17 Apr Human Rights Will Survive Kiobel
This is a tough loss for the human rights advocacy community, ending an era that began with the Second Circuit’s rediscovery of the Alien Tort Statute in its 1980 decision in Filartiga v. Pena. As Julian highlights below, Justice Kennedy may have left the door ajar to future claims, but only barely. Even Breyer’s concurrence — the rejection of the claim was unanimous, which must make it hurt a little more — sets a bar of a “distinctly American interest”, which may translate in the days of compartmentalized multinationals to the presence of US citizen victims. Lots of claims are going to get thrown out in Kiobel’s wake.
Does this mean that corporations can turn a blind eye to human rights? Not a chance.
Human rights is now a core component of corporate social responsibility, which, at least among major transnational corporations, is no longer optional. The United Nations is moving to bring human rights directly to bear on corporations through such initiatives as the U.N. Global Compact and the Guiding Principles on Business and Human Rights (see John Ruggie’s important new book on the latter). Accountants, shareholders, NGOs, and other private standard-setters are increasingly vigilant to human rights compliance (think Apple and Foxconn to highlight only one recent example). Human rights is being internalized in the corporate psyche, a process not contingent on the survival of the ATS.
There may even be alternative legal avenues. State tort law presents some promising possibilities. Kent Greenfield suggests reviving corporate “ultra vires” doctrine as another possible entry point for human rights. The ATS helped police and facilitate corporate compliance with international law, but other forms of discipline will work to help fill the gap created by its eclipse.
Alas, I think that it is much worse and that this Court is now clearly the worst in U.S. history with respect to the protecion of human rights of great concern to the Founders and Framers and with respect to the overall “rule of law.” A right without a remedy is no right at all.
Perhaps Congress could pass new legislation so that the United States can comply with U.S. obligations under Article 14 of the CAT, Articles 2(3) and 14(1) of the ICCPR as supplemented by several General Comments and Reports of the H.R. Comm., etc. But the President refuses to prosecute persons who are beyond a doubt reasonably accused of authorizing or facilitating international crimes and Congress created a Military Commissions Act that violates several international legal norms.
Before the Supreme Court, power and wealth matter, not the rule of law.
Regarding state tort law claims as a possible alternative: Trey Childress, Michael Ramsey and I recently published “After Kiobel: International Human Rights Litigation in State Courts and Under State Law” (available at http://ssrn.com/abstract=2225392). It is a foreword to a special issue of the UC Irvine Law Review that discusses legal and policy issues raised by human rights litigation in state courts and under state law, which may become more common in the wake of Kiobel (available at http://www.law.uci.edu/lawreview/).
I’m more with Peter than Jordan on this one. This is a terrible decision, to be sure. But I’ve been struck how the corporate accountability movement, as one of the biggest global business trends of our time, has so many dimensions and is becoming so entrenched (including in law, as documented in our textbook on the subject) that this erroneous and unfortunate US Supreme Court decision isn’t as tragic as it would have been had it occurred, say, at the time of Sosa about a decade ago. The ATS has already inspired many different foreign analogues under which corporations can be sued for their actions abroad, and there’s rightly much activity at present among legislatures further expanding this reality in many ways. Even today’s decision, erroneous though it was (in my view) when one considers the actual history of ATS and the Supreme Court’s own prior citation with approval of this long-standing line of jurisprudence, nevertheless leaves some limited room for use of this statute when the facts are sufficient in terms of stronger ties to the US and US conduct that is substantial enough to overcome the presumption against extraterritoriality (which was so mistakenly applied here). The concurrence… Read more »
I like the claims that treaties should be relevant re: avoiding the presumption b/c of my prior post above re: CAT, ICCPR, etc. requiring access to courts and to a remedy. See also the Kazi case in the Texas Supreme Court (2000), which I argued for Ps, re: future use of state courts and Kazi recognitions of the right of access and to an effective remedy re: the ICCPR.
Perhaps the ATS should be amended by adding:
“when universal jurisdiction pertains”
Jordan, Congress has had 30 some odd years to fix the text of the ATS.
Had they done their duty, all of us could have been spared a great deal of trouble.