This Monday, the Supreme Court began hearing arguments in a
case that may determine the future of how the federal government regulates
oversees actions of multinational corporations. In Kiobel v. Royal Dutch Petroleum, the Court will decide whether
twelve Nigerian plaintiffs can seek damages from Shell Oil Company (the U.S.
subsidiary of Royal Dutch Petroleum) for allegedly conspiring with Nigerian
officials to stifle environmental protests through violent resistance. The case
promises to bring to the surface a larger debate about who should hold
corporations responsible for oversees illegal activity, as well as who can be
held responsible for these activities within each corporation.
One of the first questions that the case will answer is
whether the Court should even hear these types of cases. In today’s reading,
Stiglitz argues that one important method of improving corporate governance in
a global economy comprised of large multinational corporations is in allowing
“those in other countries to sue in the home country of the offending
corporation,” (Stiglitz, 205). He then cites the Alien Tort Claims Law as an
important example of how this aim can be reached; however, Justice Alito’s
comments today revealed his disagreement with Stiglitz. Alito asks, “Why does
this case belong in the courts of the United States when it has nothing to do
with the Untied States other than the fact that a subsidiary of the defendant
has a big operation here?” According to this
Wall Street Journal article about today’s arguments, Justice Alito was not
alone in his skepticism that the case should be in the Court’s jurisdiction.
The primary reason that the case is being tried within the
United States, it seems, is that the Alien Tort Claims Law is an American law
and activists since the 1970s have attempted to use the law to make the U.S. an
international leader in promoting human rights. The attorney for the plaintiffs
admitted that, “the only connection between the events in Nigeria and the
United States is that the plaintiffs are now living in the United States and
have asylum because of those events, and the defendants are here.” He then
contended that the U.S. government has a responsibility and a stake in
enforcing international law.
This case will be interesting because if the Court rules to
award damages to the plaintiffs, it may open up the Alien Tort Claims Law to a
wide variety of new applications. At the time that the alleged illegal
activities in this case occurred, the plaintiffs were Nigerian citizens.
Further, as the company’s lawyer argued today in court, “the defendants are
English and Dutch companies.” Thus, in stepping in to enforce international
law, the Supreme Court would be extending its reach to what are, essentially,
foreign plaintiffs and defendants.
This would be a new, broad international role for the Court. Some justices,
such as Scalia and Kennedy, worry that this would then mean that international
law could be enforced in any court around the world. Others, like Breyer,
contend that it makes sense for these cases to be heard in any countries, such
as the United States, that have signed international human rights agreements
(like the U.N. convention banning torture).
The case will be important in deciding how far American
judicial institutions will go to enforce international law. It seems to me that
the 1789 Alien Torts Law is not the appropriate method of enforcing
international law. Although Stiglitz appropriately views the law as one of the
few available alternatives in existence to prosecute multinational
corporations’ illegal activities in foreign countries, the Supreme Court
remains an odd body to try a case like Kiobel
v. Royal Dutch Petroleum. As even the plaintiff’s attorney admits, both
sides in this case are only loosely associated with the United States. This
weakens both the legitimacy of enforcement efforts as well as the ability of
the Court to interpret relevant statutes and gather all available information
related to the case. I agree with a European Union brief referred to by Justice
Sotomayor today, which states that the Alien Tort Claims Act be used only as a
last resort for the most severe human rights violations. The preferred
alternative would be to place these suits under the jurisdiction of an international
body with significant enforcement power.
The arguments in this case will be interesting to watch as
they progress. For two detailed articles about the case, see the links
below:
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