Sunday, September 30, 2012

Human Rights, Multinational Corporations, the Supreme Court, and Your Vote

Update (10/6/2012): Based on early analysis of oral arguments on Monday (October 1st), it appears the Justices are not prepared to completely restrict the jurisdiction reach of ATS but rather provide some vague guidelines or limitations for when it might be applied to extraterritorial human rights violations. There was no indication as to whether the Justices were also prepared to extend or restrict ATS applicability to corporations. Thus, we will all wait for the decision to be handed down in early 2013.

(original post dated September 30, 2012)
The Supreme Court of the United States (henceforth affectionately referred to as SCOTUS) will rehear arguments tomorrow (October 1, 2012) regarding Kiobel v. Royal Dutch Petroleum, a federal lawsuit originally filed in 2002 by twelve Nigerians, including Esther Kiobel, against Royal Dutch/Shell (a British/Dutch oil multinational) pursuant to the 1789 Alien Tort Statute (ATS). The suit alleges from 1992 through 1995 Shell used, or was complicit to actions by, the Nigerian military to suppress resistance by activist group Movement for the Survival of Ogoni People (MOSOP) through illegal detention, torture, and extra-judicial executions. MOSOP was protesting alleged environmental damage caused by oil exploration and production operations in the Ogoni region of the Niger Delta in Nigeria. For more detailed analysis of this case, I recommend starting with this Case Profile by the Business and Human Rights Resource Centre and this Issues Brief by John Ruggie, former United Nations Secretary-General’s Special Representative for Business and Human Rights.

Nigeria? Why is this case being heard in the U.S.?

Funny you should ask, because that is the same question several of our Justices asked during the initial Kiobel hearing on February 28th. I am not a lawyer, and this gets pretty complicated, but I will do my best to give the basics, starting with the ATS. According to Dr. Ruggie and legal experts, the ATS “permits foreign nationals to bring civil suit in U.S. federal courts for violations of the law of nations and U.S. treaty obligations.” In 1980, a Federal Court of Appeals ruled that U.S. jurisdiction under ATS could be applied to a torture case that occurred in Paraguay because the accused was found living in New York City. During the mid-1990s, human rights lawyers were somewhat successful in extending the ATS to sue corporations as “legal persons.” As a result, charges have been brought against several corporations for complicity in human rights violations and many of those cases settled prior to a court challenge regarding jurisdiction.

Kiobel is the first of these cases to come before SCOTUS after an appeals court determined international law was not clear regarding whether corporations could be sued for human rights violations. Thus, Kiobel was to be heard by SCOTUS on that question: whether ATS applied to corporate entities (as legal persons) or only to human beings (as natural persons). However, Justices Kennedy, Alito and Roberts were more focused on the issue of extraterritorial reach, that is: “Whether and under what circumstances the Alien Tort Statute allows courts to recognize a cause of action for violations of law of nations occurring within the territory of a sovereign other than the United States.” Since this specific question was not included in the original SCOTUS hearing briefs, the February hearing was postponed, allowing all sides to prepare to address extraterritorial jurisdiction. Therefore, we do not know yet if the case can be heard in the U.S. and we do not know if SCOTUS will address the original question of applicability to corporations.

Not to sound melodramatic, but the decisions on these questions, when and if they come, will impact current and future attempts by countless victims to seek legal remedy for human rights abuses perpetrated against them, their loved ones, and their communities. For many reasons (including, for example: weak or nonexistent legal system, lack of infrastructure and resources, use of threats and intimidation, and general corruption in the country where abuses occurred), a lawsuit filed in the U.S. pursuant to the ATS may be their only legitimate option. For those wishing to read something more detailed, I recommend this legal analysis by Lyle Denniston over at SCOTUSblog. I’ve also included a link to all the briefs at the top.

Corporations are people, my friend?

For their part, Shell’s defense briefs indicate the company will not be satisfied with mere case dismissal and are instead aiming to take the bite out of the ATS, claiming lawsuits like Kiobel provide “a platform for plaintiffs or their proxies to engage in aggressive public-relations campaigns that inflict significant reputational harm on corporate defendants.” I am unaware of any such lawsuits and equally unaware of these types of alleged PR strategies, so am unable to opine about the validity of this claim. However, based on my experience, there are several more efficient and cost-effective ways to destroy a corporate reputation than a ten-year legal battle (if that were your goal). Shell’s defense brief continues: “Indeed, the mere filing of an ATS suit can have an adverse effect on a company’s stock price and debt rating.” These briefs are written for SCOTUS and legal scholars, so I will ignore what appears to be vacuous insensitivity toward the serious human rights abuses alleged in this case in favor of complaints about financial matters. I will, however, point out the confusion that would likely occur throughout the judicial system if short-term financial benchmarks are considered justifiable cause for denying a case be filed against any entity, corporate or human. As for any long-term "reputational damage", I can think of a few fantastic ways to repair or avoid this, but more on that at a later date.

It is worth noting here, if the Court finds that ATS is not applicable to corporations, many legal scholars will be examining and analyzing how the Justices reconcile that decision with the Citizens United decision, in which the Court held that corporations have First Amendment rights as if they are natural persons.

What's my point?

What is my point? Well, for one, SCOTUS decisions matter within and beyond our shores. For another, due to the age of several Justices, the next President will likely have the opportunity to shift the direction of the Court in a decisive way with long-term impact. Your vote matters.

On his September 28th Hardball, Chris Matthews discussed the potential changes to the Court under a 2nd Obama term vs. a Romney administration(with Jeffrey Toobin and Sam Stein):

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Chris Hayes at MSNBC devoted a significant portion of his show to SCOTUS and what is at stake in this Presidential election. I highly recommend watching all eight segments if you haven't already. I posted the opening segment below (with Jeffrey Toobin, Barbara Arnwine, Akhil Amar, and Nan Aron):

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If you are interested, The Nation magazine has devoted an entire issue to the Supreme Court.

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