Chimene Keitner: Not Dead Yet — Some Thoughts on Kiobel

by Kevin Jon Heller

The following is a guest post from Chimene Keitner, Associate Professor of Law at Hastings.  My thanks to her for contributing it!

The Second Circuit’s recent panel opinion in Kiobel v. Royal Dutch Petroleum has justifiably spurred much talk in the blogosphere, including posts by Trey Childress, Ken Anderson, Julian Ku, and Kevin Jon Heller. Here are my preliminary thoughts.

First, it is premature to hail the “end of the ATS.” It may be true that some plaintiffs have sought to hold corporations accountable for their complicity in human rights abuses under the ATS’s jurisdictional grant. But not all ATS litigation is about corporate liability. To the contrary, the Second Circuit’s landmark opinion in Filartiga v. Pena-Irala involved an individual human rights violator, and cases against individuals continue to be filed under the ATS and the Torture Victim Protection Act of 1991. It is important not to lose sight of these cases, which the Supreme Court explicitly approved in Sosa v. Alvarez-Machain (2004).

Second, whether or not the ATS is good policy, the jurisdictional grant it embodies must be interpreted within the context of U.S. law. This does not mean that U.S. law governs all aspects of ATS litigation—in my 2008 article on Conceptualizing Complicity in Alien Tort Cases, I argued that international law provides the “conduct-regulating” rules applied under the ATS, whereas U.S. law governs other aspects of ATS litigation. Although I focused on the standard for aiding and abetting, I also suggested that “the most coherent approach would look to U.S. law on the question of personal jurisdiction, including the type of entity against which a claim can be asserted, [while] international law would supply the substantive, conduct-regulating rules that apply to private actors” (p. 72).

Kiobel misconstrues language in Sosa about whether private actors can violate international law to conclude that corporations cannot be held liable for certain conduct in U.S. courts. In terms of my proposed framework, Kiobel miscategorizes the question of whether corporations can be named as defendants as a conduct-regulating rule akin to aiding and abetting. This is wrong because aiding and abetting liability, unlike corporate liability, does not involve the attribution of the principal’s conduct to the accomplice by virtue of a preexisting legal relationship. Rather, it prohibits the accomplice’s conduct in providing substantial assistance to the principal. Consequently, under the ATS, the accomplice’s (and the principal’s) conduct is governed by international law. By contrast, whether or not the accomplice’s (or the principal’s) conduct can be attributed to a corporate entity is governed by U.S. law. Corporate liability is thus possible under the ATS whether or not corporate entities have themselves been subject to the jurisdiction of international tribunals or found liable for international law violations by such tribunals.

Kiobel indicates that “[t]he singular achievement of international law since the Second World War has come in the area of human rights, where the subjects of customary international law—i.e., those with international rights, duties, and liabilities—now include not merely states, but also individuals” (p. 7). In fact, this is not such a novel development: the paradigm violations of piracy, violations of safe conducts, and offenses against ambassadors identified in Sosa also would typically have been committed by private actors, rather than by states (see Conceptualizing Complicity, p. 70). The ATS’s jurisdictional grant should be understood in this context. In an amicus brief filed on behalf of professors of federal jurisdiction and legal history in Balintulo v. Daimler AG (2d Cir., No. 09-2778-cv), my colleague William Dodge documents that “[l]egal actions for violations of the law of nations were not limited to natural persons in the late-eighteenth and early-nineteenth centuries” (p. 15), and that “no distinction would have been drawn between individual and corporate defendants” (p. 14) in these early cases. Any serious consideration of jurisdiction under the ATS needs to grapple with these historical foundations, and with the relationship between the law of nations and U.S. law, not simply “international law” in the abstract.

Looking at the big picture, there certainly need to be—and are—robust mechanisms to contain cases that are non-meritorious or vexatious, that impinge excessively on the Executive’s conduct of foreign relations, or that should be heard in a non-U.S. forum that is willing and able to provide redress. At the front end, I would hazard that, although the increasing involvement of plaintiffs’ law firms (as opposed to human rights lawyers associated with non-profits, or attorneys working strictly pro bono) in bringing ATS cases may have some benefits in terms of reaching a greater swath of deleterious conduct, it may foster less coherence and restraint in case selection. At the back end, certain judges may be tempted to overcompensate by creating doctrinal barriers to entire categories of cases. This impulse might be understandable, but it does not justify judicial rewriting of the ATS.

http://opiniojuris.org/2010/09/21/chimene-keitner-not-dead-yet-some-thoughts-on-kiobel/

5 Responses

  1. Chimene, welcome, glad you could join us for this discussion!

  2. International law does expressly provide for civil liability for corporations in at least one context: financing terrorism. Article 5(1) of the Financing Convention provides:
    Each State Party, in accordance with its domestic legal principles, shall take the necessary measures to enable a legal entity located in its territory or organized under its laws to be held liable when a person responsible for the management or control of that legal entity has, in that capacity, committed an offence set forth in article 2. Such liability may be criminal, civil or administrative.
    I would think the Financing Convention qualifies as what the Second Circuit in Kiobel called a “law-making” or a “norm-creating” treaty. Its provisions are intended to be generalizable to all states, it is widely-ratified and requires implementing legislation, and the Security Council has in fact called upon all states to become parties, see Res.1373 art.3(d).
    The Convention could probably cut both ways in this discussion. On the one hand, it shows that international law does attach liability—and civil liability at that—to corporations, and that the way this liability attaches is “in accordance with … domestic legal principles.”
    On the other hand, it shows that if and when international law wants to authorize such liability, it can. The argument being a kind of expressio unius for other treaties that do not contain this type of provision: if international law had wanted to authorize this type of liability in other contexts, it would have.  
    The question might then become whether this provision is simply a codification of how international law deals with questions of civil liability generally, and was explicitly incorporated into this particular treaty because of this particular subject matter: financing terrorism, which generally occurs via legal entities.
    In any event, I would think that even with the Second Circuit’s ruling in Kiobel, plaintiffs can still bring ATS suits against corporations for financing terrorism. This would also appear to be a theory primary liability, see Financing Convention, art.2.      
     

  3. What I find absurd is that the Second circuit’s Pfizer decision from last year went up to the Court and if i recall correctly, cert was denied.  Did Pfizer argue they can have no liab under corp law?  If they did and the Court denied cert that would undercut the Second Circuit’s ruling.
    Regardless, to allow corporations to evade liability seems silly.
    Also, if i recall correctly, didnt J Korman argue that there could be no corp liability in th S African litigation under int’l law because “at the time” (ie the 80s) none was recognized but he stated that int’l law had now recognized such liability.
    My own sense is that the Kiobel ruling is the wrong.

  4. Response…
    Other reasons why the decision is wrong:

    See Paust, Van Dyke, Malone, International Law and Litigation in the U.S. 18-19 (3 ed. 2009) (West – American Casebook Series), and U.S. and foreign cases cited; see also Emeka Duruigbo, Corporate Accountability and Liability for International Human Rights Abuses: Recent Changes and Recurring Challenges, 6 Nw. U. J. Int’l Hum. Rts. 222 (2008); Jordan J. Paust, Human Rights Responsibilities of Private Corporations, 35 Vand. J. Transnat’l. L. 801, 803-10 (2002), and U.S. and foreign cases cited, available at http://ssrn.com/abstract=154812; Jordan J. Paust, The Other Side of Right: Private Duties Under Human Rights Law, 5 Harv. Hum. Rts. J. 51 (1992); Jordan J. Paust, The History, Nature, and Reach of the Alien Tort Claims Act, 16 Fla. J. Int’l L. 249, 252 n.7 (2004), available at http://ssrn.com/abstract=1497122 [hereinafter Paust, History]; Abdullahi v. Pfizer, Inc., 562 F.3d 163 (2d Cir. 2009); Almog v. Arab Bank, PLC, 471 F. Supp.2d 257, 271, 274-78, 289, 293 (E.D.N.Y. 2007) (also recognizing private actor conduct as crimes against humanity and genocide and private actor complicity with respect to each international crime); Presbyterian Church of Sudan v. Talisman Energy, Inc., 244 F. Supp.2d 289, 308-23, 338 (S.D.N.Y. 2003); 26 Op. Att’y Gen. 250, 251-54 (1907) (agreeing with the finding of the International Water Boundary Commission that a private U.S. company had “violated the stipulations of” a treaty and affirming that the company, “[a]s to indemnity for injuries” suffered as a result of the treaty violation, can be sued in the U.S. under the ATCA by foreign persons who were injured outside the U.S.); but see Kiobel v. Royal Dutch Petroleum Co., _ F.3d _ (2d Cir. 2010) (demonstrating use of remarkably ahistorical conclusions about a supposed lack of corporate liability under international law). Also just prior to Oppenheim’s theory, the U.S. Supreme Court recognized that a private company had a claim of right under a treaty and the award of an international commission. See La Abra Silver Mining Co. v. United States, 175 U.S. 423, 458, 461 (1899). Rights of private companies to sue private persons for violations of international law were also recognized in a 1795 opinion of the U.S. Attorney General. See 1 Op. Att’y Gen. 57, 58-59 (1795) (because U.S. citizens violated a treaty and the customary “laws of nations,” “there can be no doubt that the company or individuals who have been injured by these acts … have a remedy by a civil suit in the courts of the United States”).

  5. Jordan,

    Looks like the pls in Kiobel could have used your able expertise.

    I think the Second Circuit is all over the place on this issue.
    You are correct the Atty gen opinion clearly envisions business liability (for plunder).

    Also, can it also be argued that the Supreme Court recognized that corps have “rights” vis a vis int’l law (i.e., IP) so can we say they have the rights but not the obligations?

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