Brief of International Law Scholars as Amici Curiae in Support of Respondents, Nestle USA, Inc. & Cargill, Inc. v. Doe I

Abstract

This amicus brief was filed with the U.S. Supreme Court on behalf of international law scholars in Nestle USA, Inc. v. Doe I and Cargill, Inc. v. Doe I, suits alleging that U.S. corporations participated in child slavery in Ivory Coast. The brief explains that customary international law permits corporate liability for human rights violations. Customary international law establishes human rights norms that prohibit certain conduct but does not provide the means of enforcing those norms. Enforcement is instead left to states, which may act collectively through treaties or separately by providing liability under domestic law. International criminal tribunals generally have been given jurisdiction only over natural persons because some nations do not hold corporations criminally liable. In concluding suppression conventions, like the Genocide Convention and the Torture Convention, nations have similarly limited their obligations to prosecute or extradite to natural persons. But limitations on particular enforcement mechanisms are not limitations on the underlying norms themselves. This is confirmed by the wide-spread practice of states providing both criminal and civil liability for human rights violations, including corporate violations, in their domestic laws. Customary international law therefore permits the United States to recognize a cause of action against domestic corporations under the Alien Tort Statute (ATS) for violations of human rights norms as long as the norm at issue applies to corporations and the United States has jurisdiction to prescribe. There is no doubt that customary international law prohibits slavery and that this norm applies to juridical persons. The United States has jurisdiction to prescribe based on the U.S. nationality of the defendants and on the character of slavery as a universal jurisdiction offense.