SULLIVAN: The crucial question that is at the threshold is which law determines whether corporations are liable.
JUSTICE BREYER: I think you are right on that point.
- From the Kiobel v. Royal Dutch Shell, Oral Argument Transcript, February 28, 2012 at 32.
This exchange between Kathleen Sullivan, the attorney for respondents Royal Dutch Shell in Kiobel, and Justice Breyer highlights the importance of the "choice of law" question to this case. The "choice of law" question is whether international law or domestic law governs the question of corporate liability.
The importance of the "choice of law" question might seem surprising. After all one might expect that a leading international human rights lawyer like Kiobel's attorney, Paul Hoffman, and a leading scholar of international human rights law like Professor David Weissbrodt, would invoke international law to justify holding corporations accountable for humanitarian atrocities. Yet both (along with the Obama Justice Department) are insisting the question of corporate liability is a matter for domestic and not international law.
The reasons for this insistence, as I argued in my prior post, is that the international law precedents for holding corporations liable for violations of customary international law are embarrassingly thin. They are so thin that the Petitioners barely mentioned them, and that the Obama Justice Department didn't even invoke them. They are so thin that Professor Weissbrodt, who spearheaded the important U.N. effort to develop norms governing the behavior of transnational corporations, does not make this argument either.
Justice Breyer's comment therefore suggests that if international law governs the question of corporate liability, the plaintiffs will lose. And that the only way plaintiffs will prevail is if they convince a majority of the Court (meaning Justice Kennedy), that the question of corporate liability is really a question of remedies, and that is a matter left to the domestic common law of the U.S.
On this "crucial" point, I still find the Petitioner's argument lacking. I don't find Amereda Hess particularly compelling, since the language Professor Weissbrodt cites in that decision was made in the context of rejecting ATS jurisdiction over a particular class of defendant (a sovereign state).
Moreover, I am surprised to hear so many distinguished international law scholars argue that the class of defendant makes no difference to the applicability of an international law norm. As several justices pointed out today during argument, this is not true with respect to international law claims against sovereign states, which are usually barred due solely to the identity of the defendant (as in Amerada Hess).
It is also not true with respect to natural persons, who may be held liable under customary international law only for the most serious jus cogens violations (as the Second Circuit in Kadic v. Karadzic held). In other words, international law usually takes quite seriously the identity of the defendant when determining whether international law norms are applicable. Depending on the identity of the defendant, the norm might or might not apply. This is not an "exemption," this is simply how international law works.
Why this approach should be different for corporations is something I don't quite understand. Certainly, there is nothing in the text of the Alien Tort Statute, or in the Supreme Court's decision in Sosa, which requires departing from the typical practice of taking into account the identity of the defendant in determining the applicability of an international law norm.