Kiobel Amicus Curiae Brief

Max and I - along with Anton
- recently submitted an Amicus Curiae brief (available here) to
the US Supreme Court in respect of Kiobel v. Royal Dutch Petroleum Co.
As most of you will know, Kiobel is a landmark case concerning the
application of the U.S. Alien Tort Statute, 28 U.S.C. § 1350 (ATS) to human
rights violations committed outside the US. Beyond its immediate significance,
the decision of the Court will also have a considerable impact on the ongoing
Apartheid Reparations case in the Second Circuit. The brief was written at the request of the
petitioners in response to the following question posed by the Court: “
Whether 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.”

More specifically, we were asked to consider the
extent to which South African courts would entertain delictual suits for
events taking place within the territory of foreign states and
whether the violations of the nature covered
by the ATS would be considered wrongful, and therefore actionable, as delicts
under South African law.

In essence our brief argued that under South
African law, the equivalent of the U.S. doctrine of transitory torts is embraced
as a matter of common law.

First, although incidences of doing so are
rare, South African courts can as a matter of jurisdiction consider torts—or
delicts—committed outside the territory of the Republic. Although the statutory
jurisdiction of South African courts is limited to 'causes of action' that take
place within our territory (see section 19(a) of the Supreme
Court Act
59 of 1959), under the common law there is precedent
for the exercise of 'extraterritorial civil jurisdiction' (see Hill v Wallace
[1829], Menzies’
(1828-49), Vol. I, 347; Mackay v Phillip [1830], Menzies’ Reports (1828-49),
Vol. I, 355;
Rogaly v General Imports (Pty) Ltd 1948 (1) SA 1216 (C).) Notably, while our
common law is Roman-Dutch in origin, in the recent case of
[1]Gallo Africa Ltd and Others V Sting Music (Pty) Ltd
and Others
2010 (6) SA 329 (SCA) the Supreme Court of Appeal in substance accepted
English common law's 'Mocambique rule' in respect of the exercise of
jurisdiction over immovables. The counterpoint of that rule is the doctrine of
'transitory torts', which forms the basis of the ATS.

Second, as a matter of substantive law, the
acts governed by the ATS —violations of the law of nations— would be actionable
under the South African law of delict as such conduct would be considered
wrongful. This characterization could take place in two ways: (i) Through the direct application of the relevant
customary international law norm in terms of section 232 of the South African
Constitution which provides that “[c]
ustomary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of
(ii) Indirectly,
through the classification more generally of such conduct as consequently
wrongful (i.e. against the legal convictions of the community). Here, the
criminalization of certain international human rights violations domestically,
for example under the ICC Act 27 of
2002, would be the lighthouse for a South African court considering the
wrongfulness of such conduct for the purposes of civil liability.

Moving beyond Kiobel, if
it is the case that South African law (i) allows our courts to exercise
extraterritorial civil jurisdiction, and (ii) recognizes certain breaches of
customary international law as wrongful for the purposes of civil liability, there is nothing stopping individuals from bringing claims
for extraterritorial human rights violations (such as those alleged in Kiobel) before South African courts. An
interesting prospect indeed…

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