Unholy Alliance: Revising the Alien Tort Statute

There is an unholy alliance between corporations and American courts. Corporations do not influence the courts through elections. Instead, they rely on propaganda to create a pro-corporate mindset. The judges internalize this propaganda and usually rule in favor of corporations. In general, they believe that what's good for business is good for the country.

A recent disaster at a clothing factory in Bangladesh has crystallized the issue. A fire broke out in a factory and killed 117 people. Numerous foreign companies, including Walmart and the Gap, used the factory and others like it to make their clothing. The fire safety certification, awarded by the fire authorities in Daka, had expired in June 2012 and was not renewed. The authorities noted that the building had a permit for five stories but the owner had built eight and was adding a ninth when the building collapsed.

The government of Bangladesh has arrested the owner of the building. They may have difficulty convicting him of a crime, however. The investigation following a 2006 fire in Chittagong, Bangladesh, did not lead to a trial, despite discovering numerous violations of safety regulations. The question remains whether Walmart and the other foreign corporations involved with the building will receive any punishment for their part in the crime.

Walmart has recently warned its suppliers not to buy merchandise from subcontractors who have not been authorized by the contractor. Walmart's actions reveal that the company would like to avoid liability in any future disasters. This new, somewhat belated, safety campaign does not exonerate Walmart, however. The Bangladesh government has proven incapable of regulating its garment industry. Walmart knew or should have known about government incompetence before the fire in question, since there have been many such fires, including the one in Chittagong where more than 50 people died.

There is an American law, the Alien Tort Statute (ATS), that might have been used by victims of the Bangladesh fire to sue Walmart in American courts. The Supreme Court has been whittling down ATS to make it less comprehensive. In the past, victims of torture in foreign countries have sued individual torturers and won in American court. When victims of corporate criminal conduct began using the law, the Supreme Court changed directions to protect the corporations.

Once they had decided to shield the corporations from civil suits, the Supreme Court discovered, what they had apparently missed in earlier cases, that the Alien Tort Statute did not support “extraterritoriality”, that it could not be applied to crimes committed in other countries. In Sosa v. Alvarez-Machain (2004), the court determined that the Law of Nations, which ATS was intended to enforce, does not include corporate liability.

This theory is nonsense. ATS was passed in 1789. The law of nations has since transformed itself into international law, which does indeed have laws that apply to corporations, including criminal statutes against homicide. What ATS did was to give the victim a chance to recover damages in civil court. By ruling that the law of nations, which is no longer a current legal term, does not include corporate liability, the Supreme Court achieves the purpose of shielding corporations from wrongdoing abroad.ⁱ

Since Sosa, the Supreme Court has gone further to discover that ATS does not apply anywhere outside the United States, effectively castrating it as a tool for individuals to recover damages against corporations.ⁱⁱ We the People can take steps to rectify this injustice by changing the law, but it will not be easy, considering that corporations contribute heavily to the campaigns of our lawmakers, some of whom appear to believe that what's good for the corporations is good for the U.S. Such a law would merely amend the Alien Tort Statute to replace the phrase “Law of Nations” with the phrase “established international law”. Furthermore, the new ATS could state that it applies equally to individuals and corporations. Finally, the new ATS could state specifically that the law applied in any nation where an injustice may have occurred.

i In this instance, corporations have more rights than individual persons, since international law in no way can be considered to exempt persons from its statutes, yet the Supreme Court has discovered that the law of nations does not apply to corporations. This inconsistent treatment of corporations is a proof that the unholy alliance exists and has consequences in the real world.

iiSee http://masrizone.blogspot.com/2013/04/kiobel-v-shell-supreme-court-gives.html.

Kiobel v. Shell: Supreme Court Gives Corporations A Break

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.