By John Knox, cross-posted from Center for Progressive Reform
Kiobel v Royal Dutch Petroleum, a
case with far-reaching implications for efforts to hold corporations
accountable when they commit or are complicit in abuses of human
For over fifty years, Shell has extracted oil from Nigeria, causing great harm
to the environment and people of the Niger delta. The Ogoni people
living in the delta protested Shell’s operations, and in response the
Nigerian government harshly oppressed them. Most infamously, in 1995 it
executed the author Ken Saro-Wiwa, together with eight other leaders of the protests.
Kiobel, the widow of one of the executed men, as well as other affected
Ogoni, sued Shell in U.S. federal court, claiming that it aided and
abetted the Nigerian government in its violations of human rights law.
The plaintiffs relied on the Alien Tort Statute (ATS), a law enacted by
the First Congress, in 1789, which gives federal courts jurisdiction
over claims by aliens arising from torts committed in violation of
international law. In 2004, in Sosa v Alvarez-Machain, the
Supreme Court affirmed that the ATS still provides jurisdiction for
international tort claims, but it cautioned federal courts not to
recognize claims “for violations of any international law norm with less
definite content and acceptance among civilized nations than the
historical paradigms” familiar when the law was enacted. As an example
of such a historical paradigm, the Court cited the long-standing
prohibition against piracy.
Foreign plaintiffs have used the
ATS to accuse corporations of committing grave human rights abuses,
including genocide, war crimes, and forced labor. A few of the suits
have resulted in payments, including a 2009 settlement by Shell of another claim arising from its Nigerian operations. In 2010, however, the Second Circuit Court of Appeals rejected Esther Kiobel’s claim on the sweeping ground that corporations could never be liable for violations of customary international law, because customary international law never imposes any obligations on corporations. In short order, the Seventh, Ninth, and D.C. Circuits rejected the Second Circuit decision, holding that plaintiffs can sue corporations under the Alien Tort Statute.
fall, the Supreme Court granted certiorari to review the Second Circuit
decision. Its ruling will be its first ATS decision since Sosa, and
it will determine whether the many other pending ATS suits against
corporations may continue. It’s possible that the Court will decide the
case on grounds that allow it to avoid addressing corporate duties
under international law. But if the Supreme Court does take on
international law, as seems likely, what should it decide? Is the
Second Circuit correct that international norms do not prohibit
corporate abuses of human rights?
The Second Circuit is wrong,
but it isn’t completely wrong. Most obligations under human rights
treaties are explicitly placed on states, not individuals or
corporations. That doesn’t mean that human rights law has nothing to
say about non-state actors, though. On the contrary, one of the main
obligations it imposes on states is to protect against human rights
abuses committed by non-state actors, including corporations. In that
sense, human rights law clearly imposes indirect duties on individuals and corporations. They include, for example, obligations not to engage in slavery.
the Supreme Court might conclude that these indirect duties are enough
to satisfy the language of the ATS, it seems more likely that it will
look for evidence that international law may impose direct duties
on corporations. No one doubts that international law imposes direct
duties on individuals not to commit certain particularly heinous abuses,
including genocide and war crimes. The Nuremberg and Tokyo tribunals
tried and convicted individuals of violating international law, and
today individuals who commit genocide, war crimes, and other
international crimes are subject to prosecution before the International
The Second Circuit based much of its decision
on the fact that these criminal tribunals were not given the authority
to try corporations. Nuremberg tried officials of I.G. Farben, but not
the company itself, for using slave labor. But the decisions not to try
corporations for committing international crimes were reached not
because corporations were thought to be exempt from international norms,
but because many countries don’t impose criminal liability on
corporations. Civil liability, as under the ATS, is a different
matter. I.G. Farben wasn’t off the hook just because it wasn’t
sentenced at Nuremberg. On the contrary, as Judge Richard Posner
explained for the Seventh Circuit: “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.” I.G.
Farben was declared to have “knowingly and prominently engaged in
building up and maintaining the German war potential” and its assets
The application of human rights law to corporations has become clearer
in recent years, thanks in large part to the efforts of Harvard
Professor John Ruggie, who in 2005 was appointed Special Representative
of the UN Secretary-General on Business and Human Rights. After years
of consultations with governments, corporations, and human rights
groups, he proposed Guiding Principles on Business and Human Rights,
which the UN Human Rights Council unanimously adopted last summer. The
Guiding Principles emphasize that corporations have a responsibility to
respect human rights, and that states have a legal duty under
international law to protect against corporate human rights abuses and
to provide remedies for such abuses when they do occur.
providing such remedies, the ATS can provide critical support to the
Guiding Principles and other efforts to bring human rights law to bear
on corporations. Its threat of civil liability helps to encourage
corporations to support and implement their responsibility to respect,
as many corporations around the world already have.
The most defensible result for the Supreme Court in Kiobel
would be a decision that legal persons are just as subject to human
rights law as natural persons are. A decision affirming the Second
Circuit’s position that corporations – unlike governments or individuals
– are uniquely free from any duty to abide by human rights norms would be a step backwards legally as well as morally.
John Knox is a law professor at Wake Forest University School of Law and a member scholar at the Center for Progressive Reform.