For today, our intern and policy aficionado Molly Knight takes a look at the policy behind Kiobel, written in the hours leading up to the issuance of the decision:
Remember Kiobel? (If you’re thinking that’s a battle cry like “Remember the Alamo!” you need to read our post from last year.) There, we asked our readers to pay attention to Supreme Court case Kiobel v. Royal Dutch Petroleum because, well, it’s a pretty big deal. Now, over a year later, it still is a big deal and the Supreme Court should be issuing its decision any day now.
Another development that’s a little more recent than the ATS, is the notion that “corporations are people.” Not so fast… In 2010, Citizens United v. Federal Elections Commission made it possible for corporations to donate money to campaigns with the same few restrictions as human beings. However, that case did NOT simultaneously mean that corporations will be held responsible for crimes against humanity as human beings can be. Does that seem fair? Or is it a Supreme Court that “seems of two minds” as Peter Weiss wrote in the New York Times?
As one of the many voices in this case, in support of Esther Kiobel (the person, and her fellow plaintiffs) and corporate accountability (the concept), are lawyers working for EarthRights International, including the legal director Marco Simons. In an interview with p.h. balanced films in early February, Simons said, “In modern times, the content of international law has evolved to include human rights.” The ATS should apply to violations of international law as it currently stands, he explained; the crimes that Shell Oil allegedly committed include torture, enslavement, and extrajudicial killings of anyone in opposition to Shell’s expansion in the Nigerian Ogoni region.
This is not the first time a human rights advocacy group has fought long and hard to hold corporations accountable. Kiobel is similar to a previous case focused on abuses on Liberian rubber plantations owned by Firestone. After a local organization discovered harsh child labor taking place in the rubber plantations in Liberia, they alerted a legal team, including Christian Leveque, who recently explained that any “no child labor” policy “was not being enforced and that it really was business as usual on the plantation.” In partnership with local Liberian groups, U.S.-based advocates fought for Firestone to create policy - and enforce it – to prevent abuses. They were able to do so via a case in the U.S. court system based on the same Alien Tort Statute as Kiobel. The only difference is that Firestone is a United States corporation while Royal Dutch Petroleum (Shell) is not. Shell does a lot of business in the United States (yes, same Shell as all of the gas stations you see around), which also happens to be the reason many people do not want our court system to decide against it.
Remember those stacks of papers we mentioned before? It turns out that trying to sway the courts through amicus (friend of the court) briefs is actually very popular. Many have been filed in support of both sides of the Kiobel case from all over the spectrum of groups who will be affected, such as victims of human rights abuses, other business, foreign countries and the United States. The country of Argentina believes “the advancement of the international human rights agenda is something for which all countries in the international community are responsible.” And the U.S. State Department filed an amicus brief in support of the plaintiffs, noting that the ATS “complements” the International Criminal Courts.
Although there seem to be many groups from different perspectives in support of the Kiobel case, there are just as many opposed to the notion of such cases being in U.S. courts. As SCOTUSBlog reported, some argue that cases brought under the ATS “can look like a threat to the nation’s sovereignty.” Other countries might not want to do business with the U.S. if we enforce international law in this way. Personally, I question the sincerity of this argument; are those making it really concerned about potentially imposing on foreign sovereignty? Or do they simply not want any restrictions on corporations? Is United States scared of trying foreign corporations for violations on foreign land in the fear that those countries might return the “favor?”
I know the policy-making process in relation to corporate accountability can be very tough, messy and hard to understand. But we must not forget that human rights norms aren’t just an abstract idea; violations of those norms meanthat people and communities suffer. Citizens United defined companies as people in order to donate money to campaigns, but shouldn’t also the same rules apply when protecting human rights? I propose that he United States government should either create new policy for this issue, or apply current policy to ensure international corporations that are involved in human rights violations don’t escape accountability – in a way that does not infringe on foreign sovereignty but still upholds and protects basic human rights of all people.