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Court Skeptical Of Using U.S. Laws In Foreign Human Rights Cases

Publication Date: 
February 28, 2012
Source: 
The National Law Journal
Author: 
Marcia Coyle

Professor Kathleen M. Sullivan and professor Jeffrey L. Fisher are each representing the plaintiffs in the Supreme Court cases of Kiobel v. Royal Dutch Shell and Mohamad v. Palestinian Authority, respectively. Marcia Coyle of the National Law Journal filed the following report:

The U.S. Supreme Court during arguments Tuesday appeared skeptical of citizens and foreigners using two federal laws to hold corporations and other organizations liable for human rights violations committed abroad.

The justices heard back-to-back arguments in Kiobel v. Royal Dutch Shell and Mohamad v. Palestinian Authority, both of which involve allegations of torture and murder.

...

Representing the oil companies, Kathleen Sullivan of Quinn Emanuel Urquhart & Sullivan began by turning to Kennedy's first question to Hoffman and what is the core of her argument, which is that international law, not domestic law, determines who may be sued under the statute. "Justice Kennedy asked and Justice Breyer renewed the question: Is there any source in customary international law throughout the world that holds corporations liable for the human rights offenses alleged here? And the answer is there is none," she said.

Her opponents, she told the justices, have failed to show any international custom or practice holding corporations liable for human rights violations. International law, she said, holds corporations liable for some violations, for example, the convention on the suppression of terrorism financing and the convention on bribery of public officials.

"But the human rights offenses here do not arise from conventions like those which allow corporate liability," she added. "To the contrary, the human rights offenses here arise from conventions that speak to individual liability--the liability of individuals."

...

Representing Mohamad, Jeffrey Fisher of Stanford Law School faced even more skepticism than Hoffman before him on whether this law extends to corporations and organizations.

The word "individual" is not a strange word at all, said Justice Antonin Scalia, adding, "It's used all the time. It means an individual." Although it is an odd word to use in the context of a tort law, Fisher responded, "Congress always provides for organizational liability" in tort statutes.

Justice Elena Kagan questioned Fisher's view of the history of the statute and how the word "individual" was intended to be used. Justice Stephen Breyer said he looked at the legislative history and "I think I have to say that you are on a weak wicket."

However, Fisher stressed that the only purpose of the act is to provide compensation. "And in every court regime of which we are aware in federal law, the way that you get compensation in tort regimes is you hold agents liable and you hold corporations liable for the acts of their agents," he said. "And there is no good reason; if you think of the three things that a tort statute is supposed to accomplish--compensation, deterrence and accountability--on all three of those strands the TVPA utterly falls flat if it cannot reach organizations, and this is the perfect case that shows you how that is."

Picking up on Fisher's statement, Chief Justice John Roberts Jr. asked Laura Ferguson of Miller & Chevalier, counsel to the Palestinian Authority and the Palestinian Liberation Organization, why Congress would want to hold individual officers of an organization liable but not the organization itself.