by Cesar Chelala and Alejandro M. Garro
Several NGOs have filed an amicus brief urging the United States Supreme Court to review the ruling of an appeals court that corporations, under international law, cannot be held liable for damages on account of serious human rights violations. The Supreme Court should accept the case and hold that, if supported by the evidence, civil damages is an available remedy against corporations for aiding and abetting international wrongs.
Kiobel vs. Royal Dutch Petroleum is a lawsuit filed in 2002 by members of the Ogoni community complaining of human rights violations that took place in the 1990s. The Ogoni are approximately half a million people who live in a 650 square kilometers region in Rivers State, Nigeria. Traditionally, they made their living by fishing and as subsistence farmers, a way of life threatened when Shell discovered oil in 1958.
The environmental effects of oil exploitation in Ogoni territory have been dire. Major oil spills have caused serious damage to the ground and jeopardized the livelihood of the Ogoni people. Gas flares produce a constant noise near Ogoni villages. Polluted air from the flairs produces acid rain and causes respiratory problems in the surrounding communities. These damages are underscored in the lyrics of an Ogoni song:
'The flames of Shell are flames of Hell,
We bask below their light,
Nought for us to serve the blight,
Of cursed neglect and cursed Shell.'
The Ogoni people have seen their livelihood threatened by rapacious oil exploitation in their land. In 1998, the United Nations Rapporteur accused both the Nigerian government and Shell of abusing human rights and failing to protect the environment in the Ogoni Region. However, both Shell and the Nigerian government have been unresponsive.
The survivors of serious human rights violations resorted to the Alien Tort Statute (ATS) as a way to seek civil compensation in U.S. Courts. The ATS allows non-U.S. citizens to bring civil suits in U.S. federal courts for wrongful acts that in violation of international law, regardless of the country where the wrong was perpetrated or the harm was suffered. Whereas criminal liability of legal entities remains a controversial issue under international law, corporate civil liability for egregious wrongs is a widely accepted principle of international law.
In September of 2010, a split panel decision of the U.S. Court of Appeals for the Second Circuit held that the ATS does not apply to corporations but only to individuals. As indicated by the Center for Constitutional Rights (CCR) in New York, this view is at odds with previous decisions of other federal courts, such as a relatively recent by the Seventh and District of Columbia circuit courts of appeals, holding that corporations can be held liable under the ATS. As recalled by the CCR, the majority of a panel in the District of Columbia case, held that corporations (such as EXXON Mobil on account of operations conducted in Indonesia), are not immune “for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations.” As stated by Katherine Gallagher, a Senior Staff Attorney at the CCR: “The Second Circuit’s decision undermines fundamental concepts of accountability and leaves victims of the most serious human rights violations without a remedy.”
Making corporations immune from suits resulting from human rights violations will only ensure that these violations will continue to occur, unimpeded by any legal constraint. The Supreme Court should take the case, opening up the possibility, in cases where the evidence supports such a finding, to hold corporations liable for damages under international law.
Cesar Chelala is a co-winner of the Overseas Press Club of America award for "Missing or Dead in Argentina: The Desperate Search for Thousands of Abducted Victims," which was a cover story for The New York Times Magazine.
Alejandro M. Garro teaches comparative law at Columbia Law School and sits on the advisory boards for Human Rights Watch/Americas, the Center for Justice and International Law, and the Due Process of Law Foundation.