Oral arguments in Kiobel v. Royal Dutch Petroleum Company occurred February 28 before the US Supreme Court. Kiobel is an important case involving corporate liability under international law. Curiously, what was not mentioned during arguments and responses to questions posed by some of the justices was the significant and indisputable fact that 20 US Supreme Court cases decided over a period of many decades have already recognized that corporations and companies can have duties and rights under treaty-based and customary international law. Once the justices become aware of the 20 Supreme Court cases (which is likely today because of access to computer-assisted research), one would expect that opinions handed down later this year in Kiobel will reaffirm the Court's continual recognition of the fact of corporate liability under international law and then address other relevant issues that might divide the justices.
For readers of JURIST, the 20 Supreme Court cases, as well as many other federal and state court cases and opinions of the US Attorneys General on corporate and company duties and rights under international law, are documented in a recent article in the Virginia Journal of International Law on Nonstate Actor Participation in International Law. It notes that Henry Wheaton's 1855 edition of Elements of International Law had recognized that "[p]rivate individuals, or public and private corporations" can have rights under international law. In 1970, the International Court of Justice affirmed that the corporate form has been recognized in general principles of law. Footnote 38 of the Virginia Journal article notes other articles that have identified foreign cases that have recognized human rights responsibilities of corporations (cases that should be of notable interest in view of questions posed by some of the justices), and the fact that lawsuits under the Alien Tort Claims Act (ATCA), that have involved conduct of defendants in violation of customary international law and treaties of the US have often been permissible under international law permitting the exercise of universal jurisdiction.
Universal jurisdiction is a competence under international law that is part of the "laws of the United States" (and customary international law is not mere "common law"), as famously recognized by Chief Justice John Jay in Henfield's Case in 1793 and by Duponceau in connection with that case. During our constitutional history, others have also recognized that the phrase "laws of the United States" provides two constitutional bases for use of customary international law. Universal jurisdiction pertains with respect to any violation of customary international law by a state or non-state actor even if there are no contacts with the forum. As recognized by Justice James Iredell in a Supreme Court opinion in 1795, "all ... trespasses committed against the general law of nations, are enquirable, and may be proceeded against, in any nation where no special exemption can be maintained, either by the general law of nations, or by some treaty which forbids or restrains it." Chief Justice John Marshall quoted Justice Iredell's important recognition of such a competence in another Supreme Court case in 1819. In 1820, two Supreme Court cases recognized that piracy "is against all, and punished by all ... within this universal jurisdiction," and that it "is an offense against all. It is punishable in the Courts of all ... [Our courts] are bound to punish." In 1799, counsel had argued in a lower federal court that "the offence ... was against the law of nations, ... and over whom all nations claim a criminal jurisdiction equally, and over whom the United States have a concurrent jurisdiction." In that case, Judge Bee recognized that "[t]here is no doubt that the circuit courts of the United States have a concurrent jurisdiction, and this arises under the general law of nations."
More recently, the relatively famous US Court of Appeals for the Second Circuit opinion in Kadic v. Karadzic in 1995 aptly stressed the fact that universal jurisdiction pertains with respect to civil claims under the ATCA concerning direct perpetrator and accomplice liability for war crimes, genocide, other crimes against humanity, torture and summary executions. The Restatement (Third) of the Foreign Relations Law of the United States adds that there is absolutely no need for links with the forum when universal jurisdiction exists and that universal jurisdiction is an appropriate basis for criminal and civil sanctions, "for example, by providing a remedy in tort or restitution for victims of piracy." Important recognitions of corporate liability for human rights violations and other violations of international law, as well as the fact that universal jurisdiction is appropriate, are also contained in an extensive district court opinion from 2003 in Presbyterian Church of the Sudan v. Talisman Energy, Inc. Like other private non-state actors, corporations can have direct perpetrator and accomplice liability for violations of international law. Universal jurisdiction and these two types of responsibility under international law continue to be important, for example, with respect to arrest, extradition and prosecution of international terrorists and coordinated economic sanctions against corporations and companies that aid and abet international terrorism and other international crimes.
What might happen to corporate rights if a justice who remains unmindful of the 20 Supreme Court cases and other US and foreign cases that have recognized the existence of corporate and company duties and rights under international law declares, incorrectly, that corporations do not have duties under international law? If such a statement could ever somehow prevail, it would follow logically that corporations could not have rights under international law rights that are of great importance to corporations such as those relating to confiscation of corporate properties abroad in violation of customary and treaty-based international law (and, as rights under international law, they are protected in part in Section 1605(a)(3) of the Foreign Sovereign Immunities Act (FSIA)); expropriation of properties abroad without fair compensation as required by international law (also protected rights under the FSIA); protection of corporate human rights to property, including intellectual property rights, under the Universal Declaration of Human Rights and various global and regional human rights and other treaties as well as any customary international law reflected therein; access to markets abroad as required under Friendship, Commerce, and Navigation (FCN) treaties; freedom from national origin discrimination and rights to equality under FCN and human rights treaties; protection of investments abroad under international treaties; protections from onerous taxation in tax treaties; and so forth.
In a 1795 opinion, the US Attorney General recognized that
there can be no doubt that the company ... injured by these acts of hostility [abroad by private US citizens in violation of treaties and the customary law of nations] have a remedy by a civil suit in the courts of the United States; jurisdiction being expressly given to these courts [by the ATCA] in all cases where an alien sues for a tort only, in violation of the law of nations, or a treaty of the United States.The extraterritorial reach of the federal statute recognized in the 1795 opinion and in early cases (such as Moxon, Bolchos, M'Grath, Greene, The Vrow Christina Magdalena, and Wilson v. Pierce) has been decidedly reaffirmed in numerous cases ever since and, under international law, it has noticeably rested upon universal jurisdiction that has had a venerable use in US courts.
Addendum March 5, 2012
On March 5, the US Supreme Court ordered supplemental briefs and reargument to address the following question: "whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States." As noted above, the answer is decidedly yes, for example, on the basis of universal jurisdiction over all violations of customary international law or, as the phrase was used in 1789, the customary laws of nations. Readers of JURIST will find some of the evidence of this early and continued attention to extraterritorial jurisdiction of our courts exercisable on the basis of universal jurisdiction in the 1795 Opinion of the Attorney General and the Kadic and Presbyterian Church of the Sudan and other cases noted above and in footnote 38 of the Virginia Journal article as well as on pages 230-231 and in footnote 3 of The History, Nature, and Reach of the Alien Tort Claims Act. The Court's question might also be too limiting in view of the recognized reach of the statute, for example, to conduct in violation of a treaty that seemed to occur at least partly within the US but that recognizably resulted in injury in Mexico, as seen in a 1907 Attorney General opinion addressed in the Virginia Journal article.
It may also be of interest that pirates who engaged in piracy in violation of customary international law did so on the vessel of some country as they traversed from their pirate vessel to the flag vessel of the victims. As well-recognized in US cases and abroad, foreign flag vessels are the equivalent of foreign state territory under international law. The 1795 Opinion of the Attorney General was not one addressing piracy, but the crime known as a breach of neutrality in violation of the customary law of nations and treaties of the US that had been addressed, for example, by Chief Justice Jay and Justices Iredell and Wilson and Judge Peters in Henfield's Case in 1793.
Jordan Paust is the Mike & Teresa Baker Law Center Professor at the University of Houston Law Center and has extensive experience in international law. Paust is one of the most cited law professors in the US and has published over 170 articles, book chapters, papers and essays addressing treaty law, customary international law, and the incorporation of international law into US domestic law.
Suggested citation: Jordan Paust, Supreme Court Precedent and Corporate Liability for Torture, JURIST - Forum, Mar. 2, 2012, http://jurist.org/forum/2012/03/jordan-paust-kiobel.php.
This article was prepared for publication by Jonathan Cohen, the head of JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org