On Tuesday, the U.S. Supreme Court will hear a case coming from Ogoniland in the Niger Delta. Ogoniland is the birth place of Ken Saro-Wiwa, the epicenter of the anti-oil movement in the 1990s, and the most polluted area in Nigeria. Nineteen plaintiffs have brought Kiobel v. Royal Dutch Petroleum under the 1789 Alien Tort Claims Act/Alien Tort Statute (ATS). It was originally intended to show the international community that the U.S. government would enforce and provide remedies for violations of international customary laws. Although ignored for almost 200 years, it was revived in that Filartiga v. Pena-Irala (1980) case that found a Paraguayan former Police Chief guilty of torturing a Paraguayan political dissident four years earlier in Asunción. A non-American petitioner challenging a non-American respondent for a crime committed outside of the U.S., on the grounds that the crime was a violation of international law, won in an American court—quite a precedent. Since then, more than 120 lawsuits have been filed in federal courts against 59 corporations for alleged wrongful acts in 60 foreign countries, almost all for “aiding and abetting” foreign governments. ATS has been utilized against multinational oil companies operating in Burma and Sudan. In a Nigerian case, jurors in Boweto v. Chevron (2008) found Chevron not guilty of knowingly assisting soldiers in human rights abuses committed in January of 1999. In Wiwa v. Royal Dutch Shell, Shell settled out of court for $15 million. Aside from some settlements, the ATS has not been particularly successful at bringing convictions against MNCs operating in the global south, but many human rights activists in the legal field still hold hope that it can.
For the Kiobel case, the question is less about whether Nigerians can bring a case against non-Americans for the torture and extrajudicial killings that occurred in their community, but whether or not they can bring the case against a corporation. Does international law recognize corporate responsibility? The 2nd Circuit of Appeals found that it does not, with the majority writing, “Corporate liability is not discernible” because “no corporation has ever been subject to any form of liability (whether civil or criminal) under the customary international law of human rights.” In other words, the behemoth rise of the multi-national corporation has outpaced international law’s ability to regulate it.
Dutch Shell’s counsel will rely heavily on the argument that there is no precedence for corporate criminal liability under ATS. However, those who believe corporations can be held criminally liable under international customary law point to post-WWII jurisprudence. The Allies, under the authority of international law, dissolved several German corporations that had produced goods and invested money in support of Hitler’s war efforts. The most famous was I.G. Farben, the manufacturer of poison gases, drugs, and oil used in the Holocaust. The Ogonis’ case will largely depend on whether their lawyers can successfully equate Nazi-supporting German corporations with contemporary oil companies operating in Nigeria.
Even if Dutch Shell is successful in this argument, it may not necessarily be the end of the road for the Ogonis. Law is an inherently discursive space that changes form little-by-little as its parameters and content are constantly renegotiated. Although he wrote it in last year’s decision dismissing a case against Firestone for children’s rights violation in Liberia, Judge Posner wrote, “Suppose no corporation had ever been punished for violating customary international law. There is always a first time for litigation to enforce a norm; there has to be. There were no multinational prosecutions for aggression and crimes against humanity before the Nuremberg Tribunal was created.” Although law is inherently conservative, and gathers much of its power from being so, it is not immutable.
The Ogonis counsel could cite the 2010 Citizens United ruling that corporations’ personhood give them free speech protections. The Supreme Court found that the framers of the Constitution intended the First Amendment to apply to corporate persons. It requires impressive creativity to argue that corporations are “people” deserving of constitutional protections but not “people” liable for crimes against humanity prohibited by a statute passed in the decade following ratification of the Constitution, unless one emphasizes that Citizens United was unrelated to international law.
John Bellinger, former legal advisor to the State Department, supports curbing the ATS. He finds that its original intent to allow foreign nationals to sue in federal courts for violations of international law was only to reduce diplomatic frictions for the nascent United States. However, since international law does not allow courts of one country to exercise jurisdiction in civil cases over offenses in other countries, foreign governments have filed more than 20 protests with the State Department and federal courts in Alien Tort Statute suits over the past decade. Paradoxically, its modern application is creating the very diplomatic tensions that it was meant to prevent. For Bellinger, the major concern over ATS is reciprocity. The U.S. government would certainly be opposed to foreign courts hearing cases against American corporations for violations of international law. Reuters points out that such litigation is time-consuming, expensive, and complicated.
My prediction: The United States, well-known for its exceptionalism, is often behind other developed countries in marrying itself to international human rights law. It waited almost thirty years to ratify the Convention on the Elimination of All Forms of Racial Discrimination. It is the only developed nation left that has not ratified the Convention on the Rights of the Child not the Convention on the Elimination of All Forms of Discrimination Against Women, and it will probably never ratify the Covenant on Economic, Social, and Cultural Rights. Even under intense international pressure, the U.S. privileges its sovereignty over international human rights law, which means there is very little chance that an American court would indulge an international law-based ATS claim against a corporation without even an international tribunal doing so first.