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Wednesday, Apr 17, 2013, 3:07 pm

Corporations Are Not Bad People: Supreme Court

By Rebecca Burns

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The Supreme Court today struck a serious blow to corporate accountability for human rights abuses. The nine justices ruled unanimously that federal courts could not hear a case against oil giant Royal Dutch Petroleum for its alleged complicity in repression and violence in an oil-rich region of Nigeria.

Kiobel v Royal Dutch Petroleum, a class action suit against Shell Oil's parent company, was filed by nine Nigerians who were members or relatives of the Movement for the Survival of the Ogoni People, a group opposing foreign oil exploration in the Niger Delta that became the subject of a deadly government crackdown during the 1990s. The Nigerian plaintiffs brought the suit under the Alien Tort Act (ATA), a law dating back to 1789 that enables U.S. federal courts to hear alleged violations of international law from non-U.S. Citizens. But the Supreme Court ruled that the ATA does not apply to abuses committed outside of the U.S., quashing what is often one of the only avenues for legal remedy in “resource cursed” countries where local governments and security forces act in the interests of foreign mining and oil corporations.

Watchers of the case have noted an obvious irony: The Court has bestowed corporations with all of the perks of personhood (think Citizens United), but none of the pesky responsibilities. In this case, we're not just talking jury duty or speeding tickets—the plaintiffs allege that Shell and its subsidiaries aided and abetted torture, arbitrary detention and extrajudicial executions in pursuit of a stable oil supply.

Technically, the justices didn't rule categorically that corporations can't be held liable for violations of international law. This was the basis of a previous ruling on Kiobel by the Second Circuit, but some commentators speculated that it would open the justices up to charges of hypocrisy. Instead, they ruled that the ATS does not apply extraterritorially. The Wall Street Journal notes this distinction:

Justice Breyer wrote that some lawsuits based on overseas acts should be permitted, if the defendant is an American national or the challenged conduct allegedly harms American interests.

In past decades, victims of former officials of foreign governments have won judgments in federal courts against their abusers. Those rarely have been paid, however, and more recently human-rights advocates have pursued deeper pocketed defendants, such as corporations doing business in countries with questionable regimes, under a theory that they are complicit in the misconduct.

The Supreme Court's ruling Wednesday will close off many such suits.

Still, the majority opinion left open at least the theoretical possibility that some acts abroad could so significantly "touch and concern the territory of the United States" to "displace the presumption" against the statute's use.

Practically speaking, however, there's little difference between saying that corporations can move freely across borders to avoid being held liable, and saying that they can't be held liable at all. Shell itself underscored this in its arguments against extraterritorial application of U.S. laws, lamenting that the potential costs incurred by such liability "may lead corporations to reduce their operations in the less-developed countries from which these suits tend to arise, to the detriment of citizens of those countries who benefit from foreign investment.”

This suit has important implications for human rights law, but it must also be understood in terms of struggles against climate change and destructive extraction. The human rights abuses committed in Nigeria weren't incidental, as I've noted previously, but employed to repress movements combatting what Nigerian Ken Saro-Wiwa termed “ecological genocide.” According to the BBC, today's decision is also expected to have an impact on cases filed against mining giant Rio Tinto over its actions in Papua New Guinea, as well as those of Exxon Mobil in Indonesia. In the absence of legal remedy, mining and oil corporations' deadly attempts to enforce externalized costs must be met with active solidarity from environmentalists in other parts of the world.

Rebecca Burns is an In These Times associate editor. Her writing on labor, housing and education has also appeared in Al Jazeera America, The Chicago Reader, Dissent, Jacobin and other outlets. She can be reached at rebecca[at] Follow her on Twitter @rejburns

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