December 22, 2011, New York, NY—Yesterday, the Center for Constitutional Rights (CCR), acting on behalf of leading human rights organizations and experts, submitted an amicus brief to the United States Supreme Court arguing that, under recognized general principles of law, corporations can be held liable in U.S. courts for human rights violations. CCR submitted the brief in support of the plaintiffs in the case Kiobel v. Royal Dutch Petroleum Co. (Shell). A ruling in the Supreme Court should settle a recent Circuit Court split that arose after the Second Circuit in New York ruled in the Kiobel case that corporations cannot be brought as defendants under the Alien Tort Statute (ATS), a law enacted in 1789. The brief submitted today argues that even looking to international law to answer the question of whether corporations can be held liable for egregious human rights violations, the answer must be yes because a general principle of corporate liability can be derived from surveying national systems, which all provide for some form of corporate accountability. The Court will hear oral argument in Kiobel on February 28.
Among the human rights groups signing the brief are the International Federation for Human Rights (FIDH), the International Commission of Jurists, Human Rights Watch, Amnesty International, the International Association of Democratic Lawyers, the Canadian Center for International Justice, Global Witness, the European Center for Constitutional and Human Rights and Rights & Accountability in Development (RAID).
Katherine Gallagher, a senior staff attorney at the Center for Constitutional Rights, stated, “Many of the worst human rights violations in recent history have been perpetrated with the complicity of corporations in the name of increasing profits. Thanks in large part to the Alien Tort Statute, even some of the largest and most powerful corporations have been called to account for their actions, and the victories that have been achieved serve as a caution to others against acting unlawfully. If the Supreme Court does not uphold corporate liability under the Alien Tort Statute, it will send a dangerous message the United States condones corporate impunity. After bestowing expansive rights on corporations in Citizens United, the Supreme Court should also obligate them to act within the bounds of the law.”
Rights groups are concerned that a ruling against the plaintiffs may endanger established elements of landmark cases brought under the ATS over the last three decades, when the statute began its first use in modern times with the Center for Constitutional Rights’ case,
Filártiga v. Peña-Irala. In that historic case, Dolly and Joel Filártiga, the sister and father of a teenager who was tortured to death by a police general in Paraguay, were able to file suit against Joelito’s killer in a U.S. district court while both Dolly and the former police general were in the U.S. at the same time. The family of Joelito Filártiga received a judgment of $10.4 million in that case.
Peter Weiss, Vice President of the Center for Constitutional Rights, remarked, “It would be a terrible tragedy for human rights all over the world if the courts again fail to affirm the rights of people over those of corporations. Since the late Rhonda Copelon and I brought the first case under the statute in modern times in 1979 with the Filartiga case, U.S. courtrooms have brought some semblance of closure to many for whom justice was out of reach at home. I hope we will see a ruling that enforces justice and accountability in the coming months.”
Since that ruling, the ATS has proved to be a valuable tool for victims of human rights violations abroad to seek redress for egregious human rights violations, including in cases against corporations. This includes Kiobel’s sister case,
Wiwa v. Royal Dutch Shell, first brought by the Center for Constitutional Rights, in which the oil company settled for a sum of $15.5 million for their alleged role in the Nigerian government’s execution of several members of the Ogoni tribe who had been protesting the company’s operations on their land. There have been settlements in other cases, including against Unocal and Blackwater, under confidential settlement agreements. In addition, despite the Second Circuit’s rejection of corporate liability in Kiobel v. Royal Dutch Petroleum Co., three other appeals courts this year, the Seventh, Ninth, and the D.C. Circuits, considered the Kiobel ruling an “outlier,” affirming corporate liability under the ATS in Flomo v. Firestone, Sarei v. Rio Tinto, and Doe v. Exxon Mobil, respectively.
Said Carlos Lopez, Senior Legal Advisor to the International Commission of Jurists, “A ruling by the Supreme Court allowing the use of the ATS to sue corporations will make a positive contribution to upholding the rule of law and human rights in an area where too many abuses are committed with impunity. A favorable decision, which a general principles analysis demonstrates is justified, will also have a significant impact beyond the United States at the international level, possibly lending new impetus to efforts there for additional rules and mechanisms to hold wrongdoing companies to account.”
