U.S. Supreme Court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations

On October 17th the U.S. Supreme decided to hear two cases challenging whether corporations can be held liable for aiding and abetting foreign human rights abuses.[1] As a result, the Supreme Court should hear oral arguments and render decisions in the cases before the end of this term of the Court in late June 2012.

1. The Royal Dutch Petroleum Company or Shell Case

In the first of these cases, the Royal Dutch Petroleum Co. or Shell case, a group of Nigerians sued several Shell subsidiaries for money damages. They alleged that the companies had enlisted the aid of the Nigerian government to suppress local opposition to oil exploration and that government forces had killed and abused certain Nigerians and destroyed their property.[2] The complaint was brought under a U.S. federal statute known as the Alien Tort Statute, which simply provides that the U.S. district courts have “original jurisdiction of any civil action by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[3]

In the Shell case, the U.S. Court of Appeals for the Second Circuit in New York City, in a lengthy opinion by Judge Cabranes, held, 2 to 1, that (a) that international law was the relevant law for determining whether corporations (or other legal entities) could be held liable under ATS for alleged violations of the law of nations; and (b) that customary international law and hence ATS did not recognize or allow corporate direct or accessory civil liability for human rights violations. [4]

The Second Circuit in Kiobel also said it was not prevented from so holding by its own precedents. Although at least five prior such precedents had not rejected ATS cases against corporations on that ground, according to Kiobel, they merely had assumed the viability of such suits for various reasons.

One of the judges in the three-judge panel in Kiobel, Judge Leval, submitted an even lengthier concurring opinion. He agreed that the complaint in its entirety had to be dismissed because it did not allege that the corporate defendants had purposefully aided and abetted the Nigerian government’s alleged violations of human rights. But Judge Leval concluded that international law left to domestic law the issue of whether corporations were civilly liable for aiding and abetting violations of international law and that U.S. law allowed for such liability.

2. Mohammad v. Jabril Rajoub

The second of these two cases raises a similar issue under another U.S. federal statute, the Torture Victims Protection Act (TVPA). That statute imposes civil liability for money damages on an “individual who, under actual or apparent authority, or color of law, of any foreign nation–(1) subjects an individual to torture . . . or (2) subjects an individual to extrajudicial killing . . . .” (Emphasis added.)[5]

Thus, the issue in the second case is whether a corporation or other legal entity is an “individual” within the meaning of the TVPA. In the Rajoub case, the U.S. Court of Appeals for the District of Columbia Circuit held that such entities were not “individuals” within the meaning of the TVPA and, therefore, could not be sued under that statute.[6]