Bad News for Alien Torts

The 2nd Circuit Court of Appeals (Connecticut, New York and Vermont) has rejected the theory that corporations can be held liable in the United States under the Alien Tort Statute for violations of international law in foreign countries. Dismissing the application in Kiobel v. Royal Dutch Petroleum, charging aiding and abetting human rights violations during oil exploration in Nigeria, the court declared that ‘corporate liability is not a discernible -- much less universally recognized -- norm of customary international law that we may apply pursuant to ATS (Alien Tort Statute)’. It held that under U.S. Supreme Court precedent, Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), and the 2nd Circuit's own precedents over the past thirty years, ‘in ATS suits alleging violations of customary international law, the scope of liability -- who is liable for what -- is determined by customary international law itself’.

‘Because customary international law consists of only those norms that are specific, universal, and obligatory in the relations of the State inter se, and because no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights’, wrote Justice Cabranes for the majority, the court lacks jurisdiction under the Alien Tort Statute.

Dissent Judge Pierre Leval wrote: ‘The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights… According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims' claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form.

There is already some comment on the case on Opinio Juris.

Thanks to Eva Shemmayah Heza