Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability. The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s. The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.
The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law. In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review. Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach. Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.
Yesterday, the Plaintiffs filed their final brief before the oral argument. They noted the profound ramifications of the lower court’s holding:
The implications of the decision below are shocking. When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law. [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS. Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.Given the significance of blanket immunity for corporate human right abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs. The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.” The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”
For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable. For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria. While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability. With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse. Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.
Tyler Giannini and Susan Farbstein teach at Harvard Law School, and are the Clinical Director and Associate Clinical Director of its Human Rights Program. They are currently co-counsel in two Alien Tort Statute cases and have submitted amicus curiae briefs in numerous others, including in support of the Petitioners in Kiobel v. Royal Dutch Petroleum Co. Giannini served as one of the architects of Doe v. Unocal Corp., a precedent-setting corporate ATS suit that settled in 2005. Farbstein was a member of the legal team in Wiwa v. Royal Dutch Petroleum Co., the companion case to Kiobel that settled in 2009.