How to Win the Kiobel Public Relations War

by Julian Ku

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.

7 Responses

  1. Dear Mr. Ku,
    I don’t mean this as a public comment for Lawfare, but your post raised a big question for me, which is why are you so concerned with the optics of a decision against corporate ATS liability? Some of the points you make in this post strike me as disingenuous (detailed just below, please correct me if I’m wrong), which sharpens the question: what is the motivation behind a post like this? If the law as it stands leads to a result that people find repugnant, why try to trick them out of their outrage?
    Here are the points in the post that I’m surprised you’re making. First, how can you suggest that plaintiffs simply sue corporations in their home country? Most corporate ATS suits involve state action; there’s no way you think the Kiobels can just sue Shell in Nigeria for having aided-and-abetted the Nigerian government’s own CIL violations. Regarding the same paragraph, Ecuador’s judgment against Chevron isn’t being enforced, and you’ve suggested on OJ that it shouldn’t. The other points in the paragraph are legit, but why add insincere arguments as well?
    Second, paragraph (2) does not actually describe the “only” issue. The respondents are asking the court to foreclose all corporate liability, including US corporations, not just “foreign cubed.” That point strikes me as literally deceptive, especially to an audience that is not as familiar with the case.
    That’s all I’ve got, but to summarize: why are you making disingenuous arguments to smooth over the optics of a likely outcome of this case? Or have I missed something and these are all sincere points? I hope you’ll take this in the spirit of dialogue; I am genuinely curious to hear your thoughts. Thank you for your continuing coverage of the case.

  2. I question whether the Lago Agrio judgment in Ecuador is a great example of the point you are making, given that Chevron is seriously contesting the enforceability of the judgment under US law and indeed under international law.

  3. Response…
    “the only type of case that the ATS allows”?  come now, have you read all of the old and all of the many new cases?  Have you read all of the older Opinions of the Attorneys General? “extraordinary”? come now.  Spencer — this is an attempt to confine the arguments without paying attention to the actual trends in decision, as if all of the other issues and precedents would just go away!
    Universal jurisdiction under international law allows suits by aliens against foreign and U.S. defendants for violations of customary international law.  Restatement sec. 404 is on point.

  4. Prof. Paust,
    The modern Restatement sec. 404 supports your point, but the former version seems to support Prof. Ku.  See Restatement
    (Second) of Foreign Relations Law § 404 (1965) (including piracy as the only universally cognizable offense).

  5. Response…
    Josh: but the Rest. was surely changed to reflect C.I.L. on this point.  Moreover, early Supreme Court cases and other early federal court cases, which are much more authoritative, recognized universal jurisdiciton over all violations of customary international law (the “law of nations”), esp. Justice Iredell in Talbot v. Janson, 3 U.S. at 159-60 (1795) (“all … trespasses committed against the general law of nations, are enquirable, and may be proceeded against, in any nation), quoted by C.J. Marshall in The Divina Pastora, 17 U.S. at 65 (1819).  Other cases include United States v. Furlong, 18 U.S. at 197 (1820) (“within this universal jurisdictoin”); United States v. Klintock, 18 U.S. at 147-48 (1820) (“in the Courts of all”).  There have been many cases using universal jurisidiction since.  See, e.g., my treatise, International Law as Law of the United States 420 ff. (2 ed. 2003)

  6. Is this even a PR war the defendants need fight?  The popular opinion of “corporations” in general is irrelevant to their business.  If Shell cares about their reputation more than justice and precedent in this matter, they’d have paid off the plaintiffs ages ago.
    I don’t even think this is going to come down 5-4.  I suspect Kiobel is going to lose by a large margin, with some dissents in part.

  7. I read the transcripts and the various comments on the oral argument so far.  I sense a great deal of muddying the waters going on in this case with red herrings being put out there.  After I read the various briefs etc may post a comment.

    I do wonder whether Brits and Dutch are comfortable with their governments coming in like this in support of Shell.  I wonder if there is anything in those presses about this. 

    Looks like a thumb on the scale thanks to the power of Shell to muddy the waters.  A sort of Citizens United Transnational.


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