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.
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.
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.
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
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.
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.
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.
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
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.”
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.
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
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
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
BlackCommentator.com Executive Editor, David
A. Love, JD is a journalist and human rights advocate
based in Philadelphia, is a graduate of Harvard College and the University of Pennsylvania
Law School. and a contributor to The Huffington
Post, the Grio, The Progressive
Media Project, McClatchy-Tribune News Service,
Times and Philadelphia
Independent Media Center. He also blogs at davidalove.com, NewsOne, Daily Kos, and Open Salon. Click here to contact Mr. Love.