In an important case, Kiobel v. Royal Dutch Shell, the U.S. Supreme Court has once again ruled in favor of corporations and against individual human rights. Court observers should have had no doubt about the resolution of this case. The U.S. Chamber of Commerce, a powerful lobbyist for corporate interests, has made its opinion known. Businesses around the globe, said a spokesman, are being punished in U.S. courts with costly, reputation-damaging litigation.
Neither the Chamber of Commerce nor the Court seem interested in the crimes committed by corporations in these cases. These crimes are the worst sort of human rights abuses.
Filartega v. Pena-Arala (1980) was brought by the sister and father of Joelito Filartiga who was tortured and killed by the Paraguayan government. In Kadic v. Karadzic (1995), muslims and Serbians charged Radovan Karadzic, president of Srpska, for acts of rape, torture, extrajudicial killing, and genocide committed by soldiers under his command.
In re South African Apartheid Litigation (2004) was brought by South African citizens against multi-national corporations for aiding and abetting apartheid, extrajudicial killing, torture, cruel, inhuman or degrading treatment, and denationalization. The corporations involved in these lawsuits were Daimler, Ford, General Motors, and IBM. This case has not yet been brought up on appeal. Its fate is doubtful, given the Court's decision in Kiobel. All these cases have been brought under the Alien Tort Statute of 1789 ("ATS"), which gives U.S. District courts the right to try cases that originate in foreign countries.
ATS has been invoked in law suits 154 times since 1995.
The Supreme Court tolerated ATS until victims began targeting corporations. One law journal article estimated that continued prosecution under the law might cost corportions $6 billion over the next few years and cause multi-national corporations to stop doing business in countries that are notorious violators of human rights, like China. The article called this a nightmare scenario, while admitting that it hasn't happened yet.
An alternate scenario could be that multi-national corporations begin to protest human rights violations in countries like China to protect their bottom line. Then human rights violators will stop denying rights to their citizens because they need foreign capital to survive. One advantage of ATS is that it allows victims to sue for damages, while other international human rights laws hand out criminal penalties. The cash awards permit human rights law firms to take the cases on contingency and continue to represent victims in other cases.
The chances of either scenario happening were diminished by the Supreme Court, which rejected the arguments of human rights victims in Kiobel. Cases filed under ATS had two characteristics that bother the conservative justices on the Court. First, the statute can be used against corporations, which the Court has shown an eagerness to protect. Second, the statute can be used for any violation of the law of nations, now known as international law, which the conservatives on the court hold in contempt.
Justice Scalia proudly boasts he does not cite the opinions of foreign judges in his analyses of Constitutional law. He cites a number of areas where European law differs from American law as the reason for this practice. European courts, he says, have declared homosexual sodomy legal; abolished the death penalty; banned political donations for periods of time before elections. ATS specifically mentions offenses under international law. Using ATS forces American District Courts to become interpreters of international law.
The differences Scalia cites between U.S. and European law do not represent instances where Europe is wrong and the U.S. is right. They are instances where Scalia personally disagrees with European law, but where millions of Americans would accept the European position.
In his opinion in Kiobel, Chief Justice Roberts used a concept, presumption against extraterritoriality, that has not been well-defined. Roberts rejects the petition of Kiobel for redress against Shell Oil Company because accepting the petition might result in discord between nations. This decision is a transparent effort to resolve the claim in favor of a multinational corporation, regardless of the merits of the case. Recall that Filartiga was brought by a Paraguayan citizen against another Paraguayan citizen for crimes committed in Paraguay. Kiobel was brought by a Nigerian citizen against a multinational corporation for crimes committed in Nigeria. If anything, there is a closer relationship to the U.S. in Kiobel than in Filartiga. It is hard to view the Court's decision in the current case as anything but a complete reversal of the earlier case.
Roberts decides that the U.S. Supreme Court cannot intercede because the acts of Shell are also illegal under international law and therefore should be tried in an international court. Roberts knows Kiobel won't be tried in an international court, however, because the attorney for the plaintiff informed him in oral argument that no other judicial body showed an interest in taking the case. Furthermore, international courts are familiar with conflicts between countries and have procedures in place to handle such conflicts. Therefore, U.S. entry into the case would offend no one.
The Court's minority also concurred with the majority, making this a unanimous decision. The minority refused to accept Roberts's opinion on extraterritoriality. Rather, they ruled against appellant because they viewed the case as too trivial for action. This is probably the reason why international courts would not take the case, because they are busy with cases involving thousands of victims. The Supreme Court's refusal to uphold Kiobel’s appeal probably means that individuals will have a hard time getting a hearing for human rights violations in the foreseeable future. The international courts are too busy and the U.S. courts don't care.
The legislative agenda of the conservative Court majority proceeds. The Court has chosen groups to favor and others to disappoint. In this case, they have taken an inconvenient law and emasculated it. The judicial tools they use differ, but the result is always the same. Conservatives prosper, progressive languish.
Somewhere in its world of parsed word derivations and historical usages, the Court should find room for justice and equality. They should care whether Kiobel's wife gets compensation for her husband's murder. They should care whether prisoners on death row are innocent or only guilty of being poor and black or brown. They should put on their robes and walk to the courtroom with the humble acknowledgment that they are empowered by the people to administer justice and they should do their duty.