By Kevin Stoda
“So long as they incorporate, businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy—all without civil liability to victims.” This statement came from Judge Pierre Leval in his dissention to his own Second U.S. Court’s decision on a case against Royal Dutch Shell in relationship to the murder and torture of many Nigerian activists over the past decades.
The decision was shared on Democracy Now yesterday but the case has already been discussed for several weeks on the internet. See an example of legal specialists’ skewed discussions here:
Court Exempts Corporations from Alien Tort Law
“A federal appeals court has ruled US corporations can no longer be sued for human rights violations abroad under the longstanding Alien Tort Statute. Earlier this month, the Second US Circuit Court of Appeals ruled that Alien tort claims can only be brought against individuals, not corporations. The ruling dismissed a lawsuit accusing the oil giant Royal Dutch Shell of complicity in the murder and torture of Nigerian activists including Ken Saro-Wiwa. In a separate opinion, Second Circuit Judge Pierre Leval criticized the ruling, writing, ‘The majority opinion deals a substantial blow to international law and its undertaking to protect fundamental human rights… So long as they incorporate, businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despots, perform genocides or operate torture prisons for a despot’s political opponents, or engage in piracy—all without civil liability to victims.’”
The reasons for the second circuit’s negative decision in reviewing the Alien Torts statues in America are supposedly:
“(1) International Law governs the scope of liability for violations of international law, hence the question of whether a corporation is liable for violating international law is itself governed by international law.”
“(2) Under Supreme Court precedent, the Alien Tort Statute requires courts to apply norms of international law, and not domestic law, to the scope of defendants’ liabilities. Such norms must be ‘specific, universal, and obligatory.’
“(3) Under international law, corporations are not liable for violations, and any such norm of corporate liability is far from ‘specific, universal, and obligatory.’”
On the other hand, what the Second Court has ignored (and what many legal eagles fail to note) is that this issue dates back to 1789 US legislation, called the Alien Torts Statute. The ATS law apparently came into being after Europeans in America were initially unable to seek resort to American courts when beaten up, attacked or robbed-of-moneys-owed-them by Americans and American states.
The Supreme Court has supported the ATS on at least 2 occasions in the past few decades.
“In 1980 . . . the United States Court of Appeals for the Second Circuit decided Filartiga v. Pena-Irala, which ‘paved the way for a new conceptualization of the ATS.’ First, the Second Circuit held in Filartiga that the ATS, which allowed jurisdiction in the federal courts over a suit between two aliens, was constitutional, because ‘the law of nations…has always been part of the federal common law,’ and thus the statute fell within federal-question jurisdiction. Filartiga then held that violations of contemporary international norms, including violations of modern international human rights, are actionable under the ATS.”
“Since Filartiga, jurisdiction under the ATS has been upheld in dozens of cases. The only United States Supreme Court case directly addressing the ATS is the 2004 case Sosa v. Alvarez-Machain. The Sosa Court clarified that the ATS did not create a cause of action, but instead merely ‘furnish[ed] jurisdiction for a relatively modest set of actions alleging violations of the law of nations.’ Noting that it must take “great caution in adapting the law of nations to private rights,” the Court nonetheless upheld the applicability of the ATS to actions committed abroad that violate contemporary customary international law, but held that the recognition of new causes of action should be subject to ‘vigilant doorkeeping.’”