Posner Cites Cassel in Alien Tort Case

Posted on July 19, 2011 in Cassel by Sean O'Brien

July 19, 2011


            In its July 2011 ruling in Flomo v. Firestone Natural Rubber Company,[i] the United States Court of Appeals for the Seventh Circuit cites a law review article by Notre Dame Law Professor Doug Cassel, Director of the Center for Civil and Human Rights, arguing that corporations involved in human rights violations overseas can be sued for money damages under the Alien Tort Claims Act (“ATCA”).[ii]

            The Seventh Circuit decision is the latest salvo in an ongoing judicial debate, one which may soon reach the U.S. Supreme Court.  The Seventh Circuit panel reaches an opposite conclusion from last year’s holding by a Second Circuit panel,[iii] in which Cassel’s article was cited by a concurring judge.[iv]  On the other hand, the Seventh Circuit view is consistent with an earlier federal district court ruling, which also relied in part on Cassel’s article.[v]

            The article is Corporate Aiding and Abetting of Human Rights Violations: Confusion in the Courts, 6 Northwestern University Journal of International Human Rights 304 (2008).  Among other contentions, Cassel argues that, merely because corporations cannot generally be criminally prosecuted under international law, this does not mean that they cannot be sued civilly for money damages.

            The Seventh Circuit opinion was authored by Judge Richard Posner and joined by Judges William Bauer and Daniel Manion.  It finds jurisdiction under ATCA to sue corporations for human rights violations, at least where “the violations are directed, encouraged, or condoned at the corporate defendant’s decisionmaking level.”

            The opinion cites Cassel’s argument that distinguishes criminal from civil liability under international law.  Cassel argues that “current international criminal law does not generally impose international criminal responsibility on corporations. But the principal reason, …, is not a peculiar reluctance to hold corporations criminally accountable for violating international norms. Rather the main reason is that the domestic legal systems of many States do not provide for criminal responsibility of [corporations] for violating any law.” 

            Cassel continues: “There is no comparable problem, however, in holding corporations civilly accountable to pay money damages for violations of norms. I am not aware of any legal system in which corporations cannot be sued for damages when they commit legal wrongs that would be actionable if committed by an individual.”[vi]

            Despite its general holding on corporate liability, the Seventh Circuit declined to find Firestone liable for alleged child labor on its rubber plantation in Liberia.  The company does not directly employ children, but imposes stringent production quotas on its adult employees.  According to the plaintiffs, the quotas lead the adults to recruit their young children to help them in the fields.  On these particular facts, the Court ruled that Firestone does not violate customary international law against child labor.

            The earlier, contrary Second Circuit ruling involved allegations that Royal Dutch Petroleum is liable under ATCA for aiding and abetting Nigerian soldiers to commit murder, rape, and other acts of violence against a civilian population.  By a 2-1 decision, the Court ruled that, because international law norms applied under ATCA derive from international criminal law, and international criminal law does not generally expose corporations to prosecution, there can be no civil liability for corporations under ATCA.[vii]  Judge Leval, concurring in the judgment only, dissented on this point, citing Cassel’s article for the argument quoted above.[viii]

           The first case to rely on Cassel’s article was the 2009 District Court decision in which various corporations are alleged to have been accomplices to South African apartheid.[ix]

           Whether corporations may be sued under the Act could be decided by the Supreme Court as early as next term.  On June 6, 2011, plaintiffs in the Nigerian case petitioned for a writ of certiorari.  Facing a split between the Second and Seventh Circuits (among others), the Supreme Court will have grounds which could lead it to take the case.

           In an era when courts are ever more reluctant to rely on academic writing, Notre Dame’s Center for Civil and Human Rights continues to combine scholarship with cutting edge issues of human rights practice.

[i] 2011 U.S. App. LEXIS 14179, at 15 (July 11, 2011).

[ii] 28 U.S.C. section 1350.  The Act provides in full: “”The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”

[iii] Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), rehearing en banc denied, 2010 U.S. App. LEXIS 27003, rehearing denied, 2011 U.S. App. LEXIS 2200, cert. filed, June 6, 2011.

[iv] Id., 621 F. 3d at 149, 160, 176 n. 22 (Judge Leval, concurring only in the judgment).

[v] In re South African Apartheid Litigation, 617 F. Supp. 2d 228, 260 (S.D.N.Y. 2009).

[vi] 6 Nw. U. J.Int’l Hum.Rts. 304, 322.

[vii] Kiobel, note ii supra, at 120.

[ix] In re South African Apartheid Litigation, 617 F. Supp. 2d 228, 260 (S.D.N.Y. 2009).

CCHR Co-sponsors London Seminar on Recent Human Rights Cases

Posted on July 19, 2011 in Events by Sean O'Brien

Notre Dame Law School’s Center for Civil and Human Rights and the British Human Rights Lawyers Association are co-sponsoring a seminar from 6 p.m. – 7.30 p.m. July 20 at the University of Notre Dame London Center, 1 Suffolk Street, London SW1Y 4HG.

The event is a timely response to two important decisions rendered July 7 by the Grand Chamber of the European Court of Human Rights in Strasbourg, France: Al Skeini and Others v. UK and Al Jedda v. UK. Both cases held Britain responsible for human rights violations committed by British soldiers in Iraq.

The event, entitled “Al Skeini & Al Jedda: Bringing Rights Overseas?” is free and open to all, and ND London Law summer program students are invited to attend.

Panelists will include Rabinder Singh, QC, who was one of the counsel for victims in the two cases; Eric Metcalfe, Director of Human Rights Policy for a leading British human rights organization, Justice; and Professor Douglass Cassel of the Notre Dame Law School. Justice was an intervenor before the European Court in one case and before the House of Lords in the other case.

Professor Cassel’s presentation will bring a comparative American perspective. He will touch on the U.S. Supreme Court decisions regarding human rights in the Guantanamo Bay detention camp as well as on lower court decisions concerning whether the U.S. Constitution protects prisoners held by the United States at its Bagram Air Base in Afghanistan.

Questions of particular interest for British participants include:

  • Are the doors now open for more human rights claims from the British occupation in Iraq?
  • What are the implications of these judgments for continuing UK operations overseas, including Afghanistan and Libya?
  • What difference might a “derogation” have made? (“Derogations” are formal procedures by which nations are permitted, within certain limits, temporarily to suspend certain of their human rights obligations during wars and national emergencies.)
  • What will be the broader impact of the rulings on the relationship between international human rights standards and international peace and security under the UN Charter and the laws governing armed conflict in general?
  • Does extending rights overseas amount to “human rights imperialism” or is it simply the logical consequence of universality?

The program is the third to be co-sponsored by CCHR and HRLA at Notre Dame’s London Center in a year’s time.

The first event was held in October 2010 on the occasion of the Tenth Anniversary of the British Human Rights Act. It covered comparative British and American perspectives on human rights issues, and featured an address by a Justice of the British Supreme Court, Baroness Hale of Richmond.

The second event, held in March 2011, addressed Litigating Human Dignity: Does It Add Value?, and included leading British barristers and academics as panelists.