Making Sense of the Kiobel Decision and Corporate Liability for Human Rights Abuses

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Last Friday, I posted about an unfortunate decision from the Second Circuit Court of Appeals that corporations cannot be sued under the Alien Tort Statute (ATS) for human rights abuses. That post caught fire, bringing in thousands of new readers and a number of comments on our site, as well as on Reddit.com and other social media sites. In this follow up post, I want to address some comments our readers have made, including questions about the legal implications of the ruling and the general sense of anger at the runaway train of corporate power.

What is the scope and impact of this ruling?

The ruling in Kiobel v. Royal Dutch Petroleum applies to the ATS, a U.S. federal statute that allows lawsuits for violations of international law–including serious human rights abuses.  The court, one of thirteen federal appellate courts, found that corporations could not be sued under the ATS.  At the moment, this ruling only applies directly in the Second Circuit, which covers the states of New York, Connecticut, and Vermont.  Another appeals court, the Eleventh Circuit, previously ruled that corporations could be sued under the ATS; its ruling applies in Florida, Georgia, and Alabama.  Everywhere else–including the vast Ninth Circuit, where our case against Unocal was litigated–is still up for grabs.  The danger, however, is that Kiobel will be influential to other courts considering this question.

Will it stand?

There are two ways in which the Kiobel decision might be overturned.  This decision was by a three-judge panel of the Second Circuit, and it is possible (though rare) for the court to rehear the case “en banc,” in front of all ten active judges of the court.  The plaintiffs will probably request a rehearing soon, and ERI will probably support this request.  Predicting en banc results is always difficult.  The court is evenly divided between appointees of Democratic and Republican presidents, but party affiliation is not very predictive–Judge Cabranes, who wrote Kiobel, was a Clinton appointee, and Judge Hall, who previously wrote an opinion stating his understanding that “corporate actors are subject to liability under the” ATS, was appointed by George W. Bush.

Failing en banc review, the next step is the Supreme Court.  But, as I noted in my original post, it’s possible that the issue will reach the Supreme Court long before the Kiobel case does.  The Talisman case–which was decided by the same three-judge panel–is currently before the Supreme Court, and the corporation has asked the Court to decide the question of corporate liability.  The Supreme Court could decide as early as next Tuesday whether they will hear the Talisman case, and if so, what issues they will consider.

Is it correct?

Anyone who wants an in-depth look at whether the Kiobel ruling is correct should read Judge Leval’s concurrence, because it systematically refutes Judge Cabranes’s arguments.  ERI has also filed amicus briefs that address this argument, our supplemental briefs in both Sarei v. Rio Tinto and in the Apartheid litigation.  For those who don’t have an hour to spare, however, the short answer is that Judge Cabranes’s approach to international law and the ATS is not correct, for several reasons.

On Reddit, commenter osuadh writes: “ATS suits require the application of international legal norms that are ‘specific, universal, and obligatory’ and the ability to bring suit against corporations is not one of those norms.”  I think that this confuses two categories of legal norms.  One category is norms of conduct, which are prescribed by international law–this is what the “specific, universal, and obligatory” requirement refers to.  The second category is norms of liability, such as corporate liability.  International law does not directly deal with corporate issues.  That doesn’t mean, as Judge Cabranes seems to think, that corporations have immunity.  Instead, it means that for corporate issues, international law borrows from domestic law–after all, corporations are creatures of domestic law.  We know this because the International Court of Justice has dealt with this question.  In 1970, in the Barcelona Traction case, the ICJ considered the issue of whether a corporation had a separate personality from its shareholders.  The ICJ noted that “there are no corresponding institutions of international law to which the Court could resort,” and therefore looked to principles of domestic law instead.  The ICJ did not throw up its hands and just say that international law doesn’t apply to corporations; it applied the standard rule that international law looks to domestic law to fill gaps in the international legal regime.

osuadh also references Judge Cabranes’s analysis of international criminal law, which I also disagree with.  It is true that only individuals were prosecuted at Nuremburg, but that was not due to a lack of jurisdiction over corporations.  The question of whether to prosecute corporations was debated internally among the Nuremburg prosecutors; they ultimately decided against doing so, but they had the power to do so.  Looking to the International Criminal Court is also misleading, because the ICC is a very new entity with jurisdiction that is limited in many ways; just because an act cannot be prosecuted at the ICC does not mean it does not violate international law.  In fact, the Second Circuit decided 30 years ago that any state-sponsored torture violated international law and could form the basis of an ATS lawsuit; at the time there were no international tribunals that could prosecute torture, and even today the ICC still cannot prosecute torture unless it occurs in the context of crimes against humanity or war crimes.  (The same constraints applied at Nuremburg.)  Judge Cabranes’s reasoning really cannot be reconciled with the law in the Second Circuit that suits can be brought for violations that have never been subject to prosecution by international criminal tribunals.

What happens if this ruling stands?

Reddit commenter MrWitchDr asks, “how can this be stopped?”  To save lawsuits for human rights violations, regardless of what the courts do, the last resort would be Congress.  I agree with osuadh‘s response, that the ruling could easily be overturned by replacing the ATS with a law that “explicitly subject[s] corporations to its jurisdiction.”  We don’t need to go so far as so replace the ATS entirely, however.  I’ve always thought that Congress should pass a one-sentence statute stating, “Unless otherwise expressly indicated, corporations and other legal persons are civilly liable to the same extent as natural persons.”  Congress could always amend the ATS, but this can be risky–corporations have a lot of power, and many would like nothing better than to open up the ATS for amendment.

Even without the ATS, however, corporations can still be sued for ordinary tort claims like assault and wrongful death.  In the Unocal case, for example, we sued Unocal for crimes against humanity and forced labor under the ATS, but we also sued for assault, battery, and false imprisonment.  International human rights abuses can usually also be characterized as a violation of ordinary domestic law.  There are, however, frequently advantages to bringing ATS claims, including the fact that victims of human rights violations should be able to use the appropriate label to describe the abuse–torture should be called torture, not battery.  Corporations have made other arguments, however, suggesting that these similar lawsuits brought under state law should be dismissed, and a few courts have accepted these arguments.  So the ATS is a significant tool for corporate accountability, but not the only tool.

Who else can be held responsible?

In response to an anonymous comment that “the individuals on the board are the ones that must be liable,” Nicholas G. M. G. Scheman asks, “Is this necessarily so, or does it just create immunity all around?”  It’s pretty clear that board members and corporate executives can be sued for abuses that they participated in or authorized.  Generally, however, courts do not hold board members liable for all acts of the corporation.  In ERI’s case against Chiquita, for example, board members personally authorized payments to Colombian paramilitaries, so they are probably responsible.  But if the payments had been made without the board’s knowledge, the board members probably would not be liable, even though the company is.

It’s not clear whether the Kiobel ruling changes this analysis.  Judge Cabranes does suggest that international law does not recognize corporate personality–i.e., it does not treat corporations as separate entities, independent from the individuals who own them.  In that case, it might not be the board members who would be responsible–it might be the shareholders!  Typically, shareholders are insulated from liability because the corporation is a separate entity, and they are merely owners.  Because employers are typically responsible for the acts of their employees, the corporation is responsible for the acts of all corporate employees, but the liability stops there.  But if the corporation is not a separate entity, then all of the employees of the corporation are actually joint employees of all of the shareholders.  And all of the shareholders might be liable for any abuses committed.

Why is Judge Leval’s opinion a concurrence, not a dissent?

This is a somewhat technical point, but while Judge Leval disagreed with the majority over whether corporations could be sued, he thought that the case could be dismissed for a different reason.  Judge Leval thought that the allegations in this case were insufficient to hold Shell liable for the abuses claimed by the plaintiffs.

Where do we go from here?

There’s no escaping the fact that this is a terrible decision.  We at ERI will continue to fight out the issue in the courts, in this case and other cases, and at the Supreme Court if necessary.  But I think this decision shows that relying on the courts as the primary means of protecting rights is never a complete solution.  Sometimes the courts can help, as in the civil rights movement in the United States.  Often, however, the courts are hostile.  A lasting and robust accountability regime can only be built with popular support; Congress ultimately has the power to overturn this ruling or to get rid of the ATS entirely.  So we need to make sure that our government is on the side of accountability and defense of human rights.  (The government’s views are also often influential with the courts.)

Beyond the U.S., we need to expand the scope of accountability for human rights abuses, both geographically and institutionally.  As my colleague Jonathan noted earlier today, “the U.S. judiciary alone cannot shoulder the burder of providing a forum for adjudicating human rights claims against companies that arise abroad.”  If Shell were subject to a strong accountability regime in Nigeria–or even in England, or the Netherlands, where it is headquartered–it wouldn’t matter whether it could be sued in the United States. Since only a handful of the world’s corporate actors can be sued in the U.S., the ATS was always only a start.  Losing it would be a setback, but not one that couldn’t be offset by victories elsewhere.

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