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CORPORATE HUMAN RIGHTS ACCOUNTABILITY: THE OBJECTIONS OF WESTERN GOVERNMENTS TO THE ALIEN TORT STATUTE

Published online by Cambridge University Press:  17 July 2014

Uta Kohl
Uta Kohl*
Affiliation:
Department of Law and Criminology, Aberystwyth University, [email protected].
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Abstract

The almost two decade-long bonanza of civil litigation concerning gross human rights violations committed by corporations under the US Alien Tort Statute 1789 was scaled back by the US Supreme Court in Kiobel v Royal Dutch Petroleum in April 2013. The court restricted the territorial reach of human rights claims against transnational corporations by holding that the presumption against extra-territoriality applied to the Act. Thus Shell, the Dutch/British defendant, and the role it played in the brutal suppression by the Nigerian military of the Ogoni peoples' protest movement against the environmental devastation caused by oil exploration, lay outside the territorial scope of the Act. Legal accountability must lie in a State with a stronger connection with the dispute. While this article briefly engages with the Supreme Court decision, its main focus is on the attitude of Western governments to the corporate human rights litigation under the ATS as articulated in their amicus briefs. In these briefs they objected to the statute's excessive extraterritoriality and horizontal application of human rights to artificial non-State actors. In these two respects corporate ATS litigation created significant inroads into the conventional State-centric approach to human rights and thus provided an opportunity for more effective human rights enjoyment. This article tests the validity of the objections of Western governments to corporate human rights obligations under the ATS against the norms of public international law and against the substantive demands arising out of the shortfalls of the international human rights enforcement.

Keywords

Alien Tort Statuteamicus briefsartificial non-State actorsextraterritorial enforcementhorizontal enforcementhuman rightsjurisdictionKiobel
Type
Articles
Information
International & Comparative Law Quarterly , Volume 63 , Issue 3 , July 2014 , pp. 665 - 697
Copyright
Copyright © British Institute of International and Comparative Law 2014 

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References

1 Rehman, J, International Human Rights Law: A Practical Approach (2nd edn, Pearson 2010) 12Google Scholar: ‘The progression of human rights law has generally been in the direction of according protection to the individuals against their States with the ‘anti-State’ stance flowing from the assumption that individual persons must be protected from the abuse of power of parliaments, governments and public authorities' (internal marks omitted).

2 There is a vast amount of literature on this topic; for a small selection, see Joseph, S, Corporations and Transnational Human Rights Litigation (Hart 2004)Google Scholar; Bottomley, S and Kinley, D (eds), Commercial Law and Human Rights (Ashgate 2002)Google Scholar chs 3 and 5; Frynas, JG and Pegg, S (eds), Transnational Corporations and Human Rights (Palgrave 2003)Google Scholar; Kinley, D, Human Rights and Corporation (Ashgate 2009)Google Scholar; International Council on Human Rights Policy, Beyond Voluntarism: Human Rights and the Developing International Legal Obligations of Companies (February 2002) chs 4 and 7, <http://www.ichrp.org/>; International Commission of Jurists, Final Report of the Expert Legal Panel on Corporate Complicity in International Crimes (September 2008) <http://www.icj.org>; Council of Europe, Human Rights and Business (27 September 2010) <http://assembly.coe.int/ASP/Doc/XrefViewPDF.asp?FileID=12594&Language=EN>; UN Human Rights Council, Business and Human Rights: Towards Operationalizing the ‘Protect, Respect and Remedy’ Framework: Report of the Special Representative of the Secretary-General on the Issue of Human Rights and Transnational Corporations and other Business Enterprises (22 April 2009) <http://www2.ohchr.org/english/bodies/hrcouncil/docs/11session/A.HRC.11.13.pdf>. For an excellent collection of critiques on the corporate person see Corporate Accountability and Legal Liability: On the Future of Corporate Capitalism (2010) 34 Cambridge Journal of Economics <http://cje.oxfordjournals.org/content/34/5.toc>. For alternative approaches to regulating TNCs, see Dine, J, ‘Jurisdictional Arbitrage by Multinational Companies: A National Law Solution?’ (2012) 3 JHRE 44Google Scholar (critiquing the under-regulation of TNCs via a critique of national company law and the legal non-recognition) and McCorquodale, R and Simons, P, ‘Responsibility beyond Borders: State Responsibility for Extraterritorial Violations by Corporations of International Human Rights Law’ (2007) 70 MLR 598Google Scholar (examining when home States may incur human rights responsibility for the activities of their companies abroad).

3 The UN Human Rights Council ‘Protect, Respect and Remedy’ Framework, A/HRC/8/5 (7 April 2008) developed under the guidance of John Ruggie, UN Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises, and operationalized in UN Human Rights Council, The Guiding Principles on Business and Human Rights: Implementing the United Nations ‘Protect, Respect and Remedy’ Framework A/HRC/RES/17/4 (6 July 2011).

4 Kiobel v Royal Dutch Petroleum Co 569 US _ (17 April 2013), affirmed 621 F3d 111 (2d Cir 2010). The Briefs examined here: Brief of Federal Republic of Germany as Amicus Curiae in Support of Respondents, Kiobel v Royal Dutch Petroleum Co No 10-1491 (2 February 2012) [German Kiobel Brief]; Brief of the European Commission on behalf of the European Union in Support of Neither Party No 10-1491 (13 June 2012) [European Commission Kiobel Brief]; Supplemental Brief of Volker Beck and Christoph Strasser, Members of Parliament of the Federal Republic of Germany as Amici Curiae in Support of Petitioners, Kiobel v Royal Dutch Petroleum Co No 10-1491 (11 June 2012) [German MP Kiobel Brief]; Brief of the Governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Respondents, Kiobel v Royal Dutch Petroleum Co, No 10-1491 (3 February 2012) [UK/Netherlands Kiobel Brief 1]; Brief of the Governments of the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of Neither Party, Kiobel v Royal Dutch Petroleum Co, No 10-1491 (11 July 2012) [UK/Netherlands Kiobel Brief 2]; Supplemental Brief for the United States as Amicus Curiae in Partial Support of Affirmance, Kiobel v Royal Dutch Petroleum Co, No 10-1491 (June 2012) [US Kiobel Brief];

5 Sosa v Alvarez-Machain 542 US 692 (2004). The Briefs examined here: Brief of Amicus Curiae European Commission in Support of Neither Party, Sosa v Alvarez-Machain No 03-339 (23 January 2004) [European Commission Sosa Brief]; Brief of the Government of the Commonwealth of Australia, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland as Amici Curiae in Support of the Petitioner, Sosa v Alvarez-Machain No 03-339 (23 January 2004) [Australian, Swiss, UK Sosa Brief].

6 Presbyterian Church of Sudan v Talisman Energy Inc 582 F3d 244 (2nd Cir 2009) (dismissal on the ground of failure to establish purposeful complicity of the defendant in the human rights abuses; appealed to the Supreme Court which denied the review in 4 October 2010.) The Briefs examined here: Diplomatic Note from the Embassy of Canada to the Department of State (described in Presbyterian Church of Sudan v Talisman Energy Inc (2005) WL 2082846 (SDNY)) [Canadian Talisman Diplomatic Note]; Brief of Amicus Curiae Professor James Crawford in Support of Conditional Cross-Petitioner Presbyterian Church of Sudan v Talisman Energy Inc No 09-1418 [Crawford Talisman Brief].

7 European Commission Kiobel Brief (n 4) 30.

8 28 USC section 1350.

9 Moxon v The Fanny 17 F Case 942, 948 (D Pa 1793) (dismissing a claim by shipowners for the seizure of their ship because it involved restitution, not ‘a tort only’), Bolchos v Darrell 3 F Case 810 (DSC 1795) (concerning the claim of a French captain over slaves in a US port seized from a Spanish vessel vis-à-vis that of a British stakeholder with a mortgage over the slaves) and Adra v Clift 195 F Supp 857 (D Md 1961) (concerning the claim of a Lebanese man that his ex-wife used forged passports to bring their child to the US) discussed in Davis, Jeffrey, Justice Across Borders: The Struggle for Human Rights in U.S. Courts (CUP 2008) 27Google Scholar.

10 630 F2d 876 (2d Cir 1980); ‘Filártiga v. Peña-Irala, has been to global human rights litigants what Brown v. Board of Education was for advocates of racial integration domestically.’ JG Ruggie, (UN Secretary-General's Special Representative for Business and Human Rights), ‘Kiobel and Corporate Social Responsibility’ (4 September 2012) Issues Brief: Harvard Kennedy School, 1ff, <http://www.hks.harvard.edu/m-rcbg/CSRI/KIOBEL_AND_CORPORATE_SOCIAL_RESPONSIBILITY%20(3).pdf>.

11 70 F3d 232 (2nd Cir 1995).

12 Doe I v Unocal Corp 963 F Supp 880 (CD Cal 1997); see also Doe 1 v UNOCAL Corp 395 F3d 932 (9th Cir, 2002).

13 Examples of the more high-profile cases: Presbyterian Church of Sudan v Talisman Energy Inc 582 F3d 244 (2nd Cir 2009) see (n 6); Abdullahi v Pfizer Inc 562 F3d 163 (2d Cir 2009); Sinaltrainal v Coca-Cola 578 F3d 1252 (11th Cir 2009); Sarei v Rio Tinto plc No. 02-56256, WL 5041927 (9th Cir, 25 October 2011). For a comprehensive overview of the ensuing case law, see Joseph (n 2) ch 2.

14 Note, although the law of nations would generally be understood to refer to public international law, given that the ATS refers to treaties separately, the reference to the ‘law of nations’ in the ATS has been interpreted as referring to customary international law.

15 For example, Chandler v Cape plc [2012] EWCA Civ 525 (discussed below); Guerrero v Monterrico Metals Plc [2009] EWHC 2475; [2010] EWHC 3228; Lubbe v Cape Plc [2000] UKHL 41; Sithole v Thor Chemicals Holdings & Desmond Cowley (2000) WL 1421183l; Connelly v RTZ Corporation plc [1997] UKHL 30; Ngcobo v Thor Chemicals Holdings Ltd & Desmond Cowley (10 November 1995) TLR; discussed in Meeran, R, ‘Tort Litigation against Multinational Corporations for Violations of Human Rights: An Overview of the Position outside the United States’ (2011) 3 City University of Hong Kong Law Review 1Google Scholar.

16 Some civil tort actions have strongly touched upon questions of international law: Al-Adsani v Kuwait (1996) 107 ILR 536, affirmed in Al-Adsani v United Kingdom (2002) 34 EHRR 273 and Jones v Saudi Arabia [2006] UKHL 26, affirmed in Jones and others v United Kingdom [2014] ECHR 32, both of which held that upholding State immunity in civil claims arising out of the torture, either against the State or its officials is a legitimate and proportionate restriction on the right of access to court and not incompatible with art 6 of the European Convention of Human Rights—even where such immunity might not exist in criminal actions eg R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3) [2000] AC 147, paras 47–48, 51. See also Baughen, S, ‘Holding Corporations to Account: Drafting ATS Suits in the UK?’ (2013) 2 British Journal of American Legal Studies 533, 563Google Scholar.

17 On the background of the ATS, see Sosa v Alvarez-Machain 542 US 692, 715 (2004): ‘[a]n assault against an ambassador, for example, impinged upon the sovereignty of the foreign nation and if not adequately redressed could rise to an issue of war … It was this narrow set of violations of the law of nations, admitting of a judicial remedy and at the same time threatening serious consequences in international affairs, that was probably on minds of the men who drafted the ATS with its reference to tort.’ and US Kiobel Brief (n 4) 4ff: where the ‘individual torturer was found residing in the United States, … this country would be perceived as haboring the perpetrator’.

18 See eg Wiwa v Royal Dutch Petroleum Co 226 F3d 88 (2d Cir 2000).

19 In 2012 the Supreme Court decided that the Torture Victim Protection Act (which frequently provided a parallel cause of action to the ATS) only applied to natural persons, as it refers to ‘individuals’ as perpetrators: Mohamad v Palestinian Authority 566 US, 132 S Ct 1702 (2012).

20 Kiobel v Royal Dutch Petroleum Co 569 US _ (17 April 2013) 5. Note the founding fathers of the ATS opted for a judicial rather than a political solutions to cases with foreign-policy implications, see D'Amato, A, ‘The Alien Tort Statute and the Founding of the Constitution’ (1988) 82 AJIL 62, 65ffGoogle Scholar: ‘the Alien Tort Statute was an important part of a national security interest in 1789. Acutely recognizing that denials of justice could provide a major excuse for a European power to launch a full-scale attack on our nation, the Founding Fathers made sure that any such provocation could be nipped in the bud by the impartial processes of federal courts … By providing for an impartial system of federal courts that had jurisdiction over such controversies, the new Government could shun political entanglements and no-win situations. The “law of nations” would serve as an impartial standard, acceptable to all nations, and torts committed by American citizens in violation of that law would be redressed through its application by federal courts.’

21 Kiobel v Royal Dutch Petroleum Co 569 US _ (17 April 2013) 7.

22 ibid 4.

23 See eg Dodge, WS, ‘Understanding the Presumption against Extraterritoriality’ (1998) 16(1) Berkeley JIntlL 85, 90Google Scholar.

24 For a critique of this aspect, see Wuerth, I, ‘Kiobel v. Royal Dutch Petroleum Co.: The Supreme Court and the Alien Tort Statute’ (2013) 107 AJIL 601Google Scholar.

25 Kiobel v Royal Dutch Petroleum Co 569 US _ (17 April 2013) 14 (emphasis added).

26 Morrison v National Australia Bank Ltd 561 US (2010) 6.

27 Kiobel v Royal Dutch Petroleum Co 569 US _ (17 April 2013) 7.

28 ibid 7; see also 13ff.

29 ibid 1ff (emphasis added); see also 7.

30 ibid 14ff.

31 Reydams, L, Universal Jurisdiction – International and Municipal Legal Perspectives (OUP 2003) 28–38Google Scholar.

32 Kiobel v Royal Dutch Petroleum Co 569 US _ (17 April 2013) 1ff.

33 But see Akpan and Vereniging Mileudefensie v Royal Dutch Shell plc and Shell Petroleum Development of Nigeria Ltd LJN BY9854 (District Court of the Hague, 30 January 2013), discussed below (n 87), where a Dutch court held that Shell's Nigerian subsidiary was responsible for oil pollution in the Niger delta. The case did not raise Shell's involvement in the brutal suppression of the protests by the Nigerian military in the early 1990s.

34 European Commission Kiobel Brief (n 4) 30ff.

35 For example, UK/Netherlands Kiobel Brief 2 (n 4) 11–18, but also, particularly on the general need for a nexus: German Kiobel Brief (n 4) 16ff; Australian, Swiss, UK Sosa Brief (n 5) 3–10 and 20ff; European Commission Sosa Brief (n 5) 12ff.

36 The ambiguities arising from silence are reflected in some domestic rules. For example, silence is only in limited circumstances taken as an acceptance of an offer or as a ratification of an unauthorized act by an agent.

37 The Case of the SS Lotus, France v Turkey (1927) PCIJ (Ser A) No 10, 18, para 46

38 Lowe, V and Staker, C, ‘Jurisdiction’ in Evans, MD (ed), International Law (3rd edn, OUP 2010) 313, 318ffGoogle Scholar. For a commentary, see also Ryngaert, C, Jurisdiction in International Law (OUP 2008) 36ffGoogle Scholar.

39 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (ICJ Advisory Opinion) 22 July 2010, <http://www.icj-cij.org/docket/files/141/15987.pdf>.

40 ibid para 56.

41 Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo (ICJ, Declaration by Judge Simma) 22 July 2010, <http://www.icj-cij.org/docket/files/141/15993.pdf> para 2.

42 ibid para 3.

43 Australian, Swiss, UK Sosa Brief (n 5) 6 (emphasis added).

44 ibid 6, note 8.

45 UK/Netherlands Kiobel Brief 2 (n 4) 11ff (emphasis added, internal citations omitted).

46 Respectively, The Nottebohm Case, Liechtenstein v Guatemala (1955) ICJ 4 and Anglo Norwegian Fisheries Case, UK v Norway (1951) ICJ 116. In addition they also mention a number of academic treaties that do not specifically refer to civil proceedings. UK/Netherlands Kiobel Brief 2 (n 4) 11, note 14.

47 But on the nature of the obligations between States, see eg J Crawford, ‘Responsibility to the International Community as a Whole– Lecture given in honour of Earl Snyder (5 April 2000), < http://www.lcil.cam.ac.uk/sites/default/files/LCIL/documents/papers/Snyderlect00(f).pdf> 12: according to ‘[c]lassical international law … international law obligations were “civil” and not criminal — at any rate, they were not criminal. States cannot commit crimes, only individuals can commit crimes, as the Nüremburg Tribunal said’.

48 Martin, FF, Schnably, SJ and Wilson, RJ, International Human Rights and Humanitarian Law: Treaties, Cases and Analysis (CUP 2006) 195Google Scholar.

49 Akehurst, M, ‘Jurisdiction in International Law’ (1972–73) 46 BYIL 145, 170Google Scholar (emphasis in original, internal citations omitted). See also Fitzmaurice, G, ‘The General Principles of International Law’ (1970) 92 Recueil des Cours 1, 218Google Scholar; Mutz, G, ‘Private International Law’ in Bernhardt, R (ed), Encyclopaedia of Public International Law (Nort-Holland 1987) vol 10, 330, 334Google Scholar; Shaw, M, International Law (8th edn, CUP 2008) 652Google Scholar.

50 Kuwait Airways Corp v Iraqi Airways Co [2002] 3 All ER 209, para 174 (Lord Scott of Foscote); discussed in Carruthers, JM and Crawford, EB, ‘Kuwait Airways Corporation v Iraqi Airways Company’ (2003) 52 ICLQ 761Google Scholar. See also Berezovsky v Michaels and Others [2000] UKHL 25 or The Vishva Ajay [1989] 2 Lloyd's Rep 558.

51 Kuwait Airways Corp v Iraqi Airways Co [2002] 3 All ER 209, para 166 (Lord Hope of Craighead).

52 BBC, ‘Dutch Court compensates Palestinian for Libya jail’ (28 March 2012) <http://www.bbc.co.uk/news/world-middle-east-17537597>; E Kontorovich, ‘Kiobel (IV): Precedent-setting Dutch Civil Universal Jurisdiction Case’ (28 March 2012) Opinio Juris <http://opiniojuris.org/2012/03/28/precedent-setting-dutch-civil-universal-jurisdiction-case/>.

53 While the US government's attitude to the litigation has varied, in Kiobel it supported corporate ATS litigation in principle but in much more narrowly defined circumstances and thus advocated against allowing the Kiobel claim: US Kiobel Brief (n 4). In that Brief, the Government made repeated calls for the home State to allow actions against their companies.

54 Mann, FA, ‘The Doctrine of Jurisdiction in International Law’ (1964) 111 Recueil des Cours 1, 73ffGoogle Scholar; Mann, FA, ‘The Doctrine of International Jurisdiction Revisited after Twenty Years’ (1984) 186 Recueil des Cours 9, 20ff, 67ffGoogle Scholar; Crawford, J, Principles of Public International Law (7th edn, OUP 2012)Google Scholar.

55 Germany v Italy: Greece Intervening (2012) ICJ Reports 99, para 91; Al-Adsani v United Kingdom (2002) 34 EHRR 273; Jones and others v United Kingdom [2014] ECHR 32, paras 205–215; contrast to the criminal case of R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3) [2000] AC 147.

56 UK/Netherlands Kiobel Brief 2 (n 4) 16 (emphasis added).

57 Case Concerning the Arrest Warrant of 11 April 2000, Democratic Republic of the Congo v Belgium (ICJ, Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal) 14 February 2002 <http://www.unhcr.org/refworld/docid/3c6cd39b4.html> para 48 (emphasis added).

58 EC Sosa Brief (n 5) 17. EC Kiobel Brief (n 4) 17.

59 EC Sosa Brief (n 5) 17–20.

60 Strictly speaking the ATS does not enforce international law; it allows federal courts to enforce federal common law which provides a cause of action for breaches of customary international law: Sosa v Alvarez-Machain 542 US 692, 724 (2004). But see Wuerth (n 24) 619ff.

61 See eg Lowe, AV (ed), Extraterritorial Jurisdiction: An Annotated Collection of Legal Materials (Grotius Publications 1983)Google Scholar.

62 542 U.S. 155 (2004). For the same reason the Supreme Court judgment in Morrisons v National Australia Bank Ltd 130 S Ct 2869 (2010) which deals with the extraterritorial ambit of US federal securities law is very different from ATS cases where the applicable law is customary international law.

63 For reliance on such cases, see eg UK/Netherlands Kiobel Brief 1 (n 4) 29ff; Australian, Swiss, UK Sosa Brief (n 5) 9ff.

64 See Joseph (n 2) 25ff.

65 Sosa v Alvarez-Machain 542 US 692, 692 (2004); see also Filártiga v Peña-Irala 630 F2d 876 (2nd Cir 1980).

66 UK/Netherlands Kiobel Brief 1 (n 4) 2, 30 respectively; see also UK /Netherlands Kiobel Brief 2 (n 4) 24–30 and German Kiobel Brief (n 4) 2; note the Canadian Talisman Diplomatic Note (n 6) 1, expresses concern about the impact of the US litigation on the activities of Canadian firms in Sudan and on relevant foreign policy initiatives by the Canadian government.

67 There may be residual concerns given that procedures and penalties often vary.

68 Generally, however, the ‘unconnected’ State acquires a connection by virtue of having arrested the alleged perpetrator. Note too, not all uniformly condemned activities (eg theft or murder) attract universal jurisdiction; the activity must be of ‘mutual’ and not just ‘several’ concern to States (eg Filártiga v Peña-Irala 630 F2d 876, 888 (2nd Cir, 1980)). Universal jurisdiction applies to heinous conduct and to conduct outside any State's jurisdiction and in both cases is designed to ensure that the wrongdoer does not slip the net of justice.

69 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] AC 147, 157.

70 The latter subset consists of jus cogens norms to which, some have argued, the ATS should be restricted: Christensen, DD, ‘Corporate Liability for Overseas Human Rights Abuses: The Alien Tort Statute after Sosa v Alvarez-Machain’ (2005) 62 Washington & Lee Law Review 1219Google Scholar, 1245ff. See also Doe v Unocal 110 F Supp 2d 1294, 1304 (CD Cal 2000).

71 Shell US, Retail, <http://www.shell.us/aboutshell/shell-businesses/retail.html>.

72 The US is, for example, particularly plaintiff-friendly in some procedural matters, see Joseph (n 2) 16ff.

73 Art 38(1)(a), (b) and (d) of the Statute of the ICJ, discussed in Roberts, A, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 ICLQ 57, 61ffGoogle Scholar.

74 Wuerth (n 24) 618: ‘ATS litigation has the potential to play an important role in the development and enforcement of customary international law. Decisions of national courts can constitute state practice and evidence of opinio juris’.

75 Roberts (n 73) 59.

76 Ibid 58ff (internal marks omitted).

77 R v Bow Street Metropolitan Stipendiary Magistrate Ex parte Pinochet Ugarte (No 3) [2000] AC 147.

78 Jones v Saudi Arabia [2006] UKHL 26.

79 R v Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No 3) [2000] AC 147, 157, discussed in EA Engle, ‘Alien Torts in Europe? Human Rights and Tort in European Law’ (2005) Zentrum für Europäische Rechtspolitik an der Universität Bremen, Diskussionspapier 1/2005 <http://www.geocities.ws/eric.engle/V.pdf>.

80 Exceptionally, remedies may be available where there has been a regime change, as eg in South Africa; for the objection of the South African government to ATS litigation concerning human rights abuses during the apartheid see Government of South Africa, Declaration Concerning In Re South African Apartheid Litigation and In Re Khulumani & Others (11 July 2003), discussed in UK/Netherlands Kiobel Brief 2 (n 4) 25ff, but later withdrawn; see South Africa's Minister of Justice to the US Judge hearing the revised case (1 September 2009) <http://www.khulumani.net/khulumani/documents/file/12-min.justice-jeff-radebe-letter-to-us-court-2009.html>: ‘the Government of the Republic of South Africa, having considered carefully the judgement of the United States District Court, Southern District of New York, is now of the view that this Court is an appropriate forum to hear the remaining claims of aiding and abetting in violation of international law’.

81 Wiwa v Royal Dutch Petroleum Co 226 F3d 88 (2nd Cir 2000). In addition, there is also a host of practical problems that make civil actions in third world countries, even if theoretically available, much less feasible than in developed world; Joseph (n 2) 98, notes that very few cases are litigated after being dismissed in the US on the basis of forum non conveniens; one such exception was the action brought by the Indian government against the US parent company in the 1984 Union Carbide's Bhopal disaster in India which killed 2000 and injured 200,000.

82 Presbyterian Church of Sudan v Talisman Energy (2013) 244 F Supp 289, 336 (SDNY 2003); see generally Joseph (n 2) 87ff. Contrast to the assertion in the Australian, Swiss, UK Sosa Brief (n 5) 24 (arguing that the Ninth Circuit has ‘not shown any particular sensitivity’ to the practical realities surrounding the cases). See also Lubbe and Others v Cape plc [2000] 4 All ER 268, where the House of Lords held that it should be considered within the forum non conveniens inquiry whether or not substantial justice would be obtained in the foreign forum, and the availability of funding may well feed into this inquiry.

83 UK/Netherlands Kiobel Brief 1 (n 4) 25ff.

84 The violating States and its officials would generally be protected by the doctrine of state immunity.

85 US Kiobel Brief (n 4) 22–7, esp 24ff.

86 UK/Netherlands Kiobel Brief 1 (n 4) 25, where the governments propose ‘guidelines’ ie non-binding recommendations for corporations, which in fact already exist, see (n 3) and accompanying text.

87 Akpan and Vereniging Mileudefensie v Royal Dutch Shell plc and Shell Petroleum Development of Nigeria Ltd LJN BY9854 (District Court of the Hague, 30 January 2013) <http://uitspraken.rechtspraak.nl/#ljn/BY9854> (in Dutch), see Asser Institute Centre for International and European Law, ‘Dutch Judgements on Shell's Liability’ (30 January 2013) <http://www.asser.nl/default.aspx?site_id=7&level1=12218&level2=12255&level3=13072&textid=40622>. Note, the claim by the Dutch NGO was disallowed by under Nigerian law the oil spills in Nigeria do not infringe its rights. See also Leigh Day, ‘11,000 Nigerians sue Shell in London Courts’ (22 March 2012) <http://www.leighday.co.uk/News/2012/March-2012/11,000-Nigerians-sue-Shell-in-London-Courts>. See also Baughen (n 16) 558ff.

88 In 2005, a Nigerian Court ruled that Shell's oil extraction methods involving flaring of natural gas was illegal and contravened the Nigerian Constitution guaranteeing citizens the right to life and human dignity. IRIN –Humanitarian News and Analysis, ‘NIGERIA: In key ruling, court deems gas-flaring illegal’ (15 November 20056) <http://www.irinnews.org/report/57165/nigeria-in-key-ruling-court-deems-gas-flaring-illegal> By 2012 the gas-flaring practices continued: IRIN – Humanitarian News and Analysis, ‘NIGERIA: Gas flares still a burning issue in the Niger Delta’ (8 March 2012) <http://www.irinnews.org/report/95034/nigeria-gas-flares-still-a-burning-issue-in-the-niger-delta>.

89 German Kiobel Brief (n 4) 11–12.

90 German MP Kiobel Brief (n 4) 9; see also Engle (n 79) 37ff, commenting on the unsuccessful case of Malenkovic LG Bonn (10 October 2003, Az 1 O 361/02) on the right of remedy which accrues to a State, not an individual under international law.

91 Wiwa v Royal Dutch Petroleum Co 226 F3d 88 (2nd Cir 2000) where the court noted: ‘[w]e regard the British courts as exemplary on their fairness and commitment to the rule of law’ but nevertheless rejected the forum non conveniens argument.

92 As shown by the numerous objections and amicus briefs filed in ATS litigation, generally by the home States of the companies, but also occasionally by the host States, eg the Nigerian government filed an objection to the Wiwa litigation, ibid.

93 Hanna, MW, ‘An Historical Overview of National Prosecutions for International Crimes’ in Bassiouni, M Cherif (ed), International Criminal Law – Vol III (3rd edn, Martinus Nijhoff 2008) 297, 327Google Scholar.

94 Or as in the ATS cases, allow actions by private parties to proceed. In many ways, all of human rights law is prima facie contrary to State interest as it entails external restrictions on State activity, and is thus predicated on mobilizing public opinion, and this holds true for its internationalization. Risse, T and Sikkink, K, ‘The Socialization of International Human Rights Norms into Domestic Practices: Introduction’ in Risse, T, Roop, SC and Sikkink, K (eds), The Power of Human Rights (CUP 1999) 12CrossRefGoogle Scholar: ‘the diffusion of international norms in the human rights area crucially depends on the establishment and the sustainability of networks among domestic and transnational actors who manage to link up with international regimes, to alert Western public opinion and Western governments’.

95 Note too the non-permanent UN tribunals, such as the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.

96 These norms have their origin in the Enlightenment belief (see eg John Locke) that all people are equal and have an equal entitlement to certain basic minimum rights that enable their human flourishing.

97 Al-Skeini and others v United Kingdom App No 55721/07 (ECtHR, 7 July 2011) para 149, see also 130–50, interpreting art 1 of the ECHR. One might even argue that in this case, the very ‘abuse’ was in itself taken as an indicator of the control and authority the UK had over the victims—an argument which, if accepted, would dispense with the need for an a priori jurisdictional link. See also Australian, Swiss, UK Sosa Brief (n 5) 24.

98 Examples of environmental degradation at the hands of Western TNCs in third world counties abound. In 2009, West African children were found to be exposed to toxic electronic waste collected from British municipal dumps and shipped to countries, such as Nigeria and Ghana. Similarly, the suppression of social protest by governments as supported by TNCs, has been well documented, for example, in the case of Shell (headquartered in the UK and the Netherlands) against Ogoni people in southern Nigeria. Again, Shell's practices in Nigeria would not have passed the first EIA in the UK or the Netherlands. In light of these examples, the rhetoric of universality is unhelpful by disguising inequalities even at the point of standard setting.

99 As would be accommodated by principles forum non conveniens (private international law) and exhaustion of local remedies (public international law); see US Kiobel Brief (n 4) 22ff; German Kiobel Brief (n 4) 14ff.

100 It is a matter of debate whether the issue of which type of actor may be liable under international law pursuant to the ATS should be resolved by reference to domestic law or international law. See eg EC Sosa Brief (n 5) 10.

101 See text accompanying nn 39 and 40.

102 Accordance with International Law of Unilateral Declaration of Independence in Respect of Kosovo (ICJ, Declaration by Judge Simma) 22 July 2010, <http://www.icj-cij.org/docket/files/141/15993.pdf>, para 9 (emphasis in the original).

103 UK/Netherlands Kiobel Brief 1 (n 4) 13 (emphasis added). Also Judge Posner in Flomo v Firestone Natural Rubber Co 643 F3d 1013 (7th Cir 2011) notes that in fact in the Nuremberg trials two sanctions were directly aimed at corporations.

104 UK/Netherlands Kiobel Brief 1 (n 4) 13–16.

105 Ambos, K, ‘Article 25. Individual Criminal Responsibility’ in Triffterer, O (ed), Commentary on the Rome Statute of the International Criminal (2nd edn, Beck 2008) 475, 478Google Scholar; see also UK/Netherlands Kiobel Brief 1 (n 4) 14 and 18ff, also 6 ‘It is also of particular significance that the creators of the International Criminal Court deliberately confined its jurisdiction to individuals.’ But see Clapham, A, ‘Extending International Criminal Law beyond the Individual to Corporations and Armed Opposition Groups’ (2008) 6 JICJ 899Google Scholar. See also discussion by Baughen (n 16) 550ff. For the lack of consensus on corporate liability under customary international law, see also Ku, J, ‘The Curious Case of Corporate Liability under the Alien Tort Statute: A Flawed System of Judicial Lawmaking’ (2010) 51 VaJIntl 353Google Scholar.

106 These jurisprudential reasons though should not be overstated; notably in the context of the entitlement of companies to human rights they are regularly underplayed.

107 See, for example, in relation to the Rome Statute establishing the International Criminal Court, Ambos (n 105) 478: ‘The final proposal presented to the Working Group was limited to private corporations, excluding states and other public and non-profit organizations. Further, it was linked to the individual criminal responsibility of a leading member of a corporation who was in a position of control and who committed the crime acting on behalf of and with the explicit consent of the corporation and in the course of its activities. Despite this rather limited liability, the proposal was rejected for several reasons … The inclusion of collective liability would detract from the Court's jurisdictional focus, which is on individuals. Furthermore, the Court would be confronted with serious and ultimately overwhelming problems of evidence. In addition, there are not yet universally recognized common standards for corporate liability’.

108 But, as noted above, many countries now consider companies capable of committing serious crimes, such as manslaughter.

109 See (n 102).

110 Crawford Talisman Brief (n 6) 14 (internal citations omitted); International Commission of Jurists (ICJ), Report of the ICJ Expert Legal Panel on Corporate Complicity in International Crimes: Corporate Complicity & Legal Accountability, Vol 3: Civil Remedies (2008), <http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2012/06/Vol.3-Corporate-legal-accountability-thematic-report-2008.pdf> 28.

111 ibid. See also Ruggie (n 10), noting that ‘the most consequential legal development in business and human rights is the gradual extension of liability to companies for international crimes, under domestic jurisdiction but reflecting international standards’ (internal marks omitted).

112 Tel-Oren v Libyan Arab Republic 726 F2d 774, 779 (1984) (internal marks omitted).

113 Kiobel v Royal Dutch Petroleum Co 21 F3d 11, 175 (2nd Cir, 2010) (emphasis in the original). See also Nerlich, Volker, ‘Core Crimes and Transnational Business Corporations’ (2010) 8(3) JICJ 895, 898Google Scholar.

114 UK/Netherlands Kiobel Brief 1 (n 4) 20.

115 ibid 20 (emphasis added).

116 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997); see also International Convention for the Suppression of the Financing of Terrorisms (1999).

117 See eg UK/Netherlands Kiobel Brief 1 (n 4) 17ff (for a defence of the vertical application of human rights 20ff).

118 Again, this area has attracted a lot of literature in recent years; for a good summary of key arguments, see Gobert, J and Punch, M, Rethinking Corporate Crime (Butterworths 2003)Google Scholar ch 2.

119 ibid. Approaches that recognize corporate liability only if there is individual wrongdoing at board level have proven particularly inadequate in dealing with the criminality of large public companies.

120 In many of these situations individual responsibility within the company could not be established given the diffuse decision-making structure of large public companies, see Gobert and Punch (n 118).

121 As exemplified by the failings of the concept of Corporate Social Responsibility, see eg Blowfield, M and Murray, A, Corporate Responsibility: A Critical Introduction (OUP 2008)Google Scholar 345ff.

122 Dine, J, Companies, International Trade and Human Rights (CUP 2005) 44CrossRefGoogle Scholar (internal marks omitted, quoting Paddy Ireland).

123 Tallgren, I, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13 EJIL 561, 573Google Scholar.

124 On specific corporate values and cultures and the effect on individuals see eg Knottnerus, JD, and Ulsperger, JS, ‘Exposing Enron: Media Representations of Ritualised Deviance in Corporate Culture’ (2006) 2(2) Crime Media Culture 177CrossRefGoogle Scholar.

125 Emberland, M, The Human Rights of Companies (OUP 2006)Google Scholar; Kohl, U, ‘The Sun, Liverpudlians and ‘The Truth’: A Corporate Right to Human Rights?’ in Harding, C, Kohl, U and Salmon, N, Human Rights in the Market Place (Ashgate 2008)Google Scholar; Grear, A, ‘Challenging Corporate ‘Humanity’: Legal Disembodiment, Embodiment and Human Rights’ (2007) 7 HRLRev 511Google Scholar. For a recent US case, see Citizens United v Federal Election Commission 558 US 310 (2010) where the Supreme Court held that the First Amendment prevents the government from restricting corporations and unions from spending on election-related communications.

126 See eg Wells, C, ‘Corporate Crime: Opening the Eyes of the Sentry’ (2010) 30 LS 370, 383Google Scholar.

127 See (n 3).

128 Commentary on Principle 26.

129 On the support of the UK Government of these Guidelines see UK Parliament – Foreign Affairs Committee, ‘The FCO's Human Rights Work 2010–11: 3 FCO Commercial Work and Human Rights’ <http://www.publications.parliament.uk/pa/cm201012/cmselect/cmfaff/964/96407.htm> para 106: ‘In the 2010 FCO [Foreign and Commonwealth Office] Report, the department said that it was “keen” to see the HRC adopt the guidelines, and the Foreign Secretary welcomed the HRC's decision to do so’ (internal marks omitted).

130 US Kiobel Brief (n 4) 20; see also 5, 26.

131 See text accompanying nn 52 and 87, respectively.

132 [2012] EWCA Civ 525, para 80.

133 ibid para 69.

134 Wuerth (n 24) 612.

135 ibid 621.