Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel

Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011

Sydney Law School Research Paper No. 11/48

39 Pages Posted: 15 Aug 2011  

Odette Murray

The University of Sydney Law School

David Kinley

The University of Sydney Law School

Chip Pitts

Stanford Law School

Date Written: August 15, 2011

Abstract

Over the past 15 years or so, we have become accustomed to assuming that corporations are proper subjects of litigation for alleged infringements of the ‘law of nations’ under the Alien Tort Statute (‘ATS’). But, in a dramatic reversal of this line of reasoning, the United States Court of Appeals for the Second Circuit in Kiobel v Royal Dutch Petroleum 2010 (‘Kiobel’), has dismissed this assumption and concluded that corporations cannot be sued under the ATS. This article explores the Court’s reasoning and the ramifications of the decision, highlighting the ways in which the Kiobel judgment departs from both Supreme Court and Second Circuit precedent. The authors take to task the critical failure of the majority in Kiobel to distinguish between the requirements of legal responsibility at international law and that which is necessary to invoke ATS jurisdiction in the US District Courts. In the context of the maturing debates over the human rights responsibilities of corporations, the authors point to the political as well as legal policy implications of Kiobel and underscore the reasons why the case has already attracted such intense interest and will continue to excite attention as a US Supreme Court challenge looms.

Keywords: corporations, international law, human rights, US Alien Tort Statute, US Supreme Court, US District Courts

JEL Classification: K10, K22, K30, K33

Suggested Citation

Murray, Odette and Kinley, David and Pitts, Chip, Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel (August 15, 2011). Melbourne Journal of International Law, Vol. 12, No. 1, pp. 57-94, 2011; Sydney Law School Research Paper No. 11/48. Available at SSRN: https://ssrn.com/abstract=1909683

Odette Murray

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

David Kinley (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Chip Pitts

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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