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Alien Tort Statute and the Corporate Person

A Corporation is a person with the same freedoms ascribed to real flesh and blood people, the United States Supreme Court (SCOTUS) recently ruled. Specifically, in Citizens United, the SCOTUS held that Corporations have a right to speech just like everyone else and should not be muzzled when it comes to political speech (in the form of money).

Currently, the SCOTUS is in the process of further delineating the contours of the corporate person. Before the Court is the issue of whether the Alien Tort Statute (ATS), which permits civil suits by foreigners in federal courts for violations of "the law of nations or a treaty of the United States", is applicable to the Corporate person. The Alien Tort Statute says nothing about what types of defendants -- corporate, individual, state -- may be sued.

The ATS was passed by the first Congress in 1789 and was originally designed to combat piracy on the high seas by providing victims of piracy with a method and means to sue their tormentors in Federal Court. Today, violation of "the law of nations" is understood to prohibit torture, genocide and crimes against humanity. Indeed, President George H.W. Bush signed the Torture Victim Protection Act, authorizing U.S. citizens and aliens alike to sue perpetrators of torture and "extrajudicial killing" overseas.

Between the 18th century and the 1980's the ATS was undisturbed, having never been invoked. Then, Human Rights Advocates employed it to combat human rights violations abroad. In 2004, the SCOTUS found that ATS could be used to redress violations of well-established customary international norms but was not clear about whether those norms would determine who was liable. Consequently, there has been a division in the lower courts on this question. For example, in 2010 the 2nd Circuit Court of Appeals determined that there is no customary international norm of corporate liability while three other courts of appeals have found that there is under the ATS.

The instant case before the court stems from Royal Dutch Shell's Nigerian operation in the early 1990's. From 1992 to 1995, Royal Dutch Shell, a massive transnational oil company, conspired with the Nigerian military to suppress a popular movement that had risen in opposition to the company's efforts at oil exploration in the Niger Delta. Nigerian nationals, specifically members of the Ogoni people of the Delta region, allege that Royal Dutch Shell encouraged and paid Nigerian military officials to torture, execute and arbitrarily and illegally detain Ogoni activists. Consequently, 12 Nigerian nationals, including Esther Kiobel, the named Plaintiff and widow of one of the victims, sued Royal Dutch Shell in a United States Federal Court.

The question for the court is whether the newly found "corporate person" can be sued for violations of established international norms against torture and crimes against humanity or if they are immune from such suits. So far, there is every indication, judging by the Justices comments, that Mr. Corporation is likely going to be immune from suit for torture and crimes against humanity under the ATS.

For example, Justice Anthony Kennedy pointed out at oral argument that "international law does not recognize corporate responsibility for the alleged offenses here." Justice Samuel Alito chimed in to note that "there's no particular connection between the events here and the United States" and 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 stated: "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" after which he asks, puzzled, "What business does a case like that have in the courts of the United States?" Alito goes on to claim that, "The Alien Tort Statute was enacted to prevent international tension, and this kind of a lawsuit only creates international tension." Justice Kennedy warns 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."

Clearly, the majority is well inclined to find Mr. Corporation immune from suit for even the most heinous of crimes and tortious conduct. So, what kind of person is Mr. Corporation shaping up to be? So far, Mr. Corporation is turning out to be quite the tyrant, able to buy politicians at will so that they may dutifully carry out his commands and instructions in the halls of Congress, everyone else be damned. Now, it looks like Mr. Corporation has a license to kill, maim and torture at will abroad, in service to his one and only master: Money. God help us all.