Can corporations be sued in U.S. courts for violations of international human rights law? This week, the U.S. Supreme Court is hearing a case that may have a profound impact on corporate accountability and human rights in this country.
The case is Kiobel v. Royal Dutch Petroleum Co., and the plaintiffs allege that Shell Oil was complicit in human rights abuses in the Ogoni region of Nigeria. Specially, they say that the oil giant worked with that country’s then-military dictatorship in the early 90s to detain, torture and, by way of a trial in a kangaroo court, executed nine Ogoni activists who protested the company’s desecration of the Niger River delta.
The plaintiffs invoke the Alien Tort Statute of 1789 (ATS), which allows foreigners that do business in the U.S. to be held accountable for international human rights crimes they commit in other countries. Plaintiffs in the companion case, Mohammad v. Palestinian Authority, have sued under the Torture Victim Protection Act of 1991, which allows for civil suits in the U.S. for torture and extrajudicial killings committed by officials in a foreign nation.
Kiobel brings together the subject of the rape of Africa and its people with and notions of corporate personhood. On the one hand, it seems fitting that a seminal human rights case would implicate brutal, corrupt Third World dictators and their corporate puppet masters. The whole thing conjures up images from one of the late Fela Kuti’s songs, “I.T.T.,” which stands for “International Thief Thief.” “Many foreign companies dey Africa carry all our money go,” Fela said:
Them go dey cause confusion (Confusion!)
Cause corruption (Corruption!)
Cause oppression (Oppression!)
Cause inflation (Inflation!)
Oppression, oppression, inflation
Corruption, oppression, inflation
Them get one style wey them dey use
Them go pick one African man
A man with low mentality
Them go give am million naira breads
To become of high position here
Him go bribe some thousand naira bread
To become one useless chief
Corporations ruin the land, wreck the environment and prop up petty dictators that will allow them to do it. And people of the developing world are exploited and murdered in the process. On the other hand, while corporations want us to believe that they are people too, they don’t want any of the responsibilities that come with it. The Supreme Court has come out in favor of corporate personhood. Moreover, the Citizens United decision has sanctioned the corruption of democracy and the buying of elections by the 1 percent of the 1 percent - the wealthy few running roughshod over the rights of the many, all in the name of so-called free speech.
The lower court in Kiobel sided with Big Oil. Opponents of corporate liability claim that this Alien Tort Statute case will drive corporations from less developed countries, make American businesses uncompetitive because their competitors are beyond the reach of the law, and deter foreign investment in the U.S. by corporations that want to avoid U.S. courts.
“Holding corporations liable for human rights violations is fully consistent with international law. At the heart of this case is the value we attach to the idea of the rule of law, an idea expressed in the following simple statement: ‘Be you never so high, the law is above you.’” said Navi Pillay, UN High Commissioner for Human Rights in an amicus brief to the high court in this case.
“The battle for subjecting human rights violators to the rule of international law has been fought and won against natural persons, groups, organizations and States. On a proper understanding of contemporary international law, corporations are also subject to the rule of law on the international plane, in which they ubiquitously operate. Under that law, they are accountable for human rights violations. In particular, corporations are not immune from responsibility under international law if they engage in, or are complicit in, conduct amounting to international crimes such as genocide, crimes against humanity or war crimes,” Pillay added.
According to Columbia University economist Joseph Stiglitz, recognizing corporate liability under the Alien Tort Statute is a matter of economic efficiency. “[I]t is now well-recognized that in a modern economy, the provision of appropriate incentives (to avoid injury to others) must extend beyond the imposition of liability to the person who commits the injury. In particular, corporations must be provided with incentives to discourage and deter their employees from engaging in such potentially harmful acts and to develop monitoring systems that ensure compliance with corporate policies.”
Stiglitz argues that corporations are best situated to effectively monitor harmful activity at a minimal cost. Further, given the limited resources of individual persons as opposed to their corporate employers, a system that imposes liability solely on individuals would be weak and ineffective.
“Furthermore, recognition of corporate liability would demonstrate commitment to a variety of widely shared principles and morals,” Stiglitz adds. “The liability imposed by the ATS reflects norms of human rights endorsed by international law. The United States values, and benefits from, the existence of such international norms. And the enforcement of these norms by the United States confirms and promotes their universality.”
For an often outdated U.S. Constitution which grants rights only sparingly - and has fallen out of favor in the world as a casualty to far superior human rights documents in Canada, South Africa and elsewhere - the Alien Tort Statute may well prove our saving grace. When corporations violate the laws of nations by torturing and killing people, the U.S provides a human rights mechanism to address it. But whether a corporation-friendly majority on the Supreme Court sees things the same way, well, that remains to be seen.