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Thursday, February 28, 2013

The Hidden Stakes of Kiobel

This is my last post for the month - thanks again to Steve and the rest of the PropertyProf Blog team for having me as a guest! 

Kiobel v. Royal Dutch Petroleum - the Alien Tort case argued not once, but twice, before the Supreme Court last year - has provided fodder for seemingly endless commentary.  Discussion has been had, and tempers have flared, over the issues the case raises related to human rights, national security, and corporate liability, not to mention questions of exhaustion, extraterritorial enforcement of international law, and the intent of the First Congress in relation to the Alien Tort Statute (ATS), amongst other issues.  On the eve of the second oral argument, Kali Borkoski at SCOTUSblog detailed what is at stake for whom in the case, discussing the implications for plaintiffs’ ability to seek redress in U.S. courts, litigation costs for businesses, sovereignty of foreign countries, and U.S. foreign policy.  For all the buzz Kiobel has generated, however, there has not been much buzz about the implications the Court’s upcoming decision might hold for property disputes.

This lack of buzz is likely due to the fact that, on its face, Kiobel is not a case about property at all.  Neither, for that matter, are most of the other cases that plaintiffs have filed against corporations under the ATS.  These cases generally involve allegations of corporate involvement in extrajudicial executions, torture, and arbitrary arrest and detention, not property claims.  Nevertheless, many of these cases do fundamentally involve issues related to property.

There are several reasons why property disputes are obscured in corporate ATS cases.  The most obvious reason is that the Supreme Court’s 2004 opinion in Sosa v. Alvarez-Machain limited application of the ATS to claims to violations of international law norms that have no less “definite content and acceptance among civilized nations than the historical paradigms familiar when [the ATS] was enacted.”  The “historical paradigms” to which the Court referred are offenses against ambassadors, violations of safe conducts, and piracy. 

In several subsequent cases, courts have interpreted the standard laid out in Sosa to exclude property claims.  Kiobel itself is an example of this.  When the Kiobel plaintiffs first filed their complaint in 2002, it included allegations of destruction of private property, in addition to torture, extrajudicial execution, and arbitrary arrest and detention.  Royal Dutch Petroleum filed a motion to dismiss for failure to state a claim in 2003.  When the district court considered the motion in the wake of Sosa, it found that property destruction did not violate the law of nations unless executed in the context of genocide or war crimes.  This ruling was consistent with a general trend in ATS cases decided prior to Sosa in which courts had dismissed claims of destruction of property, trespass, and conversion on similar theories (see, for example, Bigio v. Coca-Cola Co., in which claims against Coca-Cola for trespass and conversion were dismissed due to failure to allege conduct supporting private liability under international law).  I have always found this trend interesting in light of the fact that the very first case to refer to the ATS - Bolchos v. Darrell, in 1795 - involved a successful claim regarding property in slaves.  Bolchos was ultimately decided based on a treaty, but included reference by the court to law of nations norms regarding the capture of “neutral property.” 

In many other ATS cases, plaintiffs don’t plead property-related claims, even when the facts of the case are saturated with property disputes.  Given the history of dismissal of claims related to property, this omission in many cases is likely strategic, and understandable.  Some cases in this vein involve situations in which plaintiffs allege corporate involvement in the extrajudicial execution or torture of people who protested the corporate appropriation of, or damage to, property (see, for example, Bowoto v. Chevron, in which plaintiffs filed claims for the extrajudicial execution of individuals who were protesting displacement from and destruction of property as well as environmental damage from oil company operations).  Others involve plaintiffs who bring claims regarding extrajudicial executions which may have occurred in the context of expropriation of land or destruction of property.  The ATS cases against Chiquita Brands, for example, were filed in the wake of a 2007 guilty plea by the company to financing a specially designated global terrorist organization, the United Self-Defense Forces of Colombia (AUC).  The plaintiffs in several of the cases claimed to have lost family members to executions carried out by the AUC.  The AUC was widely known to have engaged in both extrajudicial executions and the systematic expropriation of land simultaneously in the area and time period covered by the claims made in the ATS cases.  This strategy was revealed through, amongst other sources, AUC members’ own public confessions in Colombia’s ongoing transitional justice process.  The majority of the complaints filed against Chiquita, however, do not raise property claims. 

There are plenty of possible arguments about why property claims should or should not be actionable under the ATS.  My point here is not to make an argument either way.  At a moment when the Supreme Court appears set to rule on the question of the extraterritorial reach of the ATS more broadly, the question of extending or not extending its reach to property claims is, at best, simply not worth engaging. 

Nevertheless, to fully appreciate the stakes of the Court’s upcoming decision, it is important to understand the ways in which property disputes are explicitly or implicitly central to Kiobel and other corporate ATS cases.  In addition to the more obvious ripple effects the Kiobel decision will have on foreign policy, corporate liability, human rights, and national security, it will also have important ripple effects regarding property.  These effects will not be the result of Kiobel either restricting or maintaining foreign plaintiffs’ access to U.S. federal courts as a forum for bringing property claims under the ATS, since such claims are usually dismissed or are not stated in the first place.  They will result from the fact that even when corporate ATS cases appear not to be about property disputes, they often are.  This means that a shift in the availability of U.S. federal courts for plaintiffs’ non-property claims will affect if and how related property issues emerge, are handled out of court, and are or are not litigated in particular fora.  Although the precise nature of these effects is as uncertain as the speculation regarding the Court’s upcoming decision, there is little room for doubt that the stakes are high - even where they might not be immediately apparent.

Meghan Morris

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