Last Tuesday, Prof. John Ruggie, who served from 2005 to 2011 as the UN Secretary-General’s Special Representative for Business and Human Rights, released an “issues brief” on “Kiobel and Corporate Responsibility.” In it, he rebukes Shell for attempting to eviscerate the ATS based on disingenuous claims. And Ruggie should know. As he explains, “I would not be involved in [Kiobel] at all were it not for the fact that Shell’s initial Supreme Court brief and its lead attorney’s oral argument misconstrued a central finding of a United Nations report I had authored.” Shell had incorrectly suggested to the Court that Ruggie’s work supported the argument that corporations cannot be held liable under international law. Ruggie in fact had “noted evidence of ‘an expanding web of potential corporate liability for international crimes.’”
To correct Shell’s misstatements, Ruggie filed an amicus brief in the second round of Kiobel briefing. But, as Ruggie points out, Shell’s most recent brief, this time arguing that the ATS should not apply to acts abroad, contains similar mischaracterizations. For example, Shell cites the fact that South Africa complained in 2003 about an ATS case brought against American and European corporations that operated there during Apartheid. But it fails to note that after the case was substantially narrowed to only include companies alleged to have made specific contributions to Apartheid, South Africa changed its mind, and supported the litigation.
United Nations officials do not often submit briefs to national courts. But in Kiobel, in addition to Prof. Ruggie’s, the current U.N High Commissioner for Human Rights and current U.N. Special Rapporteur on Torture both submitted briefs in support of the Petitioners, demonstrating, contrary to Shell’s claim, that ATS cases are not in any way forbidden by international law. Their involvement only highlights the importance of Kiobel, and the poverty of the argument that enforcing the most fundamental prohibitions on egregious rights violations somehow violates international standards.
