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Esther Kiobel (center) and members of the Ogoni community
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.

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Comment Preferences

  •  Your last question there is (4+ / 0-)
    Recommended by:
    Gooserock, agincour, Bill in MD, George3

    rhetorical? Yes?

    Don't ask if I'm better off now than four years ago. Ask if I'm better off than I would have been under four years of McCain.

    by WisePiper on Sat Sep 29, 2012 at 08:11:16 PM PDT

  •  hate to say it, but I must agree with Alito (4+ / 0-)

    And isn't Shell a Dutch corporation?  Maybe they should file their case in Dutch courts.

    Oregon: Sure...it's cold. But it's a damp cold.

    by Keith930 on Sat Sep 29, 2012 at 08:12:19 PM PDT

    •  Alito's point is nonsense (7+ / 0-)

      "What does a case like that -- what business does a case like that have in the courts of the United States?"

      That question would be valid objection to be raised in the halls of the First Congress. However, it is not the job of judges to raise such objections.

      Under the Alien Torts Statute, foreign plaintiffs can sue foreign defendants in United States federal courts over torts that occurred abroad in violation of the laws of nations. These cases have business in the courts of the United States, because Congress says they do. It doesn't matter whether we think the U.S. has any business hearing the case; Congress says it does.

      The legal question here is whether a foreign defendant should be granted immunity by virtue of its corporate form.

    •  why sue in the US? (3+ / 0-)
      Recommended by:
      sebastianguy99, Deathtongue, mdmslle

      I am confused here.  If the corporation, such as Shell, is based in another country, why should the lawsuit be held in the US?  Dutch courts would be a better location.

      The lawsuit should only be held in the US if the US company was directed by the Dutch office or if US individuals were involved.

      "The only person sure of himself is the man who wishes to leave things as they are, and he dreams of an impossibility" -George M. Wrong.

      by statsone on Sat Sep 29, 2012 at 08:59:03 PM PDT

      [ Parent ]

    •  the corporations (1+ / 0-)
      Recommended by:
      BYw

      who are supporting aren't necessarily - Chevron, for example, and Dole. They apparently have a good idea what would happen if this suit were upheld - they'd be sued for their actions in Venezuela.

      (Is it time for the pitchforks and torches yet?)

      by PJEvans on Sat Sep 29, 2012 at 09:51:49 PM PDT

      [ Parent ]

    •  I agree, I don't see how two foreign parties who (1+ / 0-)
      Recommended by:
      mdmslle

      have a dispute centered in a foreign country have any standing to sue in U.S. court.

      Patriot: the person who can holler the loudest without knowing what he is hollering about. Mark Twain

      by Deathtongue on Sat Sep 29, 2012 at 10:10:30 PM PDT

      [ Parent ]

  •  well, since you ask... (10+ / 0-)
    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?
    I'd place a large bet on the corporations winning. But I'm pulling for these guys..
    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.

    America could have chosen to be the worlds doctor, or grocer. We choose instead to be her policeman. pity

    by cacamp on Sat Sep 29, 2012 at 08:14:44 PM PDT

  •  One amazing thing about the judiciary is this (9+ / 0-)

    The legal issue here is over a whether the Judiciary Act of 1789 should be interpreted to exempt a particular entity from its jurisdiction.

    Without knowing anything about the text, history, and purpose of the Act, without using any tools that would activate any judicial philosophy, we already know how the Scalias and Thomases of the world will vote. They will deliver a decision that maximizes the profit potential for the defendant corporation Shell Oil.

  •  I finally now understand why Dad quit law school (3+ / 0-)
    Recommended by:
    ozsea1, KenBee, koNko

    and became a well respected & gifted electrical distribution/lighting engineer.

    "Four more years!" (Obama Unencumbered - The Sequel)

    by jwinIL14 on Sat Sep 29, 2012 at 08:25:45 PM PDT

  •  This is a tricky case. (3+ / 0-)

    What's right in furtherance of human rights and what is, in fact, within our jurisdiction may not be the same thing.

    Just like the state of Minnesota can't go after Sheriff Arpaio.

    We have just enough religion to make us hate, but not enough to make us love one another. -- Jonathan Swift

    by raptavio on Sat Sep 29, 2012 at 08:26:23 PM PDT

    •  It's been within our jurisdiction since 1789. (5+ / 0-)
      Recommended by:
      ozsea1, koNko, George Hier, PJEvans, BYw

      Overturning the ATS would be a radical revision in our jurisprudence and entirely incompatible with the ruling in Citizens United which allowed foreign corporations to participate in the election process in the USA.

      So, a foreign corporation - say Pirates Incorporated - can donate to our political candidates (the Free Pirates Party?) but NOT be held liable for torts?

      Appalling.

      "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

      by YucatanMan on Sat Sep 29, 2012 at 08:42:07 PM PDT

      [ Parent ]

  •  So, they argue that laws controlling corporate (4+ / 0-)
    Recommended by:
    YucatanMan, ozsea1, George Hier, PJEvans

    ...behavior are not needed, as corporations have statements of corporate policy, which of course they will abide by in all cases, so...leave us alone.

    Pardon me if I am somewhat skeptical.

    "Ridicule is the only weapon which can be used against unintelligible propositions." - Thomas Jefferson

    by rfall on Sat Sep 29, 2012 at 08:33:25 PM PDT

    •  Working in large corporations for decades, (7+ / 0-)

      I can assure you that "statements of corporate policy" are about as restrictive as soggy toilet paper.  Corporations and their managers violate policy all the time, for any reason or no reason. Then they say they are sorry.

      If you are really lucky, you might go to arbitration, where they hire the arbitrators.  Nice.

      "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

      by YucatanMan on Sat Sep 29, 2012 at 08:44:09 PM PDT

      [ Parent ]

    •  Straw man alert (0+ / 0-)

      No one has made this claim.

      So, they argue that laws controlling corporate
      ...behavior are not needed, as corporations have statements of corporate policy
  •  I'm with the Obama Administration on this. (1+ / 0-)
    Recommended by:
    sebastianguy99

    The district courts absolutely have the right to original jurisdiction on cases involving corporations being sued by outside individuals - that part shouldn't even be in question, and I have no idea why it is. The purpose of the Federal Judiciary is two-fold: to handle cases involving a significant question of federal law, and to handle cases involving potential bias as a result of residency.

    However, Royal Dutch Shell is a British and a (wait for it, wait for it...) Dutch! company first and foremost. Residency for a corporation is established in the state (domestic and, I presume, foreign) where it is first incorporated (the Netherlands), as well as the company's principal place of business. (Again, the Netherlands or Britain, depending on how one views it.)

    The plaintiffs are Nigerian. They should be taking this to the Dutch, British, or Nigerian courts. While it is flattering that they think highly of our justice system, it is not the US' place to act a world court. Allowing this type of case into our jurisdiction opens our courts up to be used for every citizen of every nation to seek redress against every corporation large enough to open an office in the United States.

    •  No, you're misconstruing the ATS (6+ / 0-)
      Recommended by:
      KenBee, franklyn, ozsea1, YucatanMan, Adam B, BYw

      The Alien Torts Statute does not open the doors to all tort claims for anyone in the world. The ATS is narrowly confined to cases in which the tort was committed in violation of "the laws of nations or a treaty of the United States." A person cannot bring an ordinary tort claim under the ATS. The statute is confined only to a specific category of cases that Congress identified as important: most often cases where there is a human rights violation. The very purpose of the Act is to expand jurisdiction and to provide a forum for international human rights violations to be adjudicated.

      More importantly, even if we don't think it wise for federal courts to open their doors to hear foreign plaintiffs make claims against foreign defendants for torts committed abroad, Congress decided otherwise when it passed the ATS.

      •  Not exactly (1+ / 0-)
        Recommended by:
        sebastianguy99
        The very purpose of the Act is to expand jurisdiction and to provide a forum for international human rights violations to be adjudicated.
        Although commonly used for human rights cases today, that was not the original purpose (such cases were not common then), but simply to provide jurisdiction to try cases of international law (such as maritime law) and cases covered by treaties.

        So the question of whether it could be used here would rest on the basis of the claim being covered by such, and from what I understand about the case, in fact it should be as the US is a signatory of treaties and acts that forbid torture.

        That said, it has to be noted that in practice the US has avoided the concept of international courts and jurisdictions for many years, does not recognize the jurisdiction of the ICC and has generally avoided treaties that would put it's own citizens or officials at risk in such courts.

        So while I agree the present court is trying to basically overturn the ATS or exempt corporations from it, it's the logical conclusion of a long trend to protect US sovereignty in this domain.

        IOW, at the end of the day, the US would not like it's citizens or it's companies to be subject to similar actions in other "3rd party" jurisdictions.

        For example, ex-US Presidents or other assorted officials engaging in torture, extra-judicial killings or kidnapping, etc.

        Personally, I was hoping Obama would appoint Harold Koh Hongju to SCOTUS, who was short-listed with Kagan, an expert on international law who has counseled the State Department, but I guess I should abandon that idea now.

        What about my Daughter's future?

        by koNko on Sat Sep 29, 2012 at 09:39:39 PM PDT

        [ Parent ]

        •  There is another issue with the ATS here: (1+ / 0-)
          Recommended by:
          koNko
          Our recognition of a norm of liability as a matter of domestic law, therefore, cannot create a norm of customary international law. In other words, the fact that corporations are liable as juridical persons under domestic law does not mean that they are liable under international law (and, therefore, under the ATS). Moreover, the fact that a legal norm is found in most or even all “civilized nations” does not make that norm a part of customary international law. As we explained in Filartiga:
          [T]he mere fact that every nation's municipal [i.e., domestic] law may prohibit theft does not incorporate “the Eighth Commandment, ‘Thou Shalt not steal’ ... into the law of nations.” It is only where the nations of the world have demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognized becomes an international law violation within the meaning of the [ATS].14
          Accordingly, absent a relevant treaty of the United States-and none is relied on here-we must ask whether a plaintiff bringing an ATS suit against a corporation has alleged a violation of customary international law.
          The singular achievement of international law since the Second World War has come in the area of human rights, where the subjects of customary international law-i.e., those with international rights, duties, and liabilities-now include not merely states, but also individuals. This principle was most famously applied by the International Military Tribunal at Nuremberg. As Justice Robert H. Jackson, chief prosecutor for the United States at Nuremberg, explained:
          [The Nurnberg trials] for the first time made explicit and unambiguous what was theretofore, as the Tribunal has declared, implicit in International Law, namely, that to prepare, incite, or wage a war of aggression ... and that to *119 persecute, oppress, or do violence to individuals or minorities on political, racial, or religious grounds in connection with such a war, or to exterminate, enslave, or deport civilian populations, is an international crime, and that for the commission of such crimes individuals are responsible.
          Robert H. Jackson, Final Report to the President Concerning the Nurnberg War Crimes Trial (1946) (emphasis added), reprinted in 20 Temp. L.Q. 338, 342 (1946).15
          From the beginning, however, the principle of individual liability for violations of international law has been limited to natural persons-not “juridical” persons such as corporations-because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an “international crime” has rested solely with the individual men and women who have perpetrated it. As the Nuremberg tribunal unmistakably set forth in explaining the rationale for individual liability for violations of international law: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.” The Nurnberg Trial (United States v. Goering), 6 F.R.D. 69, 110 (Int'l Military Trib. at Nuremberg 1946) (rejecting the argument that only states could be liable under international law).
          After Nuremberg, as new international tribunals have been created, the customary international law of human rights has remained focused not on abstract entities but on the individual men and women who have committed international crimes universally recognized by the nations of the world. This principle has taken its most vivid form in the recent design of the International Criminal Court (“ICC”). Although there was a proposal at the Rome Conference to grant the ICC jurisdiction over corporations and other “juridical” persons, that proposal was soundly rejected, and the Rome Statute, the ICC's constitutive document, hews to the tenet set forth in Nuremberg that international norms should be enforced by the punishment of the individual men and women who violate them.16
          *120 In short, because customary international law imposes individual liability for a limited number of international crimes-including war crimes, crimes against humanity (such as genocide), and torture-we have held that the ATS provides jurisdiction over claims in tort against individuals who are alleged to have committed such crimes. As we explain in detail below, however, customary international law has steadfastly rejected the notion of corporate liability for international crimes, and no international tribunal has ever held a corporation liable for a violation of the law of nations.
          We must conclude, therefore, that insofar as plaintiffs bring claims under the ATS against corporations, plaintiffs fail to allege violations of the law of nations, and plaintiffs' claims fall outside the limited jurisdiction provided by the ATS.
          We emphasize that the question before us is not whether corporations are “immune” from suit under the ATS: That formulation improperly assumes that there is a norm imposing liability in the first place.17 Rather, the question before us, as the Supreme Court has explained, “is whether international law extends the scope of liability for a violation of a given norm to the perpetrator being sued, if the defendant is a private actor such as a corporation or individual.”18 Looking to international law, we find a jurisprudence, first set forth in Nuremberg and repeated by every international tribunal of which we are aware, that offenses against the law of nations (i.e., customary international law) for violations of human rights can be charged against States and against individual men and women but not against juridical persons such as corporations. As a result, although customary international law has sometimes extended the scope of liability for a violation of a given norm to individuals, it has never extended the scope of liability to a corporation.19
          We pause briefly to acknowledge and reply to the separate opinion of our colleague, Judge Leval. As an initial matter, we are perplexed by Judge Leval's repeated insistence that there is no “basis” for our holding because “[n]o precedent of international law endorses” it. See, e.g., Concurring Op. 151. In an ATS suit, we may apply only those international norms that are “specific, universal, and obligatory.”20 As a result, the responsibility of *121 establishing a norm of customary international law lies with those wishing to invoke it, and in the absence of sources of international law endorsing (or refuting) a norm, the norm simply cannot be applied in a suit grounded on customary international law under the ATS. Thus, even if there were, as Judge Leval claims, an absence of sources of international law addressing corporate liability,21 that supposed lack of authority would actually support our holding. By contrast, to support Judge Leval's proposed rule, there would need to be not only a few, but so many sources of international law calling for corporate liability that the norm could be regarded as “universal.” As it happens, no corporation has ever been subject to any form of liability under the customary international law of human rights, and thus the ATS, the remedy Congress has chosen, simply does not confer jurisdiction over suits against corporations.22
          Although Judge Leval condemns our holding, he in fact agrees with much of our opinion. He concedes, for example, that “[i]t is true that international law, of its own force, imposes no liabilities on corporations or other private juridical entities.” Concurring Op. 186; see also id. (explaining that it “is entirely accurate” that “international law imposes no liabilities on private juridical persons”); id. at 185-86 (“[I]t is absolutely correct that the rules of international law ... do not provide for any form of liability of corporations.”). He similarly has “no quarrel” with the “premise[ ]” that international law is “the place to look” to determine whether corporations can be held liable for violations of international law. Id. at 174-175. He concludes, however, that international law does not supply an answer to that question. In his view, the question of corporate liability is merely a matter of “remedy” that “international law leaves ... to the independent determination of each State.” Id. at 176.
          We agree with Judge Leval that whether to enact a civil remedy for violations of customary international law is a matter to be determined by each State; the United States has done so in enacting the ATS. But the ATS does not specify who is liable; *122 it imposes liability only for a “violation of the law of nations,” 28 U.S.C. § 1350, and thus it leaves the question of the nature and scope of liability-who is liable for what-to customary international law. As we explain in detail below, therefore, whether a defendant is liable under the ATS depends entirely upon whether that defendant is subject to liability under customary international law. It is inconceivable that a defendant who is not liable under customary international law could be liable under the ATS.
          We will not embark on a lengthy tangent in response to Judge Leval's many “hypothetical cases,” Concurring Op. 159, in which corporations would not, under our holding, be liable under the ATS. We note only that nothing in this opinion limits or forecloses suits under the ATS against the individual perpetrators of violations of customary international law-including the employees, managers, officers, and directors of a corporation-as well as anyone who purposefully aids and abets a violation of customary international law. Nor does anything in this opinion limit or foreclose criminal, administrative, or civil actions against any corporation under a body of law other than customary international law-for example, the domestic laws of any State. And, of course, nothing in this opinion limits or forecloses legislative action by Congress.
          * * *
          Lastly, we wish to note that we do not take lightly the passion with which Judge Leval disagrees with our holding. We are keenly aware that he calls our reasoning “illogical” on nine separate occasions. See Concurring Op. 151, 152, 154, 165, 166 n. 18, 168, 164, 174, 185, 186. Nor is it lost on us that he calls our conclusions “strange,” id. at 151, 179-80, 180-81,23 or that he repeatedly criticizes our analysis as “internally inconsistent,” id. at 152 - 53, 153, 174.24 We must, however, leave it to *123 the reader to decide whether any of Judge Leval's charges, individually or in combination, are a fair reading of our opinion. In so doing we are confident that if our effort is misguided, higher judicial authority is available to tell us so.
          In essence, the Appellate court holds that under the same international law that allows human rights violations to be recognized, corporations are not recognized as people - particularly not foreign corporations.
          •  My comment above (0+ / 0-)

            Is necessarily limited to discussing the block-quoted statement of the previous post.

            I honestly don't know enough about the case in question (other than the fact it is a tort claim)  to comment in detail on the court opinion you quote, but my personal opinion is that there is room to try corporations in 3rd party jurisdictions if there is not the opportunity to do so in the countries directly involved, so I at least partly disagree with the opinion.

            And on that basis, I have elsewhere on this thread questioned if the US is the best place to do this rather than The Netherlands or UK. I'd rather suppose The Netherlands to be a more friendly jurisdiction given the fact Shell is a Netherlands corporation, that the ICC is hosted in The Hague and the generally more open attitude of EU courts to the concept of international law.

            In contrast, the US likes to talk the talk but not walk the walk of international law and international norms. In fact this decision does not surprise me since, end of the day, the US would not like to ceed jurisdiction or sovereignty to other nations and put it's own citizens or corporations at risk, hence the "respect" of this in the Executive Branch statement.

            I don't expect Dick Cheney or Donald Rumsfeld to publicly criticize the WH statement.

            What about my Daughter's future?

            by koNko on Sat Sep 29, 2012 at 10:50:17 PM PDT

            [ Parent ]

          •  Further (1+ / 0-)
            Recommended by:
            ConfusedSkyes

            You may consider the arguments put forth by the ABA.

            What about my Daughter's future?

            by koNko on Sat Sep 29, 2012 at 11:20:41 PM PDT

            [ Parent ]

    •  So, you would have voted against the ATS in 1789? (0+ / 0-)

      "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

      by YucatanMan on Sat Sep 29, 2012 at 08:45:07 PM PDT

      [ Parent ]

      •  No. But it certainly was not written with this in (1+ / 0-)
        Recommended by:
        sebastianguy99

        mind. It is not a law that can be practically exercised in its current interpretation.

        •  The law says (1+ / 0-)
          Recommended by:
          Adam B

          "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"

          Violations of the laws of nations include mostly human rights violations such as torture, genocide, war crimes, etc. The purpose of giving federal courts jurisdiction over these matters was to reassure foreign governments by providing remedies for breaches of international law.

          The case here checks all of the boxes in the statute's text. We have a civil action, for a tort only, committed in violation of the law of nations.

          The legal question is whether, even though this case satisfies those conditions, we expect that Congress would have intended to make a special exemption for a defendant based upon its form. This narrow reading would only make sense if it can be justified under the purpose of the act. Would it make sense for Congress to discriminate in this fashion? Would Congress' purpose of expanding the court's jurisdiction to enforce international law and treaties be served by a special rule exempting corporations from its reach?

          The answer would seem to be no. So long as the statutory requirements are met, Congress' purpose is served equally whether the defendant is a corporation or an individual. In either case, Congress is providing a forum to give remedies for violations of international norms and thus to harmonize international relations.

          •  The court's options are not merely to turn over (0+ / 0-)

            the law, or to enforce it. It can state that the law stands, but for practical purposes the decision would be better moved to another venue, which it has done before.

            •  I'm confused by your response (1+ / 0-)
              Recommended by:
              YucatanMan

              I don't see how that remark defends your argument that the original purpose of the statute clearly must have not been meant to include this case, which is "a civil action by an alien for a tort only, committed in violation of the law of nations," as the statute says.

              •  There's no history or context to suggest that (0+ / 0-)

                civil rights abuses beyond piracy were what the Congress had in mind at the time of writing. Those were cases in which the government could easily execute an investigation as well as punish all offenders. No matter if a court has jurisdiction, if the venue is inappropriate, they will not see the case. I'm trying to find a similar case which was mentioned in class a few weeks back. It involved an Indian corporation, but I can't recall much more than that, and my google searching is getting confused between AmerIndians and Asian Indians.

          •  I think the point of discussion (2+ / 0-)
            Recommended by:
            sebastianguy99, ConfusedSkyes

            Was whether the act was purposed specifically to handle human rights cases and clearly it was not; it broadly covers any situation where matters of international law or treaty obligations are at stake.

            So certainly human rights cases fall into that domain and you would be correct asserting that in contemporary use human rights cases are one primary category of it's use.

            But suggesting it was enacted specifically to handle human rights cases as YucatanMan seems to do is simply mistaken; I had the same take on his assertion and you may refer to my comments elsewhere up-thread.

            What about my Daughter's future?

            by koNko on Sat Sep 29, 2012 at 09:45:37 PM PDT

            [ Parent ]

  •  The Roberts court is determined to undermine (4+ / 0-)
    Recommended by:
    zmom, KenBee, ozsea1, PJEvans

    democracy and our long-standing legal traditions in a radical right make-over of the entire nation from the bench of the United States Supreme Court.

    It's appalling that the Obama administration supports this action.  Holder needs to go and the entire Justice Department needs to have their priorities reset.

    "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

    by YucatanMan on Sat Sep 29, 2012 at 08:38:46 PM PDT

    •  This is not a long-standing legal tradition (1+ / 0-)
      Recommended by:
      sebastianguy99

      This is using the United States Court System as a world police, based on a fairly recent and novel interpretation of a long forgotten statute. It opens up the possibility for the US to basically be used as a launching grounds for suits against virtually every ethical abuse committed by corporations in the entire world - in areas where the US has no practical jurisdiction for the purposes of investigation or enforcement beyond fines and damages on the US arms of said corporations.

      •  Sorta like Spain investigating Pinochet (4+ / 0-)
        Recommended by:
        KenBee, ozsea1, koNko, Desolations Angel

        for human rights abuses?  Or Cheney? Since we won't?

        What if there are no other suitable venues?  We just wink and nod and let "Pirates Incorporated" go?  Really?

        You and I obviously don't agree here.  I'll take the side of the UN High Commissioner on Human Rights and the amici in that group.

        "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

        by YucatanMan on Sat Sep 29, 2012 at 08:48:15 PM PDT

        [ Parent ]

        •  Well, note this: (0+ / 0-)
          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.
          This 'moreover' is a crucial part of why I agree with the administration on this.

          And yes, I think court rulings when no enforcement can be used to back them up are not really all that helpful. As much as I would love to see Mr. Cheney prosecuted for his crimes, it is doubtful it will ever happen.

          •  These corporations currently do business (0+ / 0-)

            within the USA.  

            Having assets here, there are clearly means by which enforcement can be used to back up court rulings. Just as the US government can freeze assets of foreign governments or rulers in certain circumstances, foreign corporations' assets can be seized or encumbered as a result of rulings against them.

            One of the advantages of having a highly intertwined global economic system is that our laws should apply to the actions of corporations involved in gross human rights violations overseas.

            Of course, it would be nice to start with corporations undertaking gross human rights violations within the USA.

            "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

            by YucatanMan on Sat Sep 29, 2012 at 08:58:27 PM PDT

            [ Parent ]

        •  And I agree with the American Bar Assn brief: (0+ / 0-)

          (nearly 40 page PDF)  
          BRIEF OF THE AMERICAN BAR ASSOCIATION ASAMICUS CURIAE IN SUPPORT OF PETITIONERS

          If the USA isn't going to be a beacon for Human Rights in the world (and many would argue we pretty much surrendered that position anyway under the criminal Bush/Cheney junta), then who will be?

          Too many people seem to believe "the heck with human rights elsewhere."  I believe we should still keep trying, although we've been shown to be much more imperfect than many in the world previously believed.

          "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

          by YucatanMan on Sat Sep 29, 2012 at 10:27:04 PM PDT

          [ Parent ]

      •  Holder would (1+ / 0-)
        Recommended by:
        YucatanMan

        be one of the defendants in at least one case, when he was a corporate general counsel.

        Of course he doesn't want this remedy to be available, even when it's clearly legal.

        (Is it time for the pitchforks and torches yet?)

        by PJEvans on Sat Sep 29, 2012 at 09:55:19 PM PDT

        [ Parent ]

      •  This is one legal precedent - the 1980s (0+ / 0-)

        interpretation of the ATS.

        But that's not all the Roberts Court is after:  again and again, they have undermined legal precedents which have stood for many years.  I'm talking about the entirety of all the rulings under the Corporate Power pushing of the Roberts Court and their undermining of anything that protects individual citizens from government or corporate power.

        Major corporations have yet to lose or even suffer a slight downside from the Roberts Court. This is one more in a series of cases where they are even redefining the QUESTION brought before the court at their own initiative, which is why people write things like "in an unprecedented move" or "in a shocking change of course" regarding cases coming before the court.

        It is a radical court agenda not at all within the tradition of the court to consider the questions brought before them, but to take a case and use it to further Roberts' (Alito's, Scalia's, Thomas') own goals.

        "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

        by YucatanMan on Sun Sep 30, 2012 at 11:17:37 AM PDT

        [ Parent ]

    •  Does the US have a long-standing tradition (0+ / 0-)

      Of trying human rights cases involving alien parties?

      It has signed lots of treaties that could be the basis of such cases under ATS, but is there actually a long tradition of trying such cases? Can you cite a few examples of significant cases?

      I think this debate is more about what could or should be and less about what has been.

      What about my Daughter's future?

      by koNko on Sat Sep 29, 2012 at 10:03:57 PM PDT

      [ Parent ]

    •  An interesting article found here: (2+ / 0-)
      Recommended by:
      agincour, Adam B

      Supreme Court holds U.S. rights legacy in the balance

      ...
      In a groundbreaking case in 1980, the family of a 17-year-old Paraguayan, Joelito Filártiga, who had been tortured and killed by a henchman of Gen. Alfredo Stroessner, brought and won a civil case against his murderer, Americo Peña-Irala. The young man had been tortured to death because his father opposed the government.

      The ruling established that the statute could be used to hold modern torturers accountable for their actions, wherever they are committed. In the wake of the case, Filártiga v. Peña-Irala, the Alien Tort Statute developed into a new tool in human rights law. Successful cases were brought against government officials, against non-state actors like Radovan Karadžić in Bosnia-Herzegovina and against multinational corporations before the Second Circuit ruling in Kiobel that disallowed that.

      ....

      ...the larger question is: Does the U.S. want to be a leader or a laggard in upholding international human rights? If the statute is narrowed and its promise of universal accountability curtailed, it will rightly be perceived as yet another step by the U.S. away from its once leading advocacy for human rights.

      If, on the other hand, the Supreme Court upholds the Alien Tort Statute, it will signal to the world that we do still believe that people everywhere are entitled to certain fundamental rights and that we will help enforce those rights.

      Some are arguing here that these torturers should be freed from the possibility of civil suits within the USA.  I disagree.

      "The law is meant to be my servant and not my master, still less my torturer and my murderer." -- James Baldwin. July 11, 1966.

      by YucatanMan on Sat Sep 29, 2012 at 10:32:41 PM PDT

      [ Parent ]

  •  Yes, corporations should be held liable, but... (1+ / 0-)
    Recommended by:
    ConfusedSkyes

    ...that isn't the question the court wants to answer in a forthright manner.From the given facts, I am left with the impression that this isn't the case to answer the question of corporate liability.

    Justice Breyer's question suggests that the United States sponsored Pirate, Incorporated. There doesn't appear to be such a sponsorship suggested in the present case.

    I am surprised that the action was allowed to proceed in the first place.

    "There is nothing more dreadful than the habit of doubt. Doubt separates people. It is a poison that disintegrates friendships and breaks up pleasant relations. It is a thorn that irritates and hurts; it is a sword that kills.".. Buddha

    by sebastianguy99 on Sat Sep 29, 2012 at 08:40:06 PM PDT

  •  alito's been phoning it in for years now. (5+ / 0-)

    between his "originalist" nonsense (in this case, he conveniently ignores the actual original clear intent of the law, because, well, it's inconvenient), and his obvious disdain for individual rights, unless you're a corporation, if he had any honor or integrity, he'd retire. that way, he could, with clear consciounsce, go make money on the speaker circuit.

    the ATS is pretty clear and unambiguous, as justice breyer noted. it only becomes "difficult" when someone has the temerity to actually use it as intended. silly them!

    and yes, spelling is not my forte!

  •  The Supreme Court. The Supreme Court. The (1+ / 0-)
    Recommended by:
    stellaluna

    Supreme Court.

    Three of the most important reasons to re-elect President Obama.

  •  ANY civil action by an alien, is the key phrase. (0+ / 0-)

    Fuck Big Brother...from now on, WE'RE watching.

    by franklyn on Sat Sep 29, 2012 at 09:07:42 PM PDT

  •  What's happened w/ the Unocal slavery suit? (0+ / 0-)

    The ATS applicability was a question that went to the SCOTUS in that case (or similar one at the time), and apparently the court ruled in a manner that seem to have established corporate liability in particular circumstances:

    Unocal argued in June 2003 that the federal case wrongly relied on the 1789 Alien Tort Claims Act, which allows foreigners to sue in U.S. courts for human rights abuses that occur overseas.

    The 9th Circuit withheld judgment while the obscure law was being considered in a separate case by the U.S. Supreme Court. In June, the high court ruled that certain types of cases involving violations of international law can be pursued in federal courts under the act.

    My quick glance at Google left me hanging on what the ultimate disposition of that case was.  Does it, or the other case, pertain here?
  •  If Shell's "feet" were in the U.S. ... (0+ / 0-)

    If Shell's "feet" were in the U.S., then Shell committed these crimes from within the U.S. Am I correct?

    Has this been argued?

    If Bart is at the border of the U.S. and Canada but still in the U.S, and swings a bat and strikes someone across the border and inside Canada, the question I suppose is could that person sue Bart in the U.S. Or better yet, if Bart actually kills the Canadian citizen, could their family sue Bart in the U.S.

    This may be an easier question if Shell was in fact incorpoated in the U.S., however the answer to that would be to find out if Shell has made any contributions to any campaign in the U.S. since you must be a U.S. citizen to make contributions in the U.S.

    Here, the point is that Shell has it's feet in the U.S., and many other countries all at the same time. Much like a VERY tall person with a deformity of many feet.

    If Bart is so tall that he can have one foot in the U.S, and able to swing a bat and kill someone in Nigeria, I imagine that the Nigerian family may sue Bart in the U.S.

    If this sounds silly, well so does the idea that a corporation is a person, so silliness is not excuse for any objections, as so there should be no such objections for the above argument as well. This is real. And these are the facts.

  •  Adam B, which are the two other major oil (0+ / 0-)

    companies. I can't find them listed.
    Thanks in advance.

    Fuck Big Brother...from now on, WE'RE watching.

    by franklyn on Sat Sep 29, 2012 at 09:57:20 PM PDT

    •  I pulled up the case brief for the Appellate case. (3+ / 0-)
      Recommended by:
      franklyn, koNko, Adam B

      Esther KIOBEL, individually and on behalf of her late husband, Dr. Barinem Kiobel, Bishop Augustine Numene John-Miller, Charles Baridorn Wiwa, Israel Pyakene Nwidor, Kendricks Dorle Nwikpo, Anthony B. Kote-Witah, Victor B. Wifa, Dumle J. Kunenu, Benson Magnus Ikari, Legbara Tony Idigima, Pius Nwinee, Kpobari Tusima, individually and on behalf of his late father, Clement Tusima, Plaintiffs-Appellants-Cross-Appellees,
      v.
      ROYAL DUTCH PETROLEUM CO., Shell Transport and Trading Company PLC, Defendants-Appellees-Cross-Appellants,
      Shell Petroleum Development Company Of Nigeria, Ltd., Defendant.

      So, just Royal Dutch Shell and two of its arms.

  •  My question (1+ / 0-)
    Recommended by:
    jim0121

    Is whether these plaintiffs have already sued in The Netherlands or the UK.

    Surely The Netherlands, which hosts the ICC in The Hague, would be a reasonable and possibly better choice.

    What about my Daughter's future?

    by koNko on Sat Sep 29, 2012 at 10:14:51 PM PDT

  •  What's wrong with Dutch courts? (0+ / 0-)

    It's not like The Netherlands is some kind of 3rd world dictatorship. That seems like the more direct approach. It would be different if the home nation of the corporation was without a functioning legal system. Hell, we're closer to that than the Dutch are.

    No one in this world has ever lost money by underestimating the intelligence of the great masses of the plain people. H. L. Mencken

    by jim0121 on Sun Sep 30, 2012 at 02:25:31 AM PDT

  •  History shows this is ridiculous (0+ / 0-)

    Chevron was grandfathered in to be allowed to business with Myanmar by a Democratic Congress. Yep, Democrats were the majority.
    I know, those people don't matter because they're the wrong color brown ?
    If anyone believes congress, the president or the Supreme Court will rule on anything that would hurt a corporation, let alone a Big 5 Oil Corporation - you need a reality check.
    BP lied to congress after 'the spill' knowingly . There was an explosion of the same proportion, for the same reason by the same companies (BP contracts out construction) in the Caspian Sea only 13 months prior to the one in the Gulf.
    The entire Congress let BP lie to them, the media questioned nothing and 11 people were negligently MURDERED. They were white people ! Do you really think any of our government will do anything for Nigeria ? IN AN ELECTION YEAR ?
    Just stop. Stop pretending to be angry or caring. It is all about 'my party' winning, lets not pretend it is about anything more than that

    you can't remain neutral on a moving train

    by rmfcjr on Sun Sep 30, 2012 at 03:30:22 AM PDT

  •  Corporations affect our Foreign Policy (0+ / 0-)

    Seems like it would only be reasonable for a U.S. Company operating abroad could be sued in a U.S. Court for actions taken in another country if that action causes causes an international issue between our two countries. But beyond that the question begs, "Should we allow U.S. Corporations to break international law while abroad?"

    I think it's high time we held our corporations to a higher standard. They will whine and complain that they would be losing opportunities to foreign competitors. But it goes to who we are as a country. Do we allow U.S. Corporations to commit human rights abuses simply because they can get away with it abroad?

    It's obvious that the GOP won't buy into it. But it all comes down to how this affects our U.S. Foreign Policy. Currently, I strongly believe that corporate abuses abroad have seriously damaged our credibility in the eyes of developing countries. It's one of the main reasons I fear why we are so despised. If corporations were held to a higher standard while abroad I think we would see a turnaround in our reputation abroad. I am not saying it would happen, but it would at least fix one of the wounds that is apparent in our Foreign Relations.

    "I think it's the duty of the comedian to find out where the line is drawn and cross it deliberately." -- George Carlin, Satirical Comic,(1937-2008)

    by Wynter on Sun Sep 30, 2012 at 03:46:13 AM PDT

  •  Oh NO you didn't! - Bain Capital = Pirates (0+ / 0-)

    Incorporated.

    REALLY

    You - Mr. B?

    Damn.

    Remember you posted this and how apropos

    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.
    Please stay tuned!


    Mitt Romney was CEO of Bain until Aug 2001. Proof of Bain & Romney Fraud

    by laserhaas on Sun Sep 30, 2012 at 12:27:38 PM PDT

  •  The Worlds policemen or not? (0+ / 0-)

    It seems to me the happy to bomb the shit out of everybody because we have the right to act as the worlds police crowd are going to contradict themselves here. No way do they think that anyone important should ever be held accountable. Or even be forced to defend their actions in open court.
    My opinion, to be consistent:
    If we can intervene militarily anywhere we like then we can also bring lawsuits as well.

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