A Few Thoughts on Kiobel
A lot has been written in the last couple of weeks about the Second Circuit's decision in Kiobel v. Royal Dutch Petroleum Co., 2010 WL 3611392 (2d Cir. Sept. 17, 2010). At 74 dual-column pages, if offers a lot of fodder for commentary. It reaches what many, including dissenting Judge Pierre Leval, would consider an unpopular result: large multinational corporations are free to conduct their business internationally without the threat of liability under the Alien Tort Statute for human rights violations.
And yet, the majority opinion by Judge Jose Cabranes is virtually unassailable in the simplicity of its analysis. The question whether the Alien Tort Statute allows suits against "juridical persons" like corporations is itself governed by the norms of customary international law. The US Supreme Court articulated in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004) the sources of international law that a court must look to in determining customary international law. And, as Judge Cabranes observed, each of those sources squarely indicate that liability for violations of international human rights laws rests with nation States and individuals -- not corporations. Indeed, proposals to bring fictional persons like corporations under the jurisdiction of international tribunals have been repeatedly rejected because the moral authority underlying international human rights law rests on the responsibility of nation States and individuals for their own actions. As such, corporate liability is not a norm that is "specific, universal, and obligatory" enough to be a norm in the relations of States with each other. Sosa, 542 U.S. at 732.
That hardly means that companies are without serious disincentives to flout international human rights laws. As Judge Cabranes rightly observed, they remain subject to the internal laws of various states, and the individuals who might attempt human rights violations on behalf of a corporation remain fully responsible for their actions under norms of customary international law as "'hostis humani generis, an enemy of all mankind.'" Id.
Particularly given the unique history of the Alien Tort Act -- from its 18th Century origins as a limited jurisdictional grant for anti-piracy suits, to its transformation in 1980 as a narrow jurisdictional hook for suits involving universally-recognized legal norms, to Sosa -- it seems that Judge Cabranes's careful analysis gets it just right.
