Chief Justice John Roberts Jr. won. In Kiobel v. Royal Dutch Petroleum, he took an issue so hot that 82 amicus groups weighed in, and rendered a ruling so tepid that the story ran on page A22 of The New York Times. Had the U.S. Supreme Court barred human rights liability for corporations, a snarky front-pager might have noted the contrast to Citizens United: A corporation has the right to buy elections because it’s a person, yet may commit genocide with impunity because it’s not a person.
But that’s not what happened. Rather than kill the corporate alien tort outright, the court maimed all forms of alien tort by restricting their territorial reach. The corporate alien tort is therefore doomed to remain a zombie doctrine — not quite alive and not quite dead. The upshot is that federal courts may only hear alien tort suits where the "claims touch and concern the territory of the United States…with sufficient force." What this means in practice will be litigated in many fact scenarios. Concurring justices Samuel Alito and Clarence Thomas say it requires domestic conduct violating fundamental human rights and, indeed, this is the most natural application of the court’s holding on extraterritoriality in Morrison v. National Australia Bank. Justice Anthony Kennedy stressed in his concurrence that the vague test adopted will allow wiggle room in the future.
The zombification of corporate alien tort means that corporate ATS litigation will persist even as advocates develop new strategies to promote corp­orate accountability. These include common law litigation under both U.S. state law and the laws of other nations. In some places, criminal or regulatory law may offer a strategy. Everywhere, advocates will encourage companies to honor industry codes and, perhaps most importantly, the U.N. Guiding Principles on Business and Human Rights.
One lasting legacy of corporate alien tort is the nurturing of a wider movement for business human rights, best embodied by the International Corpor­ate Accountability Roundtable, with the "Ruggie Rules" promulgated by former U.N. guru John Ruggie as its rallying point. Another is the internalization of human rights norms by large public corporations. In his new book, Just Business: Multinational Corporations and Human Rights, Ruggie said the outcry culminating in Kiobel "prompted Shell to undertake considerable reflection. It set out to become a leader on business and human rights."
It’s also no coincidence that Total S.A. and Chevron Corp. (which bought Unocal) sent senior lawyers to speak at the American Bar Association’s recent forum on business human rights. These were the two companies embroiled in the Burmese forced -labor controversy that marked the coming of age of corporate alien tort, and in retrospect its high point. Total’s general counsel said that companies aren’t driven to respect human rights because they fear liability. Rather, he said, they do not wish to lose bank financing, or to be named and shamed by civil society. After Kiobel, advocates had better hope he’s right.
Michael D. Goldhaber is senior international correspondent for ALM and The American Lawyer. Email: email@example.com.