Monday, March 19, 2012

US Jurisdiction over Corporations under International Law

The Alien Tort Claims Act (ATCA) was signed into law by President Washington in 1789. It states, “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.” The US Supreme Court is currently reviewing this jurisdiction in the case of Kiobel v. Royal Dutch Petroleum (Shell), and the ruling will have serious implications on both the status of corporations and the reaches of US’ jurisdiction.

Lawyers have interpreted ATCA to give non-US citizens the right to sue non-US offenders of international law in a US federal court. ATCA was hardly acknowledged for 190 years, until human rights lawyer Peter Weiss used it to try a Paraguayan police official residing in Brooklyn for torturing the son of the dissident. Since then, lawyers have used ATCA to sue transnational corporations, such as Chevron and General Motors, for violations against international law in countries with weak judicial systems. Many human Rights lawyers have cited ATCA as an important civil law to hold corporations accountable for their actions.

The plaintiffs in Kiobel v. Royal Dutch Petroleum are members of the Ogoni people in Nigeria’s Niger Delta. In the 1990s, Shell allegedly assisted the Nigerian government in executing Ogoni activists who threatened to disrupt Shell’s environmentally harmful drilling practices. A US appellate court initially ruled in favor of Shell, a decision that led to the Supreme Court’s review. The ruling stated that corporations were not accountable under international law, which binds only “nations and people.”

But the appellate court’s decision holds corporations to a serious double standard. In Citizens United v. Federal Election Commission, the Supreme Court recognized corporations’ political rights under the first amendment, letting corporations make unlimited political contributions as if they were people. Then, the appellate court’s decision in Kiobel v. Royal Dutch Petroleum gave corporations immunity from international law, a status that exceeds the rights of people.

On March 5, 2012, Justice Samuel A. Alito made another statement to weaken the case of the Ogoni victims. He asked, “What business does a case like this have in the courts of the United States?” Giving US Courts jurisdiction over such matters may encourage other nations to try breaches of international law by US companies, such as illegal US drone operations. That is, however, the point of international laws and doctrines, such as universal jurisdiction: to hold actors accountable for the gravest crimes against humanity. London, for example, has a history of exercising universal jurisdiction to try offenders, such as Nazi collaborator Anthony Sawoniuk, Afghan warlord Faryadi Sarwar Zardad, and Chilean dictator Augusto Pinochet.

Amicus briefs filed in support of Ogoni victims were made by human rights activists, top law scholars and professors, economist Joseph Stiglitz, the Brennan Center for Justice, and the US government. Supporters of Shell include other large corporations, as well as British, Dutch, and German governments.

The US’ Alien Tort Claims Act is a rare legal tool to maintain TNC accountability across the world. Its examination under Kiobel v. Royal Dutch Petroleum has made transparent unaddressed issues concerning both the nation-states role in maintaining international law, and the corporation’s status within that law.

If international law does not hold TNCs accountable, and if US courts refuse to monitor TNC violations, then TNCs will be free to exploit and profit off human rights violations in vulnerable nations.


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