I have just now been forwarded a copy of the 2nd Circuit opinion released today in Kiobel v. Royal Dutch Petroleum. (I should say “apparently the court rules” that there is no corporate liability, because I have hastily read it in the last couple of minutes. More from Julian Ku at OJ.) Unless I am greatly mistaken, it is a blockbuster opinion on the basics of ATS litigation. The most provocative and important holding seems to be that the ATS does not embrace corporate liability … at all:
Plaintiffs assert claims for aiding and abetting violations of the law of nations against defendants—all of which are corporations—under the Alien Tort Statute (“ATS”), 28 U.S.C. § 1350, a statute enacted by the first Congress as part of the Judiciary Act of 1789. We hold, under the precedents of the Supreme Court and our own Court over the past three decades, that in ATS suits alleging violations of customary international law, the scope of liability—who is liable for what—is determined by customary international law itself. Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of States inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights, we hold that corporate liability is not a discernable—much less universally recognized—norm of customary international law that we may apply pursuant to the ATS. Accordingly, plaintiffs’ ATS claims must be dismissed for lack of subject matter jurisdiction.
I cannot resist pointing out that, at least on first read, the court’s view of this point appears to be nearly identical to the position I first took in two expert declaration, here (Declaration) and here (Reply), on this point in the Agent Orange Litigation, before Judge Weinstein and eventually reviewed by the 2nd Circuit. That is actually a couple of specific points. One is, as the bit above says, the scope of liability is determined not under some Federal standard, but instead by customary international law itself. Second, the court notes that customary international law does not subject corporations to civil or criminal liability; quite apart from entity liability, there is no civil liability, either.
The question of corporate liability thus has always been two distinct issues – the question of whether there is such a thing as civil liability in international law (or at least for non-state actors) and whether there is liability of any kind for corporate or private entity actors, as opposed to individual persons for whom there is sometimes individual criminal liability. The court seems, on my first read, to have rejected each of those propositions. I grant, though, that I have raced through this, and perhaps I have read this too favorably to my own position. Still, I had not expected to read the above holding in language quite that plain. The Cabranes opinion has quite a lot to say about what kind of authority is relevant to determine the content of customary international law; consistent with its Flores opinion in another ATS case, it is politely skeptical of the value of professors.
Update: The fundamental point developed by the opinion is that in order to get an ATS case going in the first place, you have to show that there is a violation of the law of nations. In order to show that there is a violation of the law of nations, it is not enough to show that there is activity that constitutes something that would be a violation. It has to be a violation by an actor that, under the terms of the law of nations itself, is capable of being such a violator. The ‘who’ matters, in other words, not just the ‘what’. The court is saying that a corporation is not a ‘who’, even if there is a ‘what’.
Other ATS cases finding corporate liability have said in effect that the ‘who’ does not matter, or can be filled in using US standards of ‘who'; the 2nd Circuit says, no, the ‘who’ must be met under the international law standard. That international law standard does not include corporations, hence, no violation of the law of nations in the sense of liability by a cognizable party, hence the threshold even to get an ATS case going is not met. Result: lack of subject matter jurisdiction.
I said the above in a talk at a Harvard conference on the ATS last fall, which I haven’t finished up as a paper, but perhaps I’ll post the draft to SSRN, because it seems relevant to understanding how the court rejects the idea that you can fill in the threshold of international law by reaching to US law. As I said in that draft paper and talk, the effect of this is to create this weird body of ATS law that is neither pure US domestic law, nor pure international law, either.
(My thanks to my old friend AC, going back to the days when I was drafting these expert declarations in the Agent Orange litigation, for forwarding this to me.)