Closing the doors of justice

Esther Kiobel (center) and members of the Ogoni community As part of the Judiciary Act of 1789, Congress enacted what's become known as the Alien Tort Statute (ATS):

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 1992-95, Esther Kiobel alleges, Shell and two other major oil companies aided and abetted the Nigerian military in a widespread and systematic campaign of torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings constituting crimes against humanity to violently suppress protesters trying to stop oil exploration in the Ogoni region. Kiobel's husband was among those killed. She has sued the oil companies in federal court in the United States for aiding and abetting his murder, and the case has made its way to the Supreme Court of the United States.

The original question at issue for the Court, before which the case was first argued on February 28, 2012, was whether corporations could be held liable for violations of international law under the ATS, or whether ATS liability applied to individuals only. As Slate's Emily Bazelon put it, it's about whether "the court could treat companies as people for the purposes of campaign donations, but not when it comes to accusations of murder." Or as Justice Breyer put it the first time the case was argued:

So, I -- I think this is unnecessarily complicated. [Shell] made a -- a categorical rule. They said never sue a corporation. I seem to think possibly of counterexamples. Pirates, Incorporated....

Do you think in the 18th century if they brought Pirates, Incorporated, and we get all their gold, and Blackbeard gets up and he says, oh, it isn't me; it's the corporation -- do you think that they would have then said: Oh, I see, it's a corporation. Good-bye. Go home.

But, as with Citizens United, after that February argument, the Roberts Court decided to request reargument of the case to add a new question, one neither requested by the parties nor necessary for resolution of the suit: whether United States courts had any jurisdiction to hear cases alleging human rights abuses which occurred on foreign soil and did not involve United States nationals. Or as Justice Alito asked during that argument,

The first statement ' the first sentence in your brief in the statement of the case is really striking: "This case was filed ... by twelve Nigerian plaintiffs who alleged ... that Respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship ... in Nigeria between 1992 and 1995." What does a case like that -- what business does a case like that have in the courts of the United States?

There's no connection to the United States whatsoever.  The Alien Tort Statute was enacted, it seems to be -- there seems to be a consensus, to prevent the United States -- to prevent international tension, to --and -- does this -- this kind of a lawsuit only creates international tension.

(What? They should try suing in Nigerian courts?)

Amici as diverse as Holocaust victims, South African jurists, victims of the 9/11 attacks (whom I formerly represented), and the UN High Commissioner for Human Rights (among many others) submitted briefs affirming the importance of keeping American courts open to such suits. Among those opposed? Well, there's a brief filed by Chevron, Dole Food, Dow Chemical, Ford, GlaxoSmithkline, and Procter & Gamble; one from Coca-Cola and Archer Daniels Midland; and a Paul Clement-authored brief on behalf of BP, GE, IBM and other megacorps, which argues:

Amici strongly condemn human rights violations, and each company abides by its detailed corporate social responsibility policy. Yet many amici have been and may continue to be defendants in suits predicated on various expansive theories of liability under the Alien Tort Statute based on their operations'or those of their subsidiaries'in developing countries. Those suits impose severe litigation and reputational costs on corporations that operate in developing countries and chill further investment. Amici have a strong interest in ensuring that the ATS is applied in an appropriately circumscribed manner, consistent with its text and original purposes. And because plaintiffs may seek to bring ATS suits against corporate officers and directors even if the Court affirms the decision below on the issue of corporate liability, amici have a strong interest in ensuring that the Court resolve the pendent issues of extraterritorial application and aiding and abetting liability that constitute the root causes of ongoing diplomatic tension.

Also lining on behalf of Shell, and against having the United States courts generally open to suits alleging human rights abuses abroad? The Obama Administration:

In the circumstances of this case, the Court should not fashion a federal common-law cause of action. Here, Nigerian plaintiffs are suing Dutch and British corporations for allegedly aiding and abetting the Nigerian military and police forces in committing torture, extrajudicial killing, crimes against humanity, and arbitrary arrest and detention in Nigeria. Especially in these circumstances' where the alleged primary tortfeasor is a foreign sovereign and the defendant is a foreign corporation of a third country'the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company's actions, while the nations directly concerned could.

...The question whether a cause of action should be fashioned today as a matter of federal common law in the circumstances of this case must take account of present-day principles governing judicial creation or recognition of private rights of action. In particular, it must take account of the principles underlying the presumption against extraterritorial application of federal statutes, especially where the alleged conduct has no substantial connection to or impact on the United States. That presumption is grounded in significant part on the concern that projecting U.S. law into foreign countries 'could result in international discord.' It reflects not only a judgment about the appropriate exercise of the United States' power to impose its law to govern conduct and afford remedies for injuries sustained in foreign countries, but also a corresponding respect for the sovereign authority of other states.

To be fair, the United States brief does in a footnote suggest the possibility than an explicit Congressional action could authorize such suits, but that the ATS standing alone was not sufficiently clear to do so. Moreover, the brief suggests, the United States' best role might be as a judicial backstop, if victims have exhausted possibilities for justice from courts in the nations more directly involved (or the home nations of the corporations involved), as well as from international tribunals.

So will the United States exempt corporations from liability for aiding and abetting human rights abuses committed abroad? Will our courthouse doors be closed to victims of human rights abuses from across the globe? The case will be argued Monday morning.