The dozens of amicus briefs and columns concerning corporate liability under the Alien Tort Statute (ATS) in Kiobel v. Royal Dutch Shell have overlooked or failed to appreciate the significance of a separate merits case, Mohamad v. Rajoub, that may well provide the key to unlocking the mysteries of the ATS in Kiobel.
Mohamad, heard in tandem with Kiobel, presents the same question of corporate liability, but under the Torture Victim Protection Act (TVPA). The ATS provides federal district courts with jurisdiction over any "tort ... committed in violation of the law of nations," and the contours and breadth of that grant have bedeviled courts ever since the law was exhumed in 1980 by the US Court of Appeals for the Second Circuit decision in Filartiga v. Pena-Irala.
The TVPA, by contrast, expressly answers several of the questions raised by the ATS. Enacted in response to Judge Robert Bork's conclusion in Tel-Oren v. Libyan Arab Republic, finding that the ATS authorized no private right of action for victims of torture and terrorism, the TVPA provides that any "individual, who, under actual or apparent authority, or color of law ... subjects an individual to torture shall, in a civil action, be liable for damages to that individual." It also establishes a remedy for extrajudicial killings.
Two complementary approaches answer the question of corporate liability under the TVPA. First is its text. The statute limits liability to an "individual," a term that is almost always used in common parlance and statutes to refer to a natural person while excluding collective entities. Indeed, Congress ascribed this plain meaning to "individual" in the Dictionary Act, which, in defining "person" and "whoever," employs "individual" to refer to natural persons.
The TVPA itself bolsters this reading: in establishing a remedy for the extrajudicial killing of an "individual," it allows that "any person who may be a claimant in an action for wrongful death" may be a plaintiff. This juxtaposition of "individual," meaning a natural person who (unlike a corporation) may be tortured or killed, and "person," which may include such an individual's estate, confirms that Congress's choice of words was not incidental but meaningful.
This points to the second approach: elucidating Congress's rationale, grounded in international law, for distinguishing between natural persons and collective entities. The Mohamad plaintiffs argue that, notwithstanding its typical usage, the term "individual" was meant to include individuals and corporations while excluding sovereign entities, and that any other reading would be at odds with Congress's purpose of providing a remedy for torture victims a strained reading that none of the justices seemed to buy at oral argument.
The justices were right to be wary: the background law strongly supports the statutory text's plain meaning. Congress patterned the TVPA on well-established norms of international law against torture and extrajudicial killing that had only been applied directly to individuals, and never collective entities such as corporations. The statute itself states that it intended
To carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.The committee reports accompanying the legislation that became the TVPA make clear what Congress thought it was doing: codifying customary international law. The text reflects this point by echoing the definition of "torture" contained in the UN Convention Against Torture (UNCAT) and defining "extrajudicial killing" by reference to customary international law.
As Congress recognized, customary international law has never recognized corporate liability for the type of conduct covered by the TVPA. The bulk of international law, of course, is directed at defining the rights and obligations only of sovereigns. Historically, this general rule recognized only a narrow exception for the perpetrators of such offenses as piracy, individuals long deemed hostis humani generis, or "enemies of mankind."
Modern precedents, while expanding the conduct subject to this exception, have continued to reserve this special status for individuals alone. No corporations were named as defendants at Nuremberg, and international treaties and tribunals, including those on torture and genocide, have consistently rejected corporate liability. As a UN report on the matter concluded, "it does not seem that the international human rights instruments currently impose direct legal responsibilities on corporations."
Reflecting that fact, Congress amended an early version of the TVPA that allowed actions against a "person" into its present form so as to, in the words of a sponsor, "make it clear [Congress was] applying it to individuals and not to corporations."
As regards the norms of international law, this is, at base, the same inquiry as in Kiobel, and Congress's judgment in the TVPA should bear heavily on the Court's decision in that case. The US Constitution, after all, assigns responsibility for establishing and recognizing binding norms of international law to the political branches, not the courts. The Court recognized its comparative disadvantage in making law that affects foreign relations in Sosa v. Alvarez-Machain.
There can be little doubt, especially after an unusually one-sided oral argument, that the Court took Mohamad largely due to the parallel issue in Kiobel and that it is poised to affirm the judgment below, against corporate liability. The only question is whether it sticks to the text and closes its eyes to Congress's view of international law.
It should not. After all, it took both cases on the same day and scheduled oral argument for the same morning, so do not be surprised if Mohamad which might otherwise be a straightforward exercise in statutory interpretation proves to be the skeleton key that unlocks the ATS in Kiobel.
David Rivkin, Jr. is a Partner at Baker Hostetler. He is a member of the litigation, international and environmental groups of Baker Hostetler and co-chairs the firm's appellate and major motions team. He has extensive experience in constitutional, administrative and international law litigation. Rivkin has represented corporations in alien tort statute and civil RICO litigation, as well as in challenges to federal agency actions and constitutional challenges to state statutes. Along with Grossman, he filed amicus briefs in favor of the respondents in both Mohamad and Kiobel.
Andrew Grossman is an Associate at Baker Hostetler. He is experienced in constitutional law and legal policy and has represented states in challenges to the constitutionality of federal statutes and the legality of federal environmental regulations, and is also active in commercial litigation. Along with Rivkin, he filed amicus briefs in favor of the respondents in both Mohamad and Kiobel.
Suggested citation: David Rivkin & Andrew Grossman, Corporate Liability Inappropriate Under Alien Tort Statute, JURIST - Sidebar, Mar. 16, 2011, http://jurist.org/sidebar/2012/03/rivkin-grossman-kiobel.php.
This article was prepared for publication by Sean Gallagher, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at firstname.lastname@example.org