WASHINGTON—The Supreme Court heard arguments Tuesday on a sticky international law question with corporate personhood implications that found the United States and some of its major allies on different sides.
In Kiobel v. Royal Dutch Petroleum Co., petitioners argued that corporations can be held liable as individuals would be when charged with human rights violations, under the Alien Tort Statute. This law, passed as part of the Judiciary Act of 1789, states “the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”
In the Kiobel case, 12 Nigerian nationals sued Royal Dutch, which owns Schell Oil, for allegedly aiding and abetting human rights violations by the Nigerian government. They said the companies assisted the Nigerian military in a widespread systematic pattern of tortureto suppress a group of people opposed to the oil companies’ operations in Nigeria.
Justice Anthony Kennedy, often the swing vote on the high court, didn’t pull his punches in questioning lawyers for the Nigerians. Kennedy sided with the Court’s conservative wing saying that international law doesn’t recognize corporations.
Paul Hoffman, lead attorney for the Nigerians, said the oil companies’ actions violate international norms and should be prosecuted in federal courts. He said violation of these norms cannot go unpunished, no matter what type of entity violates them.
“The norms are defined by actions, not if they are done by human beings, corporations or any other entity,” Hoffman said.
Kathleen Sullivan, counsel for the defendants, countered by saying no international body of law, including the International Criminal Court and the United Nations, has statutes that address corporations by name. Sullivan said the groups use “him not it” to identify parties, and that does not constitute corporations.
Sullivan also cited the Nuremberg Trials after World War II as an example of individuals receiving punishment, not larger bodies. She mentioned that these proceedings show following orders is not a defense.
Justice Ruth Bader Ginsburg rejected this argument, saying the Nuremberg proceedings were criminal trials and that state organizations are not the same as Nazi Germany.
Sullivan said it is acceptable for individual members of corporations to be tried for these crimes, but the entire corporations should not take the blame.
Justice Samuel Alito said he did not think it was proper for Nigerian nationals and foreign-based companies to be in American courts in the first place. He said the 223-year-old Alien Tort law was enacted to prevent international tension, yet cases like Kiobel only create more problems. Hoffman said the law represents the United States’ commitment to international law.
Kennedy was also critical of foreign cases being in American courts. He asked Deputy Solicitor General Edwin Kneedler, representing the United States, if this precedent would make it acceptable for suits by American citizens against American companies to be tried in foreign courts.
Germany, the United Kingdom and the Netherlands contributed amicus briefs supporting the oil company, as did companies such as Chevron and Coca-Cola. The United States submitted a brief, favoring the Nigerian petitioners.
The Court is expected to hand out its decision in late June.
