Sunday, March 4, 2012

A Free Pass for Foreign Companies for Rights Abuses?

      Update: In an unusual development, the Supreme Court has asked for a new round of briefs and arguments on an issue that could narrow further than already indicated U.S. courts’ jurisdiction over international law violations in other countries. The court on March 5 directed attorneys to file supplemental briefs on the question: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.” The case will be reargued in the next term. A ruling to bar jurisdiction over such cases would upset lower court precedents dating from the 1980 Filártiga decision described in my original post.

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      In John Le Carre’s The Constant Gardener, an ethically challenged multinational drug company colludes with a fictitious Kenyan government in lethal testing of an experimental drug on unwitting TB patients. The company covers up its activities with a campaign of intimidation that includes the murders of a human rights activist and eventually her husband, the novel’s title character.
      Le Carre’s story is fiction, of course. But the former British intelligence agent built his reputation as a novelist on intricate plots constructed with enough factual knowledge and research to be plausible. And the history of U.S. and multinational corporations in Third World countries gives credence to the idea that big companies at times might either participate in or turn a blind eye to human rights abuses committed for the benefit of their exploitative operations.
      The Movement for the Survival of the Ogoni People thinks that corporate conduct of this sort not only can happen, but did — in the oil-rich Niger delta region of Nigeria in the early 1990s. Ogoni activists waged a campaign against the environmental and financial rape of their homeland by the British- and Dutch-based Royal Dutch Shell. To counter the campaign, Shell called on the military dictatorship of Gen. Sani Abacha, which responded with a brutal crackdown reported to have claimed 2,000 lives and displaced 80,000 people.
      The victims included Dr. Barinem Kiobel, who was arrested in 1994 along with other leaders of the movement. The so-called Ogoni 9 were allegedly held incommunicado, tortured, and tried by a kangaroo court before they were executed only 10 days after their convictions.
      Today, Kiobel’s widow, Esther, is seeking justice in U.S. courts under a federal law enacted at the nation’s founding to create a legal remedy for violations of international law. But if Supreme Court justices’ questions during arguments last week (Feb. 29) are any indication — and they often are — Kiobel and the other plaintiffs are likely to be have the courthouse door shut in their faces with a decision shielding foreign corporations from responsibility for human rights abuses in foreign countries, at least in U.S. courts.
      Kiobel is the first of 12 named plaintiffs in suit filed in federal court in New York City in 2002 against Royal Dutch Shell under the Alien Tort Statute. The law, passed by the First Congress in 1789, gives federal courts jurisdiction over “any civil action by an alien, for a tort only, committed in violation of the law of nations or of a treaty of the United States,” 28 U.S.C. § 1350. In their complaint, the plaintiffs alleged that Shell participated with the Abacha dictatorship in torture, extra-judicial executions, and crimes against humanity directed against the Ogoni activists.
      The Alien Tort Statute had gone all but unnoticed for most of U.S. history until human rights lawyers used it in the late 1970s to bring a suit in behalf of a Paraguayan asylee, Dolly Filártiga, whose teenage brother Joelito was killed at the direction of a Paraguayan police inspector, Americo Norberto Peña-Irala. Both Filártiga and Peña-Irala were in the United States: Filártiga as an asylee, Peña-Irala on an expired visitor’s visa. In a decision now viewed as established precedent, the Second U.S. Circuit Court of Appeals said the 1789 law gave federal courts jurisdiction over the case (Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)). The Filártigas eventually won a $10 million judgment, never collected.
      Since 1980, human rights lawyers have filed similar suits in U.S. courts, with only limited success, against individuals as well as corporations. In 2004, the Supreme Court officially ratified such causes of action but only for clearly recognized violations of international law (Sosa v. Alvarez-Machain). And in an unelaborated footnote, the court raised without resolving the question whether international law would recognize holding a corporation liable for violations.
      In the Ogonis’ case, a sharply divided Second Circuit panel seized on that footnote to dismiss the suit even though Shell’s high-priced legal team had never raised the issue. In dissent, Judge Pierre Leval insisted that corporate liability for torts was recognized in 1789 and is well established today. The pivotal vote was cast by Chief Judge Dennis Jacobs, who explained in the later decision to deny a rehearing that he saw little need to hold corporations responsible. “Examples of corporations in the atrocity business are few in history,” Jacobs wrote.
      The Roberts Court’s conservative majority made clear in last week’s arguments in Kiobel v. Royal Dutch Petroleum Co. they have little use for the suit either. “What business does a case like that have in the courts of the United States?” Justice Samuel A. Alito Jr. asked the plaintiffs’ attorney, Paul Hoffman, a longtime civil liberties lawyer from California.
      Earlier, Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy both signaled unmistakably that they saw no basis in international law for haling a foreign company into U.S. courts even for egregious human rights violations. Liberal justices made no headway in shoring up the case, even when Justice Ruth Bader Ginsburg noted the post-World War II precedent of holding I.G. Farben responsible for the German chemical firm's role in the Holocaust.
      Shell denies responsibility for the Abacha regime’s abuses — and perhaps the company was only a passive observer. U.S. courts could provide a forum for resolving that issue, but not if the Supreme Court gives foreign corporations a free pass as it appears inclined to do.


  1. Postscript: I assume you have seen that the Court has since ordered that the case be reargued next term? My own suspicion is that Justice Alito's question may form the basis for the reargument: “Is there an Article III source of jurisdiction for a lawsuit like this?…What’s the constitutional basis for a lawsuit like this, where an alien is suing an alien?” He might have added: ". . .for a tort committed wholly outside the United States." So it may be an issue of the Court's subject matter jurisdiction, not merely a question of statutory construction.