Kiobel V. Royal Dutch Petroleum Co.: Corporate Liability Under the Alien Torts Statute

Abstract

Kiobel v. Royal Dutch Petroleum Co., (2d. Cir.) overruled numerous 2d circuit decisions and contradicts sister federal appellate courts in other circuits, finding that corporate liability in international law is not a sufficiently specific norm to support a finding of liability under the Alien Tort Statute. That decision is clearly erroneous. Kiobel violates the general principle of legality, immunizing corporate conduct from liability even in cases where States would be liable for violating jus cogens norms and thus also violates the principle of sovereign equality of States due to principles of comity and res judicata. Kiobel also is an abnegation by the U.S. of U.S. obligations under international law. While no state is obliged to remedy jus cogens violations, each state is obliged to respect them. Because Kiobel reflects a deep and significant split at the circuit courts, because it concerns U.S. international legal obligations, because the stakes, in human and financial terms are high, because it was so obviously wrongly decided, the split that Kiobel represents will surely eventually reach the U.S. Supreme Court. This article explains precisely why the court's decision in Kiobel misapprehends the structure and sources of international law and consequently reaches the wrong result for the wrong reasons. The U.S. Supreme Court will likely conclude that the ATS governs jus cogens claims against natural and artificial persons without a showing of state action, but requires state action or complicity with state action otherwise.