Editorial Note: This morning the U.S. Supreme Court heard oral arguments in Kiobel v. Royal Dutch-Shell, a case which we have blogged about extensively over the past 18 months. Several of our staff members were in attendence, and four of them wrote brief initial impressions. This is one of those four.
I was struck by two things at today's argument. First, although several of the justices - especially Justice Alito - asked difficult questions that suggested a skepticism about using the ATS for transnational human rights cases, they did not ask pointed questions that supported applying different rules to human beings and corporations.
Justice Alito focused in particular on whether the ATS should apply to acts outside the United States, or acts committed by foreigners. When it was pointed out that theFilartiga case, which is the seminal modern ATS human rights case, involved torture by a Paraguayan official against a Paraguayan citizen in Paraguay, Justice Kennedy (who is often the deciding vote on controversial cases at the Supreme Court) stated that he thought we could assume that Filartiga was a valid precedent.
Second, although there were many interesting questions, statements, and examples (not least of which was Justice Breyer's hypothetical involving Blackbeard claiming that his stolen gold was exempt from recovery because it really belonged to Pirates, Inc.), the single line that impressed me the most was delivered by Kathleen Sullivan, the attorney for Shell. She stated: "We do not urge a rule of corporate impunity here."
What she meant was that even if the corporation itself could not be sued, any responsible corporate officers or employees could be sued. Of course, what she was urging is exactly that: corporate impunity. Shell's position would prevent the corporate treasury from ever being used to compensate victims of corporate-abetted human rights abuses, even if the corporation itself profited from those abuses.
Sullivan was clearly uncomfortable with the position that there should be no liability for corporate wrongdoing, and so she tried to claim that allowing suits against corporate officers and employees was sufficient. Nobody wanted to justify the position that corporations do, in fact, enjoy impunity when it comes to the most egregious violations of international human rights law.