"SCOTUS Term Preview Part III: Are Corporations Accountable For Torture Outside U.S. Borders?"
The U.S. Supreme Court begins its term this morning with a case about egregious human rights violations that ThinkProgress called last spring the “mother of all corporate immunity cases.”
Now that the Supreme Court has ordered the case to be reargued on another, broader question than it started with, it is just as likely that the case could implicate corporate accountability as that it could implicate, even more fundamentally, the accountability of anyone – individual or corporation – for committing torture or other major human rights abuses abroad.
The case, Kiobel v. Royal Dutch Petroleum Company, involves oil companies accused of aiding and abetting the Nigerian government in committing torture, arbitrary detention and indiscriminate killings against members of the Ogoni tribe for protesting oil exploration on the Niger delta. Twelve Nigerians brought suit under the Alien Tort Statute, a 200-year-old law that authorizes a civil lawsuit in U.S. federal courts by an “alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The U.S. Supreme Court has already established that this statute can be used in civil lawsuits alleging violations of “universally condemned human rights violations,” but the justices have expressed significant skepticism about this case, and they could reject the plaintiffs’ claims in at least three ways:
1. The Court could shield corporations from any liability under the ATS, whether the violations are committed in the U.S. or abroad
When the Supreme Court held its first round of arguments in February, the question before the court was whether this statute could be applied to any corporation that violates “the law of nations.” The statute, of course, makes no distinction between individuals and corporations. In fact, it makes no mention at all of what types of actors may be defendants. For better or for worse, the Supreme Court has already deemed corporations “people” when it comes to entitlement to First Amendment rights. It is now for the justices to answer: Do corporations have rights but not responsibilities?
This is a monumental question, and a decision to immunize those corporations that profit from torture and abuse would, as one federal appeals court judge wrote, free businesses to “trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy.”
But during oral argument in February, the justices did not seem inclined to side with the plaintiffs on that question, and the court will never reach it in this case if it answers “no” to the new, broader question it posed to the parties in this case, on what is known as “extraterritoriality.”
2. The Court could shield both corporations and individuals from any liability for human rights violations outside the U.S.
What if a corporation, or an individual, chooses to perpetrate torture in a country where they may be able to skirt liability for their actions? Does that company or individual, even if they also conduct business in, or enjoy the benefits of, a democracy like the United States, successfully escape accountability for those abuses because they occur outside U.S. borders? This is the new question the justices address today, and if the answer is yes, this major human rights statute will only apply to violations of international law that occur within U.S. borders.
Justice Samuel Alito pointedly asked during oral arguments in February, “What business does a case like that have in the courts of the United States? … [T]here’s no connection to the United States whatsoever.” He was referring to the fact that this case involves Nigerians (several of whom now live in the United States) suing foreign oil companies for actions that occurred in Nigeria. If the justices think that this case contains no connections to the U.S., or object to this case based on the particular fact pattern, our legal system contains other doctrines, such as personal jurisdiction, that require certain such connections in order to bring the case in U.S. courts.
3. The Court could dispense with this case on other narrower grounds, such as jurisdiction, because it is skeptical of this particular case’s connection to the United States
Jurisdictional rules exist because we want the reach of the law to extend to those entities with which we in the United States interact. We want to hold accountable the stores where we shop, the places that manufacture our goods and the people who spend time in our country, even if they attempt to avoid liability by incorporating in another country, or committing their bad acts elsewhere. Jurisdiction might be established, for example, because Royal Dutch Petroleum does significant business in the United States.
Rejecting this case on jurisdictional, or other narrower grounds, is the most palatable option of the three ways of turning back this case, because it recognizes that the justices’ concerns are to the particular facts of this case, and not to the Alien Tort Statute generally.
Of course, this case arguably does have connections to the United States, or it would not have made it this far. But if the court finds otherwise, it should send back the case on those grounds, rather than setting precedent based on facts it doesn’t like that the Alien Tort Statute precludes all cases involving foreign human rights abuses. To do so would not only contravene the clear scope and intent in the statute; it would further incentivize any individual or corporation who wants to behave badly to simply do their dirty work elsewhere.