Posted by: alisondcole | February 29, 2012

Kiobel v Royal Dutch Petroleum – The finish line (almost)

This is just the quickest of updates on the case I was working on with the Center for Constitutional Rights; Kiobel v Royal Dutch Petroleum.

10 years after Esther Kiobel’s original complaint was filed in the S.D.N.Y, Kiobel’s case against Royal Dutch Petroleum was heard yesterday in the Supreme Court of the United States.

This case has attracted considerable interest in the human rights and legal community; 22 amicus briefs in total were filed in support of the petitioners (including an amicus from the U.S. government), and 15 for the respondents, Royal Dutch Petroleum.  During my time in New York, when I would mention to other legal professionals – from both the human rights and corporate spheres – that I was working on an amicus brief for this case, considerable discussion would ensue on its merits, the alien torts statute and of course what the outcome would be.

As I have previously posted, the central question this case turns on is whether corporations can be held accountable in U.S. federal courts for international human rights violations under the ATS. The ATS allows foreign nationals to bring civil lawsuits in US federal courts “for a tort only, committed in violation of the law of nations, or of a treaty of the united states” however the Statute is silent on what type of defendants – corporate or natural persons – may be sued. In the past year four appeals courts across the U.S. have tackled this issue of corporate liability, coming down 3 to 1 in favour of holding corporations accountable. The Supreme Court’s decision in this case will settle the matter definitively (we hope) one way or another.

Unfortunately, the oral argument yesterday indicates the justices of the Supreme Court will fall along party lines on this issue – with the conservative majority holding that corporations cannot be held liable.  By and large the views expressed yesterday by the various Supreme Court justices are not surprising. The ATS and the position of international law in U.S. courts are issues which have garnered a lot of attention on Capitol Hill, in court houses across the United States and in the media. Supreme Court justices have spoken regularly and freely on their positions and views, and are often questioned closely on these topics during their Senate confirmations.

Chief Justice John Roberts and Justices Samuel Alito and Antonin Scalia expressed skepticism not only on the notion of corporate liability, but of the Alien Torts Statute itself. A key underlying tension in this case, (which went against the attorney for the plaintiffs’ argument yesterday)  is that the current Court is deeply conflicted over whether the interpretation of U.S. law should be influenced in any way by the legal concepts that are developed in other countries.   The intense discussion between attorney Kathleen Sullivan (representing Royal Dutch Petroleum) and  Justice Kagan highlighted the irreconcilable divide between the two sides’ arguments. Sullivan pointed out that the plaintiffs “failed to show anything in custom or practice” to prove corporate liability for human rights abuses is an accepted international legal norm. Kagan responded that “all United States law and mostly in other countries’ law would hold the corporation liable for the individual’s act”.

This case is further complicated by a decision of the same Supreme Court in 2010 in Citizens United v Federal Election Commission.  In this landmark case the Court decided by a vote of five to four, that since corporations were legal persons, they were entitled to the protection of the US 1st Amendment, which guarantees unfettered freedom of speech. Leaving aside the implications of that case on the integrity of elected institutions in the US, should the Supreme Court hold that corporations cannot be held accountable for their actions under international human rights laws, this will leave corporations in a unique position. Essentially there will be a situation where corporations are “persons” for the purposes of free speech (allowing them to making unlimited contributions to political campaigns) but not for the purpose of being held to account for human rights violations.

There are of course many facets to this case, and a lot of valid and differing opinions. Questions on corporate aiding and abetting, the jurisdictional reach of the ATS and the Torture Victim Protection Act of1991 will also be debated before the Supreme Court justices this week.  Many (including the Governments of the United Kingdom, the Netherlands and the Federal Republic of Germany) have expressed concern as why this case is even being heard in the US; given that it involves a foreign corporation, foreign plaintiffs for acts committed on foreign territory. However it is the case’s central question; whether corporations can be held accountable for violations of international human rights law under the ATS which is undoubtedly the most salient.

A decision is expected in late June.

Make for interesting reading:

An article by vice president of the Center for Constitional Rights and retired attorney Peter Weiss: http://www.guardian.co.uk/commentisfree/cifamerica/2012/feb/28/question-before-supreme-court-kiobel-v-shell

Yesterday’s oral argument transcript (it really does make for interesting, if a little bruising, reading I promise): http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1491.pdf


Responses

  1. Hi Alison, thanks for the eyewitness report. Joanna Kyriakakis posted a blog on our main site about the Kiobel hearing. You can read it here: http://castancentre.com/2012/03/05/pirates-incorporated-the-us-supreme-court-to-decide-if-corporations-are-liable-under-the-alien-tort-statute/


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