In 1796, pirates who committed heinous crimes against individuals could be held liable under the Alien Tort Statute, which permits civil suits by foreigners in federal courts for violations of “the law of nations or a treaty of the United States.” The law was passed by the first Congress in 1789. In 2002, 12 Nigerian nationals sued Royal Dutch Shell under the ATS, alleging that the oil company had colluded with the Nigerian military from 1992 to 1995 to suppress a grass-roots protest movement against oil exploration in the Niger delta. Specifically, members of the Ogoni people contend that Royal Dutch Shell aided and abetted the Nigerian government in torturing, executing, and arbitrarily detaining Ogoni activists. Esther Kiobel, the named plaintiff, is the widow of a victim.
The question for the court is whether Shell is immune from this suit because it is a corporation, not a person. Or—as Justice Stephen Breyer puts it this morning at oral argument—what would happen if the Pirates were a corporation. A corporation called, say, “Pirates Inc.”
The ATS was almost never invoked between the 18th century and the 1980s, at which time human rights organizations dusted it off and deployed it to bring justice to victims of human rights atrocities abroad. In the only Supreme Court pronouncement on the scope of the right to sue under the ATS, the court in 2004 found that ATS could be used to redress violations of a small number of well-established customary international norms. The court was not clear about whether the well-established customary norms would determine who was liable, or merely the actions for which they could be sued. The 2nd Circuit Court of Appeals determined in 2010 that there is no customary international norm of corporate liability and decided in favor of Shell. Three other courts of appeals have found that there is corporate liability under the ATS, not just for pirates but for corporations as well.
In brief, the looming question for the court today is whether, after Citizens United, corporations enjoy not only free speech rights but also the right to say “I’m immune from suit.”
Paul Hoffman represents the 12 Nigerian plaintiffs and opens by pointing out that in Shell’s view of the case, “even if these corporations had jointly operated torture centers with the military dictatorship in Nigeria to detain, torture, and kill all opponents of Shell's operations in Ogoni, the victims would have no claim.”
Justice Anthony Kennedy stops him, pointing out that the briefs say that “international law does not recognize corporate responsibility for the alleged offenses here." Hoffman replies that the international law norms at issue in this case are “torture, prolonged arbitrary detention, extrajudicial executions,” which are “defined by actions” and not by whether the “perpetrator is a human being or a corporation.”
Justice Samuel Alito notes that “there's no particular connection between the events here and the United States.” He wonders “whether there's any other country in the world where these plaintiffs could have brought these claims against the Respondents.” Chief Justice John Roberts doubles down: “If there is no other country where this suit could have been brought ... isn't it a legitimate concern that allowing the suit itself contravenes international law?”
Alito adds that the first sentence in the petitioners’ brief reads, “This case was filed by 12 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." Alito looks up, puzzled. “What business does a case like that have in the courts of the United States?” He goes on, “The Alien Tort Statute was enacted to prevent international tension, and this kind of a lawsuit only creates international tension.”
Hoffman replies that that ATS was also passed “as an expression of the nation's commitment to international law.” He notes that there are other legal doctrines that can be used to determine whether federal courts are the wrong forum to decide a case.
Edwin Kneedler represents the U.S. Justice Department, which sides with the Nigerian plaintiffs in this case. He spends most of his time close reading an ambiguous footnote in that 2004 case, which starts to look like one of those judicial Rorschach tests onto which everyone in the court maps their own personal preferences.
The chief justice wants to focus on the actor, not the actions, as he explains: “Under international law, it is critically pertinent who's undertaking the conduct that is alleged to violate international norms. If an individual private group seizes a ship, it's piracy. If the Navy does it, it's not.”