeding allowing for recovery of

damages by the victims or solely through civil

proceedings, reflects the importance of ending

impunity, by means of sanctioning and punishing

those who violate fundamental rights. Moreover, it

also recognizes the importance of providing victims

with some measure of justice and redress.

It is undisputed that States may adjudicate

conduct beyond their territory, including through civil

claims, and that this is a principle derived from

international custom or convention. Accordingly,

there is no bar under international law to the

recognition of a cause of action under the ATS that

occurs within the territory of a foreign sovereign.

In the case of overlapping or competing

jurisdictions, doctrines that inform choice-of-forum

decisions, including forum non conveniens, provide

the necessary guidance to courts. A discussion of this

doctrine and others, including exhaustion of

remedies, international comity, and act of state are

beyond the scope of this brief. Amici submit,

however, that courts must not decline jurisdiction

without careful consideration of the availability and

adequacy of proceedings in the alternate forum:

“anything less” than a “readily accessible forum and

fully effective remedies” should serve as a bar to

transferring jurisdiction to another state, as it would

“be inconsistent with the rationale for universal

jurisdiction.” Donald F. Donovan and Anthea Roberts,

The Emerging Recognition of Universal Civil

Jurisdiction, 100 Am. J. Int L. 142, 159 (2006). To

the extent that a court may decline to exercise its

jurisdiction due to the existence of an overlapping or

competing jurisdiction, such a decision reflects

adherence to rules regarding choice-of-forum rather

than a denial of extraterritorial jurisdiction as a

matter of law.

ARGUMENT

1. UNDER INTERNATIONAL LAW, A

STATE HAS THE AUTHORITY, AND AT

TIMES THE OBLIGATION, TO ASSERT

ITS JURISDICTION

EXTRATERRITORIALLY.

A. The Basic Principles Governing the

Exercise of Jurisdiction Recognize that

States have Rights and Responsibilities

Beyond Their Borders.

Extraterritorial application of the ATS fulfills

crucial obligations of the United States that are

rooted in the basic principles of international law.

Jurisdiction is an expression of sovereignty. As

such, the exercise of jurisdiction recognizes a State’s

rights and responsibilities to other States as well as

to its nationals. In the modern era, with the

emergence of human rights law and developments in

international humanitarian law, jurisdictional

principles recognize that States have responsibilities

to members of the international community as a

whole, including nationals of other States.

The most basic form of jurisdiction is

territorial, i.e., commission of the conduct or the

presence of the defendant are within the territorial

borders of the State. At the same time, international

law has long recognized that States are permitted to

exert their jurisdiction beyond their territorial

borders. As the Permanent Court of International

Justice found in The Case of S.S. ‘Lotus’, even when

international human rights and humanitarian law

had not yet narrowed State’s sovereign prerogatives,

States were permitted to regulate matters outside

their territory, unless otherwise prohibited by specific

rules of international law. The P.C.I.J. found:

Far from laying down a general prohibition to

the effect that States may not extend the

application of their laws and the jurisdiction of

the courts to persons, property and acts outside

their territory, it [international law] leaves

them in this respect a wide measure of

discretion which is only limited 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.

The Case of S.S. ‘Lotus’ (Fr. v. Turk.), 1927

P.C.1.J., (ser. A) No. 10, at 19, | 46 (Sept. 7).

The P.C.I.J. identified the sources for such a

“permissive rule” of extraterritorial jurisdiction as

international custom or conventions.* See id. See

3 Thus, contrary to the view expressed in one amicus brief in

support of Respondents, the starting point for examining the

applicability of extraterritorial jurisdiction is that such

adjudicative jurisdiction is permissible unless specifically

prohibited; the view that extraterritorial jurisdiction is

prohibited unless consent of nations to the specific exercise of

such jurisdiction is identified misstates the rule under

international law. See Br. of Chevron Corp. et al, as Amicus

Curiae in Support of Resp’t (No. 10-1491) (filed Feb. 3, 2012)

(“Chevron Br.”) at 10-17.

4 The sources of international law are set forth in Article

38(1) of the Statute of the International Court of Justice, June

26, 1945, 33 U.N.T.S. 993. See art. 38(1)(a) and (b).

also Cassese, supra, at 50. As demonstrated below,

there exist both widespread acceptance in treaties

and extensive State practice for the exercise of

extraterritorial jurisdiction.

Indeed, the International Court of Justice

recently recognized that “all or nearly all systems of

law extend their action to offences committed outside

the territory of the State which adopts them, and they

do so in ways which vary from State to State.” Arrest

Warrant of 11 April 2000, 2002 1.C.J. 63, 77 4 49

(separate opinion of Judges Higgins, Kooijmans and

Buergenthal).

While the exercise of extraterritorial

jurisdiction must respect the principles of

non-intervention and the sovereign equality of States,

those principles also operate within the context of a

larger international legal framework that recognizes

that the rights and responsibilities of States can, and

in practice often do, transcend national borders. For

this reason, it is recalled that the United Nations

Charter also includes a duty to cooperate, particularly

“in promoting and encouraging respect for human

rights and for fundamental freedoms for all [...]}.”

U.N. Charter art. 1, para. 3. International

cooperation, which includes extraterritorial acts or

requests by States, is a critical component of the

international legal system’s overarching goal of

eliminating impunity. See Special Rapporteur,

Fourth report on the obligation to extradite or

prosecute (aut dedere aut judicare), { 13 Intl Law

Comm’n, U.N. Doc. A/CN.4/648 (May 31, 2011) (by

Zdislaw Galicki). See also, id., at | 34 (“{I]t is

indisputable that the fight against impunity for the

perpetrators of serious international crimes is a

fundamental policy of the international community”).

The assertion of extraterritorial jurisdiction

generally requires a nexus between the State and the

persons or conduct at issue, developing out of the

rights and responsibilities of sovereignty. Such a

nexus is found when the conduct violates jus cogens

norms, the fundamental principles and values of the

international community, which include conduct that

the international community, through treaty or

practice, has recognized as universally condemned,

and over which it authorizes’ extraterritorial,

including universal, jurisdiction. In such

circumstances, a State is not exercising its

jurisdiction for its own interests, but is promoting and

vindicating the rights recognized by all States.

B. International Law Recognizes

Extraterritorial Jurisdiction under

Longstanding Principles.

International law recognizes jurisdiction,

including extraterritorial jurisdiction, under a

number of longstanding principles, including the

nationality principle, the protective principle and the

universality principle. See Ian Brownlie, Principles

of Public International Law, 299-304 (6th ed. 2003);

Cassese, supra, at 50. See also Restatement (Third)

of Foreign Relations Law part 4. ch. 2, intro. note.

These principles do not serve as rigid

categories for establishing jurisdiction, so much as

they demonstrate that jurisdiction is permissible: “[i]t

may be that each individual principle is only evidence

of the reasonableness of the exercise of jurisdiction.”

Brownlie, supra, at 305. In essence, what is required

for jurisdiction is some “genuine or effective link”

between the matter and the forum state. Jd. See also

Restatement § 403 (2).

The exercise of extraterritorial jurisdiction

based on nationality is uncontroversial. Jurisdiction

on this basis is grounded in the recognition of a

State’s right to regulate the behavior of its own

nationals. See Nottebohm (Liecch. v. Guat.), 1995 1.C.J.

4, 23 (Apr. 6) (nationality is “a legal bond having as its

basis a social fact of attachment, a genuine connection

of existence, interests and sentiments, tggether with

the existence of reciprocal rights and duties.”)

Extraterritorial jurisdiction exercised on the basis of

nationality can be in the form of “active personality”

jurisdiction, which is based on the nationality of the

defendant, and “passive personality” jurisdiction,

which is based on the nationality of the victim.

Brownlie, supra, at 301-02.

The protective principle has been invoked by

courts to assert jurisdiction over “offenses that,

although committed abroad, infringe upon or

seriously affect national interests.” Cassese, supra,

at 50. The protective principle supports the exercise

of jurisdiction over non-nationals for acis committed

overseas to guard or vindicate the State’s vital

economic or political interests. Such jurisdiction has

been applied in the areas of currency, espionage,

falsification of official records, terrorism, national

security and immigration. See Brownlie, supra at

302-03; Kenneth C. Randall, Universal Jurisdiction

Under International, Law, 66 Tex. L. Rev. 785, 788

n.11 (1988).

The universality principle explicitly envisions

the exercise of jurisdiction for acts committed beyond

territorial borders by foreigners against foreigners for

acts that constitute serious breaches of international

law. Cassese, supra, at 50. It reflects the recognition

by the international community that some acts are so

serious and violate such fundamental principles of

the international system that they are of concern to

the entire international community and warrant

universal prosecution and repression. Jd. Because

the acts at issue involve fundamental principles of

universal concern and violate international law,

rather than simply the law of a particular nation,

universality does not raise serious issues of

interference with the internal affairs of a State and

does not breach the principle of sovereign equality

between States. Id.

Through treaty law and State practice, a

growing number of violations have been identified as

appropriate for adjudication under’ universal

jurisdiction, including piracy, slavery, torture, war

crimes, genocide and crimes against humanity. See,

e.g., Intl Law Comm’n, Preliminary Report on the

Obligation to Extradite or Prosecute (“aut dedere aut

judicare”), UN Doc. A/CN4/571, 7 June 2006, at 440.

Violations of jus cogens norms create

obligations erga omnes, or obligations which are owed

to all States and all persons. The International

Court of Justice recognized the special place that such

norms hold within the international legal system, and

the ensuing obligations that flow from these norms:

By their very nature, [some matters) are the

concern of all States. In view of the

importance of the rights involved, all States

can be held to have a legal interest in their

protection, they are obligations erga omnes.

... Among these rights for which there are

erga omnes obligations are a number of

fundamental rules protecting the “basic

rights of the human person.”

Barcelona Traction, Light and Power

Company, Limited, Judgment, (Belg. v. Spain), ICJ

Rep. 1970, p. 3, 934.

The International Tribunal for the former

Yugoslavia reaffirmed this principle in the context of

torture:

the prohibition of torture imposes upon

States obligations erga omnes, that is,

obligations owed towards all the other

members of the international community,

each of which then has a correlative right.

In addition, the violation of such an

obligation simultaneously constitutes a

breach of the correlative right of: all

members of the international community

and gives rise to a claim for compliance

accruing to each and every member, which

then has the right to insist on fulfillment of

the obligation or in any case to call for the

breach to be discontinued.

Prosecutor v. FurundZija, Judgement, Case

IT-95-17/1-T, Dec. 10, 1998, 4 151.

As the International Court of Justice recently

explained, national courts have an indispensable role

to play in ensuring these serious breaches of

international law are punished:

The series of multilateral treaties with

their special jurisdictional provisions

reflect a determination by _ the

international community that those

engaged in war crimes, hijacking,

hostage taking, torture should not go

unpunished... We reject the suggestion

that the battle against impunity is

“made over” to international treaties

and tribunals, with national courts

having no competence in such matters.

Great care has been taken when

formulating the relevant treaty

provisions not to exclude other grounds

of jurisdiction that may be exercised on a

voluntary basis.

Case Concerning the Arrest Warrant of 11 April

2000 (Dem. Rep. Congo v. Belg.) 2002 1.C.J. 63, 77

(Feb. 14) at 4 51 (separate opinion of Judges Higgins,

Kooijmans, and Buergenthal).®

5 Sovereign or recognized personal immunities (i.e., head of

state, diplomatic or consular immunity), which can present a

distinct procedural! bar to adjudicating claims over which a court

would otherwise have proper jurisdiction, are beyond the scope

of this brief. It is recalled, however, that the law of immunity is

While the principles of jurisdiction are

discussed primarily in the context of criminal law,

they are also applicable to civil proceedings.

Brownlie, supra, at 298 (observing that there is no

reason in principle to distinguish between the

permissibility under international law of civil and

criminal cases). See also Sosa, 542 U.S. at 761-62

(Breyer J., concurring). See generally Beth Stephens,

Translating Fildrtiga: A Comparative and

International Law Analysis of Domestic Remedies For

International Human Rights Violations, 27 Yale J.

Intl L. 1, 3 (2002) (explaining that each State

translates its international law obligations into

proceedings that are appropriate to its domestic civil

and legal system).

Indeed, the close relationship between criminal

sanctions and civil remedies is reflected in the

actiones populares or actions civiles found in civil law

systems. See, e.g., Donovan & Roberts, supra, at

154. Through these mechanisms, civil claims are

attached to criminal proceedings, thereby providing a

basis for compensation which may not otherwise be

quantified in a strict survey of universal civil

jurisdiction laws. Notably, the civil torts actionable

under the ATS are often identical with the criminal

acts described under international law, and

accordingly, the civil and criminal jurisdiction under

international law are _ likewise congruent. 6

procedural in nature and does not alter the substantive rules of

international law. See, e.g., Arrest Warrant of 11 April 2000,

2002 1.C.J. 3, § 60, cited in Jurisdictional Immunities of the

State (F.R.G. v. Italy), 2012 1.C.J. 39, 4 58 (Feb. 3).

6 Rules of international law, such as rules regarding

sovereign immunity or personal immunities, could be applied on

Moreover, awarding damages as a result of criminal

proceedings serves the dual purposes of punishing the

offender and providing some measure of redress to

the victims; both of these purposes conform with the

goals and values reflected in the universality

principle.

As this Court’ recognized in _ Sosa,

international law has evolved to proscribe other

offenses beyond the original Blackstonian norms. 542

U.S. at 724-25. Historically, universal jurisdiction

may have been limited to those serious crimes, such

as piracy on the high seas and violation of

ambassadorial immunities, which could evade

prosecution under traditional bases of jurisdiction.

In the modern era, the foundation of universal

jurisdiction has been the “sheer heinousness of

certain crimes” which are “universally condemned,”

and which all states have an interest in repressing.

Donovan & Roberts, supra, at 143.

As the recognition of fundamental human

rights has risen over the last seven decades, so has

the concept of sovereign rights grown to encompass

and acknowledge a system of international law that

provides accountability and redress for violations of

a case-by-case basis to bar certain claims, but such cases have no

bearing on the question of extraterritorial jurisdiction.

Notably, the cases cited by amici Chevron for the proposition

that universal jurisdiction for torture applies only in criminal

cases were dismissed not, as amici claim, because of a broad

finding in each that a rule of international law bars

extraterritorial jurisdiction over civil claims for torture but

rather on sovereign or personal immunity grounds. See Chevron

Br. at 14.

universal principles and norms. /d. at 142 (“Modern

international law takes as a fundamental value the

condemnation and redress of certain categories of

heinous conduct”). See id. at 145.

Through a resolution of the General Assembly,

the community of States recently affirmed that

redress for victims is an existing and important

component of international justice. See Basic

Principles and Guidelines on the Right to a Remedy

and Reparation for Victims of Gross Violations of

International Human Rights Law and Serious

Violations of International Humanitarian Law, G.A.

Res. 60/147, Preamble, U.N. Doc. A/RES/60/147(Dec.

16, 2005) (“Emphasizing that the Basic Principles and

Guidelines contained herein do not entail new

international or domestic legal obligations but

identify mechanisms, modalities, procedures and

methods for the implementation of existing legal

obligations under international human rights law

and international humanitarian law’).

It would be contrary to the rules of

international law to unreasonably _ constrict

jurisdiction for such gross violations of international

law or to place dispositive emphasis on territoriality.

Indeed, in a _ recent report on extraterritorial

jurisdiction, the International Bar Association

explained that the growth of multinational

corporations, eased global travel, technological

developments, and transnational criminal enterprises

“have combined to encourage states to exercise

jurisdiction beyond their territorial borders.” Int’] Bar

Ass’n, Report of the Task Force on Extraterritorial

Jurisdiction 5 (Feb. 6, 2009), available at

http://www.Ibabet.org (“IBA Report”).

Recently, experts in international law and

human rights convened to examine extraterritorial

obligations, including in relation to transnational

corporations. The result of this convening was the

“Maastricht Principles on Extraterritorial

Obligations of States in the area of Economic Social

and Cultural Rights,” adopted on September 21, 2011.

Article 25 of the Maastricht Principles requires that

States “adopt and enforce” measures, including legal

measures when, inter alia, “any conduct impairing

economic, social and cultural rights constitutes a

violation of a peremptory norm of international law.”

Art. 25 (e).

Notably, the Commentary to the Maastricht

Principles places the obligation to exercise

extraterritorial jurisdiction not in the context of a

challenge to State sovereignty, but rather in the

framework of the mutual expression of States’

interests, including to “facilitate the coexistence

between States and their cooperation in addressing

situations that are of concern to more than one, or (as

regards peremptory norms of international law or

international crimes justifying the exercise of

universal jurisdiction) to the _ international

community as a whole.” Olivier De Schutter, Asbern

Eide, Ashfaq Khalfa, Marcos Orellana, Margot

Salomon & Ian Siederman, Commentary to the

Maastricht Principles on Extraterritorial Obligations

of States in the Area of Economic, Social, and Cultural

Rights 34 Hum. Rts. Q.__ (2012) (forthcoming).

Il. THERE IS WIDESPREAD PRACTICE

REFLECTING THE ACCEPTANCE OF

EXTRATERRITORIAL JURISDICTION

UNDER INTERNATIONAL LAW.

There is widespread acceptance of

extraterritorial jurisdiction reflected in the large

number of international treaties that allow for, and in

certain cases require, the exercise of jurisdiction

beyond a State’s territorial borders as well as by

extensive State practice. As set forth below,

customary international law recognizes the exercise

of exterritorial jurisdiction over conduct occurring in

foreign States.’

A. The Rights and _ Responsibilities

Assumed By States Through Their

International Treaty Obligations

Demonstrates Widespread Acceptance

of the Exercise of Extraterritorial

Jurisdiction.

Numerous international treaties explicitly

allow for, and at times require, that States exercise

jurisdiction beyond their borders. Not only do they

address a range of conduct over which States assert

7 In their extensive study on extraterritorial jurisdiction, the

IBA Task Force identified the following three factors as relevant

to determining customary international law: (i) legislation and

treaties that permit, require or prohibit the exercise of

jurisdiction in certain cases; (ii) decisions of national courts and

regulatory bodies either exercising or refusing to exercise

jurisdiction; and (iii) reactions of states’ legislatures, courts

and/or executives to the exercise of jurisdiction by other states.

IBA Report, at 18.

extraterritorial rights or responsibilities, but the

treaties are also widely accepted, signifying the

customary nature of extraterritorial jurisdiction.

Most relevant to the present case are the

international human rights and humanitarian law

treaties which implicate the extraterritorial rights

and responsibilities of States. These include the four

Geneva Conventions of 1949, which require all

Contracting Parties to enact domestic legislation to

punish “grave breaches” of the Conventions.®

Recognizing the harm done to the international

community as a whole by the commission of genocide,

and seeking to deter its occurrence through the

creation of a legal regime to foreclose impunity, the

Genocide Convention calls upon all signatory States

to prevent and punish genocide. Convention on the

Prevention and Punishment of the Crime of Genocide,

Dec. 9, 1948, 78 U.N.T.S. 277. See Application of the

Convention on the Prevention and Punishment of the

8 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. See also Protocol Additional to the Geneva

Conventions of 12 Aug. 1949, and Relating to the Protection of

Victims of International Armed Conflicts [hereinafter Protocol I],

art. 85, June 8, 1977, 1125 U.N.T.S. 3. The United States has

signed but not ratified Protocol I, and it has been ratified by 17’

States.

Crime of Genocide (Bosn. & Herz. v. Yugo.),

Preliminary Objections, Judgment, I.C.J. Reports

1996 (ID, J 31 (July 11, 1996) (moting that “the

obligation each State...has to prevent and to punish

the crime of genocide is not territorially limited by the

Convention”); see also Randall, supra, at 834-85.

The Convention Against Apartheid contains similar

provisions for universal] jurisdiction. International

Convention on the Suppression and Punishment of

the Crime of Apartheid, arts. 3, 4 and 5, Nov. 30,

1973, 1015 U.N.T.S.

Various human rights treaties’ include

extraterritorial obligations, including provisions

related to punishment and to providing redress. The

International Covenant on Civil and Political Rights

(“ICCPR”) requires each State party to guarantee

protection of the Covenant rights to “all individuals

within its territory and subject to its jurisdiction.”

Sept. 8, 1992, 999 U.N.T.S. 171, art. 2(1).

The Human Rights Committee (“HRC”) has

interpreted this obligation to mean that State parties

are required to respect and ensure the Covenant

rights to all persons in their territory and to “anyone

within the power or effective control of that State

Party, even if not situated within the territory of the

State Party.” See HRC, General Comment 31: Nature

of the Legal Obligation on States Parties to the

Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, § 10

(2004). The HRC has stated that “[t]his principle

also applies to those within the power or effective

control of the forces of a State Party acting outside its

territory, regardless of the circumstances in which

such power or effective control was obtained, such as

forces constituting a national contingent of a State

Party assigned to an international peace-keeping or

peace-enforcement operation.” Jd. The HRC has also

understood the ICCPR to require protection against

the conduct of non-state actors, including private

persons and entities. Jd. (providing that State

Parties should protect individuals not only against

violations by its agents, “but also against acts

committed by private persons or entities that would

impair the enjoyment of Covenant rights in so far as

they are amendable to application between private

persons of entities”).

Article 2(3) of the ICCPR provides for access to

and enforcement of an effective remedy determined

by a competent authority. The HRC has emphasized

the importance of State parties establishing adequate

judicial and administrative mechanisms for

addressing claims of rights violations under domestic

law. It has also noted that the judiciary can ensure

the protection of the Covenant rights in various ways,

including the direct application of the Covenant, the

application of comparable constitutional or other

provisions of law, or the interpretation of the

Covenant through the application of national law.

HRC, supra, at § 15.

Regional human rights regimes also recognize

the necessary role of domestic courts in addressing

human rights violations with an extraterritorial

dimension. In a pair of decisions rendered in

mid-2011, the European Court of Human Rights

expanded its jurisdiction to apply the European

Convention on Human Rights (“ECHR”) outside the

borders of its member states to address conduct that

occurred in Iraq. See Al-Skeini v. United Kingdom,

App. No. 55721/07, 53 Eur. Ct. H.R. 18 (2011),

available at

http://www.unhcr.org/refworld/pdfid/4e2545502. pdf

(finding that British government violated the right to

life by failing to investigate the deaths of six Iraqis in

Iraq); Al-Jedda v. United Kingdom, App. No.

27021/08, 2011 Eur. Ct. H.R. 1092 (2011), available at

http://www.unhcr.org/refworld/docid/4e25466e2. html

(finding that the British government violated the

right to liberty and security). While these decisions

related to violations by the State, victims could rely

on these precedents to bring civil actions in British

courts, or, indeed, other domestic courts of ECHR

signatory States.

The Inter-American Commission on Human

Rights (“Inter-American Commission”) has

understood the American Convention on Human

Rights and the American Declaration of the Rights

and Duties of Man to have. extraterritorial

application. Under Article 1(1), the American

Convention on Human Rights covers “all persons

subject to [the] jurisdiction” of the State parties. The

Inter-American Commission has held that a State

party to the Convention “may be responsible under

certain circumstances for the acts and omissions of its

agents which produce effects or are undertaken

outside that state’s own territory.” Victor Saldarfio v.

Argentina, Inter-Am. Comm’n H.R., Report No. 38/99,

OEA/Ser.L/V/11.95 doc. 7 rev. at 289 9 17 (1998). It

has also found that “jurisdiction is a notion linked to

authority and effective control, and not merely to

territorial boundaries,” and that the focus should be

on whether the State has “authority and control” over

the person. Jd. at § 19. The American Declaration

does not include a jurisdictional provision, but the

Inter-American Commission has applied the same

focus on “authority and control.”9

The Inter-American Court of Human Rights

has jurisdiction on all cases concerning the

interpretation and application of the American

Convention and is authorized to award reparations

for violations. Article 63(1) of the American

Convention on Human Rights provides:

If the Court finds that there has been a

violation of a right or freedom protected by this

Convention, the Court shall rule that the

injured party be ensured the enjoyment of his

right or freedom that was violated. It shall also

rule, if appropriate, that the consequences of

the measure or situation that constituted the

breach of such right or freedom be remedied

and that fair compensation be paid to the

injured party.

In light of the claims in the instant case, the

most notable example is the Convention against

Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (“CAT”), 1465 U.N.T.S. 85

(entered into force 26 June 1987). CAT specifically

includes a provision calling upon signatory States to

® See, e.g., Coard et al v. United States, Case 10.951,

Inter-Am. Comm’n H.R., Report No. 109/99, OEA/ser.L/V/II.106,

doc. 3 rev. at J 37 (1999); Armando Alejandre Jr. and Others v.

Cuba, Case 11.589, Report No. 86/99, [OAS/Ser.L/V/11.104 doc.

10 rev. at] 4 23 (1999).

enact legislation to provide redress to victims of

torture. Article 14 (1) of CAT provides: “Each State

Party shall ensure in its legal system that the victim

of an act of torture obtains redress and has an

enforceable right to fair and adequate compensation,

including the means for as full rehabilitation as

possible. In the event of the death of the victim as a

result of an act of torture, his dependants shall be

entitled to compensation.”!°

Moreover, CAT includes the principle of aut

dedere aut judicare or the obligation to extradite or

prosecute. See CAT, arts. 5,7and8. Aut dedere aut

judicare is closely related to the principle of

universality, or universal jurisdiction, as the purpose

of both is suppressing the commission of acts which

harm the international community as a whole.?!

Recent studies examining aut dedere aut

judicare have found that signatory States are called

upon to prosecute or extradite, including when the

links of territory or nationality are absent, in a large

number of treaties across a range of public and

private international law matters, including

currency, regulation of the high seas, air safety and

10 For a discussion on Article 14, see Supplemental Brief of

Professor Juan Méndez, U.N. Special Rapporteur on Torture as

Amicus Curiae Supporting Petitioners, Esther Kiobel v. Royal

Dutch Shell Petroleum Co., Section I(B)(1). See also Committee

Against Torture, 46th Sess., Working Document on Article 14 for

Comments (June 3, 2011), available at

http://www2.ohchr.org/english/bodies/cat/comments _article14,ht

11 Elements of the protective principle as a basis for

jurisdiction are also evident in certain of the treaties.

hijacking, narcotics, nuclear materials, terrorism and

the regulation of warfare.'2 See, e.g., Amnesty Int'l,

International Law Commission: The Obligation to

Extradite or Prosecute (Aut Dedere Aut Judicare), Al

Index IOR 40/001/2009, Feb. 3, 2009; Claire Mitchell,

Aut Dedere, aut Judicare: The Extradite or Prosecute

Clause in International Law, (The Graduate Inst.,

Geneva Publications, 2009) at

http://iheid.revues.org/290; U.N. International Law

12 See, e.g., Convention on Psychotropic Substances art.

22(2)(a)(v), Feb. 21, 1971, 1019 U.N.T.S. 175 (“Serious offences

. . . Committed either by nationals or by foreigners shall be

prosecuted by the Party in whose territory the offence was

committed, or by the Party in whose territory the offender is

found if extradition is not acceptable ... and if such offender has

not already been prosecuted and judgement given.”); Convention

for the Suppression of Unlawful Seizure of Aircraft arts. [4(2),

6(1)-(2), 7], Dec. 16, 1970, 22 U.S.T. 1641, 860 U.N.T.S. 105

(“Contracting State in the territory of which the alleged offender

is found shall, if it does not extradite him, be obliged, without

exception whatsoever and whether or not the offence was

committed in its territory, to submit the case to its competent

authorities for the purpose of prosecution”); Montreal

Convention for the Suppression of Unlawful Acts Against the

Safety of Civil Aviation art. 7, Sept. 23, 1971, 24 U.S.T. 564, 974

U.N.T.S. 177 (same); International Convention against the

Taking of Hostages art. 8(1), Nov. 17, 1979, 1316 U.N.T.S. 205

(1985) (same); Convention on the Physical protection of Nuclear

Material art. 10, Oct. 26, 1979, 1456 U.N.T.S. 101 (same);

International Convention for the Suppression of Terrorist

Bombings arts. [8(1)], Dec. 15, 1997, 2149 U.N.TS. 256 (same);

International Convention for the Suppression of the Financing of

Terrorism arts. 5, 7, Dec. 9, 1999, U.N. Doc. A/RES/54/109

(providing for territorial and active personality jurisdiction as

well as when the terrorist acts are directed against a State, an

organ of the State (at home or abroad), a national of the State or

a stateless person residing in the state; such lability may be

criminal, civil or administrative).

Commission, Survey of Multilateral Conventions on

the topic “The obligation to extradite or prosecute (aut

dedere aut judicare)”, 44, U.N. Doc. A/CN.4/630 (June

18, 2010) Gdentifying €1 multilateral instruments, at

the universal and regional levels, that include

provisions to extradite or prosecute); IBA Report at

16-17.

One of the earliest conventions to include an

“extradite or prosecute” clause is the 1929

International Convention for the Suppression of

Counterfeiting Currency, which allows for

punishment in the home State of nationals who

committed crimes in another State as well as

foreigners in the State where they are present for

violations that were committed in the territory of

another State. Apr. 20, 1929, 112 L.N.T.S. 371.

Notably, the Convention specifically calls upon States

to act over a foreigner present in a foreign state who

committed an offense in a foreign state. See art. 9.1%

Commentary at the time of the adoption of the

Convention regarding the reasoning for’ the

Convention and its extraterritorial reach is

instructive in considering mechanisms for

implementing the commitment made by the

community of States to end impunity:

the existence of the conviction that the whole

community of states had an interest in the

repression of this form of criminality is what

13 This provision requires that extradition had been

requested but could not be granted. See also 1936 Convention for

the Suppression of the Illicit Traffic in Dangerous Drugs, June

26, 1936, 198 L.N.T.S 301 (art. 7).

made the agreement at all possible . . . the

states had had occasion to observe that purely

national action against counterfeiters was

often insufficient, and that international action

was in many cases extremely difficult, if not

impossible. Thus, in the face of this common

menace, with which separately the states were

unable to cope, they came in time to realize

that international cooperation was necessary,

and what is more, that it was imperative, if

they were to make any headway in the

prevention and punishment of such crime. [...]

one can trace the ramifications of the effects

farther afield, but they are widespread when

only one state has been both the scene and»

object of the crime.

Ernestine Fitz-Maurice, Convention for the

Suppression of Counterfeiting Currency: An Analysis,

26 Am. J. Int'l L. 533, 533 (1932).

The International Convention for’ the

Protection of All Persons ffrom Enforced

Disappearance, adopted on December 20, 2006 and

entered into force December 23, 2010, is the most

recent international treaty to contain an “extradite or

punish” requirement. U.N. Doc. A/RES/61/177.

The commission of the offence in the State, active

personality, passive personality and the presence of

the offender in the State if no extradition is

forthcoming, all trigger the exercise of jurisdiction.'4

14 Article 9(3) further provides that the Convention “does not

exclude any additional criminal] jurisdiction exercised in

accordance with national law.”

Id., art. 9. Notably, Article 24(4) also provides that

each State “shall ensure in its legal system that the

victims of enforced disappearance have the right to

obtain reparation and prompt, fair and adequate

compensation.”!5

B. State Practice Demonstrates

Widespread Acceptance of the

Exercise of Extraterritorial

Jurisdiction.

State practice, in the form of legislation and

judicial decisions, demonstrates the widespread

acceptance of extraterritorial jurisdiction. The

conduct over which such jurisdiction is exercised

ranges from financial transactions to ordinary torts to

the serious violations of international law over which

the Alien Tort Statute provides jurisdiction. All bases

of jurisdiction are implicated in this practice: the

traditional territorial link alone or in combination

with nationality, of either the offender or victim, is

represented, as is_ practice that reveals the

commitment of the international community of States

to suppress and punish fundamental violations of

international law.

Extraterritorial jurisdiction is regularly

exercised over tort claims for conduct occurring in

15 Only one of the thirty-two parties to the Convention made

a declaration on Article 24 and none made a reservation.

Germany’s declaration did not question imposing civil liability

for acts that occurred outside its territory or against its citizens,

but rather consisted of a simple clarification that the “provision

on reparation and compensation does not abrogate the principle

of state immunity.”

territory other than that of the forum State under

municipal law when one of the _ jurisdictional

principles is satisfied, thereby making the exercise of

jurisdiction reasonable. For example, in the United

Kingdom, domestic tort law has been used as a

vehicle for seeking accountability against business

entities for human rights violations committed

outside the State borders. See, e.g., Lubbe v. Cape

Ple., [2000] 1 WLR 1545 (H.L.) [92-4] (appeal taken

from Eng.) (claims for damages of over 3,000 miners

for exposure to asbestos and related products in the

English parent corporation Cape’s South African

mines run by foreign subsidiaries); Flores v. BP

Exploration Co. (Colombia), Claim No. HQ08X00328

[Filed Dec. 1, 2008] EWHC (QB) (complaint against

BP in Colombia for serious environmental harm with

devastating impact on the local population);

Guerrero & Ors v. Monterrico Metals Ple. {2010}

EWHC 3228 [9 42-6, 11] (QB) (claims of 32 indigenous

Peruvians against a British corporation, owned by a

Chinese consortium and headquartered in Hong

Kong for aiding and abetting torture by Peruvian

police; settled out of court); Connelly v. R.T.Z. [1997]

UKHL 30 [91-4] (cases against the British parent

corporations for harms caused in Namibia by foreign

subsidiaries).

Other common law countries have similar

precedents. See, e.g., Dagi v. BHP, [1997] 1 VR 428

(Austl.) (suit in the Supreme Court of Victoria,

Australia by 30,000 natives of Papua, New Guinea,

for damages to their lands against a mining company

domiciled in Australia); see also Choc. v. Hudbay

Minerals Inc., [2011] O.J. No. 3417 (Can. Ont. Sup.

Ct.) (QL) (suit by eleven Guatemalan women against

HudBay and its subsidiary HMI Nickel Inc for claim

of negligence resulting in inter alia assaults and gang

rapes).

Indeed, as these examples demonstrate, many

cases involving transnational activity brought under

domestic law are similar to the fact patterns that

arise in ATS cases. See Prosecutor v TotalFinaElf et

al., Cour de cassation de Belgique, Arrét, 28 March

2007 Pas. No. P.07.0031.F (2007) (brought by

Burmese residents in Belgium against the French oil

company, Total, arising out of the same pipeline

construction project at issue in Doe v. Unocal Corp.,

395 F.3d 932 (9th Cir. 2002)).

One recent case against a multinational

corporation domiciled in the Netherlands, Trafigura,

addressed the dumping of toxic waste by one of its

ships (Probo Koala) off the coast of the Ivory Coast

leading to the death of an estimated seventeen people

and the sickening of thousands of people; this

precipitated civil and criminal litigation in various

jurisdictions, including the Ivory Coast, the

Netherlands, the United Kingdom and France. See,

e.g., Motto & Ors v. Trafigura Ltd & Anor, [2011]

EWCA Civ 1150 [94-10] (Eng.) (Trafigura Ltd. is a

British Subsidiary of Trafigura Beheer domiciled in

the Netherlands); see also Nicola M.C.P. Jagers &

Marie van der Heijden, Corporate Human Rights

Violations: The Feasibility of Civil Recourse in The

Netherlands, 33 Brook. J. Intl L. 833 (2008);

Trafigura Found Guilty of Exporting Toxic Waste,

BBC (July 23, 2010), available at

http://www.bbc.co,uk/news/world-africa-10735255;

Joint FIDH-LIDHO-MIDH Report on the Trafigura

Case (in French) (Apr. 2011), available at

http://fidh d H-LIDHO-MID

t_ProboKoala _ avril2011.pdf.

Canada has adjudicated cases that not only fit

the fact pattern of ATS cases, but also incorporate

international law into domestic practice. The

Supreme Court of Canada has ruled that customary

international law is a part of Canadian domestic

law. See Rv. Hape, [2007] 2 S.C.R. 292 439 (Can.)

(“[T]he doctrine of adoption operates in Canada such

that prohibitive rules of customary international law

should be incorporated into domestic law in the

absence of conflicting legislation. The automatic

incorporation of such rules is justified on the basis

that international custom, as the law of nations, is

also the law of Canada.”).

In Quebec, which has a civil law system

distinct from the common law system in the rest of

Canada, the Superior Court has found that

allegations of war crimes, namely violations of

international law such as the Geneva Conventions,

would be recognizable as a civil fault (i.e. tort) under

the Quebec Civil Code. See Bilin (Village Council) v.

Green Park Ltd., [2009] QCCS 4151, 4 175, 207-2012

(Can. Qué. Sup. Ct.), affd, 2010 QCCA 1455 (Can.

Qué. C.A. (“A war crime is an indictable offence. As

such, it is an imperative rule of conduct that

implicitly circumscribes.an elementary norm of

prudence, the violation of which constitutes a civil

fault”). The court further found that it had

jurisdiction over Canadian corporations allegedly

involved in war crimes committed in another country.

Id. at paras. 204-5 (“the Superior Court has

jurisdiction over defendants domiciled in Québec

regarding a civil action based on extracontractual

liability for an injury caused and suffered in a foreign

country.... Assuming for purposes of discussion that

the Defendants knowingly assisted Israel for the

purpose of committing a war crime as alleged, the

Defendants committed a civil fault [tort] and are

liable to appropriate civil remedies.”) Although the

dismissal of the case on forum non conveniens

grounds was upheld by the Court of Appeal, the

finding about extraterritorial jurisdiction was left

untouched. See Bil’in, 2009 QCCS 4151, para. 15; c.f,

Case C-281/02, Owusu v. Jackson, 2005 E.C.R.

I1-1383, 4 47 (holding forum non _ conveniens

inconsistent with England’s obligations under the

Brussels Regulation).

In 2000, the exercise of jurisdiction by courts in

the European Union for conduct that occurred in the

territory of a foreign sovereign was partially codified.

European Council Regulation No 44/2001 affirmed

that corporations domiciled in any Member State of

the European Union can be sued in the courts of that

Member State for torts that occur outside their

territory. EC Regulation No 44/2001 of 22 December

2000 on Jurisdiction and the Recognition and

Enforcement of Judgments in Civil and Commercial

Matters, Articles 2 and 60.16 Council Regulation

16 Art. 2 provides: “persons domiciled in a Member State

shall, whatever their nationality, be sued in the courts of that

Member State.” Pursuant to Article 60(1) of the Brussels

Regulation, a company or other legal person or association of

natural or legal persons is domiciled at the place where it has its:

44/2001, arts. 2, 60, 2001 O.J. (L 12) 3, 13. See

generally FIDH, FIDH Guide on _ Corporate

Accountability for Human Rights Abuses 204-214

(2010). See also Jan Wouters & Cedric Ryngaert,

Litigation for Overseas Corporate Human Rights

Abuses in the European Union: The Challenge of

Jurisdiction, 40 Geo. Wash. Int'l L. Rev. 939, 941

(2009) (national courts in the European Union have

jurisdiction over any defendant corporation that is

“domiciled” in the EU, irrespective of where the harm

occurred or the nationality of the plaintiffs); Oguru v.

Royal Dutch Shell, Court of The Hague, Dec. 30, 2009,

Case No. 330891/Docket No. HA ZA 09-0579 (Neth.)

(finding jurisdiction under Dutch law in conjunction

with Article 60(1) of EC Regulation No. 44/2001 over

claims brought by Nigerians against Shell for torts,

arising out of oii spill in Nigeria involving Nigerian

subsidiary) (English translation available at

tt all defensie. ublicaties/be waren-uits ra

Moreover, courts of the EU Member States

may consider claims arising out of foreign conduct

against foreign defendants who have no connection to

the forum, so long as they are co-defendants with a

locally domiciled defendant and it would promote

judicial efficiency to hear the claims together.

Council Regulation (EC) No. 44/2001, art. 6(1), Dec.

22, 2000 (“A person domiciled in a Member State may

also be sued: where he is one of a number of

defendants, in the courts for the place where any one

(a) statutory seat, or (b) central administration, or (c) principal

place of business.

of them is domiciled, provided the claims are so

closely connected that it is expedient to hear and

determine them together to avoid the risk of

irreconcilable judgments resulting from separate

proceedings’).

A number of countries have amended their

criminal codes to comply with their universal

jurisdiction or aut dedere aut judicare obligations

treaty obligations or their obligations as a State

Party to the Rome Statute for the International

Criminal Court. Twenty-seven member States of

the European Union, as well as Norway and

Switzerland, allow for extraterritorial jurisdiction

over certain serious violations of international law

based on the nationality of the defendant.!?7 Each of

these States also provides for universal jurisdiction

over the same category of violations. See

REDRESS/FIDH Extraterritorial Jurisdiction Report

at 17.

Extraterritorial jurisdiction has been exercised

in criminal cases over serious violations of

international law. See, e.g., Public Prosecutor v. Van

Anraat, Judgment, District Court of The Hague, LJN:

AX6406, 09/751003-04, Dec. 23, 2005; Court of

Appeal of The Hague, LJN: BA6734, 2200050906-2.,

May 9, 2007 (Neth.) (Dutch courts § applied

international law to convict Dutch man who had

17 REDRESS/FIDH, Extraterritorial Jurisdiction in the

European Union: A Study of the Laws and Practice in the 27

Member States of the European Union, Dec. 2010

(“REDRESS/FIDH Report”), at 17. For an overview of which

States include a presence requirement or take subsidiarity into

account when determining jurisdiction, see id., at 39.

supplied materials used in chemical weapons for

complicity in war crimes committed against Kurds in

Iraq);!8 FIDH c/ Amesys 387/12/23. See Plainte Avec

Constitution de Partie Civile (FIDH Civil Compl.)(on

file with author), Oct. 19, 2011; Ordonnance Disant y

Avoir Lieu & Informer (Decision on Request to Compel

Information in Favor of the Plaintiff), May 23, 2012

(on file with author); FIDH, Libya: Looking Back on

the Amesys Case, May 29, 2012,

/I . ibya- ing- -on-the- Ss

Gudicial investigation within the Paris Court in

France against French corporation for violations

including torture by the company that took place in

Libya); Khaled Ben Said (Tunisian Viceconsul based

in Strasbourg convicted for complicity of torture in

France in abstentia for violations committed while

head of police in Tunisia against a Tunisian national

in 1996) REDRESS/FIDH Report, supra, at 134;

Scilingo, S.T.S., Sala de lo Penal, Oct. 1, 2007 (No.

798/2007) (conviction in Spain for crimes against

humanity committed in Argentina) REDRESS/FIDH

Report, supra, at 240; Jesuits Massacre Case

(indictment and arrest warrants issued in Spain for

20 Salvadoran ex-officers and former Salvadoran

President, Alfredo Cristiani Burkard for their role in

the “Jesuits Massacre” of Nov. 16, 1989 in El

Salvador) Id. at 240. see also,

http://www.cja.org/article.php?list=%20type&type=8

44#LEGAL%20PROCEEDINGS; Duésko Cujetkovic

(case admissible in Austria against Bosnian Serb for

genocide, murder and arson committed in Bosnia and

18 Van Anraat was convicted under Article 8 of the Criminal

Law in Wartime Act. That law has been replaced by the

comprehensive Dutch Code on International Crimes (2003).

Herzegovina) REDRESS/FIDH Report, supra, at 75;

Sylvere Ahorugeze (Rwandan genocide’ suspect

detained in Sweden for suspected genocide against

Tutsis in Rwanda in 1994) Id., supra, at 249; Fayadi

Zardad (Afghan warlord convicted in United

Kingdom for torture committed in Afghanistan in the

1990s under section 134 of the Criminal Justice Act)

Id., supra, at 267.

As noted above, certain civil law countries do

not draw a clear distinction between criminal and

civil proceedings, and instead allow for victims of a

violation to seek damages from a defendant in a

criminal case. See, e.g., Sosa, 542 U.S. at 762-63

(Breyer, J., Concurring); Amnesty Int'l, , Universal

Jurisdiction: The Scope of Civil Universal

Jurisdiction, Al Index: 53/008/2007, July 2007

http:// .amn en/library/info/IOR53/%2

8/2007 (finding that at least 24 states have provided

their courts with universal civil jurisdiction in their

national legislation: Argentina, Austria, Belgium,

Bolivia, China, Colombia, Costa Rica, Denmark,

Finland, France, Germany, Greece, Italy,

Luxembourg, the Netherlands, Myanmar, Panama,

Poland, Portugal, Romania, Senegal, Spain, Sweden

and Venezuela); IBA Report, supra, at 120 (providing

an illustrative list of 24 States which allow for civil

claims to be made in the course of criminal

proceedings: Argentina, Bolivia, Bulgaria, China,

Colombia, Costa Rica, Denmark, Finland, France,

Germany, Greece, Italy, Luxembourg, Myanmar,

Netherlands, Norway, Panama, Poland, Romania,

Russia, Senegal, Spain, Sweden and Venezuela):

Robert C. Thompson, Anita Ramasastry & Mark B.

Taylor, Translating Unocal: The Expanding Web of

Liability for Business Entities Implicated in

International Crimes, 40 Geo. Wash. Int'l L. Rev. 841,

886 (2009) (noting that some countries, including

Japan, employ the mixed civil/criminal mechanism of

action civile that allows a crime victim or his

representative to seek tort damages in a criminal

case); See also Arnaud Nuyts, Study on Residual

Jurisdiction, Review of the Member States’ Rules

Concerning the “Residual Jurisdiction” of their

Courts in Civil and Commercial Matters Pursuant to

the Brussels I and II (“EC Study of Residual

Jurisdiction”), Prepared for the European

Commission, Sept. 3, 2007, at 4 44, available at

http://ec. u/civilju news/docs/study resid

eer =

Damages have been awarded to victims of

egregious violations as a component of a criminal

proceeding in a number of cases in national courts.

See, e.g., Press Release, FIDH, Ely Ould Dah

Convicted After Six Years of Proceedings. Our

Perseverance Paid Off!, FIDH (Dec. 10, 2008),

http://fidh.org/Ely- -D - -S]

(accessed June 12, 2012) (civil decision granting

reparation to parties civiles after the criminal

conviction of Ely Ould Dah, Mauritian officer

convicted for torture in France in abstentia for torture

in Mauritania); FIDH, Ely Ould Dah Condamneé:

Premiére condamnation pour torture en France fondée

sur le mécanisme de compétence universelle (Nov.

2005),

http://www.fidh / h

v2005 OK.pdf (awarding more than 68,500 euros to

victims of torture); Ann Riley, France Court Awards

Bosnia Civil War Victims Damages for Injuries,

Jurist (Mar. 14, 2011), available at

http://jurist.org/ rchase/ / -court-awa

rds-bosnia-civil-war-victims-damages-for-injuries.ph

p (accessed June 12, 2012) (case against former

Bosnian Serb President Radovan Karadzi¢ and

Biljana Plavsic where compensation of 200,000 euros

was granted on the basis of civil claims); Joseph

Mpambra Case, Judgment, LJN: BRO686, District

Court The Hague, 22-0026 3-09, 212 (Neth.), (July 7,

2011),

http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR

0686 (awarding compensation for human rights

violations).

Finally, some states allow for the exercise of

extraterritorial jurisdiction over civil claims when

there exists no forum that can properly deliver justice

or where there would be “unreasonable difficulty,”

due either to factual or legal obstacles, to bringing

proceedings abroad (forum necessitatis or “forum of

necessity’). See, eg., EC Study of Residual

Jurisdiction, supra, at 9] 83-86. See also Codigo de

Processo Civil art. 65(1)(d) (Port.); REDRESS &

World Organization Against Torture, Written

Comments as Intervenors in European Court of

Human Rights Case Nait Liman v. Switzerland (No.

51357/07), Sept. 15, 2011, at 423,

http://www.redress.org/downloads/Nait%20Liman%2

Osubmission%20-%20Final._ pdf (examples from 15

other countries). Notably, under this principle, The

Netherlands does not require any connection between

the forum and the parties or the conduct. See

El-Hojouj/Derbal, Rechtbank [Rb.] [Court of First

Instance], The Hague, Mar. 21, 2012 (Neth.)

(Palestinian plaintiff for serious violations occurring

in Libya).

CONCLUSION

For all these reasons, this Court should find

that there are no categorical territorial limitations on

ATS jurisdiction.

Dated: June 13, 2012

Respectfully submitted,

Katherine Gallagher

Counsel of Record

Peter Weiss

Center for Constitutional Rights

666 Broadway, 7th floor

New York, NY 10012

(212) 614-6455

APPENDIX

A-1

APPENDIX A — LIST OF AMICI CURIAE

International Human Rights Organizations:

The Canadian Centre for International Justice

(CCIJ) is a non-governmental organization in

Canada dedicated to supporting survivors of

genocide, torture and other atrocities in their pursuit

of justice and seeking accountability for those who

commit such acts. The CCIJ advocates for the

criminal and civil prosecutions of those responsible

for serious human rights violations, including

corporations. The CCIJ is involved in civil litigation

in Canadian courts and other efforts to hold

Canadian companies accountable when they are

alleged to be complicit in human rights abuses.

The Center for Constitutional Rights (CCR) is a

nonprofit legal and educational organization

dedicated to advancing and protecting the rights

guaranteed by the United States Constitution and

the Universal Declaration of Human Rights. Since

its founding in 1966 out of the civil rights movement,

CCR has litigated many international human rights

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

1350, or served as amicus in ATS cases, including

Fildrtiga v. Peria-Irala, 630 F.2d 876 (2d Cir. 1980),

which established that the Alien Tort Statute grants

federal courts jurisdiction to hear cases seeking

compensation and other relief for violations of

international law, Wiwa v. Royal Dutch Petroleum

Co., 226 F.3d 88 (2d Cir. 2000) and Doe v. Unocal

Corp., 395 F.3d 932 (9th Cir. 2002).

A-2

The International Associaticoa of Democratic

Lawyers (LADL) is a non-governmental

Organization (NGO) with consultative status to

ECOSOC and UNESCO. With members and

member associations in 90 countries IADL lawyers

work to promote human and peoples’ rights. Since

IADL's founding in 1946 in Paris, [ADL members

have worked to promote human rights of groups and

individuals and oppose threats to international peace

and security. JADL lawyers have sought the

development of international law, and international

humanitarian law, and have opposed impunity for

crimes and violations of the laws of nations. [ADL

lawyers supported litigation against the corporations

which manufactured Agent Orange which was used

in the Vietnam War.

The International Commission for Labor Rights

(ICLR) is a non-profit, non-governmental

organization based in New York City, which

coordinates the pro bono work of a global network of

lawyers and jurists who specialize in labor and

human rights law. ICLR’s legal network also

responds to urgent appeals for independent reporting

on alleged labor rights violations, including

violations by corporations. ICLR has addressed this

issue in various reports and amicus briefs. ICLR is

therefore interested in ensuring that there is a

proper assessment and understanding of liability of

corporations for violations of the laws of nations.

A-3

The International Federation for Human Rights

(FIDH) is a federation of 164 Human Rights

Organizations in more than 100 countries. Founded

in 1922, FIDH co-ordinates and supports its

member-leagues activities at the local, regional and

international level. FIDH aims at obtaining effective

improvements in the prevention of human rights

violations, the protection of victims, and the sanction

of their perpetrators. With activities ranging from

judicial enquiry, trial observation, research,

advocacy and litigation, FIDH has developed strict

and impartial procedures which are implemented by

world-renowned independent human rights experts.

For more than a decade, FIDH has been focusing on

the effects: of globalization on the full recognition of

human rights, and particularly the impact of

business activities on economic, social and cultural

rights. In this context, FIDH advocates for the

recognition of the extra-territorial obligations of

States, for greater corporate accountability and the

rights of victims to reparation.

RAID is a research and advocacy not-for-profit

organisation based in the United Kingdom. Since its

foundation in 1997, RAID has conducted research

into corporate accountability, human rights and

extractive industries in developing countries. A

particular focus of RAID’s research is the Democratic

Republic of Congo. RAID is a member of the

Canadian Association against Impunity,§ an

organisation that has filed a class action in Quebec

against the Canadian company Anvil Mining

Limited. It is alleged that the company, by providing

logistical assistance, played a role in human rights

abuses, including the massacre by the Congolese

A-4

military of more than 70 people in the Democratic

Republic of Congo in 2004. RAID has made

numerous submissions on corporate accountability

issues to different parliamentary committees, the

United Nations, the Organisation of Economic

Cooperation and Development and other expert

bodies.

The Redress Trust (REDRESS) is an international

human rights non-governmental organisation based

in London with a mandate to assist torture survivors

to prevent their further torture and to seek justice

and other forms of reparation. It has accumulated a

wide expertise on the rights of victims of torture to

gain both access to the courts and redress for their

suffering and has advocated on behalf of victims from

all regions of the world. Over the past 20 years,

REDRESS has regularly taken up cases on behalf of

individual torture survivors at the national and

international level and provides assistance to

representatives of torture survivors. REDRESS has

extensive experience in interventions before national

and international courts and tribunals, including the

United Nations’ Committee against Torture and

Human Rights Committee, the European Court of

Human Rights, the Inter-American Commission of

Human Rights, the International Criminal Court,

the Special Court for Sierra Leone and the

Extraordinary Chambers in the Courts of Cambodia.

Created in 1986, the World Organisation Against

Torture (OMCT) is today the main coalition of

international non-governmental] organisations (NGO)

fighting against torture, summary executions,

enforced disappearances and all other cruel,

A-5

inhuman or degrading treatment. With 311 affiliated

organisations in its SOS-Torture Network and many

tens of thousands correspondents in every country,

OMCT is the most important network of NGO

working for the protection and the promotion of

human rights in the world.

Based in Geneva, OMCT’s International Secretariat

provides personalised medical, legal and/or social

assistance to hundreds of torture victims and

ensures the daily dissemination of urgent appeals

across the world, in order to protect individuals and

to fight against impunity. Specific programmes allow

it to provide support to specific categories of

vulnerable people, such as women, children and

human rights defenders. In the framework of its

activities, OMCT _ also submits individual

communications and alternative reports to the

special mechanisms of the United Nations, and

actively collaborates in the development of

international norms for the protection of human

rights.

OMCT enjoys a consultative status with the

following institutions: ECOSOC (United Nations),

the International Labour Organisation, the African

Commission on Human and Peoples’ Rights, the

Organisation Internationale de la Francophonie, and

the Council of Europe.

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.