David Weissbrodt (1)
The Supreme Court set forth in Sosa v. Alvarez-Machain (2004) the basic standard for recognizing whether an alien has under the Alien Tort State asserted a "civil action . . . for a tort only, committed in violation of the law of nations or a treaty of the United States." Courts have looked to international law to define actions violating international law, and to federal common law for other matters such as the remedial structure, including the parameters of corporate liability. See Sosa, 542 U.S. at 724, 731. As I previously noted, Judge Posner in Flomo v. Firestone, stated the proper analysis quite concisely: "International law imposes substantive obligations and the individual nations decide how to enforce them" The correct reading of the history of the Alien Tort Statute shows that corporations were a proper subject of tort sanctions under the ATS. See a Brief of Former United States Government Counterterrorism and Human Rights Officials as Amici Curiae in Support of Petitioners; Brief of Amici Curiae Professors of Legal History in Support of Petitioners.
As to international law, the Supreme Court decided that the Alien Tort Statute authorized the recognition of causes of action that were "specific, universal, and obligatory." The Court did not reject arbitrary detention as a norm insufficiently universal and thus not cognizable under the ATS. Instead, the Court held that a single detention of less than a day followed by due process was not sufficient to establish a violation of the law of nations under the ATS. If Alvarez-Machain had been the subject of prolonged arbitrary detention, torture, or other grave abuses of human rights, there would likely have been a different result.
Nowhere in Sosa did the Court say that norms must be "uncontroversial and which other countries would not dispute." Instead, the Sosa Court cited favorably the approach which the seminal case of Filartiga v. Peňa-Irala used to find that torture qualifies as a violation of the law of nations. Adopting this analysis, in a case involving genocide by a corporation, should result in a holding that genocide qualifies as a violation of the law of nations under the ATS. The prohibition of genocide constitutes an erga omnes and a jus cogens norm, and international law clearly recognizes that such norms are applicable to all actors, including governments, heads of state, individuals, and corporations. Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), IC.J. Rep. 3, 32 (paras. 33-35).
Furthermore, the Convention against Genocide provides erga omnes criminal responsibility for "rulers, public officials or private individuals," which would, under international law, include corporations and corporate officers. The Brief of Yale Law School Center for Global Legal Challenges at 9, cites to the International Court of Justice, which has discussed "persons or entities" that committed the acts of genocide at Srebrenica. 2007 I.C.J. 43, para. 393, and the International Criminal Tribunal for Rwanda found that a corporate entity, a radio station, violated the prohibition against genocide. See Yale Law School Brief at 10. The Yale brief also extensively discusses the sources of customary international law which extend to corporations the prohibitions against crimes against humanity, torture, extrajudicial killings, war crimes, slavery, and piracy.
The international criminal tribunal at Nuremberg and the Rome Statute are important authority under international law but they are not the only way of establishing responsibility in tort under the ATS. As concisely summarized by Judge Judith Rogers in Doe v. Exxon, the decisions of judicial tribunals are a secondary source of customary international law and the practice of nations is a primary source. Treaties and other instruments qualify as the practice of nations including corporate responsibility, as I mentioned in my second post on the Kiobel case. Actions that the D.C. Circuit considered significant were the actions taken under international law to dismantle I.G. Farben and other corporations aiding and abetting the Nazi Holocaust. In her opinion in Doe v. Exxon, Judge Rogers of the U.S. Court of Appeals for the District of Columbia wrote: "[T]he Allies determined that I.G. Farben had committed violations of the law of nations and therefore destroyed it. Judge Richard Posner also adapted this analysis, stating "At the end of the Second World War the allied powers dissolved German corporations that had assisted the Nazi war effort, along with Nazi government and party organizations--and did so on the authority of customary international law." See also Amicus Brief of Nuremberg Scholars in Support of Petitioners.
And, as noted by the United States Amicus Brief and one prominent scholar of the international tribunals, the central point is that "nothing in the history of the Nuremberg proceedings suggests that juridical persons could never be held accountable (through criminal prosecution or otherwise) for violating international law" [citing Jonathan A. Bush, The Prehistory of Corporations and Conspiracy in Criminal Law: What Nuremberg Really Said, 109 COLUM. L. REV. 1094, 1239 (2009)
As to the exclusion of corporate criminal liability in the Rome Statute (for the International Criminal Court), the brief by Ambassador David Scheffer makes clear, the negotiators' decisions "had nothing to do with customary international law and everything to do with a complex and diverse application of criminal (as opposed to civil) liability for corporate conduct in domestic legal systems around the globe." There was no civil liability imposed because it was considered outside the jurisdiction of a criminal court, and it was never "thoroughly discussed." Brief of Ambassador David J. Scheffer at 18, fn 6.
Briefs of interested nations, such as Netherlands and the United Kingdom where the Royal Dutch Shell Company is located, do not qualify as persuasive authority in establishing the practice of nations.
Ultimately, the question posed by the Kiobel case is: Is there any basis under federal common law or international law to exempt corporations from responsibility for their tortious conduct in violation of the law of nations? In examining the text, history, and context of the Alien Tort Statute, as well as the provisions of international law, the answer to that question is, "No."
I want to thank Point of Law for hosting this discussion and to Professor Ku for inviting me to participate.
(1) Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.