Institute for Legal Reform
WASHINGTON — The question before the Supreme Court on Tuesday was whether lawsuits against corporations for some kinds of human rights violations are categorically forbidden.
Some of the justices were themselves in a categorical mood, announcing not only their answer to that question but also to a larger one not squarely before them. They did so by quoting approvingly or skeptically from the briefs in the case.
“For me, the case turns in large part on this,” Justice Anthony M. Kennedy said and then quoted a sentence from a brief filed by the Royal Dutch Petroleum Company, which is accused of complicity in human rights violations in Nigeria: “International law does not recognize corporate responsibility for the alleged offenses here.”
Justice Kennedy went on to quote from a brief supporting the companies filed by the Chevron Corporation: “No other nation in the world permits its court to exercise universal civil jurisdiction over alleged extraterritorial human rights abuses to which the nation has no connection.”
Later, Justice Samuel A. Alito Jr. read back most of a sentence in the plaintiffs’ brief to their lawyer, calling it “really striking.”
“This case was filed by 12 Nigerian plaintiffs who alleged that respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria,” Justice Alito said, quoting.
Then he asked: “What business does a case like that have in the courts of the United States? There’s no connection to the United States whatsoever.”
Justice Ruth Bader Ginsburg tried to return the discussion to the narrower question: not whether United States courts can hear human rights cases over events that took place abroad, but whether corporations may be sued in such cases. “I thought what we were talking about today,” she said, “was is it only individual defendants or are corporate defendants also liable?”
The answer turns on the meaning of the Alien Tort Statute, a 1789 law that allows federal courts to hear “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
The law was largely dormant until the 1980s, when federal courts started to apply it in international human rights cases. A 2004 Supreme Court decision, Sosa v. Álvarez-Machain, left the door open to some claims under the law, as long as they involved violations of international norms with “definite content and acceptance among civilized nations.”
A lawyer for the plaintiffs in Tuesday’s case, Paul Hoffman, said the justices should look to “the law of nations” in deciding which acts are subject to the law but to United States law to decide which entities may be sued.
The Obama administration supported the plaintiffs in the case, Kiobel v. Royal Dutch Petroleum Company, No. 10-1491. Edwin S. Kneedler, a deputy solicitor general, said that while “the Alien Tort Statute identifies who the plaintiff must be — the plaintiff must be an alien — it does not identify who the defendant may be.”
Justice Stephen G. Breyer appeared to want to stop short of announcing a categorical rule, much as the Supreme Court had done in the Sosa decision. On the one hand, he said, “There is no United States Supreme Court of the World.” On the other, he said, he could think of “counterexamples” to a blanket rule that said “never sue a corporation.” He named one such example: “Pirates Incorporated.”
Kathleen Sullivan, a lawyer for the defendants, said the justices should look to international law to decide whether suits against corporations under the Alien Tort Statute should ever be allowed.
“There is no country in the world that provides a civil cause of action against a corporation under their domestic law for a violation of the law of nations,” she said, adding that “every convention for every international tribunal excludes corporations.”
Justice Elena Kagan said that was in some ways an overstatement. “As far as I can see,” she said, “the international sources are simply silent as to this question.”
The justices also heard arguments in a companion case, Mohamad v. Palestinian Authority, No. 11-88. It was brought by the family of Azzam Rahim, an American citizen who was tortured and killed during a 1995 visit to the West Bank.
Mr. Rahim’s family sued the Palestinian Authority and the Palestine Liberation Organization under a 1991 federal law, the Torture Victim Protection Act. The law allows civil lawsuits against “an individual” who engages in torture or killings.
The justices seemed to find the 1991 law much easier to understand than the one from 1789. “Individual,” several justices said, has a common meaning, and it does not include corporations and other organizations.
“I think I have to say that you are on a weak wicket,” Justice Breyer told Jeffrey Fisher, a lawyer for the family.
Mr. Fisher did what he could with what the justices seemed to think was an exceptionally weak hand.
Chief Justice John G. Roberts Jr. summarized Mr. Fisher’s position: “You are saying, ‘Well, we want a term that is going to include individual persons and organizations but not state organizations.’ And the only term that fits perfectly is ‘individual.’ ”
“Exactly,” Mr. Fisher said. “That’s our argument.”
Chief Justice Roberts was incredulous. “Really?” he asked, to laughter in the courtroom, which the chief justice joined.
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