On Monday, U.S. Supreme Court judges return to work, and the very first case they will debate promises to cause some bustle. At risk are the fate of human rights, infringement on state sovereignty, and the liabilities of multinational corporations as the world anxiously awaits the court’s decision on whether the Alien Tort Statute can be applied in Kiobel v. Royal Dutch Petroleum Co. (or Shell).
The ATS dates back to the first Congress of the United States and was intended to protect the victims of piracy. It stated that “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.” Thus, the law granted some form of universal jurisdiction to the U.S. But the statute’s provisions are vague, which raises questions about the conditions of its application. The Oct. 1 decision will seek to clarify whether it applies to the Shell case.
In Kiobel v. Royal Dutch Petroleum Co., the Ogoni people of southeast Nigeria are suing Royal Dutch Petroleum Company and Shell Transport and Trading Company over a series of alleged human rights abuses from the early ‘90s. In 1993, in response to Ogoni protests against Shell’s presence in the region, the Nigerian government orchestrated raids on 27 villages, resulting in the deaths of an estimated 2,000 Ogoni and the displacement of up to 80,000. Esther Kiobel, the Nigerian plaintiff filing the lawsuit on behalf of herself, her late husband, and for the Ogoni people, alleges that Shell was complicit in those raids. She is relying on the ATS to sue the multinational in U.S. Courts.
At the beginning, the crux of the case for the plaintiffs lied in proving that a corporation, like an individual, can be held liable for human rights violations. However, the issue at the heart of the case now involves the interpretation of ATS–can a multinational company be sued in America for crimes committed against an indigenous Nigerian population?
If we try to examine ATS in light of its historical context, we find that the law originally applied to crimes taking place on the high seas; the act was passed precisely because it was impossible to sue pirates committing crimes in areas where there was no enforcer of justice. The law’s original intention appears to favor Shell, which can fairly justify that ATS does not involve suing an “alien” for torts committed in a sovereign state where the rule of law presumably exists.
The point is certainly legitimate; common sense would say that the multinational should be sued in Nigeria’s court system, not in America’s. However, when justice is not guaranteed in a country, plaintiffs ought to have other means of reparation and remediation through due process. ATS offers one possible solution. Writing in The Huffington Post, Katie Redford warns that “if Shell gets its way, survivors of human rights abuses will lose one of their few means of seeking justice.”
But do we want to give the U.S. the tools to sue anyone anywhere for a violation of the “law of nations or a treaty of the United States”? Probably not. Such ability to try human rights cases across sovereign state bodies should rather res0ide in the hands of the International Criminal Court.
At the regional level, an institution guaranteeing that states are accountable to their citizens is necessary. This role should be assumed by the African Court on Human and People’s Rights but it has achieved very little so far. While we hope and wait for better justice within states and at the regional African level, the ATS can be an alternative means of offering protection to victims of human rights. But it is not a long term solution.
As to Monday’s Oral Argument, judges are not legislators, and it is ultimately up to Congress to decide on tort laws. But it is idealistic to assume Congress will be able to legislate a suitable replacement, which could prove disastrous for any hope of achieving justice on global human rights issues in U.S. courts.
So on Monday, the Supreme Court should uphold ATS, and the plaintiffs should be appropriately compensated. But this is a purely utilitarian calculation; the ATS is the “least-worse” alternative we have so far. A truly just means of remediation has yet to be conceived.
So we wait and hope. But while you do so, be sure to check the atmosphere at 1st St. N.E. on Oct. 1, I would bet on some twittering.
