No Alien Tort Liability for Corporations?

A serious, perhaps, mortal blow has been dealt to the Alien Tort Statute by the U.S. Court of Appeals for the Second Circuit. The ATS creates federal jurisdiction over

any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.

In its opinion in Kiobel v. Royal Dutch Petroleum Co., however, the Second Circuit dramatically narrowed the scope of the ATS by ruling that it did not apply to "juridical persons," meaning corporations.

Since the groundbreaking judgment in Filártiga v. Peña-Irala (2d Cir. 1980), which was brought by my dearly-missed colleague Rhonda Copelon and the Center for Constitutional Rights, the ATS has offered victims of human rights abuses the prospect of access to U.S. courts.

In Kiobel, the oil company defendants stood accused of aiding and abetting the Nigerian government's campaign of human rights abuses in the Niger Delta, Nigeria's oil-producing region. The litany of human rights violations at issue in the case included allegations of torture, arbitrary detention, and crimes against humanity. Unfortunately, these allegations can no longer be heard in U.S.courts. The Second Circuit ruled on September 17th that corporations cannot be sued under the Alien Tort Statute because they are “juridical” entities rather than natural persons. Should this ruling be adopted throughout the U.S. court system, it would gut the scope of the ATS, making it very likely that corporations participating in human rights abuses will escape any accountability for their conduct.

The Niger Delta is home to 31 million people. (map credit) Since oil exploration began some 50 years ago, the region has suffered an Exxon Valdez-sized oil spill every year. As you can imagine, these spills have devastated the local population. In 2009 Amnesty International reported that the oil industry in the Niger Delta of Nigeria

has brought impoverishment, conflict, human rights abuses and despair to the majority of the people in the oil-producing areas.

Local populations have failed to benefit from the wealth generated by oil production, even as they suffer its environmental consequences. Before being despoiled by oil pollution, the Niger Delta was one of the most important wetlands in the world. BP's oil spill in the Gulf of Mexico (see previous Intlawgrrl posts here, here and here) focused public attention, albeit briefly, on the ongoing environmental devastation in the Niger Delta. (You can hear an interview I did with WBEZ Chicago Public Radio’s Worldview Program on this topic here.)

Just last year, Shell Oil settled an ATS case alleging the company’s complicity in the hanging deaths of nine Ogoni activists, including the world-renown poet Ken Siro Wiwa. Cases alleging similar human rights abuses in oil production have been brought against Talisman Energy for its activities in the Sudan, Unocal for its activities in Burma, and Chevron for its activities in Ecuador. (News on that last suit here.)

Second Circuit Judge José A. Cabranes interpreted international law precedents extremely narrowly in order to concluded that, throughout history,

the principle of individual liability for violations of international law has been limited to natural persons—not ‘juridical' persons such as corporations.

This despite the fact that the Universal Declaration of Human Rights explicitly applies to "every individual and every organ of society." Over the objections of Judge Pierre N. Leval, Judge Cabranes, joined by Judge Dennis Jacobs concluded that that U.S. courts lacked jurisdiction over ATS claims brought against corporate entities.

Given that oil production often takes place in countries without robust judicial systems, this cramped ruling virtually assures that victims will have no avenue of redress.

The United States consumes a quarter of the world’s oil—10% of which comes from Nigeria. That makes the United States the largest purchaser of oil produced in the Niger Delta. Our participation as end-consumers makes us unwitting collaborators to abuse in Nigeria and around the world. We surely have an interest in giving victims of these human rights abuses a forum in which to seek justice.

In Passing: Rhonda Copelon

It is with a heavy heart that I write to tell you that my beloved CUNY colleague, friend, and mentor Professor Rhonda Copelon, died on May 6th, 2010 after a four year struggle with ovarian cancer. She will be greatly missed.
As a lawyer with the Center for Constitutional Rights, Rhonda’s groundbreaking work in Filártiga v. Peña-Irala (2d Cir. 1980) gave victims of international human rights abuses access to justice in United States courts. This case established that torture was a violation of the law of nations, a principle of which we seem to have lost sight in recent times. Using a hitherto obscure federal statute, the Alien Tort Claims Act, Rhonda’s advocacy paved the way for many high profile human rights cases, including the recently settled suit brought by Ken Saro Wiwa’s family against Shell Oil. Harold Koh has called this case the Brown v. Board of Education of International Human Rights.
Rhonda was also lead counsel in Harris v. McRae (1980), a pivotal case concerning the reproductive rights of poor women. Although successful in the lower courts, Rhonda’s loss at the Supreme Court haunted her for the rest of her life.
As a founding member of CUNY Law School, Rhonda poured her energy into establishing the International Women's Human Rights Clinic. Every year, students in the clinic work to protect the rights of women around the world and in the United States. The CUNY website has a marvelous video of Rhonda discussing her remarkable career in human rights.
In 2009, Rhonda was awarded the M. Shanara Gilbert Human Rights Award by the Society of American Law Teachers. On April 20, 2010, the Center for Constitutional Rights honored Rhonda for her life’s work and established the Copelon Fund for Gender Justice.
Rhonda was not just a great lawyer, she was also a generous mentor and friend to students, and young professionals. Her tireless advocacy on behalf of women will never be forgotten.
I've included below just a couple of tributes from women in international law whose lives Rhonda touched, and welcome you to add your thoughts in the comments section.

What a loss to the clinical community and to the ongoing struggle for women's human rights! Rhonda was an amazing, passionate, committed advocate for women's human rights. I first met her when I was at AU. Rather than being territorial towards a newcomer, she was supportive of all persons with a commitment to women's human rights, and worked tirelessly for the cause. She was loved and respected around the world. I saw her in action in Beijing at the Women's Conference in 1995, and had the opportunity to work together on a project with women's rights advocates from throughout Latin America to integrate a gender perspective into legal education. She was universally respected and admired and her legacy will be everlasting.

--Lauren Gilbert

I am so saddened at the passing of Rhonda Copelon. She was a brilliant lawyer and an inspiring teacher and a warm and generous person. I met Rhonda during the preparations for the Fourth World Conference on Women. I was not yet a lawyer and new to the world of U.N. conferences and human rights advocacy, and she was unfailingly supportive and always willing to share her expertise in navigating complicated issues and institutions. She has served as a model of engagement and accessibility to me and so many others. Her passing is a huge loss.

-- Rachel Rosenbloom

Wiwa v. Shell Settles

In a dramatic victory for environmental justice, Shell Oil just settled the case Wiwa v. Shell Oil on the eve of trial (mentioned in this post).
Brought under the Alien Tort Claims Act by Ken Saro-Wiwa, Jr., son of the murdered Nigerian poet and Ogoni activist Ken Saro-Wiwa (prior post), the lawsuit alleged that Royal Dutch Shell Company, its Nigerian subsidiary, Shell Petroleum Development Company, and the former head of Nigerian operations, Brian Anderson were all complicit in murder, torture, crimes against humanity and other crimes.
My CUNY colleague Jennie Green was one of the attorneys representing the Nigerian plaintiffs, along with lawyers from EarthRights International, the Center for Constitutional Rights (where Jennie is also a Senior Staff attorney) and the private law firms Schonbrun, DeSimone, Seplow, Harris and Hoffman, and Cohen, Milstein, Sellers and Toll. (and probably many others of whom I am unaware.) Not only did the attorneys recover more than $15 million for the families of the murder victims, but their victory sends a message that multinational corporations can no longer act with impunity. I have previously written about the need to hold corporate entities criminally liable when they violate of human rights. As Ken Saro-Wiwa said before he was executed, he was indeed a man of ideas and his ideas still live! This is indeed a victory for human rights and for environmental justice everywhere!