On Tuesday The Supreme Court heard opening arguments in a case that, at it’s resolution, will set a strong precedent regarding corporate liability for civil suits brought by foreign nationals for human rights violations committed abroad.
The case, Kiobel v. Royal Dutch Petroleum, involves a civil suit filed by 12 Nigerian Plaintiffs who allege that Royal Dutch Petroleum, a.k.a. Shell, “aided and abetted, and were otherwise complicit in, violations of international law;” specifically that the corporation “collaborated closely with Nigeria’s then-military government as it carried out a campaign of intimidation and violence” against the Ogoni people who opposed the development of their land for oil. At this stage the suit, filed under the umbrella of the Alien Tort Claims Act of 1789, is immediately concerned with whether foreign nationals have any right to try such claims through the United States Judicial System at all.
The Obama administration (on behalf of the government of the United States), the United Nations High Commissioner for Human Rights, a number of international human rights organizations and international law scholars have all filed amicus briefs in support of the plaintiffs.
Powerful support has popped up for the opposition as well. More than two-dozen multinational corporations, business groups, and even several countries: Germany, the Netherlands and the United Kingdom, have expressed concerns about the “flood of litigation” that a ruling in favor of the plaintiffs might usher in.
“There is no country in the world that provides a civil cause of action against a corporation under their domestic law for a violation of the law of nations,” she said, adding that “every convention for every international tribunal excludes corporations.”
Both Justice Anthony M. Kennedy and Justice Samuel A. Alito have voiced approval of the defense’s argument that international law has intentionally excluded corporate responsibility. Justice Elena Kagan warned that Sullivan’s argument may be overstepping by claiming that international silence on the question suggests intent.
The Plaintiffs’ Lawyer Paul Hoffman hoped to keep the court’s attention on the heinous nature of the alleged acts:
“The 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,” he told the court Tuesday. “They’re not defined by whether the perpetrator is a human being or a corporation or another kind of entity.”
Over the past decade, the idea that corporations have a responsibility to respect International human rights norms has undoubtedly made it’s way to the mainstream. John Ruggie’s “Guiding Principles On Business and Human Rights”, an outline on how States might implement the “Respect, Protect and Remedy” framework, was officially endorsed by The United Nations as of June 2011. Still there is no clear domestic pathway for foreign victims of multinational corporations to pursue legal recourse within the United States. While the judicial system has yet to declare that such a pathway should not exist, prior rulings suggest the the Justices are hesitant to entangle the Supreme Court in matters of “foreign policy”.
In an opinion piece published last Friday in the New York Times Peter Weiss makes an eye-opening observation on the possibly paradoxical principles that might arise should the Supreme Court rule to protect corporations from liability as “individuals” in this case, after protecting corporations rights as “individuals” in the recent Citizens United ruling. He concludes that:
A decision affirming that Shell should go unpunished in the Niger Delta case would leave us with a Supreme Court that seems of two minds: in the words of Justice John Paul Stevens’s dissent from Citizens United, it threatens “to undermine the integrity of elected institutions across the nation” by treating corporations as people to let them make unlimited political contributions, even as it treats corporations as if they are not people to immunize them from prosecution for the most grievous human rights violations.
A more startling paradox is difficult to imagine.
- Paper Published in The International Law Journal Regarding The Alien Torts Act’s Relationship Specifically to Foreign Pharmaceutical Trials: Clinical Trials and Alien Tort Statute Jurisdiction
- Gwen Ifill, of PBS and The National Law Journal’s Marcia Coyle discuss the potential liability implications for corporations.
- Some more information on Alien Tort Statute and Pharmaceutical Trials: Clinical Trials and Alien Tort Statute Jurisdiction