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Some Quick Thoughts on Transnational Human Rights Litigation in American Courts After Kiobel

By: Pro­fes­sor Burt Neuborne [*]

The hope that the ATS would per­mit entre­pre­neur­ial lawyers to chore­o­graph inter­na­tion­al human rights cas­es involv­ing: (1) alien plain­tiffs; (2) alien cor­po­rate defen­dants; and (3) acts whol­ly occur­ring abroad into an Amer­i­can court in an effort to take advan­tage of Amer­i­can dis­cov­ery rules, Rule 23 class actions, and an inde­pen­dent judi­cia­ry is now his­to­ry. All nine Jus­tices in Kio­bel slammed that door, which was prob­a­bly a pipe dream in the first place. Chief Jus­tice Roberts, writ­ing for five Jus­tices, includ­ing the mad­den­ing­ly vague Jus­tice Kennedy, ruled that the pre­sump­tion against extrater­ri­to­r­i­al leg­is­la­tion blocked use of the ATS as a source of fed­er­al juris­dic­tion when nei­ther the plain­tiffs, nor the defen­dants, nor the oper­a­tive facts had a sig­nif­i­cant link with the ter­ri­to­r­i­al Unit­ed States. Mere cor­po­rate pres­ence for the pur­pos­es of gen­er­al juris­dic­tion over the defen­dant could not, ruled the Chief Jus­tice, con­sti­tute the sig­nif­i­cant link to the ter­ri­to­r­i­al Unit­ed States need­ed to rebut the pre­sump­tion against extrater­ri­to­r­i­al leg­is­la­tion.

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Earlier Supreme Court Jurisprudence Shows Hope Not Lost for Those Seeking Corporate Accountability in U.S. Courts

By: Carey Shenkman[*]

Wednes­day, the U.S. Supreme Court set a deeply alarm­ing prece­dent in its deci­sion in Kio­bel v. Roy­al Dutch Petro­le­um, hold­ing in sub­stance 5–4 that the pre­sump­tion against extrater­ri­to­ri­al­i­ty defends cor­po­ra­tions from being held account­able for human rights abus­es like tor­ture, rape, and mur­der com­mit­ted in oth­er coun­tries. For years, U.S. courts were the only recourse for vic­tims from coun­tries with pow­er­less, dys­func­tion­al, or cor­rupt judi­cial sys­tems. Their cas­es were a rare check on the con­duct of our com­pa­nies and their sub­sidiaries abroad.

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R.I.P. A.T.S.? How much of the Alien Tort Statute survives the Supreme Court’s Kiobel Decision?

This morn­ing, the Supreme Court dis­missed the human rights claims of a group of Niger­ian nation­als against Roy­al Dutch Petro­le­um (Shell) under the Alien Tort Statute (A.T.S.) in a 9–0 deci­sion, though the jus­tices split 5–4 as to the rea­son­ing. For the orig­i­nal opin­ion, see: Kio­bel v. Roy­al Dutch Petro­le­um Co., 569 U.S. ___ (2013)

Jus­tice Roberts deliv­ered the opin­ion of the Court on behalf of 5 jus­tices. First, the Court held that the pre­sump­tion against extrater­ri­to­ri­al­i­ty, explained with force in Mor­ri­son v. Nation­al Aus­tralia Bank, 561 U.S. ___ (2010), applies to the statute and the fed­er­al com­mon law cause of action under the statute. Sec­ond, the court found noth­ing in the statute’s lan­guage or his­to­ry to rebut the pre­sump­tion. Third, there are no facts to rebut the pre­sump­tion in the instant case. Fourth and final­ly, the Court jus­ti­fies its solu­tion as pre­vent­ing the ‘diplo­mat­ic strife’ that may arise from judi­cial inter­fer­ence in for­eign pol­i­cy, an area that is tra­di­tion­al­ly reserved to the polit­i­cal branch­es. The Court implied that even if the pri­ma­ry norm that cre­at­ed the cause of action might not cause strife, the judi­cial search for sec­ondary rules (such as cor­po­rate lia­bil­i­ty) may still do so.

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Video from Arctic Symposium

NYU Law has post­ed video of our Oct. 22 sym­po­sium on “Inter­na­tion­al Law and Envi­ron­men­tal Pro­tec­tion in a Melt­ing Arc­tic.”  Below is the keynote address, giv­en by Peter Tak­soe-Jensen, Dan­ish Ambas­sador to the Unit­ed States.  The Ambassador’s speech begins at 25:34, pre­ced­ed by short intro­duc­tions from Jose Alvarez and Her­bert Rubin.

See more video after the jump.

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Book Review: Cipriani’s Children’s Rights and the Minimum Age of Criminal Responsibility

This install­ment in our ongo­ing series of book reviews looks at Children’s Rights and the Min­i­mum Age of Crim­i­nal Respon­si­bil­i­ty by Don Cipri­ani. Michael Gigante’s review takes a crit­i­cal eye towards the argu­ments Cipri­ani advances in favor of requir­ing all nations to estab­lish a min­i­mum age of crim­i­nal respon­si­bil­i­ty.

By Michael V. Gigante

Children’s Rights and the Minimum Age of Criminal ResponsibilityIdeas about the prop­er role of crim­i­nal respon­si­bil­i­ty in juve­nile jus­tice tend to fall along a wel­fare-jus­tice con­tin­u­um. The wel­fare approach, promi­nent at the birth of the mod­ern notion of a juve­nile jus­tice sys­tem, essen­tial­ly dis­missed the notions of com­pe­tence and crim­i­nal respon­si­bil­i­ty for chil­dren. State author­i­ties inter­vened to make benev­o­lent deci­sions on behalf of chil­dren, who were por­trayed as objects with­out lib­er­ty rights. On the oth­er end of the con­tin­u­um, the jus­tice approach—towards which clear shifts have occurred in recent decades—places crim­i­nal respon­si­bil­i­ty and children’s alleged com­pe­tence at the cen­ter of juve­nile jus­tice. Account­abil­i­ty, due process, and pun­ish­ment are the foun­da­tions of this approach. In Children’s Rights and the Min­i­mum Age of Crim­i­nal Respon­si­bil­i­ty: A Glob­al Per­spec­tive, Don Cipri­ani points out the flaws of both these approach­es and describes the mer­its of a children’s rights approach as a way to medi­ate between the ten­sions of the wel­fare and jus­tice approach­es.

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Book Review: Stacy’s Human Rights for the 21st Century

In the lat­est install­ment of book reviews, Nali­ni Gup­ta lauds Human Rights for the 21st Cen­tu­ry, by Helen M. Sta­cy for pro­vid­ing a com­pre­hen­sive analy­sis of human rights work. How­ev­er, Gup­ta notes that Sta­cy risks over­sim­pli­fy­ing the issues in her attempt to divide major cri­tiques of the inter­na­tion­al human rights sys­tem into three cat­e­gories: sov­er­eign­ty, civ­il soci­ety, and mul­ti­cul­tur­al­ism.

By Nali­ni Gup­ta

In Human Rights for the 21st Cen­tu­ry, Helen Sta­cy address­es the major cri­tiques of the inter­na­tion­al human rights frame­work, offer­ing sug­ges­tions on how to fill gaps in the cur­rent sys­tem in order to strength­en the frame­work. Sta­cy orga­nizes the major cri­tiques of the inter­na­tion­al human rights sys­tem into three cat­e­gories: sov­er­eign­ty, civ­il soci­ety, and mul­ti­cul­tur­al­ism. Respond­ing to each of these cri­tiques, she argues that the law and the courts must con­tin­ue to play a crit­i­cal role in the human rights sys­tem, but their role must be adjust­ed to adapt to the chal­lenges posed by the cur­rent world order. Stacy’s book is a wor­thy read, pro­vid­ing a com­pre­hen­sive analy­sis of the cur­rent chal­lenges of the cur­rent human rights frame­work and offer­ing inter­est­ing and prac­ti­cal pro­pos­als aimed at improv­ing the present sys­tem.

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