How to Win the Kiobel Public Relations War
The Kiobel oral arguments have spawned lots of media coverage and commentary. I think this matters more than usual because the way this case plays out in the court of public opinion is going to have an effect on the justices. For instance, Dahlia Lithwick at Slate concludes that..
The skepticism of the court’s conservative bloc notwithstanding, this is a case that may not be resolved on the usual 5-4 party lines. That’s because a decision giving Shell and the many folks who filed amicus briefs supporting Shell (Coca-Cola, Chevron, BP, KBR … you get the idea) what appears to be the right to commit human rights abuses abroad is about the only way they could make the corporate monster they built in Citizens United look any worse.
She is (for once) right about this. I think the law is pretty good for the Kiobel defendants, but the optics are horrible. For instance, this article on the Huffington Post hits all the typical notes:
How anyone could argue with a straight face that they shouldn’t be held responsible for such abhorrent behavior is almost beyond comprehension. Yet that’s precisely what Shell and their corporate supporters have been insisting in their legal briefs and what they will argue to the court today.
Shell has good legal arguments, but as I have suggested, these legal arguments are deeply unattractive to the general public. Their PR campaign in response should sound something like this:
1) Corporations can still be held accountable for egregious human rights violations under the domestic law of the state where they committed the acts or in their home state. The appellate courts in Doe v. ExxonMobil, for instance, also recognized state tort law claims against Exxon for acts they committed overseas. Chevron was recently subjected to an $18 billion judgment in Ecuador courts for alleged atrocities they committed there. So the slogans about “corporate immunity” or “impunity” are misleading at best.
2) The only question is whether plaintiffs can ALSO use customary international law norms to bring foreign corporations into US courts for actions they allegedly took in foreign countries against foreign citizens. That is the only type of case that the ATS allows, but which probably would not be allowed under state or federal law. Hence, it is an extraordinary remedy the plaintiffs are asking for, and it is worth noting, that they are asking for this extraordinary remedy based on very sketchy reading of a very old statute that almost certainly was not designed to allow such suits.
3) The analogy to Citizens United is a catchy slogan, but is also misguided. First of all, Citizens United is a constitutional law case, and this is a question of international law. In any event, the mere fact that entities have rights does not mean that they always have duties under the same type of law. Sure, corporations have rights under the U.S. Constitution, but that doesn’t mean corporations have duties under constitutional law as well. As US law has long held, constitutional obligations limit only the state, and not private parties. Why isn’t anyone grumbling about this doctrine? Rights and duties don’t always go together. Private natural persons sometimes have duties under international law, but oftentimes they don’t. This is not driven by the fact that private natural persons sometimes have rights.