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Certiorari granted by the United States Supreme Court on October 12, 2011
Oral arguments scheduled for October 1, 2012
|Petitioner: Esther Kiobel and Others||
Respondent: Royal Dutch Petroluem and Shell
In the early 1990s, a grassroots movement known as the Movement for the Survival of the Ogoni People sprung up in Nigeria. The movement’s goal was simple: to promote environmental justice and raise awareness of the human rights abuses that it claimed were being committed by the Nigerian government and its allies. According to members of the movement, several corporations, including Royal Dutch Petroleum and Shell Petroleum, assisted the Nigerian government in its human rights abuses by providing transportation, compensation, and shelter to soldiers that shot and killed civilians.
A group of individuals who had been members of the movement brought suit against Royal Dutch and corporations in a federal court in New York, New York. In their lawsuit, they alleged that the companies had “aided and abetted” the Nigerian government’s human rights violations. In other words, the people bringing the lawsuit said the companies were guilty of serious crimes because they had assisted the governments that committed those crimes.
Even though the alleged murders happened thousands of miles from New York, the individuals claimed that the Alien Tort Statute allowed them to bring their lawsuit in a United States court. In their view, that statute holds companies liable for violations of the law of nations, or the set of laws that are so important and so vital that all countries must obey them. Under this logic, any country in the world could punish people for torture, genocide, or cruelty that happens anywhere in the world.
The federal district judge in New York decided that there was not enough evidence to support the serious allegations against Shell. She therefore dismissed the lawsuit, but acknowledging that the case was more important than most, she allowed the parties to quickly appeal to the Court of Appeals if they were not satisfied with her ruling.
On appeal to the Supreme Court, the individuals who brought the lawsuit argued that the Court of Appeals got the law wrong. They argued that corporations could be guilty of all sorts of crimes in the United States and that it would be unfair to let the companies escape responsibility for their alleged behavior. The Supreme Court granted a writ of certiorari to review the case in October of 2011 and heard oral arguments in the case in February of 2012.
“The district courts shall have original jurisdiction of 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.”
The Alien Tort Statute was passed as part of the Judiciary Act of 1789 – the same Act that was partially invalidated in Marbury v. Madison. The statute has seen only slight amendments over the past 200 years and currently lets federal courts hear crimes “committed in violation of the law of nations or a treaty of the United States.”
This case began when federal law enforcement agents kidnapped a group of Mexican citizens while they were on Mexican soil and brought them to America for trial. They were eventually set free, but they reacted by filing suit against the United States and the federal agents who kidnapped them, claiming that abduction was a violation of international law. The Supreme Court said that the specific elements of kidnapping were not defined the same way by all nations so this was not a violation of the law of nations. However, the Court said that a few crimes have been well-defined, like torture and genocide. The Court left open the question of whether corporations could be parties to similar lawsuits.
This case started when a company created and distributed a movie called “Hillary: The Movie” about Hillary Clinton. The Federal Election Commission (“FEC”) decided that the movie was so heavily critical of then-Presidential nominee Hillary Clinton that it must be treated as a campaign advertisement. Under the campaign laws of the time, corporations and unions could not spend money on campaign advertisements near election day; this provision blocked the owners of this video from selling their movie through certain channels (in this case, video-on-demand services that would have allowed consumers to buy the film through their television service provider). An individual would have been allowed to spend money selling the same video because the First Amendment to the Constitution protects the right to free speech. The Supreme Court held that corporations have many of the same rights as individuals and therefore cannot be completely banned from spending money on elections, the same way an individual could not be completely barred from spending money.
This chart could help with predicting the outcome of the case and how the Justices will vote. But be
careful: a lot will depend on the facts of this case and not how someone has voted in the past. [Note: the Justices are listed in order of seniority with the Chief Justice first.]
Note: Justice Kagan has recused herself from deciding Fisher v. Texas.
|Sosa v. Alvarez-Machain (2004)||Citizens United v. FEC (2010)|
|Roberts||Not yet on Court||NC|
|Alito||Not yet on Court||NC|
|Sotomayor||Not yet on Court||C|
|Kagan||Not yet on Court||Not yet on Court|
|C||The Justice voted that the law was constitutional.|
|NC||The Justice voted that the law was not constitutional.|
|Not yet on Court||The Justice was not yet on the Court when the case was decided.|
There are two main questions in Kiobel v. Royal Dutch Petroleum Co.: (1) can companies be held liable for human rights abuses, and (2) can U.S. courts hear lawsuits about things that happened in foreign countries to foreign citizens?
The individuals who brought the lawsuit against Royal Dutch and Shell will argue that companies can be liable for crimes in the United States so they should be liable for crimes that violate the law that all nations must follow. They will draw a comparison to Citizens United, where the Supreme Court treated companies like people in order to help the companies. Here, the individuals will argue, companies must now be subjected to the same requirements and standards as natural people.
In response to the second question, the individuals who brought the lawsuit will argue that the United States has an obligation to protect citizens everywhere. They will also argue that if we give foreign citizens access to our courts, other courts will extend the same courtesy to our citizens when they need it.
The corporations will argue that they should not be liable simply because they are not people. In many countries around the world, companies themselves cannot be held responsible for these horrible acts; only the people who make up companies can be held responsible. Though, perhaps bizarrely, in the United States corporations have rights of free speech.
The corporations will also argue that U.S. courts should not be able to hear cases that do not have any relation to the United States. In their view, each country should take care of violations that happen to its citizens or within its borders. Here, no U.S. citizens were harmed and the alleged abuses did not happen within the United States. So why should the United States care about this case?
If corporations have some of the same constitutional protections that individuals get – like freedom of speech – should they also be liable for crimes when individuals would be liable in the same position? Write a blog post of at least 150 words explaining whether corporations should be treated as people for purposes of rights of free speech, and/or for liability for human rights offenses.
Do you think the doctrine of separation of powers is violated when federal courts hear sophisticated claims about international law? The courts could conceivably hold a foreign government liable for a lot of money or for other damages. Isn’t it Congress’ power to create and enforce our foreign policy? Consider these questions in a blog post of 200 words.