Last week, the Supreme Court issued its opinion in Mohamad v. Palestinian Authority, et al., the TVPA case that was argued on the same day as Kiobel. The majority opinion, written by Justice Sotomayor, is a rather prosaic summary of Statutory Interpretation 101, and the opinion as a whole deftly avoids grappling with any of deeper questions of law that the TVPA could potentially implicate.
This is not entirely surprising, as the question before the court in Mohamad was relatively straightforward: does the TVPA’s authorization of suit against “[a]n individual” extended liability only to natural persons? The Court unanimously answered yes, citing the dictionary as its predominant authority for its conclusion. The Court also relies heavily on the perceived “ordinary usage” of the word ‘individual,’ noting that “no one, we hazard to guess, refers in normal parlance to an organization as an ‘individual.’”
Although Mohamad may be a heavily formalistic opinion, it is a hard to disagree with its conclusions. Given then TVPA’s structure, there just isn’t much need, or room, for nuance. Justice Breyer, in the decision’s only concurring opinion, did make a mild qualification of his decision, noting that the TVPA’s use of the specific word “individual” is insufficiently determinative by itself to justify a limitation on liability to natural persons. Breyer quickly moves to conclude, however, that the legislative history of the TVPA erases any doubt, and fully supports the Court’s ultimate decision.
In all likelihood, then, the decision in Mohamad will not give us much insight into how the Court will handle the question of corporate liability under the Alien Tort Statute. Although Mohamad v. Palestinian Authority, et al. and Kiobel v. Royal Dutch Petroleum have strong superficial similarities — a similarity plainly acknowledged by the Court through its decision to hear arguments for both on the same day — it seems likely that the Court’s ultimate decisions in those cases will have little relevance to one another. Sotomayor’s opinion in fact openly acknowledges the two cases’ dissimilar postures, noting that the ATS “offers no comparative value here regardless of whether corporate entities can be held liable[.]“
This is because entity liability under the TVPA, as addressed in Mohamad, involves a straightforward question of statutory interpretation. Entity liability under the ATS, in contrast, involves an extremely convoluted question of statutory interpretation coupled with an equally convoluted interpretation of the law of nations. It doesn’t matter which side of the argument you take in Kiobel — for that, you’re never going to find the answer to prove your case in the pages of a dictionary.
And the statutory interpretation element is the less important prong, in examining the question of entity liability under the ATS. As the class of defendants is not defined by the ATS, the issue of corporate liability is not determined by reference to the legislator’s choice of language, but rather by reference to either Federal common law or to international law, or, more likely still, to some admixture of both.
Ultimately, the TVPA, unlike the ATS, is an almost purely domestic instrument. Although the TVPA indirectly incorporates international law in its definition of extrajudicial killing, and, in its preamble, specifically cites that the statute’s purpose is to carry out the U.S.’s obligations under international treaties, the TVPA is simply not a creature of the law of nations.
The TVPA was specifically designed by the U.S. Congress to accomplish certain specified domestic goals. If instead the TVPA had been drawn directly from international instruments, however, it seems very likely that a different conclusion would have been reached in Mohamad. In particular, Article 14 of the UN Convention Against Torture (“the CAT”) would seem to lobby in favor of vicarious liability in civil claims brought by torture victims:
”Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.”
The CAT’s specification that states are to implement civil claims that provide for “an enforceable right to fair and adequate compensation” suggests that the CAT is concerned not simply with imposing punitive, quasi-criminal measures against torturers, but rather with implementation of an effective means for torture victims to be compensated for their injuries. A system of vicarious liability for torture is therefore more consistent with goals of the CAT as expressed in Article 14, as this would increase the likelihood of full reparations being made to torture victims. This is because vicarious liability is specifically geared towards making tort victims whole, whereas a system of pure individual liability emphasizes concern at seeing a wrong-doer punished.
Instead of incorporating this broad goal of repairing torture victims to the fullest extent possible, as articulated by the CAT, the U.S. Congress made plain its desire to see that only morally culpable wrong-doers were to be held financially culpable under the TVPA. This same legislative background is nonexistent when it comes to the ATS, however, making the Court’s analysis in Mohamad irrelevant to their ultimate determination of the similar question posed by Kiobel.