The world of Alien Tort Statute/Alien Tort Claims Act has been a-humming as the oral argument date for Kiobel v. Royal Dutch Petroleum draws near. Some quick hits:
- Washington’s Ogonis (an ethnic group from Nigeria to which the Kiobel plaintiffs belong) are organizing around the oral argument.
- Eric De Brabandere of the Grotius Centre for International Legal Studies on “Non-State Actors and Human Rights: Corporate Responsibility and the Attempts to Formalize the Role of Corporations as Participants in the International Legal System”
Anthony J. Bellia Jr. of Notre Dame Law School and Bradford R. Clark of on George Washington University Law School on “Kiobel, Subject Matter Jurisdiction, and the Alien Tort Statute”
- D.C. Circuit Court says the fathers of two Guantanamo Bay detainees do not have claims under the Alien Tort Statute, the Federal Tort Claims Act, and the Fifth and Eighth Amendments.
No, not that CCR.
Yesterday, the Center for Constitutional Rights launched an ATCA-specific campaign and website, called Corporate Accountability Now. It’s a “coalition of groups supporting the idea that corporations should be held responsible in U.S. courts for violations of international human rights law.” Which groups? The bare-bones website doesn’t say, but the press release does:
Corporate Accountability Now is a joint project of EarthRights International, the Center for Constitutional Rights, and the Human Rights Litigation and International Legal Advocacy Clinic at the University of Minnesota Law School. Corporate Accountability Now does not represent the plaintiffs in either Kiobel v. Royal Dutch Petroleum or Mohamad v. Palestinian Authority, but the sponsoring organizations have filed amicus briefs in these cases.
Last week, I dumped some cold water on the idea that Kiobel will be a political issue this year. Anti-big business types can latch on to the idea that corporations are people when it suits them and aren’t when it doesn’t. America-firsters can bristle at the use of international law and the idea that foreigners are clogging up our court system. Yet somehow I can’t see this being an issue in the same league as gay marriage was in 2004 or prayer in schools has been for decades. Citizens United came down with a bang, but election day responded to it with barely a whimper.
Marcia Coyle of The National Law Journal: makes a comparison with Citizens United:
The next Citizens United, in the view of some of that decision’s most vigorous critics, may have nothing to do with campaign finance or the First Amendment.
Instead, corporations in a case the justices will hear this month seek not to spend their money but to avoid doing so by arguing that they have no liability under a 1789 statute for torts committed abroad in violation of international law or U.S. treaties.
The case, Kiobel v. Royal Dutch Petroleum Co., involves the Alien Tort Statute (ATS) and is scheduled for argument on Feb. 28. Kiobel will be heard in tandem with Mohamad v. Palestinian Authority, which raises a similar question involving claims against non-natural persons under a different statute — the Torture Victim Protection Act. Kiobel starkly pits the business community against human rights organizations.
Let’s look at the potential winners and losers in Kiobel. In one corner are the Rio Tintos and Royal Dutch Shells of the world, who would rather not publicly dwell on the kind of things they do to get the stuff they sell. The think tanks will write amici and talking points, but it doesn’t behoove them to talk more about it. In the other corner, we have ATS plaintiffs: poor, often indigenous people considered to be, at best, inconveniences by their own nations. Speaking on their behalf are a bunch of clinical professors and human rights lawyers.
Citizens United‘s winners and losers included politicians, who just happen to have a metaphorical megaphone and a predilection to use it. I find it hard to imagine that Kiobel will have the sustained attention of anyone who has any sort of audience.