“Moral Monsters” Under the Bed: Holding Corporations Accountable for Violations of the Alien Tort Statute After Kiobel v. Royal Dutch Petroleum Co.

May 3, 2011

The Alien Tort Statute (ATS) provides foreign plaintiffs with the sole means of obtaining jurisdiction in U.S. courts for alleged human rights abuses. These plaintiffs increasingly seek to hold corporations accountable for complicity in some of the most notorious violations of international law occurring overseas. Prior to 2010, U.S. courts routinely entertained ATS claims against corporations without question. Yet, the U.S. Court of Appeals for the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. recently held that the ATS does not provide foreign plaintiffs redress against corporate entities. The Second Circuit relied solely on international law in making this finding.

This Note examines whether international or domestic law should control a court’s determination of which defendants may be held liable under the ATS. This Note analyzes the established choice of law principles for determining what constitutes a “violation of the law of nations” and the recent split between circuits on who can be liable for such a violation. From this discussion, this Note advocates a new approach to choice of law principles based on the difference between conduct and remedies under the ATS. The U.S. Supreme Court undoubtedly requires lower courts to consider international law in determining whether a defendant’s conduct violates international law. Once this is established, domestic law provides the means for holding that defendant—whether an individual or corporate entity—accountable.

May 2011

No. 6