Quick Response Panel: A Recap and Analysis of the Supreme Court Oral Arguments Addressing the Alien Tort Statute in Kiobel v. Royal Dutch Petroleum
On March 1, 2012, the Washington Foreign Law Society, in cooperation with the Immigration & Human Rights Committee and the International Dispute Resolution Committee of the DC Bar International Law Section; the International Environmental Law Committee and the International Human Rights Committee of the American Bar Association’s Section of International Law; the International Environmental Law Committee of the American Bar Association’s Section of Environment, Energy and Resources; and the American Society of International Law presented a morning discussion on the Supreme Court oral arguments addressing the Alien Tort Statute (“ATS”) in Kiobel v. Royal Dutch Petroleum. In 2010, the Second Circuit ruled in Kiobel v. Royal Dutch Petroleum that the Alien Tort Statute, which allows lawsuits in U.S. courts for violations of international law, does not create a legal basis for suits against corporations. The panelists included John Bellinger III, Partner, Arnold & Porter LLP; Marco Simons, Legal Director, EarthRights International; Jonathan Cedarbaum, Partner, Wilmer Hale; and moderator Professor Edward Swaine, Professor of Law, GW Law School. Thanks to all who participated by phone or in-person with a panel of well-known experts discussing what lies ahead for the ATS.
John Bellinger III is a partner in the international and national security practices of Arnold & Porter LLP in Washington, DC. He represents sovereign governments and U.S. and foreign companies on a variety of international law and U.S. national security law issues, including enforcement of foreign judgments and lawsuits under the Alien Tort Statute. He is also an Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. Mr. Bellinger served as The Legal Adviser for the U.S. Department of State under Secretary of State Condoleezza Rice from April 2005 to January 2009. Mr. Bellinger negotiated a number of treaties and international agreements, including the Third Additional Protocol to the Geneva Conventions; and represented the United States before the International Court of Justice in Mexico v. United States (Medellin) and the Iran-U.S. Claims Tribunal. Mr. Bellinger previously served from February 2001 to January 2005 as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House. He previously served as Counsel for National Security Matters in the Criminal Division of the Justice Department during the Clinton Administration (1997-2001), as Special Counsel to the Senate Select Committee on Intelligence (1996), and as Special Assistant to Director of Central Intelligence William Webster (1988-1991).
Mr. Bellinger received his A.B. from Princeton University’s Woodrow Wilson School of Public and International Affairs, his J.D. from Harvard Law School , and an M.A. in Foreign Affairs from the University of Virginia. He is a member of the Secretary of State’s Advisory Committee on International Law and one of four U.S. members of the Permanent Court of Arbitration in the Hague.
Marco Simons is the Legal Director at EarthRights International (ERI), a nongovernmental organization dedicated to protection of human rights and the environment worldwide. Marco oversees the ERI’s Legal Program, which aims to hold corporations and other actors accountable for human rights and environmental abuses. Marco has represented victims of abuse in several transnational human rights cases in U.S. courts, including Doe v. Unocal, Wiwa v. Royal Dutch Petroleum Co. (Shell), Bowoto v. Chevron, and Doe v. Chiquita. He has co-authored numerous amicus briefs for ERI, including four briefs in the U.S. Supreme Court. Marco also directs ERI’s efforts to enhance accountability at the international level and to increase legal support for the protection of human rights and the environment in the Mekong basin and the Amazon region.
Marco is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights to work with ERI. After law school, he clerked for the Honorable Dorothy Wright Nelson on the U.S. Court of Appeals for the Ninth Circuit. He then worked for Hadsell & Stormer, Inc., a Pasadena civil rights law firm, which co-counseled with ERI on Doe v. Unocal and Bowoto v. Chevron. He also served as Communications Director for the campaign of Ro Khanna for U.S. Congress in California’s 12th District, and has taught human rights law at Occidental College and at the Washington College of Law. Marco holds an undergraduate degree in environmental science. He is currently admitted to practice in California, Washington D.C., and Washington State, as well asfederal courts including the Supreme Court.
Jonathan G. Cedarbaum is a litigation partner at WilmerHale, where he worked from 2003 to 2009 and has recently returned after a stint at the Justice Department. From June 2009 to June 2011, he served in the leadership of the Justice Department’s Office of Legal Counsel (“OLC”), first as a Deputy Assistant Attorney General and ultimately as the Acting Assistant Attorney General heading the Office, which is charged with providing authoritative legal advice to the President, the Attorney General, and all Executive Branch departments and agencies. Cedarbaum worked as an attorney-adviser at OLC in 1999-2002 and as a Bristow Fellow in the Office of the Solicitor General in 1997-1998. He has also served as a legal adviser at the International Criminal Tribunal for the Former Yugoslavia and as a legislative assistant to a Member of the House of Representatives.
Mr. Cedarbaum graduated from Yale Law School in 1996 then clerked for Judge David Tatel on the U.S. Court of Appeals for the D.C. Circuit and for Justice David Souter on the Supreme Court.
Professor Ralph Steinhardt specializes in international law and its application in domestic courts. At George Washington University law School, he teaches the introductory survey course in international law, conflicts of laws, international human rights, and international civil litigation. He is the co-founder of the Oxford-GW Program in International Human Rights Law, at New College, Oxford, now in its eighteenth year of operation. He has been counsel in a variety of alien tort actions over the last thirty years, including among others Sosa v. Alvarez-Machain in the Supreme Court and some of the human rights cases against former Philippine President Ferdinand Marcos, the first ATS case to go to trial. He has written books and articles on the application of international law in U.S. courts, statutory construction, human rights, international trade law, and jurisprudence.
He has also served as legal counsel to several foreign governments in both commercial and intergovernmental matters, including border disputes, arbitrations, and economic relations. He served as counsel to the U.N. High Commissioner for Refugees and numerous human rights NGOs, including Amnesty International, Human Rights Watch, and Human Rights First. He was the founding chair of Center for Justice and Accountability in San Francisco, an anti-impunity organization established by Amnesty International in 1998. Steinhardt served for two years as Associate Dean for International and Comparative Legal Studies at the Law School. His most recent publications and appearances as an expert witness address the role of international law in domestic courts, including the liability of multinational corporations for their complicity in human rights violations. He was the only American on the International Commission of Jurists Expert Legal Panel on the human rights obligations of multinational companies.
Professor Edward T. Swaine (moderator) is Professor of Law at the George Washington University Law School. He is the author of numerous articles on international law and US foreign relations law, and co-author of Foreign Relations and National Security Law: Cases, Materials (West, 4th ed. 2011). In 2005-2006, he served as the Counselor on International Law at the U.S. Department of State.