Will Kiobel Grant the Privilege to Commit Human Rights Violations?

Kiobel v. Royal Dutch Petroleum, 132 S.Ct. 472 (2011), has presented the United States Supreme Court with a number of questions regarding the Alien Tort Statute, 28 U.S.C. § 1350 (“ATS”). The U.S. Court of Appeals for the Second Circuit refused to apply the ATS to Royal Dutch Petroleum. In Kiobel, the facts involved a foreign company acting in a foreign land against foreign plaintiffs – commonly referred to as a “foreign cubed” situation. The Solicitor General, in an Amicus brief, indicated that while the foreign cubed situation (such as is found in Kiobel) causes problems, there are certainly cases where a corporation should be liable under the ATS. In that Amicus brief, the Department of Justice argued that the Second Circuit’s 2-1 ruling is a proper application of the ATS in this particular case, but “insofar as the court addresses whether a corporation can be a proper defendant in a suit under the ATS, the judgment of the court of appeals should be reversed.” The Department of Justice argues that a liberal application of the Second Circuit’s ruling would be in error. In Du v. Cisco, the foreign cubed problem is not an issue. The Solicitor General’s warning regarding the overbreadth of the Second Circuit’s ruling should be heeded. Cisco is a U.S. corporation headquartered in California, which implicates issues irrelevant to the Dutch-based Royal Dutch Petroleum.

All interested parties are awaiting rehearing in the Kiobel case. On February 28, 2012, oral arguments were held in front of the Supreme Court.  A week later, the Supreme Court stated that it would hold additional arguments as to “[w]hether and under what circumstances the [ATS] 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.”

The Obama Administration has urged the courts to use caution in ATS cases, while also acknowledging that the Second Circuit’s position is too broad. The present issue of “extraterritorial application” to foreign corporations has put the Executive Branch on alert, fearing that Kiobel, as well as future cases, could have ramifications throughout the political and foreign policy spectrums of the United States. While President Obama has repeatedly supported ATS application to corporations, his administration has asked “to close the U.S. courts to most lawsuits involving claims that a foreign corporation helped a foreign government engage in human rights abuses in that country.”

Given its recent opinions, it would be inconsistent for the Supreme Court to grant corporations the privilege to avoid ATS liability. Just one month ago, in American Tradition Partnership Inc. v. Bullock, 567 U. S. ____ (2012) (reaffirming Citizens United v. FEC, 130 S.Ct. 876 (2010)), the Supreme Court held that corporations have the same legal status as people under the First Amendment. If corporations are to be afforded legal benefits as individuals, they should be saddled with the same legal burdens.

As an American corporation, Cisco should have no special privilege to commit human rights violations under the ATS when a private citizen would be liable for the same action. Cisco, as a corporation operating under and availing itself of the laws and protections of the United States, should be accountable to U.S. courts for its actions.

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!.

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.