Today the Supreme Court is hearing oral argument in Kiobel v Royal Dutch Petroleum (and a companion case) – one of the more important and interesting cases involving international law and foreign relations law of the United States in recent years. The essential legal question is whether corporations can be held liable under the Alien Tort Statute. Rather than attempt to summarize it all here, let me point readers to a couple of sources.
In the Washington Post over the weekend, former Legal Adviser to the State Department John Bellinger argued that the Court should rein in the ATS and not permit corporate liability; he also has additional commentary at the Lawfare blog. At the Opinio Juris blog, various commentators on all sides of the issue are offering guest posts; my colleague and friend at American University, Juan Mendez, who is also the UN special rapporteur on torture, has a post arguing that corporations must be held accountable for torture and other serious violations of human rights. If you would like to read the dizzying array of amicus briefs, go to this link.
My own view, as I’ve said several times here at Volokh and at Opinio Juris, is that the Federal judiciary is under the mistaken impression that its expansive interpretations of the ATS, to reach extraterritorially as a form of universal civil jurisdiction against juridical entities, are “international law.” I think what’s actually going on is that US courts are creating a sort of faux-international law, calling it international law (and genuinely believing it), while instead creating something closer to the “law of the hegemon.”