Based on the developments in Kiobel v. Royal Dutch Petroleum, it is likely that the Supreme Court’s decision in the case may end up turning on the threshold issue of whether US courts are the proper vehicle in which to air extraterritorial grievances. If this turns out to be the case, the fate of other ATS claims against corporations, particularly those with a US connection, remains unclear.
For example, Du v. Cisco – currently pending in the US District Court in Maryland (11-1538-PJM) – involves allegations by former and current citizens of the People’s Republic of China (PRC) that Cisco was involved in supporting torture and unlawful detention by the Chinese Communist Party based on speech against its government. Notably, unlike Kiobel, the alleged human rights abuses at issue in Du have a direct connection to the US, in that Cisco, an American corporation, and its technologies are argued to have directly enabled the human rights abuses.
Unlike the murkier “foreign-cubed” scenario at issue in Kiobel, involving Nigerian nationals suing a Dutch company for acts that occurred in Nigeria, the line starts to become clearer in this circumstance. That is, when US corporations knowingly decide and act to support oppressive and abusive regimes, they must be held accountable when those decisions result in torture and other grave human rights violations. Further, US corporations in particular must not profit, but instead must be deterred, from such decisions. Accordingly, in cases where a US connection is clear, the US and its courts should be a leader in upholding the rule of law relating to these blatant abuses of power.
Although the Court seemed skeptical of corporate liability in Kiobel last week, several of them were also uneasy declaring that corporations are not liable for any international law violations—especially those involving piracy and slavery. Counsel for Royal Dutch Petroleum even admitted that individual corporate directors could be liable under the ATS. It is, therefore, unlikely, that the Supreme Court’s decision, when it is ultimately issued, will end the Du case—a case against an American corporation and its directors.
If you have any information regarding Cisco’s ongoing support for the Chinese Communist Party’s continued oppression of its citizens, please do not hesitate to contact Daniel Ward. Any such communications will be kept confidential.
Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated. Contact your elected representatives — let them know how you feel. Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!.