Yesterday’s argument in the Kiobel case before the Supreme Court about the continued vitality of the 200-year old Alien Tort Statute, is generating concern among human rights lawyers. Since this is only the second time in the nation’s history that the Court has examined the statute, any pronouncement will have an immediate and far-reaching effect on pending and future litigation. The statute, signed in 1789 by President Washington, was designed to calm the fears of foreign countries that the new country would not protect foreign citizens. The Court now must decide if the statute is applicable to corporate. If not, the world of international human rights litigation will change forever. Perhaps that’s why over twenty amicus curiae, or “friend of the court,” briefs were filed by the very corporations who have found themselves as defendants in Alien Tort Statute cases. Notably, the United States government filed its own amicus brief and appeared before the Court to argue in support of corporate liability under the statute.
In England, The Guardian was careful to note that Kiobel will follow closely on the heels of the Court’s 2010 decision in Citizens United, which gave corporations the same rights as individuals in making campaign contributions. The decision changed elections in the United States by giving corporations and their “SuperPacs” incredible economic power in shaping candidates, issues and victors. Now, however, having the Alien Tort Statute inapplicable to corporations because they are not individuals, would seem to be directly opposite to Citizens United. On the other side of the ocean, The Guardian put it this way: “If the US supreme court agrees with this view, we will have a situation where corporations are ‘persons’ for the purpose of making unlimited contributions to political campaigns, but not for the purpose of being held to account for human rights violations.”