Academic journal article Houston Journal of International Law

Kiobel V. Royal Dutch Petroleum Co.: Corporate Liability under the Alien Torts Statute

Academic journal article Houston Journal of International Law

Kiobel V. Royal Dutch Petroleum Co.: Corporate Liability under the Alien Torts Statute

Article excerpt

I.    ABSTRACT:
II.   INTRODUCTION
III.  PUBLIC INTERNATIONAL LAW VERSUS PRIVATE
      INTERNATIONAL LAW
IV.   Jus COGENS
      A. Legal Implications of Jus Cogens
      B. Natural Law
V.    CIVIL VERSUS CRIMINAL LIABILITY IN PUBLIC
      INTERNATIONAL LAW
VI.   THE LAW OF NATIONS INCLUDES TREATIES
VII.  THE RATIONALE OF THE ATS
VIII. CONCLUSIONS

I. ABSTRACT:

In Kiobel v. Royal Dutch Petroleum Co., the Second Circuit overrules numerous prior decisions and contradicts sister circuits, finding that corporate liability in international law is not a sufficiently specific norm to support a finding of liability under the Alien Tort Statute. That decision is clearly erroneous. Kiobel violates the general principle of legality, immunizing corporate conduct from liability even in cases where States would be liable for violating jus cogens norms and thus also violates the principle of sovereign equality of States due to principles of comity and the res judicata effect of the decision. Kiobel is also an abnegation by the United States of U.S. obligations under international law. While no state is obliged to remedy jus cogens violations, each state is obliged to respect them. Because Kiobel reflects a deep and significant split at the circuit courts, because it concerns U.S. international legal obligations, because the stakes, in human and financial terms are high, because it was so obviously wrongly decided, the split that Kiobel represents has reached the U.S. Supreme Court. This Article explains precisely why the court's decision in Kiobel misapprehends the structure and sources of international law and consequently reaches the wrong result for the wrong reasons. The U.S. Supreme Court will likely conclude that the ATS governs jus cogens claims against natural and artificial persons without a showing of state action, but requires state action or complicity with state action otherwise.

II. INTRODUCTION

Kiobel v. Royal Dutch Petroleum C0., (1) held that the Alien Tort Statute (ATS) (2) does not apply to corporations. (3) In my opinion, that decision was wrongly reached. Kiobel contradicts several prior decisions of the Second Circuit, (4) other federal appellate circuits, (5) and ignores international practice. (6) To appreciate the errors in the majority's reasoning in Kiobel we must understand the structure of public international law, which often differs from the common law.

III. PUBLIC INTERNATIONAL LAW VERSUS PRIVATE INTERNATIONAL LAW

The law of nations (jus gentium), colloquially known as international law, is divided into two branches: public international law and private international law (also known as jus gentium privatum). (7) Public international law consists of two further branches, customary international law (jus gentium publicum) and international treaty law (just inter gentes). (8) The United States currently interprets the law of nations, (9) jus gentium, (10) as indicating public international law, ix even though jus gentium consists of two distinct parts, jus gentium publicum and just gentium privatum.

States, as a general rule, are the presumed addressees of duties and bearers of rights under public international law. Likewise, private individuals are ordinarily the addressees of private international law. Private international law is most often accessed in the U.S. context through "conflicts of law" i.e. the rules for allocating decisional authority in cross-jurisdictional contexts. However, private international law also includes admiralty and law merchant (lex mercatoria), (12) the latter today largely codified through the UCC, the UN Convention on Sale of Goods, and via arbitration. (13)

Thus, while individuals may, as an exception to the general rule, have rights and duties under public international law (14) (e.g. for violations of jus cogens), such exceptions are rare and infrequent. (15) Even when individuals possess a right under public international law, that does not necessarily indicate they also have a directly enforceable remedy: (16) the right may well inhere in the individual, yet only be enforceable by their State. …

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