As has been widely reported, the Supreme Court recently heard oral argument in the case of Kiobel, et al. v. Royal Dutch Petroleum, et al. (10-1491), to determine whether liability under the Alien Tort Statute (ATS) extends to corporations that have allegedly committed grave human rights abuses. Petitioners argued that it does, on the ground that international law forbids specific acts, not actors, and even if it did not, domestic law governs when international law is silent. Respondents disagree, asserting that international law simply does not recognize corporate responsibility; thus, corporations cannot be liable under the ATS.
Post-argument analysis has been far-reaching, with many commentators speculating that the Justices seemed most interested in the extraterritoriality issue, i.e., whether US courts even have the authority to decide cases with absolutely no connection to the US. To name a few, SCOTUSblog describes how Justice Kennedy’s questions on that very topic were devastating to Petitioners’ case. Similarly, NPR features a piece that describes the human rights abuses at issue, along with the perspective of John B. Bellinger III, former State Department counsel who also filed an amicus brief in the case on behalf of a half-dozen multinational corporations. In the NPR piece, and in a Washington Post op-ed, Bellinger contends “that international law binds nations and individuals, but not corporations,” and that neither the ATS nor international law allows American judges to adjudicate actions that have occurred in other countries and “that have absolutely nothing to do with the United States.”
As it turns out, the legal speculators were correct. Last week, the Supreme Court ordered re-argument in Kiobel to answer the following narrow question: “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.” As described by SCOTUSblog, while the Justices did not elaborate on the decision in the order itself, reports from a private conference last week reveal that they found themselves faced with the option of either granting cert in Rio Tinto PLC, et al., v. Sarei, et al. (11-649), a case that directly raised the issue of extraterritoriality, or expanding the review of the Kiobel case. Based on the order that came down, they apparently chose the latter.
Notwithstanding the recent development, the New York Times last week featured a post-argument op-ed that serves to take us back to the heart of the case. Susan Farbstein and Tyler Giannini, Harvard Law Professors who filed amicus briefs in support of the Petitioners in Kiobel assert: “In exchange for rights, corporations accept certain responsibilities, including liability for harms committed by their agents. Corporations should not receive greater legal protections than people. Relief from suffering, and accountability for human rights violations, should not depend on whether an individual or a corporation is responsible for the abuse.” Also focused on the merits, Marco Simmons, Legal Director at Earth Rights International, writes that during oral argument the Justices, especially Justice Alito, “asked difficult questions that suggested skepticism about using the ATS for transnational human rights cases,” however, “they did not ask pointed questions that supported applying different rules to human beings and corporations.” Finally, Georgetown Law features a post-argument roundtable , which featured Paul Hoffman, counsel for Petitioners, along with several prominent authorities in international and human rights law.