By Hilda Vega at Libra Foundation
Back on February 28th, the Supreme Court heard arguments in Kiobel v Royal Dutch Shell, which for the first time placed before the court the question of corporate accountability for internationally recognized human rights abuses. The case involves allegations of Shell’s complicity in the torture and execution of members of the Ogoni Nine, who were hanged in 1995 following their peaceful campaign to end Shell’s destruction of the Niger Delta. Yes, the same court that gave corporations rights in the infamous Citizens United case, took on Kiobel v. Shell to decide whether corporations have any responsibilities for human rights abuses like torture, killing, and rape.
The crucial law in question is the Alien Tort Statute (ATS), which human rights lawyers have used successfully for decades to force both individuals and corporations, including Shell, to compensate victims and survivors of human rights abuses committed abroad. But in February, Shell tried to convince the Supreme Court that the ATS doesn’t apply to corporations.
Not surprisingly, there was a lot of public discussion of the case, including outrage over its potentially absurd outcome. How can corporations have rights, under Citizens United, but no responsibilities for human rights abuses?
While this may seem confusing to us, this pattern appears to make sense to the most pro-corporate Supreme Court in history. In a highly unusual move, the Court announced in March that it would NOT be deciding this case in June, as everyone expected. Instead, they punted the case until next term (i.e. after the election). Not only that, but they appear to be trying to punt the corporate issue entirely, perhaps to dodge the scrutiny they will doubtlessly suffer if they grant corporations blanket immunity from human rights law under the ATS.
For November, the Court asked for a complete re-briefing and re-argument which, rather than addressing the corporate question, will ask whether we can ANYONE can be sued under the ATS. Not only is the future of litigation against corporations for human rights abuses at risk–so is the future of ALL human rights litigation under the ATS.
If the Supreme Court is indeed trying to duck the issue and get rid of these types of cases without appearing to favor corporations, they could potentially roll back 30 years of progress in the human rights movement in the process. We can’t let this happen.
One of The Libra Foundation’s grantees, EarthRights International, has been litigating ATS cases since 1995, including Doe v. Unocal, the first ATS case to force a multinational corporation to compensate the victims of human rights abuses. While Kiobel v. Shell isn’t one of their cases, EarthRights has been leading the effort to educate the public and draw media attention to the case.
Now that the outcome has been pushed back until next term, EarthRights and their allies are gearing up for a huge media & PR campaign to make sure that the public is aware of this case, and to make explicit connections between this case and Citizens United. This is a key opportunity to raise the issue of corporations and human rights in the mainstream—to leverage the growing outrage over corporate power in our democracy and educate Americans as to the growing involvement of corporations in our courts, our global economy, and in human rights violations. We must shine the spotlight on the Court, and its decisions around corporations in the months leading up to the arguments in the fall and then in the months following until the when the Court decides (likely next March).
If you’d like to become engaged in this campaign, please contact Hilda Vega, Libra Foundation.