United States Supreme Court Take Up Case with Potentially Far-reaching Implications for International Law
By Mitchell Robinson, Guest Researcher, MultiRights
The MultiRights Blog welcomes the collaboration of Mitchell Robinson, PhD, a visiting researcher at the MultiRights project:
On 28 February, the United States Supreme Court heard oral arguments in Kiobel v. Royal Dutch Petroleum. In reviewing this case brought under the Alien Tort Statute, the Court will seek to clarify whether corporations have liability in customary international law for grave violations of international human rights.
In 1995, Nigerian environmentalist and labor activist Ken Saro-Wiwa was executed
along with eight other Nigerian nationals for leading protests in the Ogoni region of the Niger Delta and in which Royal Dutch Petroleum (“Shell”) had an oil drilling and extraction operation. The civil action in US federal court was brought by Saro-Wiwa’s widow who alleged that Shell had aided and abetted the Nigerian government’s violent suppression of the protests by recruiting Nigerian police and military personnel into a paramilitary group that attacked local villages eventually capturing and torturing Saro-Wiwa. His publicly ominous hanging followed the imposition of the death penalty by a military court that had been corrupted by Shell influence. According to the complaint, Shell provided money, training, weapons, and logistical support to the paramilitary group as well as bribing witnesses and judges.
The Alien Tort Statute (“ATS”) was originally enacted into US law in 1789 by the first Congress. Its modern rendering is 28 U.S.C. §1350 which allows non-US nationals to bring civil suit in US federal courts for violations of the “law of nations” or a treaty of the United States. The statute was used sparingly between 1789 and 1980 and the commonly accepted drafting history demonstrates that the ATS was intended to open the federal courts to a limited number of 18th century violations such as piracy and attacks on ambassadors. In 1980, a New York federal court addressed a case brought under the ATS involving a politically motivated torture and wrongful death in Paraguay. The court held in Filártiga v. Peña-Irala that the ATS as it applied to the “law of nations,” known as modern customary international law, included the gradual evolution of international law to include international human rights law which clearly prohibited the crime of torture.
Over the next 24 years US federal courts gradually expanded the violations of international human rights law that activates the statute’s subject-matter jurisdiction as well as extending its scope to include non-state actors. In 2004, the US Supreme Court examined the ATS for the first time in its history and generally affirmed the use of the statute since Filártiga. Nonetheless, in Sosa v. Alvarez-Machain the Court narrowed its application by instructing lower federal courts to entertain only claims that involved violations of customary international law that are “specific, universal, and obligatory”.
Since a federal appeals court surprisingly dismissed Kiobel in 2010 on the basis that corporations do not have the legal personality to be liable under customary international law, the statute’s application to this class of defendants has seized the jurisprudence within the federal districts and circuits that have strongly split on the issue as a result. Until the Kiobel judgment, corporations had increasingly been the targets of civil suits for human rights violations. In fact, beginning in 1997 with Doe v. Unocal, there has existed thirteen years of ATS case history that assumed unquestioningly the status of corporations as defendants. Unocal involved crimes against humanity and enslavement during the construction of the Yadana oil pipeline in Burma (now Myanmar). Many multinational corporations have faced ATS actions since including for example The Gap, Nike, Yahoo, Chevron, Ford Motor Company, Exxon, Coca-Cola, Rio Tinto, Nestlé, Chiquita, and Firestone Tires. The 2010 Kiobel decision shattered the assumption of corporate liability.
Using Kiobel and other cases following in its wake (e.g. In re Chiquita, Doe v. Exxon, Sarei v. Rio Tinto, Flomo v. Firestone), the federal courts were compelled to address corporate liability, and their decisions show that the Supreme Court must ask fundamental questions of international law in crafting its holding. Primarily among these issues is the relationship between state practice and general principles of law. Although there are relatively few instances of corporations being held civilly accountable in international law, almost every domestic jurisdiction on the globe does provide corporate liability to plaintiffs seeking damages and compensation. Thus, the Court will be forced to assess whether lack of state practice denotes the desire of states to deny corporate liability or whether this lacunae is ripe for “the first time” of the application of a crystalizing customary international law – something that must occur for every customary or common law to form. Consequently, the far-reaching implication for general international law might be that by the US Supreme Court affirming corporate liability, it in turn precipitates a cascade of other jurisdictions doing the same and thereby actually contributes to the law-making process as much as appraising it.
Among other major considerations the Court will have to address is the historical interpretation of the Nuremburg Tribunals’ jurisdiction over corporations, which has recently become an academically contested question. Likewise, the relationship between “international civil law” and international criminal law will come to the forefront as the Rome Statute of the International Criminal Court does not provide criminal jurisdiction over corporations and does not appear to be near alteration on this regard. Finally, the Court’s approach is further complicated by its 2010 judgment in Citizen’s United v. Federal Election Commission, which upheld (and to some degree beget) “corporate personhood” in deciding that the First Amendment to the US Constitution on free speech applied to corporations. Human rights activists have responded that it would be laughable for the Supreme Court to grant such expansive rights and freedoms to corporations without also imposing duties and responsibilities on them also.
Yet, the main focus of the Court’s questioning during the oral proceedings this past week explored the extraterritorial application of the ATS, which had been seemingly accepted as binding precedent in the Sosa judgment. This development caught most observers off-guard, including apparently counsel for the plaintiff, and commentators have yet to decide how extraterritoriality will influence the Court’s holding which is expected before June.