The oral argument that occurred Tuesday, February 28th, for the Kiobel v. Royal Dutch Petroleum case focused on the application of the Alien Tort Statute (ATS) to corporations. In my first post of this series, I explained the Supreme Court's discussion of the Alien Tort Statute in Sosa, to identify an international law violation justiciable under the ATS, and I will not repeat that discussion here.
As several justices noted at yesterday's argument, however, courts have looked to international law to define the 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. In Flomo v. Firestone, one of the cases I mentioned in my previous post, Judge Richard Posner stated, "International law imposes substantive obligations and the individual nations decide how to enforce them." This approach is the proper way to analyze the question, not because of a dearth of authority under international law that courts look to federal common law.
As stated in an Amicus Curiae brief, however, which I signed as one of several International Law Scholars, both under federal common law and international law, corporations are responsible for their violations of the law of nations..
To further elaborate, there is ample authority under international law for the responsibility of corporations for human rights violations, Examples include the Universal Declaration of Human Rights, which is the primary source and definition of international human rights law and provides, inter alia, "a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society...," which includes corporations. Following the Universal Declaration, the United Nations adopted two Covenants that comprise the most authoritative and comprehensive prescription of human rights obligations. The International Covenant on Civil and Political Rights, entered into force Sept. 8, 1992, with regard to the United States), similarly includes corporations in its Article 5: "Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein . . .". (emphasis added)
Another prominent human rights treaty, International Convention on the Elimination of All Forms of Racial Discrimination, entered into force Sept. 8, 1992, with regard to the United States), also applies to racial discrimination "by any persons, group or organization . . . ." The Convention on the Elimination of All Forms of Discrimination against Women, contains an even more explicit reference to corporations in obliging governments "to eliminate discrimination against women by any person, organization or enterprise . . .." The Convention on the Prevention and Punishment of the Crime of Genocide, entered into force Feb. 23. 1989, with regard to the United States) applies to "Persons committing genocide or any of the other acts enumerated in article III . . . whether they are constitutionally responsible rulers, public officials or private individuals" which, under international law, would 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. Other clear examples of norms extending to corporations include the international prohibitions against torture, extrajudicial killing, war crimes, slavery and piracy.
The U.N. Sub-Commission Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights, provide in paragraph 18 that "Transnational corporations and other business enterprises shall provide prompt, effective and adequate reparation to those persons, entities and communities that have been adversely affected by failures to comply with these Norms through, inter alia, reparations, restitution, compensation and rehabilitation for any damage done or property taken. In connection with determining damages in regard to criminal sanctions, and in all other respects, these Norms shall be applied by national courts and/or international tribunals, pursuant to national and international law." Most recently in its Guiding Principles on Business and Human Rights: Implementing the United Nations "Protect, Respect and Remedy" Framework, U.N. Doc. A/HRC/17/31, paragraph 7 (Mar. 21, 2011), the U.N. Human Rights Council called for attention to "gross human rights abuses" and indicated that States "should take appropriate steps to address them. This may include exploring civil, administrative or criminal liability for enterprises . . . that commit or contribute to gross human rights abuses."
There are a number of other treaties and instruments on human rights, corruption, environmental pollution, etc. that include corporations. Altogether these treaties and other instruments establish customary international law that corporations and other persons are responsible for their human rights and similar violations within the realm of the Alien Tort Statute.
Thanks to Professor Jennifer Green of the University of Minnesota Law School for her assistance in preparing this post.