Tag Archives | ATS

“Private ends” in the Travaux Préparatoires of the Law of the Sea Treaty

A look at the legislative history does not support the notion of a subjective, political exemption for politically-motivated pirates.

Kevin Jon Heller’s argument that political motives are excluded from piracy rests less on the Law of the Sea Treaty itself than on its intellectual predecessors, the League of Nations Report of 1927 and the Harvard Draft Convention of 1932. The ILC Commentary to the Law of Sea Treaty specifically endorses the latter, saying that “in general” it agrees with the Draft Convention (it does not provide such deference to the former.

The Harvard Draft supports the lack of any subjective, motive-based inquiry. Here is exactly what it says in its commentary on the “private ends” part of the definition of piracy:

[A]lthough it is true that the typical pirate of fiction and tradition was an indiscriminative plunderer, expediency and not traditional epithets or the fancy of traditional concepts should direct the definition of the common jurisdiction over piracy, and every consideration of certainty in prosecution and of assured protection in places outside the territory of all states argues that the jurisdiction to seize and to punish a robber or a killer for private ends should not depend on whether the offender had by acts or words displayed an intent to plunder or slay only once or oftener, or on whether he intended to attack only the
citizens of certain states and their ships and other property, or to prey on the people and commerce of all nations indiscriminately. Such matters of collateral intent of an offender (often uncertain and indistinct) and of his transactions other than those involved in the case at hand, are very unsatisfactory as elements in a basis of state jurisdiction.

On the other hand, the language in the Draft that Prof. Heller says best [...]

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What the Definition of Piracy Means for UNCLOS & ATS

Judge Kozinski has gotten considerable criticism from liberals for ruling that Sea Shepherd is involved in piracy under international law. A subsequent post will provide additional support for the decision on the merits. Here, I’d like to look at the big picture and suggest that liberals should be thanking Kozinski: a contrary ruling would have torpedoed two liberal causes – the U.S. ratification of the Law of the Sea treaty, and a broad construction of the Alien Tort Statute.

A ruling that politically motivated attacks are exempt from piracy would certainly add weight to conservative skepticism of the Law of the Sea Treaty. The root of this skepticism is a concern that the meaning of international legal instruments is actually quite uncertain, and unforeseen vagaries will later be used against the U.S., which will have no monopoly on interpreting the law that applies to it. The retort is that such fears are paranoid; the treaty is clear, by now well-worn, and pretty harmless.

Well if the piracy provisions – which have not been the ones causing conservative anxiety – are actually highly disputed in their meaning on basic definitional points, there may be more to worry about than previously thought. Lets say the meaning of “private ends” is in fact undefined, with both interpretations open. The U.S.’s ability to treat maritime terrorists as international pirates will thus probably depend on what a bunch of professors and European foreign ministry lawyers say “private ends” means.

Again, if this is true of piracy – which has been in the Treaty for sixty years, and in international law for hundreds, imagine what other unplumbed surprises lay in the UNCLOS’s depths. Why by a pig in a poke? One cam imagine the fun at Senate hearings on UNCLOS after terrorists are ruled immune from [...]

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Yes, Sea Shepherd Engages in Piracy Under International Law

The Ninth Circuit was right to reverse the district court in the Sea Shepherd Case. The district court erroneously read “private ends” as excluding political ends like saving the whales. But the “private ends” requirement has never been understood to inject a subjective element to the piracy inquiry. It does not turn on whether the actor’s motives are pecuniary, political, operating under mistake of fact, or simply insane. Private ends are those ends held by private parties. The converse is also true: a government-owned ship in government service cannot commit piracy even if it attacks another vessel solely to enrich itself.

The rule is clear as both a matter of customary international law and the Law of the Sea Convention. On the latter score, the “private” ends requirement of the UNCLOS Art. 101 (which defines piracy) has to be read in conjunction with Art. 102, which distinguishes between “warship” or “government ship” – which cannot commit piracy while under governmental control and “private” ships, which are the kind that can be pirates. Thus “private” clearly means “non-governmental,” rather than selfish or not selfish.

The strongest refutation of the district court’s reasoning are opinions finding that attacks by rebel or guerilla groups that had not become recognized belligerents (i.e., de facto state actors) constitute mere piracy. See The Ambrose Light, 25 F. 408
(D.C. N.Y. 1885). Indeed, Confederate privateers would have been treated as pirates had it not been for a political (i.e., executive) decision not to do so. Obviously no such decision has been made in favor of Sea Shepard, which is essentially waging “private war” – or rather, “private Whale Wars.”

Indeed, Judge Story in The Marianna Flora (1822) made it clear there not be any intent for pecuniary gain:

[N]or do I conceive that it is indispensable

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The Sea Shepherd Decision: Sailing Ahead of Kiobel

The Ninth Circuit’s reversal of a district court decision ruling that actions by Sea Shepherd against Japanese whaling vessels could not constitute piracy because they did not satisfy the “private ends” requirement is obviously correct. (Institute of Cetacean Research v. Sea Shepard Conservation Society.) The district court’s analysis always struck me as strange and disconnected with piracy practice and caselaw. In this post, I’ll discuss the relevance of the decision to Alien Tort Statute issues, and in a subsequent one, I’ll examine the merits.

The Japanese whalers brought suit under the ATS, and the case is notable in two other ways relevant to the Supreme Court’s upcoming decision in Kiobel. First, it shows that the ATS can have both liberal and conservative uses, as I’ve noted before. It is true that there have been few conservative uses, but there weren’t any uses of any kind for 200 years, until Filartiga inspired a wave of human rights litigation. Thus a ruling narrowing the ATS in Kiobel cannot be simply interpreted as “conservative” decision.

Second, it shows that even the narrowest possible ruling in Kiobel – finding the statute to not apply on foreign territory or create corporate liability – cannot be said to close the door to all ATS litigation, or read the statute so narrowly as to make it a dead letter. This case, for example, would clearly survive the narrowest possible post-Sosa view of the ATS.

I am less sure that the ATS applies to piracy at all, though the Ninth Circuit was safe to assume this, as it was assumed by both parties and the Supreme Court in Sosa. I have criticized that that assumption:

It is not clear that Sosa was right about Congress’s belief that the ATS would be a vehicle for piracy suits. Although

[...]

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Evolving International Law and Defining Offenses

The Fourth Circuit’s noteworthy decision in U.S. v. Dire is probably the first court of appeals decision in a piracy prosecution in nearly 200 years. The Fourth Circuit decision is important not only for some novel pending piracy cases, but for the Alien Tort Statute and broader questions about the interplay of U.S. and international law.

Two groups of defendants were tried by different federal district judges for attempted piracy – they had been caught before boarding the targeted vessel (which was unfortunately for the defendants, a U.S. warship). They were charged under 18 U.S.C § 1651 with “piracy as defined by the law of nations.” Both cases turned on whether that “definition” extends to attempts. One district court said yes, in the Dire case. Another district judge, in Said, said no. He looked the important 1820 piracy case of U.S. v. Smith, where the Supreme Court discussed the definition of piracy, and said everyone agreed it was “robbery on the high seas.” Since there was no robbery here – no piracy.

The Fourth Circuit yesterday reversed the dismissal. It held that the statute refers to “the law of nations” and that is understood to change over time, and the definition of piracy with it. We are not stuck with the 1820 definition of Smith; we look to the definition today. I don’t think the Court had to get into to this evolving-international law inquiry; Said was simply wrong to read Smith’s definition as excluding attempts. Some other noteworthy features:

The Define and Punish Clause. The Fourth Circuit endorsed my position, which had been very generously expounded by the district court, that the Constitution’s Define and Punish Clause only allows for universal jurisdiction over crimes that clearly have that status in international law. Slip Op. at 15-16. The court [...]

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The Cross-Cutting Politics of the ATS and Universal Jurisdiction

In discussions of Kiobel v. Royal Dutch Shell and the Alien Tort Statute, many commentators suggested if the Supreme Court limits corporate liability or extraterritoriality under the ATS, it would eviscerate the statute, and be bad for human rights. More generally, limiting the ATS is thought to serve broadly conservative interests.

These points are only weakly true for the ATS, as I’ll explain below. But more broadly, a limited understanding of the role of universal jurisdiction (UJ) and the Constitution’s Offenses power would have a variety of cross-cutting political valences when applied to other statutes. I have been describing the sources and scope of the constitutional limits on UJ in prior posts. So if reigning in foreign-cubed suits under the ATS can be “scored” as a liberal loss, the logic for doing so would give conservatives a loss under the material support for terrorism law, and both a conservative and liberals loss under the Maritime Drug Law Enforcement Act (but a libertarian win!).

To put it differently, UJ – the exercise of judicial power in foreign-cubed suits – has no inherent political valence; this depends on the norms being universalized. The ATS is one of a few instances of such jurisdiction, and a restriction on it could have several ripples and ramifications in other important contexts.

Moreover, it should be remembered that the ATS itself has other uses besides foreign-cubed suits against companies. Restricting such actions does not make the ATS meaningless, it only stops one particular genre of claims. ATS suits can and have been brought against individual American nationals, even as the new briefs in Kiobel are being written. Also, it should be noted that the ATS suits are not limited to liberal causes, and limiting it could obstruct some more conservative initiatives. Consider two pending ATS [...]

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Precedent-setting Dutch Civil Universal Juris. Case

One of the peculiarities of the Alien Tort Statute is its mix of cosmopolitan conceptions of justice with American exceptionalism. Under the ATS the U.S. has been the only nation in the world allowing for universal jurisdiction (“UJ”) in civil suits. So while enforcing international law has been the justification for these suits, it has been a mode of enforcement otherwise unseen around the world.

That changed a tiny bit today with a precedent-setting decision in the Netherlands, that awarded damages in a UJ civil suit brought by a Palestinian man against Libyan officials for torture that took place in Libya – the notorious and bizarre fraudulent persecution of foreign medical workers for infecting patients with AIDs. (And this is when Qaddafi could still be seen in polite company.)

So what does this ruling mean for the ATS, and particularly the extraterritoriality issue to be argued in Kiobel? At first, it would seem to bolster the plaintiff’s case, by making civil UJ seem (very marginally) less anomalous. But it also cuts the other way, perhaps more strongly. The argument that there is no other forum where these serious wrongs can be redressed has underpinned broad notions of the ATS, both with regards to UJ extraterritoriality and corporate liability. Now, the danger of “impunity” has abated. Now a federal judge must now ask in a UJ ATS case – why wasn’t it brought in Holland? What if Holland is actually physically closer to the conduct (as in Kiobel)? Isn’t Holland where all the international lawyers are? Does plaintiff’s presumptive choice of forum apply to UJ cases?

Finally, the Libyan defendants were all sued as individuals (because of sovereign immunity), suggesting an absence of entity liability (like corporate liability) does not make a nullity of international justice and human rights litigation.

UPDATE: [...]

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Kiobel (III): Universality as a Constitutional Question

Lets take a break from the ACA to think about the federal government’s power to to deal with matters that have no connection to the U.S., an issue the Court will take up when it hears the expanded arguments in Kiobel, the ATS case.

Yesterday I talked about how the ATS extraterritoriality at issue in Kiobel is really something rarer and more extreme: universality. Thus the analysis starts with the classic universal crime and obscure constitutional provision – Piracy, which has gotten significant play in the courts of appeals’ extraterritoriality cases like Doe v. Exxon and Rio Tinto (as well as in the Kiobel oral arguments on corporate liability). Because Sosa held that piracy would be actionable under the ATS, it is clear that the battle over extraterritoriality in Kiobel will be a naval engagement. It is true that piracy occurs extraterritorially, and under the current piracy statute, can be prosecuted even with no connection to the U.S. But proponents of foreign-cubed draw precisely the wrong inferences from piracy’s exceptional status.

Piracy is not just any international crime: it has its own separate constitutional provision: Congress can punish “piracies and felonies on the high seas, and Offenses against the law of nations.” Thus whatever is true of “piracy” is not necessarily true of other “Offenses” that can be reached under the ATS: these are separate, though related, Art. I powers. The Constitution’s singling out of piracy is striking and demands explanation, because it creates a double-redundancy. Does anything make piracy different from other high seas felonies and international law offenses? Yes: it was the only universally cognizable offense at the time.

Starting with this textual observation, I have explained that Congress can at most only use universal jurisdiction over offenses that clearly have that status in international law (see The [...]

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Kiobel (II): Universality, Not More Extraterritoriality

[Cross-posted on OpinioJuris]

The new issue in Kiobel is not mere extraterritoriality, but rather universality. There are constitutional limits on universal jurisdiction (UJ); at most it can only be used for those “Piracies” and “Offenses” that have UJ status in international law. But Congress has not “defined” any offenses in the ATS. It delegated the task to the courts, but the courts must use this mandate narrowly and cautiously, as the “Define” power was given to Congress precisely because international law was too “deficient and vague” to be a common law rule.

Lower courts have discussed the application of the Alien Tort Statute to so-called “foreign-cubed” cases – where the parties are foreigners and the conduct takes place abroad – as a matter of extraterritoriality, a term that suggests the presumption of statutory construction against extraterritorial application. While there is a presumption against extraterritoriality, the application of U.S. law to conduct abroad is not uncommon. Yet even the most controversial or aggressive use of extraterritoriality typically involves the regulation of American conduct abroad, or at least conduct that has substantial effects in American or on particularly American interests. But this is not the extraterritoriality of Kiobel, which like many ATS cases have no connection to the U.S. whatsoever. Such universally extraterritorial scope is certainly only found in the face of the clearest statement of congressional intent, such as in the unusual Maritime Drug Law Enforcement Act.

Universal jurisdiction, of the kind asserted in Kiobel, is exceedingly rare and poses much greater problems than mere extraterritoriality. It raises the question of where the federal government, supposedly one of limited powers internally, gets the authority to regulate conduct with no domestic nexus, and have federal courts sit as little world courts.

As shall be seen, Supreme Court precedents clearly apply [...]

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The Alien Tort Statute Returns to the Supreme Court: International Law versus Law of the Hegemon?

As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability.  The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.

The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars’ amicus briefs (drawing upon Richard Fallon’s article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)

Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs.  (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)

Here is what I wish could be got in front of the justices. (I am not a litigator, so I don’t pretend to know how one would frame this substantive point in a way so as to put it in a brief.)  The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the “law of the hegemon.”  The District [...]

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