Supreme Court To Rule On Corporate Liability For International Human Rights Violations

Article by Paul R.Q. Wolfson , Jonathan G. Cedarbaum Randolph D. Moss , David W. Ogden , Gary Born , and Suzanne A. Spears

On Monday, the U.S. Supreme Court agreed to decide whether corporations or political organizations can be sued in United States courts for violations of international human rights norms, such as torture, genocide or forced labor, under two federal statutes. The Court accepted one case dealing with potential corporate liability under the Alien Tort Statute ("ATS"), Kiobel v. Royal Dutch Petroleum, 621 F.3d 111 (2d Cir. 2010), and a second case concerning the potential liability of organizations under the Torture Victim Protection Act ("TVPA"), Mohamad v. Rajoun, No. 09-7109 (D.C. Cir. March 18, 2011). The two cases probably will be heard in tandem during the Court's February sitting and decided by June 2012.

In disposing of these cases, the Court may put an end to the legal uncertainty that has been mounting for corporations since 2004, when the Court decided that federal courts were authorized to recognize common law claims for certain human rights violations. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court took its first in-depth look at the ATS, which was adopted by the first Congress in 1789 and gives U.S. district courts original jurisdiction over civil actions by aliens for torts "committed in violation of the law of nations or a treaty of the United States." The Court held that the ATS does not create any causes of action, but rather provides a jurisdictional hook for causes of action under federal common law for a narrow category of international law violations, namely those that were clearly recognized as actionable as common law at the time of the statute's enactment, such as piracy and offenses against ambassadors, and modern-day norms that are equally specific and equally widely recognized among "civilized nations" as carrying personal liability.

Applying Sosa's requirement that actionable norms be specific and widely recognized, lower courts have held that ATS claims may be based on slavery; genocide; crimes against humanity; war crimes; torture; human trafficking; cruel, inhuman or degrading treatment; forced labor; summary execution; prolonged arbitrary detention; apartheid; forced disappearance; and non-consensual medical testing.

The Court in Sosa identified, but left open, the question of whether corporations could be held liable under federal common law for violations of international law...