U.S. Supreme Court Holds that Corporations Can Be Immune from Claims of Torture Under Domestic U.S. Law
One of the most popular arguments made against the Second Circuit’s interpretation of the Alien Tort Statute in Kiobel v. Royal Dutch Shell is essentially a policy argument:
How could it be possible for Congress to have intended to allow corporations to immune from claims of serious international law violations while at the same time allowing individuals to be liable?
This policy argument, I pointed out here, makes the respondents’ legal position in Kiobel singularly unattractive. The Supreme Court’s unanimous decision, however, last week in Mohamed v. Palestinian Authority makes this argument a little less unattractive. In Mohamed, the Court held, 9-0, that the the Torture Victim Protection Act’s use of the term “individual” does not permit claims against organizational entities like the Palestinian Authority. Although the Court does not explicitly say so, this would also shield corporations from TVPA lawsuits.
As Michael Ramsey notes at the always intelligent Originalism Blog, this decision is another triumph of statutory textualism over all possible methods of statutory interpretation. The Court’s unanimous embrace of statutory textualism, he notes, came despite some quite persuasive purposive or policy based interpretations made by the petitioners. Indeed, the Court acknowledged that it is possible that the “Act would be rendered toothless by a construction of “individual” that limits liability to natural persons….But [such limitations] are ones that Congress imposed and that we must respect.”
The Kiobel Court may not ever reach the corporate liability issue, but if they do, Mohamed should offer respondents some cover for their positions. To be sure, the ATS is a different situation because it offers no textual guidance at all on the corporate liability question. Courts are left to ponder whether implying corporate liability would fit within their ATS federal common law making powers. The Supreme Court has instructed them, in Sosa, to limit their use of international law to only those most universal and uncontroversial norms.
Whether corporate liability is one of those international norms has been the main field of dispute in the Kiobel briefing. But even if it is not an international norm, the court still faces the question as to whether Congress would have wanted to imply a cause of action against corporate entities. The answer is not all that clear. They might have wanted to include corporate entities within the ambit of the ATS, but, as was the case in the TVPA, they very well might not have gone the other way.