In response, the respondents tried to break through the distinction drawn by the petitioners between applicability and enforcement of international legal norms. To this end, Kathleen Sullivan, counsel for the respondent, explained that:
“corporate liability is a substantive norm that is established by international law. […] The question of who may be sued is fundamentally part of the question of whether there has been a tort committed in violation of the law of nations.”
Kathleen Sullivan then proceeded to submit that international law does not provide for a specific, universal and obligatory norm of corporate liability:
“In fact, it refutes it. The Rome statute rejected liability for corporations. The jurisdictional statutes of the ICTY and the ICTR apply jurisdiction only to natural persons. The international community at step one has rejected it.”
In light of this, the respondents urged the Supreme Court to find that “corporate liability is foreclosed both by the uniform practice, […] not just adjudications, of the nations of the world”.
Analysis
Paul Hoffman had barely opened his argument for the petitioners when Justice Kennedy interrupted him stating that:
“for me, the case turns in large part on this: page 17 of the red brief. It says “International law does not recognize corporate responsibility for the alleged offenses here.””
This opening comment from Justice Kennedy, which is effectively a restatement of the position of the respondents and the Second Circuit, challenged Paul Hoffman’s core argument that domestic law determines who can be sued for human rights abuses under the ATS. But is this an accurate reflection of international law in respect of corporate liability?
together with the respondents’ supporting submissions, fails to acknowledge two key distinctions.
First, the respondents failed to acknowledge the distinction between the applicability and the enforcement of international legal norms. The respondents’ insistence that there was no discernible norm of international law in respect of corporate liability is, quite simply, irrelevant. The point is made most forcefully by the amicus curiae brief of Yale Law School Center for Global Legal Challenges (the “Yale brief”):
“At the outset we note a critical difference between the applicability of an international law norm and whether liability should be imposed upon a party who violates an applicable norm. The Kiobel majority wrongly viber database elided this distinction, conflating the absence of international law precedent holding corporations criminally liable with a conclusion that major prohibitory norms of international law have no application to what corporations do.”
The Yale brief conducts an extremely insightful norm-by-norm analysis in respect of each alleged violation of international law to determine if a claim may be maintained under the ATS. Once it can be shown that the international legal norms in question are applicable to corporations, the question of whether corporations may be held liable becomes a matter of domestic law.
In this regard, it is important to recognise that international law does not prescribe the means of enforcing its norms. This point is well-made by the amicus curiae brief of the International Law Scholars:
“International law never defines the means of its domestic implementation, leaving sovereign States a wide berth in assuring that the law is respected and enforced in accordance with its own law and traditions […] [A] sovereign need not look to international law for permission to act; rather, international law prohibits egregious conduct that is of concern to all nations, and States are then empowered, indeed required, to craft remedies appropriate to their individual justice systems.