- Washington’s Ogonis (an ethnic group from Nigeria to which the Kiobel plaintiffs belong) are organizing around the oral argument.

- Eric De Brabandere of the Grotius Centre for International Legal Studies on “Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalize the Role of Corporations as Participants in the International Legal System“

Anthony J. Bellia Jr. of Notre Dame Law School and Bradford R. Clark of on George Washington University Law School on “Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute“

- D.C. Circuit Court says the fathers of two Guantanamo Bay detainees do not have claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments.

A US court is set to hear on March 15 a petition seeking a “default judgement” against the Congress party for its alleged failure to defend the charges of conspiring, aiding, abetting and organising attacks on Sikhs in November 1984.

The plea filed by a New York-based Sikh body is also urging Judge Robert W Sweet of US Federal Court of the Southern District of New York to issue “Letters Rogatory” for appearance of Justice G T Nanavati. In a statement, Attorney Gurpatwant Singh Pannun, the legal adviser to Sikhs for Justice (SFJ), said that the plaintiffs will ask the court to issue Letters Rogatory for appearance of Justice Nanavati who had gone into the anti-Sikh riots in the wake of assassination of the then Prime Minister Indira Gandhi in 1984. “Letters Rogatory” is a procedure provided in international law used by US courts to ask the courts of another country to assist them in the administration of justice.

[...]

Pannun said the New York court will hear on March 15 a motion for entry of “default judgement” against the Congress party for its alleged failure to defend the charges of conspiring, aiding, abetting, organising and carrying out attacks on Sikhs in November 1984. The summons was issued by a New York court on March 1, after the Congress party apparently did not act on the court’s direction to respond to the class action law suit filed under Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA).

No, not that CCR.

Yesterday, the Center for Constitutional Rights launched an ATCA-specific campaign and website, called Corporate Accountability Now.  It’s a “coalition of groups supporting the idea that corporations should be held responsible in U.S. courts for violations of international human rights law.”  Which groups?  The bare-bones website doesn’t say, but the press release does:

Corporate Accountability Now is a joint project of EarthRights International, the Center for Constitutional Rights, and the Human Rights Litigation and International Legal Advocacy Clinic at the University of Minnesota Law School. Corporate Accountability Now does not represent the plaintiffs in either Kiobel v. Royal Dutch Petroleum or Mohamad v. Palestinian Authority, but the sponsoring organizations have filed amicus briefs in these cases.

The Governments of Germany, the United Kingdom, and the Netherlands have filed amicus briefs in support of Shell Oil in the Kiobel case, in which the Supreme Court will decide whether corporations may be held liable under the Alien Tort Statute for violations of international law.  The foreign governments’ intervention could have a significant effect on the case, given concerns previously expressed by the Court in Sosa v Alvarez-Machain about the implications of ATS litigation for US foreign relations and international comity.

[...]
In their joint brief, the United Kingdom and the Netherlands agree with the Second Circuit’s holding that international law does not impose liability on corporations; they also argue that application of the ATS to foreign nationals for actions in foreign countries with no nexus to the United States violates international law. Germany similarly urges the Court “to instruct the lower courts that the power to adjudicate should only be exercised in ATS cases brought by foreign plaintiffs against foreign corporate defendants concerning foreign activities where there is no possibility for the foreign plaintiff to pursue the matter in another jurisdiction with a greater nexus.”

Marcia Coyle of The National Law Journal: makes a comparison with Citizens United:

The next Citizens United, in the view of some of that decision’s most vigorous critics, may have nothing to do with campaign finance or the First Amendment.

Instead, corporations in a case the justices will hear this month seek not to spend their money but to avoid doing so by arguing that they have no liability under a 1789 statute for torts committed abroad in violation of international law or U.S. treaties.

The case, Kiobel v. Royal Dutch Petroleum Co., involves the Alien Tort Statute (ATS) and is scheduled for argument on Feb. 28. Kiobel will be heard in tandem with Mohamad v. Palestinian Authority, which raises a similar question involving claims against non-natural persons under a different statute — the Torture Victim Protection Act. Kiobel starkly pits the business community against human rights organizations.

Let’s look at the potential winners and losers in Kiobel.  In one corner are the Rio Tintos and Royal Dutch Shells of the world, who would rather not publicly dwell on the kind of things they do to get the stuff they sell.  The think tanks will write amici and talking points, but it doesn’t behoove them to talk more about it.  In the other corner, we have ATS plaintiffs: poor, often indigenous people considered to be, at best, inconveniences by their own nations. Speaking on their behalf are a bunch of clinical professors and human rights lawyers. 

Citizens United‘s winners and losers included politicians, who just happen to have a metaphorical megaphone and a predilection to use it.  I find it hard to imagine that Kiobel will have the sustained attention of anyone who has any sort of audience.

The Supreme Court made clear in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. (1999) that evolving methods of interpreting international law do not inform the ATS’s jurisdictional reach, which has not changed since 1789. Nonetheless, lower courts are split on whether corporations may be liable for the sorts of violations at issue here, largely due to their varied interpretive methods.

In our brief, we urge the Court to clarify the proper method of interpreting the law of nations under the ATS. We argue that Judge José Cabranes, a leading international law jurist (and Justice Sonia Sotomayor’s mentor) who authored the Second Circuit’s Kiobel decision, set out the correct interpretive method in an earlier case, Flores v. Southern Peru Copper Corp. (2003). Judge Cabranes’s reasoning in Flores embodied both the guidance that the Supreme Court would give in Sosa v. Alvarez-Machain (2004) and the teachings of classical theorists like Grotius, by defining customary international law as “composed only of those rules that States [countries] universally abide by, or accede to, out of a sense of legal obligation and mutual concern.”

Judge Cabranes used as relevant evidence the States’ formal lawmaking actions, such as international conventions that “establish[] rules expressly recognized by the contesting states” and international custom where the States adhere “out of a sense of legal obligation.” He further acknowledged that the method used in 1789 to interpret what comprised the law of nations defined both the claims and the parties cognizable under international law. By looking to the proper sources, Judge Cabranes correctly concluded that corporations cannot be held liable for violations of international law for ATS purposes, and in so doing recognized the constitutional checks that prevent courts from expanding their own jurisdiction.

The flippant analysis would note that if a 1798 statute that references something outside the text that has since changed, a judge reading the statute in 2012 might want to consider what the statute refers to looks like today. Much like how the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties,” and isn’t limited to making treaties with countries that existed in 1789. Similarly, the prohibition of cruel and unusual punishment doesn’t just apply to punishments used when the bill was passed. Were that true, there would be a battery and jumper cables in the interrogation rooms of every police station in the country.

Of course, jurisdiction is more complicated than that, there are political questions and foreign policy concerns involved, historians disagree on whether corporations have ever been held liable for crimes against humanity, an argument like that doesn’t consider all precedent and would get you laughed out of any 1L classroom, etc… I guess what I’m trying to say here is that I haven’t really seen anyone take an idiosyncratic stance on this issue.  It seems as if one’s views on corporations is the sole determinant of how you think Kiobel should be decided.

But then again, what’s new?

Personally, I don’t think anything this arcane could ever reach the public consciousnesses, but The View from LL2 says Kiobel may have an impact in November.  If SCOTUS holds that corporations are outside the purview of the jus cogens norms of international law, we could see “a mini-replay of the Citizens United furor” … because that really swung the last election.  On the other hand, if the High Court finds that corporations are people too even when it doesn’t suit them:

[...] then Republicans could use this case as another example of how “those people” (i.e., aliens, foreigners, what have you) have too many rights in this country. Launching into his best “they-terk-er-jerbs” speech, the Republican candidate could use Kiobel to condemn how the government has become more interested in protecting the interests of foreign citizens, rather than protecting the interests of small business owners, family farmers, apple pie bakers, etc.

Seems like material for hour three of Rush Limbaugh’s show, but not something that will make TV attack ads.  It requires an awful lot of educating just to demagogue. Plus, as anyone familiar with ATS/ATCA can tell you, there are only a few active cases at any given time. Most of them involve the sort of sectors that don’t engender that much public support, like the extractive industries (oil, mining, etc.).

In an ideal world, politicians would discuss issues like this, if only because it would entertain me more than illegal immigrants and green building retrofits.  However, many people think that their little issue is as important to everyone else as it is to them.  Sorry folks, but we’ll probably be laboring in obscurity for the foreseeable future.

The Alien Tort Statute (ATS) provides a federal forum for aliens to seek tort damages for certain violations of customary international law, including war crimes. In Sosa, the Supreme Court admonished the lower courts to exercise caution when creating new causes of action under the ATS, but this is entirely a matter of respecting the separation of powers. If Congress enacts a statute that “occupies the field,” the Court observed, then a judge’s task is to faithfully enforce the norms delineated in the statute. To date, the Military Commissions Act (MCA) has been almost completely ignored in human rights litigation under the ATS, perhaps because it does not, in terms, provide for civil remedies. But this overlooks the fact that the MCA is not an ordinary domestic criminal statute with a long-arm provision. Instead, it purports to “occupy the field” of war crimes, at least for U.S. domestic purposes. Perhaps most importantly, the MCA penalizes terrorism, broadly construed, providing material support for terrorism and conspiracy as war crimes, when committed by private, non-state actors in the context of and associated with an armed conflict. If this is a valid exercise of Congress’s prescriptive authority to define and punish violations against the law of nations, it follows that such norms should be actionable in ATS litigation. Accordingly, if the constitutionality of the MCA is ultimately affirmed by the Supreme Court, the decision will come with a previously unacknowledged systemic cost, namely a sharp increase in the scope of ATS liability.

Just in case you were wondering, this shows that the law of unintended consequences is alive and well.

An obscure sentence, penned by the first US Congress in 1789, has found its way to the forefront of human rights litigation, and is being utilized against multinational corporations. The statute, the Alien Tort Claims Act (“ATCA”), wielded by plaintiffs who have suffered human rights violations, has managed to pull multinational corporate giants, such as Coca-Cola Company, Yahoo!, Unocal, and ExxonMobil into US courts for alleged human rights violations committed on non-US soil with little nexus to the United States. While human rights plaintiffs have embraced the ATCA with increasing frequency and enthusiasm, businesses are “sounding the alarm” and painting nightmare scenarios of high punitive damages, negative economic impact, and international relations consequences.

ATCA litigation has been concentrated in the US Courts of Appeals for the Second, Ninth, and Eleventh Circuits. Initially, all three circuits, applying different standards of proof, recognized the possibility of a multinational corporate defendant’s liability for violations of a plaintiff’s human rights. In 2010, however, the Second Circuit in Kiobel v. Royal Dutch Petroleum Company ruled that human rights plaintiffs could no longer bring claims of corporate liability under the ATCA, thereby closing the circuit’s door to such cases.

This Note examines the newly-created circuit split between the Second Circuit and the Ninth, and Eleventh Circuits regarding corporate liability. Part I introduces the ATCA, chronicling its transformation from a short provision in the Judiciary Act of 1789 to the weapon of choice employed against international corporations for alleged human rights violations. Part II focuses on the newly-created circuit split, identifying important case law and the current standing of ATCA human rights corporate liability in all three circuits. Emphasis is placed upon the international implications of and reactions to these decisions. Finally, Part III concentrates on the international implications of the split and advances the argument that the Second Circuit correctly decided Kiobel in light of the ATCA’s purpose and the potential impact that continued ATCA litigation poses to US external relations.

I’d like to see the whole thing.

The title: “Corporate Liability for Extraterritorial Torts Under the Alien Tort Statute and Beyond: An Economic Analysis.”

The Abstract:

Litigation against corporate defendants under the Alien Tort Statute is largely an effort to enlist multinational business interests in a laudable effort to reign in the human rights abuses of repressive regimes. The hard question is whether the costs of this now extensive litigation (and related litigation under state tort law) are worth the benefits. This essay offers number of reasons for skepticism in that regard, although I stipulate that the ultimate answer to this question turns on empirical judgments. Courts considering the difficult issues that arise in these cases should at least be mindful of the possibility that corporate liability may impose great costs on firms subject to suit in the United States while accomplishing little or nothing to improve human rights. And if the door to corporate liability is to remain open, careful attention to the standards for aiding and abetting liability, to the requirements for vicarious liability, and to the measure of damages can both cabin and calibrate corporate liability in ways that enhance its potential to afford constructive incentives.

As someone who follows these things, I wouldn’t call ATS litigation involving corporations “extensive,” at least in the grand scheme of things.  We hear a lot about “fears” that ATS suits will proliferate if SCOTUS rules that corporations can be held liable, but at the moment, it’s a bit of a stretch.  Still, it’s interesting to see someone tackle the empirical side of things, even if there aren’t yet a whole lot of numbers to crunch.