Justice on the High Seas
The Supreme Court says corporations have a right to free speech. But can they get away with murder?
Pius Utomi Ekpei/Getty Images.
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.”
Kennedy warns Kneedler of the foreign policy implications of corporate tort liability: “Under your view, the U.S. corporation could be sued in any country in the world, and that would have no international consequences. We don't look to the international consequences at all.”
Justice Breyer tries to tug the court away from these discussions of what the court is calling extra-territoriality. He says “The question is, is a corporation a private actor? And is there any reason why, just like any other private actor, a corporation couldn't be sued for genocide?”
Kathleen Sullivan, the former dean of Stanford Law School, has 30 minutes to defend Royal Dutch Petroleum. (Disclosure: She taught me constitutional law and may still have the power to change my grade.) And here’s where you’ll want to cue the parrots and the rum. Breyer asks her about what happens in the case of Pirates Inc: “Do you think in the 18th century if they'd brought Pirates Inc., 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 said: ‘Oh, I see, it's a corporation. Good-bye. Go home?’ ”
Sullivan says that the corporation would not be liable. “You could seize the ship with which the piracy was committed, as you could later slave trading ships. But you could not seize another ship, and you could not seize the assets of the corporation.” In other words, Pirates Inc. keeps its booty; Blackbeard walks the plank.
Justice Elena Kagan jumps in to observe that “all of these [laws] are written to prohibit certain acts, and they don't talk about the actors. So, it’s as if somebody came and said this norm of international law does not apply to Norwegians. And you [say] well, there's no case about Norwegians. It doesn't specifically say "Norwegians." But, of course, it applies to Norwegians because it prevents everybody from committing a certain kind of act.”
Sullivan replies that the other conventions talk about natural persons, not corporations. Alito wonders what happens if you take away the fact that the human rights violations happened overseas. “Let's assume that the French ambassador is assaulted or attacked in some way in the United States, and that that attack is by a 10 corporate agents. Would we say that the corporation cannot be sued under the Alien Tort Statute?” he asks. Sullivan says “yes, because there is no assaulting ambassador norm that applies to corporations.”
Sullivan explains that under international law corporations and people are treated differently, in part because, “Nuremberg, if it established nothing else, established that it is individuals who are liable for human rights offenses.” Then she and Kagan do that thing where they step all over each others’ words for a while. Justice Breyer swings in from the topsail, armed with a case from 1666. He notes that the court wrote, “The taking of the ship on the high seas was "odious and punishable by all laws of God and man." Possibly setting up a “laws of God and man” exception to corporate immunity.
In his rebuttal, Hoffman reminds the court that “ ‘tort’ meant to the founders "tort remedies." It meant that the means of enforcement would be done by the common law. That's all that was available then, it's all that's available now.”
The skepticism of the court’s conservative bloc notwithstanding, this is a case that may not be resolved on the usual 5-4 party lines. That’s because a decision giving Shell and the many folks who filed amicus briefs supporting Shell (Coca-Cola, Chevron, BP, KBR ... you get the idea) what appears to be the right to commit human rights abuses abroad is about the only way they could make the corporate monster they built in Citizens United look any worse.
Dahlia Lithwick writes about the courts and the law for Slate.