(MintPress)—The U.S. Supreme Court heard arguments on Tuesday to determine whether corporations can be held legally responsible for their involvement in international human rights abuses. The Court’s decision could have widespread implications on corporate person-hood and liability in regards to corporate complicity in violations of international law. The case in question, Kiobel v. Royal Dutch […]
(MintPress)—The U.S. Supreme Court heard arguments on Tuesday to determine whether corporations can be held legally responsible for their involvement in international human rights abuses. The Court’s decision could have widespread implications on corporate person-hood and liability in regards to corporate complicity in violations of international law.
The case in question, Kiobel v. Royal Dutch Petroleum, involves 12 plaintiffs who claim the oil corporation, commonly known as Shell, aided and abetted the Nigerian government to arrest, detain, and torture Nigerians living in the Ogoni region of the Niger Delta in the 1990s.
The plaintiffs represent a group of nine Nigerians who were allegedly detained, tortured, and tried in a special military tribunal and later executed for their nonviolent opposition to the environmental degradation caused by Shell. The plaintiffs believe Shell bribed witnesses in the case and the trials were widely condemned for violating international fair trial standards.
The Supreme Court agreed to hear the case after the Second Circuit Court of Appeals issued a surprising decision in 2010 stating that Shell could not be sued because corporations were not subject to international human rights law, despite dozens of previous lawsuits filed against multinational corporations for complicity in human rights violations abroad.
Historic Use of the Alien Tort Statute
Kiobel v. Royal Dutch Petroleum was filed under the Alien Tort Statute (ATS), or the Alien Tort Claims Act (ATCA), which was signed into law with the Judiciary Act of 1789 to allow foreign citizens to bring cases before U.S. courts for crimes committed outside of the United States.
The law particularly pertains to conduct that violates international laws and treaties, saying, “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.”
From 1789 until 1980 the ATS was rarely used in jurisdiction. However, suits under the ATS emerged more rapidly after the United States Court of Appeals for the Second Circuit ruled in favor of a Paraguayan man whose relative had been tortured and murdered by a Paraguayan farmer then living in the United States.
The 1980 case, Filartiga v. Pena-Irala, was a historic moment in international human rights litigation that paved the way for modern use of the once-dormant law. Since 1980, dozens of cases have been brought under the ATS.
In 1997, Doe v. Unocal became the first time a lawsuit was filed against a corporation under the ATCA. Thirteen Burmese villagers, in collaboration with EarthRights International and the Center for Constitutional Rights, accused Unocal, the Union Oil Company of California, of hiring the Burmese military to rape, torture, and kill forced laborers working on a natural gas pipeline project. The two parties came to a settlement in 2004.
The Washington Post reported that since 1990 the ATS has been used in over 120 lawsuits filed against 59 corporations for alleged violations of international law in 60 foreign countries. Lawsuits have been filed against multinational corporations including Coca-Cola, ExxonMobil, Yahoo, and Chevron.
Oral Arguments – Can Corporations be Sued?
Unlike previous ATS cases, which for the most part have ended in settlements or dismissals due to lack of evidence of corporate involvement in indirect human rights abuses, Kiobel v. Royal Dutch Petroleum questions the core issue of whether the ATS and specific international human rights laws may even be applied to corporations.
During the oral arguments presented before the Court on Tuesday, attorney for the petitioners, Paul L. Hoffman, said, “International human rights norms that are at the basis of this case for the plaintiffs — crimes against humanity, torture, prolonged arbitrary detention, extrajudicial executions — all of those human rights norms are defined by actions. They’re not defined by whether the perpetrator is a human being or a corporation or another kind of entity.”
Justice Alito wondered why a case involving foreign parties on sovereign soil would be allowed in a U.S. court at all, asking, “What business does a case like that have in the courts of the United States? There’s no connection to the United States whatsoever.”
Attorney Hoffman believes the ATS was designed specifically for such cases. “I think one of the most important principles in this case is that international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law,” said Hoffman.
Chief Justice Roberts questioned the legality of even hearing the case, and whether the United States would be acting as a world police by taking on such cases. “If there is no other country where this suit could have been brought, regardless of what American domestic law provides, isn’t it a legitimate concern that allowing the suit itself contravenes international law?”
The governments of the UK and the Netherlands think so, prompting them to submit a combined brief “based on their concern that such exercises of jurisdiction are contrary to international law and create a substantial risk of jurisdictional conflicts.”
An amici curiae brief submitted by various Nuremberg scholars on behalf of the petitioners attempted to clear up additional questions in the courtroom about whether human rights laws like those from the Nuremberg trials after WWII apply to corporations.
“In putting only natural persons in the dock, the Allied prosecutors did not intend to create an international law norm that corporations are immune,” explained the scholars. “In fact, the judicial actors at Nuremberg specifically recognized that international law permitted the punishment of corporations, but chose not to judicially prosecute for political and economic reasons.” The brief discussed how various corporations were still punished through various sanctions.
However, the respondents maintained claims that, “While in certain circumstances, specific obligations may require States to regulate corporations in particular ways, this cannot be evidence that international law imposes liabilities on corporations,” affirming throughout their oral arguments that only individuals may be held accountable for violations of international human rights laws.
But What About Corporate Person-hood?
The line between corporations and persons has become blurred over the years though, as corporations have been granted more rights and responsibilities similar to those of natural persons. The debate over corporate person-hood adds an extra layer of consideration to the Kiobel case.
Kathleen M. Sullivan, attorney for the respondents, told the court that the Torture Victim Protection Act, a similar human rights liability law, specifically states that a suit may be brought against individuals, “and it expressly declined to use the term “persons,” which could embrace corporations.”
Chief Justice Roberts was quick to point out that the Court had not yet decided that question, which is concurrently being debated in the case of Mohamad v. Palestinian Authority. Justice Ginsburg reminded Sullivan that the statute at hand does not use the word “individual,” nor does it use the word “person,” adding more ambiguity to the discussion.
Advocates from organizations including the Center for Constitutional Rights believe that if corporations may be enjoy the protections of the Bill of Rights, then they should also be held accountable for violations of the Bill of Rights.
“Ultimately, the question comes down to whether one’s notion of free trade includes the freedom to commit or acquiesce in torture, rape, slave labor and extrajudicial executions as ordinary attributes of doing business,” said Center for Constitutional Rights Vice President Peter Weiss. “If the Supreme Court agrees with this view, we will have a situation where corporations are persons for the purpose of making unlimited contributions to political campaigns, but not for the purpose of being held to account for human rights violations.”
Weiss was referring to the 2010 Supreme Court ruling in Citizens United v. the Federal Election Commission, which ruled that the government was prohibited under the First Amendment from restricting political expenditures by corporations and unions.
Katherine Gallagher, senior staff attorney for the Center for Constitutional Rights said, “The Supreme Court, which found that corporations enjoy broad rights two terms ago, is now being called upon to recognize that they also are bound by responsibilities under the law.”
Implications for future and ongoing human rights cases
The Court’s ruling in the Kiobel case will have a significant impact on several other ongoing lawsuits against corporations under the ATS as well as future cases brought by victims of corporate torture and abuse.
A group of Falun Gong practitioners recently filed a lawsuit against Cisco Systems in the United States under the ATS. The plaintiffs allege that Cisco designed security software that was used by the Chinese government to target dissidents for detention and torture. Their case would be deemed moot if the Court rules against Kiobel.
Other ATS cases that may be affected include Adhikari v. Daoud Partners (Nepali men allegedly trafficked to Iraq to work for U.S. military contractors), Almog v. Arab Bank (Arab bank accused of aiding and abetting Palestinian terrorist attacks), and the Chiquita cases (involving the banana company’s alleged funding of a paramilitary terrorist group responsible for the deaths of thousands of people in the banana regions of Colombia).
A Court ruling is expected in Kiobel v. Royal Dutch Petroleum as well as in Mohamad v. Palestinian Authority by June.