Bloomberg News

Shell Nigeria Case Puts Court in Foreign Territory: Noah Feldman

March 04, 2012

Illustration by Oscar Bolton Green

Illustration by Oscar Bolton Green

Should corporations be held liable for acts of torture committed under their auspices? If that had been the only issue considered by the Supreme Court last week in Kiobel v. Royal Dutch Petroleum, the logical answer would surely have to be yes.

If corporations are people for the purpose of constitutional rights like free speech -- as per the Citizens United decision -- they ought to be treated as people when it comes to responsibilities as well. If Royal Dutch Shell Plc (RDSA) aided the Nigerian government in raping and murdering people in the Ogoni region to keep the oil flowing, as the plaintiffs claim, it would seem monstrous to let the company get away with it just because it is a corporation.

Yet that was not the only issue before the court -- at least if you listened to the justices during oral argument. They seemed preoccupied with a prior question: Are the federal courts the right place to hold foreigners responsible for human-rights violations that take place abroad against other foreigners?

On this question, reasonable minds can differ. Human-rights advocates say yes. As a practical matter, there is often no other venue where victims can have justice done. The Nigerian courts are not much of an option for Nigerians who allege that they were abused and tortured by their government. International courts rarely concern themselves with the minutiae of ordinary human-rights violations.

Justice Denied

Who, then, will provide justice to people who are tortured but not subject to genocide? Who will draw attention to their plight in an official judicial forum if not the U.S. courts, respected the world over for their objectivity and fairness?

Many, perhaps most, Americans would take the other side. Why should our courts police the actions of foreigners abroad? That almost no other country on earth would even consider extending its jurisdiction to noncitizens outside its borders makes the effort look especially quixotic, not to say imperialistic. Traditionally, countries steered clear of such extraterritorial jurisdiction, considering it a violation of other nations’ sovereignty.

Further complicating matters, assessing damages against foreigners involved in conflicts far away can plunge courts into political waters that they are ill-prepared to navigate. Ordinarily we think that the president should make our foreign policy, not the courts.

Meddling in foreign conflicts -- or even just appearing to meddle -- can work against U.S. interests in ways that are hard to anticipate. It may even work against the interests of justice: If citizens in another country have decided to resolve a history of human-rights abuses with, say, a truth and reconciliation commission, a U.S. verdict against a human-rights abuser can actually unsettle arrangements that would serve the greater good.

Given these alternative views, whether our courts should hear such cases sounds like a classic policy question for Congress, not the courts. But -- surprise! -- Congress has failed to weigh in. Our elected representatives have not addressed the issue since, oh, 1789, to be exact. The very first Congress passed a one-sentence law, the Alien Tort Statute, which gave courts the authority to hear lawsuits against foreigners for damages under the “law of nations.”

The law sat dormant for nearly 200 years. Then, in 1980, the U.S. Circuit Court of Appeals for the Second Circuit in New York issued a decision, Filartiga v. Pena-Irala, that enthusiasts have called the Brown v. Board of Education of human-rights litigation. The decision, which allowed a Paraguayan couple to file suit in a U.S. court against a Paraguayan police official who had tortured their son in Paraguay, opened the door to other prominent human-rights suits, including a 1995 case against Serbian politician Radovan Karadzic, who was a fugitive until 2008.

Congressional Apathy

If Congress did not want these human-rights suits to occur, it could have changed the law to disallow them. In 2004, perhaps influenced by this thought, the Supreme Court for the first time upheld the legitimacy of such a suit in Sosa v. Alvarez-Machain. The court spoke through a narrow opinion by Justice David Souter, joined by Justice Sandra Day O’Connor among others, which restricted the violations applicable to wrongs recognized by international law specifically as those as of 1789.

Souter’s characteristically cautious opinion at times sounded as though it was on the verge of doing away with the suits altogether; but the virtue of prudence (remember when the justices used to like that quality?) prevailed. Instead of broadening or eliminating human-rights jurisprudence, the court preserved it for another day.

Now that O’Connor has retired and been replaced by Justice Samuel Alito, the conservatives’ game plan is to revisit some of the landmark decisions of her long career. None of the justices on Wednesday went so far as to say that they would reverse the 2004 holding and make human-rights suits go away. But Alito did ask, “What business does a case like that have in the courts of the United States? There’s no connection to the United States whatsoever.”

More likely, the justices will adopt a highly formalistic argument based on a legal technicality: International law has not historically treated corporations as people for purposes of liability.

On its own terms, this argument is more than a little outrageous. The international law of 1789 wasn’t concerned with civil-damage suits like this one, but with criminal liability, which is a strange fit for corporations under any circumstances. As Justice Stephen Breyer pointed out, it is absurd to think that a corporation called Pirates Incorporated would not have been held liable for Bluebeard’s piracy if he worked for it.

The idea of money damages for torture is itself distinctly American. There is no policy reason whatsoever to spare corporations in this country if individuals would be held liable.

Indeed, if our goal is to deter human-rights violations, holding corporations liable is infinitely more effective than going after isolated individuals and serving them with papers the moment they unsuspectingly cross our borders.

But the conservative justices aren’t concerned with consistency in this case. To the contrary, they want to limit human-rights suits as much as they can without actually overturning the precedent that allows them. At least for now. If their opinion sounds anything like their questions at oral argument, you can expect future litigants to ask the court to get out of the human rights business altogether.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

Read more opinion online from Bloomberg View.

To contact the writer of this article: Noah Feldman in Cambridge, Massachusetts, at noah_feldman@harvard.edu.

To contact the editor responsible for this article: Tobin Harshaw at tharshaw@bloomberg.net.


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