Human Rights and International Law
James R. Copland
On Tuesday of this week, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum, a case that will test the extent to which U.S. law enables litigation in American courts against multinational corporations for allegedly facilitating human-rights abuses in foreign nations in violation of international law norms.
The operative statute, the Alien Tort Statute or Alien Tort Claims Act (codified at 28 U.S.C. § 1350), was a part of the original Judiciary Act of 1789, which reads, "The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
In Kiobel, Nigerian nationals are attempting to invoke the Alien Tort Statute to sue oil companies that the plaintiffs allege worked with the Nigerian military to suppress local opposition to oil exploration. A divided panel of the Second Circuit rejected the Kiobel claim by reasoning that corporate liability was not customary international law, such that the claim lay outside the Alien Tort Statute's jurisdiction.
To discuss these issues, we are lucky to have two distinguished international law professors who each signed amicus briefs in the case, on either side. Julian Ku of Hofstra Law School signed a brief for professors of international law, foreign relations law and federal jurisdiction (PDF) that argued both that the original meaning of the Alien Tort Statute was far narrower than its current application and that the Kiobel suit was unwarranted based on Supreme Court precedent. David Weissbrodt, the Regents Professor and Fredrikson & Byron Professor of Law at the University of Minnesota Law School, signed a brief for international law scholars (PDF) that argued, conversely, that the suit was a legitimate application of international law through the Alien Tort Statute, and that the Second Circuit had misconstrued the international law in this case.
We welcome Professors Ku and Weissbrodt to Point of Law to discuss this important case. The featured discussion will be available below; please check back throughout the week as the discussion continues.
Professor of Law at the Maurice A. Deane School of Law at Hofstra University. Professor Ku focuses his research on the intersection of international and domestic law. His forthcoming book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order (with John Yoo), is being published by Oxford University Press.
Thanks to Point of Law for inviting me to share my thoughts on the Supreme Court's consideration of the Alien Tort Statute (ATS) in Kiobel v. Royal Dutch Petroleum.
I will use two recent op-eds on the upcoming case to launch our discussion. Each op-ed reflects how the disputants in Kiobel would like to frame their argument to the Supreme Court and to the public.
In the NYT, Peter Weiss, formerly of the Center for Constitutional Rights, focuses on the importance of the ATS in holding human rights offenders accountable and the general unfairness of excluding corporations from ATS lawsuits.
In the Washington Post, former Bush Administration State Department Legal Advisor John Bellinger, argues that ATS lawsuits are being used to harass corporations into settlements, to interfere with other nation's domestic affairs, and to embroil the United States in disputes with important foreign allies like the United Kingdom, the Netherlands, and Germany.
I think Bellinger has a very strong argument (I have joined an amicus brief in this case making very similar arguments) and I haven't seen the petitioners in this case or their amici make a very persuasive response to it. If the Supreme Court rules against the Kiobel plaintiffs, I am betting some version of this argument will be in the majority opinion.
But it is also noteworthy that Bellinger does not respond to Weiss' claim about the unfairness of excluding corporations. He doesn't do so because the "corporations are not liable under the ATS," is the kind of rigidly formalistic argument that rarely succeeds at the Supreme Court and has almost no appeal to the general public. The NYT headline to Weiss' op-ed, "Should Corporations Have More Leeway to Kill Than People Do?," neatly captures the difficulty that the Shell defendants face in making this argument.
But just because the argument is unattractive, doesn't mean it is wrong. As I argued at some length in the Virginia Journal of International Law, the question of corporate liability under the ATS is NOT about whether corporations should be held liable for aiding in humanitarian atrocities. Of course they should. But they should be held liable under the domestic law of the country where the alleged atrocities occurred, under the domestic law of the corporate defendant's place of business or registration, or under an international treaty specifying their duties and obligations.
Instead of worrying about corporate accountability generally, the question for the Supreme Court is whether Congress has granted the federal courts the broad lawmaking authority to extend international law norms to corporate entities for actions that have the most tenuous of connections to the United States. As I detail in my VJIL article and in my amicus brief, the precedents for extending international law to corporate entities ranges from few to embarrassingly few. The international precedents are so thin that the pro-ATS Obama Justice Department does not even try to make this argument in their amicus brief otherwise supporting the petitioners.
Instead, the petitioners (and the Obama Administration) have emphasized that the question of corporate liability under the ATS is a question of domestic federal common law rather than of international law. Federal courts should be allowed to impose such liability as part of their general common lawmaking powers.
I think this argument has problems, which I may discuss in subsequent posts, but it is definitely the petitioner's strongest argument. And this strongly suggests that, at least for now, international law doesn't impose duties directly on corporate entities after all. Which means that the most unattractive argument for the defendants is probably correct, even though it won't do them much good.
Regents Professor of Law and Fredrikson & Byron Professor of law at the University of Minnesota.(1)
Thanks for inviting me to participate in an on-line discussion of the Alien Tort Statute (ATS) and the Supreme Court's oral argument in Kiobel v. Royal Dutch Petroleum, scheduled for Tuesday, February 28, 2012.
The principal issue in the Kiobel case is in interpreting a U.S, law, the Alien Tort Statute (ATS), 28 U.S.C. § 1350, which provides a unique basis of federal court jurisdiction:
The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.
The statute says nothing about the category of defendant and my colleagues interpreting the history of the statute have found that when the law was enacted (in 1789), corporations were subject to suit, and "to read a corporate exemption into the ATS would be inconsistent with the statute's plain text and contrary to congressional intent." Amicus Brief of Professors of Legal History.
The argument that corporations are not liable under the ATS is not only "unattractive," but it is a mistaken interpretation of the law. This error in legal interpretation is demonstrated in the parallel statement that a corporation "should be held liable...under the domestic law of the corporate defendant's place of business."
When the Supreme Court last considered an Alien Tort case involving a corporation, it held that the ATS "did not distinguish between the category of defendants." Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989).
The Supreme Court authoritatively interpreted the ATS in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004)., and held that any ATS claim must "rest on a norm of international character accepted by the civilized world and defined with sufficient "specificity," 542 U.S. at 725. As the United States has observed in its brief for the Kiobel case, the ATS claim pertains to the international-law norm itself and not to whether (or how) that norm should be enforced in a suit under the ATS. The latter question is a matter to be determined by federal courts cautiously exercising their "residual common law discretion" in holding human rights offenders accountable and the general unfairness of excluding corporations from ATS lawsuits.
In nearly every case in which an ATS claim has been presented against a corporation the courts have held that corporations can be held liable. The U.S. Court of Appeals for the Second Circuit was the first and only circuit court to hold that corporations cannot be held responsible under the ATS. Four other circuits (D.C., 7th, 9th, and 11th) have held corporations responsible under the ATS. Judges writing opinions finding corporate liability under the ATS have included Judith Rogers in Doe v. Exxon and Richard Posner in Flomo v. Firestone.
On the policy questions identified in the first post on the concerns of foreign governments, U.S. courts have been receptive to the opinions of foreign governments on a case-by-case basis where that particular case challenges the legitimate act of that government (the act of state doctrine). While a foreign government might prefer that no corporation with which it has a connection might be sued in the United States, if that corporation does business in the U.S. our laws state that the corporation is subject to suit. There is no basis to single out ATS claims for a different rule on jurisdiction. With regard to the argument about suits brought for harassment, not even one example is provided and this silence speaks volumes.
(1) Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.
SULLIVAN: The crucial question that is at the threshold is which law determines whether corporations are liable.
JUSTICE BREYER: I think you are right on that point.
- From the Kiobel v. Royal Dutch Shell, Oral Argument Transcript, February 28, 2012 at 32.
This exchange between Kathleen Sullivan, the attorney for respondents Royal Dutch Shell in Kiobel, and Justice Breyer highlights the importance of the "choice of law" question to this case. The "choice of law" question is whether international law or domestic law governs the question of corporate liability.
The importance of the "choice of law" question might seem surprising. After all one might expect that a leading international human rights lawyer like Kiobel's attorney, Paul Hoffman, and a leading scholar of international human rights law like Professor David Weissbrodt, would invoke international law to justify holding corporations accountable for humanitarian atrocities. Yet both (along with the Obama Justice Department) are insisting the question of corporate liability is a matter for domestic and not international law.
The reasons for this insistence, as I argued in my prior post, is that the international law precedents for holding corporations liable for violations of customary international law are embarrassingly thin. They are so thin that the Petitioners barely mentioned them, and that the Obama Justice Department didn't even invoke them. They are so thin that Professor Weissbrodt, who spearheaded the important U.N. effort to develop norms governing the behavior of transnational corporations, does not make this argument either.
Justice Breyer's comment therefore suggests that if international law governs the question of corporate liability, the plaintiffs will lose. And that the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.
On this "crucial" point, I still find the Petitioner's argument lacking. I don't find Amereda Hess particularly compelling, since the language Professor Weissbrodt cites in that decision was made in the context of rejecting ATS jurisdiction over a particular class of defendant (a sovereign state).
Moreover, I am surprised to hear so many distinguished international law scholars argue that the class of defendant makes no difference to the applicability of an international law norm. As several justices pointed out today during argument, this is not true with respect to international law claims against sovereign states, which are usually barred due solely to the identity of the defendant (as in Amerada Hess).
It is also not true with respect to natural persons, who may be held liable under customary international law only for the most serious jus cogens violations (as the Second Circuit in Kadic v. Karadzic held). In other words, international law usually takes quite seriously the identity of the defendant when determining whether international law norms are applicable. Depending on the identity of the defendant, the norm might or might not apply. This is not an "exemption," this is simply how international law works.
Why this approach should be different for corporations is something I don't quite understand. Certainly, there is nothing in the text of the Alien Tort Statute, or in the Supreme Court's decision in Sosa, which requires departing from the typical practice of taking into account the identity of the defendant in determining the applicability of an international law norm.
The oral argument that occurred Tuesday, February 28th, for the Kiobel v. Royal Dutch Petroleum case focused on the application of the Alien Tort Statute (ATS) to corporations. In my first post of this series, I explained the Supreme Court's discussion of the Alien Tort Statute in Sosa, to identify an international law violation justiciable under the ATS, and I will not repeat that discussion here.
As several justices noted at yesterday's argument, however, courts have looked to international law to define the actions violating international law, and to federal common law for other matters such as the remedial structure, including the parameters of corporate liability. See Sosa, 542 U.S. at 724, 731. In Flomo v. Firestone, one of the cases I mentioned in my previous post, Judge Richard Posner stated, "International law imposes substantive obligations and the individual nations decide how to enforce them." This approach is the proper way to analyze the question, not because of a dearth of authority under international law that courts look to federal common law.
As stated in an Amicus Curiae brief, however, which I signed as one of several International Law Scholars, both under federal common law and international law, corporations are responsible for their violations of the law of nations..
To further elaborate, there is ample authority under international law for the responsibility of corporations for human rights violations, Examples include the Universal Declaration of Human Rights, which is the primary source and definition of international human rights law and provides, inter alia, "a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society...," which includes corporations. Following the Universal Declaration, the United Nations adopted two Covenants that comprise the most authoritative and comprehensive prescription of human rights obligations. The International Covenant on Civil and Political Rights, entered into force Sept. 8, 1992, with regard to the United States), similarly includes corporations in its Article 5: "Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein . . .". (emphasis added)
Another prominent human rights treaty, International Convention on the Elimination of All Forms of Racial Discrimination, entered into force Sept. 8, 1992, with regard to the United States), also applies to racial discrimination "by any persons, group or organization . . . ." The Convention on the Elimination of All Forms of Discrimination against Women, contains an even more explicit reference to corporations in obliging governments "to eliminate discrimination against women by any person, organization or enterprise . . .." The Convention on the Prevention and Punishment of the Crime of Genocide, entered into force Feb. 23. 1989, with regard to the United States) applies to "Persons committing genocide or any of the other acts enumerated in article III . . . whether they are constitutionally responsible rulers, public officials or private individuals" which, under international law, would include corporations and corporate officers.
The Brief of Yale Law School Center for Global Legal Challenges at 9, cites to the International Court of Justice, which has discussed "persons or entities" that committed the acts of genocide at Srebrenica. 2007 I.C.J. 43, para 393, and the International Criminal Tribunal for Rwanda found that a corporate entity, a radio station, violated the prohibition against genocide. See Yale Law School Brief at 10. Other clear examples of norms extending to corporations include the international prohibitions against torture, extrajudicial killing, war crimes, slavery and piracy.
The U.N. Sub-Commission Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, provide in paragraph 18 that "Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law." Most recently in its Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework, U.N. Doc. A/HRC/17/31, paragraph 7 (Mar. 21, 2011), the U.N. Human Rights Council called for attention to "gross human rights abuses" and indicated that States "should take appropriate steps to address them. This may include exploring civil, administrative or criminal liability for enterprises . . . that commit or contribute to gross human rights abuses."
There are a number of other treaties and instruments on human rights, corruption, environmental pollution, etc. that include corporations. Altogether these treaties and other instruments establish customary international law that corporations and other persons are responsible for their human rights and similar violations within the realm of the Alien Tort Statute.
Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.
It is worth emphasizing why I think the "choice of law" question is so crucial to resolving this case (and why Justice Breyer agrees with me on this point). In its 2004 decision, Sosa v. Alvarez-Machain, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were "specific, universal, and obligatory." In that case, the Court actually rejected the norm of "arbitrary detention" as insufficiently universal as applied to the facts of that case.
The idea behind the Sosa standard, the Court emphasized, is that federal courts should only be allowing lawsuits over norms that are uncontroversial and which other countries would not dispute. Reaching out and creating "disputable" causes of action overstepped the narrow mandate the federal courts have under the Alien Tort Statute, and raised the potential of federal courts causing conflicts with the President and Congress on the one hand, or with foreign countries on the other.
This baseline standard is important to keep in mind when evaluating Professor Weissbrodt's arguments in favor of a general international law duty for business corporations. Althought Professor Weissbrodt marshals some interesting precedents, I seriously doubt they would satisfy Sosa's "specific, universal, and obligatory" standard.
For instance, the Convention Against Genocide itself, which Professor Weissbrodt cites, reflects ambiguities as to whether it applies to corporations. Article IV, for instance, states:
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.
(Emphasis added). As you can see, the language Professor Weissbrodt quotes does not apply generally under the Convention and, in fact, this language illustrates that the Convention does not impose any duties directly on corporations that are "specific, universal, and obligatory." The phrase "private individuals" generally refers to natural persons.
Moreover, the history of the drafting of the Rome Statute of the International Criminal Court and the trials of Nazis after World War II reflect hesitation about imposing duties directly on corporations. The drafters of the Rome Statute debated, and then decided not to adopt a civil remedy and, further, not to bring corporations within its jurisdiction. The victorious WWII powers considered, but ultimately did not bring any corporations to trial (although the owners or officers of the corporations were prosecuted). It is therefore not surprising that countries such as the UK and the Netherlands have filed amicus briefs in this case arguing that there is no general norm imposing duties on corporations under international law.
I do not doubt that corporations could, via a formal act of lawmaking such as an amendment to the Alien Tort Statute or formal treaty, acquire duties for violating certain international law obligations. This would be a deliberate decision by the Congress or the President and Senate to take a side in the development of international law norms. But that decision, which is fraught with complicated policy considerations, should be left to the Congress or the President and Senate. It should not be left wholly within the discretion of federal courts acting pursuant to a deeply ambiguous statutory mandate.
I want to thank Point of Law again for hosting this great discussion, and to Professor Weissbrodt for his participation.
David Weissbrodt (1)
The Supreme Court set forth in Sosa v. Alvarez-Machain (2004) the basic standard for recognizing whether an alien has under the Alien Tort State asserted a "civil action . . . for a tort only, committed in violation of the law of nations or a treaty of the United States." Courts have looked to international law to define actions violating international law, and to federal common law for other matters such as the remedial structure, including the parameters of corporate liability. See Sosa, 542 U.S. at 724, 731. As I previously noted, Judge Posner in Flomo v. Firestone, stated the proper analysis quite concisely: "International law imposes substantive obligations and the individual nations decide how to enforce them" The correct reading of the history of the Alien Tort Statute shows that corporations were a proper subject of tort sanctions under the ATS. See a Brief of Former United States Government Counterterrorism and Human Rights Officials as Amici Curiae in Support of Petitioners; Brief of Amici Curiae Professors of Legal History in Support of Petitioners.
As to international law, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were "specific, universal, and obligatory." The Court did not reject arbitrary detention as a norm insufficiently universal and thus not cognizable under the ATS. Instead, the Court held that a single detention of less than a day followed by due process was not sufficient to establish a violation of the law of nations under the ATS. If Alvarez-Machain had been the subject of prolonged arbitrary detention, torture, or other grave abuses of human rights, there would likely have been a different result.
Nowhere in Sosa did the Court say that norms must be "uncontroversial and which other countries would not dispute." Instead, the Sosa Court cited favorably the approach which the seminal case of Filartiga v. Peňa-Irala used to find that torture qualifies as a violation of the law of nations. Adopting this analysis, in a case involving genocide by a corporation, should result in a holding that genocide qualifies as a violation of the law of nations under the ATS. The prohibition of genocide constitutes an erga omnes and a jus cogens norm, and international law clearly recognizes that such norms are applicable to all actors, including governments, heads of state, individuals, and corporations. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), IC.J. Rep. 3, 32 (paras. 33-35).
Furthermore, the Convention against Genocide provides erga omnes criminal responsibility for "rulers, public officials or private individuals," which would, under international law, include corporations and corporate officers. The Brief of Yale Law School Center for Global Legal Challenges at 9, cites to the International Court of Justice, which has discussed "persons or entities" that committed the acts of genocide at Srebrenica. 2007 I.C.J. 43, para. 393, and the International Criminal Tribunal for Rwanda found that a corporate entity, a radio station, violated the prohibition against genocide. See Yale Law School Brief at 10. The Yale brief also extensively discusses the sources of customary international law which extend to corporations the prohibitions against crimes against humanity, torture, extrajudicial killings, war crimes, slavery, and piracy.
The international criminal tribunal at Nuremberg and the Rome Statute are important authority under international law but they are not the only way of establishing responsibility in tort under the ATS. As concisely summarized by Judge Judith Rogers in Doe v. Exxon, the decisions of judicial tribunals are a secondary source of customary international law and the practice of nations is a primary source. Treaties and other instruments qualify as the practice of nations including corporate responsibility, as I mentioned in my second post on the Kiobel case. Actions that the D.C. Circuit considered significant were the actions taken under international law to dismantle I.G. Farben and other corporations aiding and abetting the Nazi Holocaust. In her opinion in Doe v. Exxon, Judge Rogers of the U.S. Court of Appeals for the District of Columbia wrote: "[T]he Allies determined that I.G. Farben had committed violations of the law of nations and therefore destroyed it. Judge Richard Posner also adapted this analysis, stating "At the end of the Second World War the allied powers dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations--and did so on the authority of customary international law." See also Amicus Brief of Nuremberg Scholars in Support of Petitioners.
And, as noted by the United States Amicus Brief and one prominent scholar of the international tribunals, the central point is that "nothing in the history of the Nuremberg proceedings suggests that juridical persons could never be held accountable (through criminal prosecution or otherwise) for violating international law" [citing Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in Criminal Law: What Nuremberg Really Said, 109 COLUM. L. REV. 1094, 1239 (2009)
As to the exclusion of corporate criminal liability in the Rome Statute (for the International Criminal Court), the brief by Ambassador David Scheffer makes clear, the negotiators' decisions "had nothing to do with customary international law and everything to do with a complex and diverse application of criminal (as opposed to civil) liability for corporate conduct in domestic legal systems around the globe." There was no civil liability imposed because it was considered outside the jurisdiction of a criminal court, and it was never "thoroughly discussed." Brief of Ambassador David J. Scheffer at 18, fn 6.
Briefs of interested nations, such as Netherlands and the United Kingdom where the Royal Dutch Shell Company is located, do not qualify as persuasive authority in establishing the practice of nations.
Ultimately, the question posed by the Kiobel case is: Is there any basis under federal common law or international law to exempt corporations from responsibility for their tortious conduct in violation of the law of nations? In examining the text, history, and context of the Alien Tort Statute, as well as the provisions of international law, the answer to that question is, "No."
I want to thank Point of Law for hosting this discussion and to Professor Ku for inviting me to participate.
(1) Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.
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