Sosa's Silence: Kiobel and the Fallacy of the Supreme Court's Limitation on Alien Tort Liability
Cash, Webster C., III, Denver Journal of International Law and Policy
In Kiobel v. Royal Dutch Petroleum Co., (1) the United States Court of Appeals for the Second Circuit held that corporations could not be liable under the Alien Tort Statute ("ATS") for human fights abuses. (2) The decision has stunning implications for contemporary human fights litigation. (3) Indeed, in the short time since Kiobel was decided in September 2010, a large volume of scholarship has examined the case's potential to upset the delicate balance of international law. (4) Moreover, rare for any circuit court opinion, Kiobel is the subject of considerable mainstream media coverage: Whether lawyer or newsman, one fact remains clear: to many, Kiobel stands for the shallow proposition that corporate profits stemming from business-related human rights abuses may be shielded from victims through the simple act of incorporation. (6) Opponents also assert that absent Congressional action, Kiobel will undermine general principles of corporate accountability. (7) They argue that freedom from concern over multi-million dollar class action lawsuits will invite corporations to downgrade their efforts to prevent human rights abuses. (8) Though individual corporate perpetrators--such as Directors and CEOs--remain susceptible to civil damages under the ATS, the general reaction to Kiobel appears to be one of cynicism on account of the corporate protection it imparts.
Others yet have focused less on the decision's press-worthy rule relating to corporate damages. Instead, they emphasize Kiobel's seemingly unremarkable holding: "[t]hat international law ... and not domestic law, governs the scope of liability for violations of customary international law under the ATS." (9) That is, despite virtual unanimity among civilized nations in recognizing tort actions against corporate entities, it is the law of nations ultimately controlling who is liable under the ATS. Though this legalese is somewhat unrevealing, the practical effect of the language will be "deeply relevant in other settings"--i.e., when the United States Supreme Court revisits the scope of the ATS. (10)
Accordingly, this Article will discuss this perhaps more sedentary aspect of Kiobel--ostensibly, to uncover the court's reasoning and justification for this ruling. In reaching its position, this Article will show that the Second Circuit's interpretation of ATS liability was based partly on an improper reading of footnote twenty in the Supreme Court's seminal ATS case, Sosa v. Alvarez-Machain. (11) Importantly, this Article does not suggest that the Kiobel court was necessarily incorrect in its conclusion that customary international law precludes juridical entities from ATS liability. Instead, it argues simply that the Supreme Court was silent in Sosa regarding the scope of the ATS' reach. Because the high Court did not address this issue, it is of course problematic that the Second Circuit augmented its decision by claiming the Court had ruled squarely on the matter. Thus, this Article serves as a warning for future litigants to avoid Sosa, as well as portions of Kiobel, as the sole legal basis for asserting corporations are immune from liability under the ATS.
Part II will analyze the relevant history of the ATS, as well as the two primary cases that set forth modern ATS jurisprudence--Filartiga v. Pena-Irala (12) and Sosa. Additionally, Part II will provide necessary background on the widespread pattern of corporate human rights abuses, such that the full magnitude of the Kiobel decision can be understood in context. Part III will provide a comprehensive summary of the Second Circuit's disposition of Kiobel. Specifically, a detailed analysis of the facts leading up to the plaintiffs' suit in federal court, the district court's holding, the majority opinion, and Judge Leval's stinging concurrence--a separate opinion endorsing the majority's final judgment, but strident enough in its terms to be classified as nothing other than a dissent. …