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"The concept of corporate liability for violations of customary international law has not achieved universal recognition or acceptance as a norm in the relations of States with each other."

"The concept of corporate liability for violations of customary international law has not achieved universal recognition or acceptance as a norm in the relations of States with each other. Inasmuch as plaintiffs assert claims against corporations only, their complaint must be dismissed for lack of subject matter jurisdiction." So holds the long-awaited majority opinion that a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued today in Kiobel v. Royal Dutch Petroleum. The plaintiffs were seeking to pursue their claim under a federal law known as the Alien Tort Statute.

Circuit Judge Pierre N. Leval issued an opinion "concurring only in the judgment" that begins:

The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights. According to the rule my colleagues have created, one who earns profits by commercial exploitation of abuse of fundamental human rights can successfully shield those profits from victims' claims for compensation simply by taking the precaution of conducting the heinous operation in the corporate form. Without any support in either the precedents or the scholarship of international law, the majority take the position that corporations, and other juridical entities, are not subject to international law, and for that reason such violators of fundamental human rights are free to retain any profits so earned without liability to their victims.

The majority begins its response to Judge Leval's separate opinion in the introduction to the majority opinion, writing:

Lastly, we wish to note that we do not take lightly the passion with which Judge Leval disagrees with our holding. We are keenly aware that he calls our reasoning "illogical" on nine separate occasions. See Concurring Op. 4, 5, 9, 30, 31 n.18, 36, 28, 46, 68, 69. Nor is it lost on us that he calls our conclusions "strange," id. at 3, 57, 59,23 or that he repeatedly criticizes our analysis as "internally inconsistent," id. at 6, 7, 46.24 We must, however, leave it to the reader to decide whether any of Judge Leval's charges, individually or in combination, are a fair reading of our opinion. In so doing we are confident that if our effort is misguided, higher judicial authority is available to tell us so.

An article that The American Lawyer published in October 2008 described the Kiobel case as alleging that "Shell supplied ammunition, transit, and logistical support for the Nigerian military's 'Operation Restore Order in Ogoniland.'"

Full post as published by How Appealing on September 17, 2010 (boomark / email).