Supreme Court hears arguments on corporate liability for torture overseas

[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases on Tuesday. In Kiobel v. Royal Dutch Petroleum Co. [transcript; JURIST report], the court heard arguments on whether three oil companies are immune from US lawsuits under the Alien Tort Statute of 1789 (ATS) [text] for alleged torture and international law violations that took place overseas. International law does not address corporations in defining who can be sued for human rights abuses. While accepting that international law is the proper authority to define human rights violations, the petitioners, Nigerian plaintiffs suing foreign-based oil companies, argued that domestic US common law should fill in the blank in ATS over who could actually be sued for such atrocities. The US government sided with the petitioners, with Deputy Solicitor General Edwin Kneedler providing the additional argument that international law does not independently foreclose foreign corporate liability the way that it immunizes a foreign government from liability for official wrongdoings. The respondent oil companies argued that international law is wholly controlling in such a situation and that domestic US common law has no bearing on the proceedings. Respondents pressed the fact that not only does international law not recognize corporate responsibility for the alleged offenses, but the world community has never recognized corporate liability for the misdeeds of individuals: "No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection." While the issue in the case was supposed to focus on "the narrow issue of whether a corporation can ever be held liable for violating fundamental human rights norms under the Alien Tort Statute," the court frequently pushed petitioners on the specific point of whether Congress intended ATS to permit suits by aliens against aliens for overseas acts.

The court also heard arguments for a similar case, Mohamad v. Palestinian Authority [transcript], in which the court will decide whether political organizations including the Palestinian Authority and the Palestine Liberation Organization are immune from liability under the Torture Victims Protection Act of 1992 (TVPA) [text]. As in Kiobel, the plaintiffs in this case allege human rights violations against an entity other than an individual person. The TVPA allows lawsuits to be brought in US courts against "any individual who, under actual or apparent authority, or color of law, of any foreign nation" subjects another individual to torture. The petitioners argued that, unlike Kiobel, there is no issue as to whether "Congress expressly created the cause of action at issue in a statute" because "in every single other Federal court statute that Congress has ever enacted, it has provided for organizational liability." Respondents argued that the petitioners' argument is merely an "attempt to inject ambiguity into what is a very unambiguous term in US legal usage by referring ... to a supposed subtle definition of 'individual' in international law." Respondents argued that "individual" is not a term of art with specialized meaning in international law that would differentiate its usage is US law, and that Congress was proceeding incrementally in enacting liability under the statute, limiting its reach short of imposing secondary liability on a class of institutions such as political organizations.

 

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