Corporate Liability for Human Rights Abuses: Analyzing Kiobel & Alternatives to the Alien Tort Stature

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TABLE OF CONTENTS

  I.  INTRODUCTION
 II.  ATS LITIGATION: Tim SECOND WAVE
III.  KIOBEL: ANALYSIS AND IMPLICATIONS
      A. International Law and the Scope of Corporate Liability
         1. International Tribunals
         2. International Treaties
         3. Works of Publicists
      B. Fault Lines
         1. Interpreting Silence in International Law
         2. Deferring to Municipal Law
         3. Interpreting Domestic Precedent
      C. Petitions for En Banc and Panel Rehearing
         1. Comity
         2. Frivolity
      D. Navigating the Circuit Split
 IV.  CORPORATE LIABILITY BEYOND KIOBEL
      A. A TS Effectiveness
      B. Alternate Forms of Relief
         1. ATS Relief
         2. Non-ATS Relief
         3. Proposed Federal Statute
  V.  CONCLUSION

I. INTRODUCTION

Are corporations liable for human rights abuses under international law? Not according to the Second Circuit. Its highly controversial decision in Kiobel v. Royal Dutch Petroleum Co. (1) has clouded the future of human rights lawsuits against corporations in U.S. federal courts under the Alien Tort Statute (ATS). (2) Kiobel held that the ATS does not provide subject matter jurisdiction over corporations "because the customary international law of human rights does not impose any form of liability on corporations." (3) Human rights advocates have decried Kiobel's immunization of corporations and invoked Judge Leval's concurrence in contesting the majority's analysis of corporate liability under international law. Conversely, some scholars have hailed Kiobel as an important "first crack" (4) in an unsubstantiated judicial consensus regarding corporate liability under the ATS, Nonetheless, the Second Circuit rejected (5) the plaintiffs' petitions (6) for en banc review and panel rehearing. Following a circuit split, the Supreme Court granted certiorari, hearing oral arguments on Kiobel on February 28, 2012. Less than a week later, the Court ordered the case to be rebriefed and reargued to address the broader question of the ATS's extraterritorial application. (7)

This Note has two goals. First, it provides a systematic analysis of Kiobel itself. Kiobel is a novel and landmark case in defining the scope of corporate liability under the ATS--a statute that has become "the major contemporary battleground for scholars and advocates debating the proper role of customary international law in the U.S. judicial system." (8) In an era of prolific transnational economic and legal activity, Kiobel entails a fascinating, sharply worded, and spirited debate on the duties that corporations as private actors owe under international law, as well as key insights into how an influential U.S. court interprets international law and the scope of its authority to create legal remedies. Grappling with these issues is critical for scholars and practitioners of international law. This Note will help equip them with the understanding to do so.

Second, in the wake of Kiobel's narrowing of the scope of liability for corporations under the ATS, this Note seeks to step back and explore the ATS's effectiveness as a litigation tool against corporations. It will discuss other avenues of relief and associated challenges within the ATS such as suing corporate officers and directors, as well as outside the ATS such as initiating state law claims. It will further propose two novel statutory alternatives to the ATS that would impose corporate civil liability--modeled on the Foreign Corrupt Practices Act--and individual criminal liability for violations of the law of nations.

This Note will proceed as follows. Part I will provide a brief historical overview of the ATS and its application to corporations as part of the so-called second wave of ATS litigation, thus framing the context for Kiohel. Part II will comprehensively analyze Kiohel, the subsequent denial of en banc review and panel rehearing, and the ensuing circuit split--all leading up to the Supreme Court hearing the case. …