Kiobel v. Royal Dutch Petroleum: Supreme Court Oral Argument Recap

As has been widely reported, the Supreme Court recently heard oral argument in the case of Kiobel, et al. v. Royal Dutch Petroleum, et al. (10-1491), to determine whether liability under the Alien Tort Statute (ATS) extends to corporations that have allegedly committed grave human rights abuses.  Petitioners argued that it does, on the ground that international law forbids specific acts, not actors, and even if it did not, domestic law governs when international law is silent.  Respondents disagree, asserting that international law simply does not recognize corporate responsibility; thus, corporations cannot be liable under the ATS.

Post-argument analysis has been far-reaching, with many commentators speculating that the Justices seemed most interested in the extraterritoriality issue, i.e., whether US courts even have the authority to decide cases with absolutely no connection to the US.  To name a few, SCOTUSblog describes how Justice Kennedy’s questions on that very topic were devastating to Petitioners’ case.  Similarly, NPR features a piece that describes the human rights abuses at issue, along with the perspective of John B. Bellinger III, former State Department counsel who also filed an amicus brief in the case on behalf of a half-dozen multinational corporations.  In the NPR piece, and in a Washington Post op-ed, Bellinger contends “that international law binds nations and individuals, but not corporations,” and that neither the ATS nor international law allows American judges to adjudicate actions that have occurred in other countries and “that have absolutely nothing to do with the United States.”

As it turns out, the legal speculators were correct.  Last week, the Supreme Court ordered re-argument in Kiobel to answer the following narrow question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”  As described by SCOTUSblog, while the Justices did not elaborate on the decision in the order itself, reports from a private conference last week reveal that they found themselves faced with the option of either granting cert in Rio Tinto PLC, et al., v. Sarei, et al. (11-649), a case that directly raised the issue of extraterritoriality, or expanding the review of the Kiobel case.  Based on the order that came down, they apparently chose the latter.

Notwithstanding the recent development, the New York Times last week featured a post-argument op-ed that serves to take us back to the heart of the case.  Susan Farbstein and Tyler Giannini, Harvard Law Professors who filed amicus briefs in support of the Petitioners in Kiobel assert: “In exchange for rights, corporations accept certain responsibilities, including liability for harms committed by their agents. Corporations should not receive greater legal protections than people. Relief from suffering, and accountability for human rights violations, should not depend on whether an individual or a corporation is responsible for the abuse.”  Also focused on the merits, Marco Simmons, Legal Director at Earth Rights International, writes that during oral argument the Justices, especially Justice Alito, “asked difficult questions that suggested skepticism about using the ATS for transnational human rights cases,” however, “they did not ask pointed questions that supported applying different rules to human beings and corporations.”   Finally, Georgetown Law features a post-argument roundtable , which featured Paul Hoffman, counsel for Petitioners, along with several prominent authorities in international and human rights law.

Kiobel and what it means to U.S. Corporations

Based on the developments in Kiobel v. Royal Dutch Petroleum, it is likely that the Supreme Court’s decision in the case may end up turning on the threshold issue of whether US courts are the proper vehicle in which to air extraterritorial grievances.  If this turns out to be the case, the fate of other ATS claims against corporations, particularly those with a US connection, remains unclear.

For example, Du v. Cisco – currently pending in the US District Court in Maryland (11-1538-PJM) – involves allegations by former and current citizens of the People’s Republic of China (PRC) that Cisco was involved in supporting torture and unlawful detention by the Chinese Communist Party based on speech against its government.  Notably, unlike Kiobel, the alleged human rights abuses at issue in Du have a direct connection to the US, in that Cisco, an American corporation, and its technologies are argued to have directly enabled the human rights abuses.

Unlike the murkier “foreign-cubed” scenario at issue in Kiobel, involving Nigerian nationals suing a Dutch company for acts that occurred in Nigeria, the line starts to become clearer in this circumstance.  That is, when US corporations knowingly decide and act to support oppressive and abusive regimes, they must be held accountable when those decisions result in torture and other grave human rights violations.  Further, US corporations in particular must not profit, but instead must be deterred, from such decisions.  Accordingly, in cases where a US connection is clear, the US and its courts should be a leader in upholding the rule of law relating to these blatant abuses of power.

Although the Court seemed skeptical of corporate liability in Kiobel last week, several of them were also uneasy declaring that corporations are not liable for any international law violations—especially those involving piracy and slavery.  Counsel for Royal Dutch Petroleum even admitted that individual corporate directors could be liable under the ATS.  It is, therefore, unlikely, that the Supreme Court’s decision, when it is ultimately issued, will end the Du case—a case against an American corporation and its directors.

If you have any information regarding Cisco’s ongoing support for the Chinese Communist Party’s continued oppression of its citizens, please do not hesitate to contact Daniel Ward.  Any such communications will be kept confidential.

Let Cisco Systems know that their continued and knowing support of the Chinese Communist Party’s efforts to violate the human rights of peaceful political dissidents like Du Daobin, Zhou Yuanzhi, and Liu Xianbin will no longer be tolerated.  Contact your elected representatives — let them know how you feel.  Finally, if you haven’t already done so, sign the Electronic Frontier Foundation’s petition – Tell Cisco: Stop helping China abuse human rights!.