The US Supreme Court is back in session tomorrow to tackle major social issues such as same-sex marriage and affirmative action, as well as a high-profile international human rights case involving the Dutch oil giant Shell in Nigeria..
Twelve Nigerians accuse Shell of becoming an accomplice to torture, extrajudicial executions and crimes against humanity in the Niger Delta region.
The nine justices will decide whether to hold major companies liable for crimes committed outside US borders by virtue of the Alien Tort Statute, a law passed two centuries ago.
“ATS clearly covers those violations,” said Carey D’Avino, one of the plaintiffs’ attorneys. “There’s nothing in the ATS that violates domestic and international laws.”
Not everyone is so sure.
The Supreme Court could be “afraid of some kind of backlash, what other nations will think of us,” said constitutional lawyer Lisa Blatt.
The case is Esther Kiobel versus Royal Dutch Shell. Kiobel is the widow of one of the anti-Shell protesters who was executed in 1995. Shell settled a similar case for $15.5 million shortly before it went to trial in a New York federal court in 2009.
On 27 February when the case came before the court, Justice Samuel Alito wondered why this latest case was being discussed in Washington because it had been brought by foreign plaintiffs against a foreign defendant for acts allegedly committed outside of the United States.
Justice Anthony Kennedy, whose vote often decides closely contested cases, expressed concern that a ruling in favor of the plaintiff could open up American companies to similar actions in other countries.
Nigerian activists celebrated their day at the Supreme Court, saying they will keep on fighting for justice, regardless of the court’s decision, which is expected by the end of June. They said they want the case to be heard in the United States because they do not think they can get a fair trial in Nigeria.
Marco Simons, legal director of the Washington-based advocacy group Earthrights International and a strong proponent of corporate accountability, says he is optimistic.
“I did not hear anything that fundamentally changes the outlook of this case,” said Simons. “Some [U.S.] judges have views that a corporation should not be subject to suits for violations of international law. But we are quite optimistic that that will not be the view of the majority of the justices on the Supreme Court.”
The plaintiffs are attempting to use the 1789 Alien Tort Statute, which allows U.S. courts to hear cases brought by foreigners for violations of international law and U.S. treaties. The question is whether corporations can be prosecuted under the statute.
Shell’s representative Kathleen Sullivan repeatedly told the nine justices that the Supreme Court should reject corporate liability because there is no precedent in international law courts and conventions.
Afterward, Simons said that even if corporate accountability is not recognized in the case, it does not mean the end of lawsuits against corporations for violations outside of the United States.
“It is just that these cases will be more likely to be heard in state courts rather than federal courts, and would be heard under different labels,” he said. “Essentially, instead of calling the case a case against torture or crimes against humanity, it might be about assault and battery, for example.”
Similar cases going through the U.S. court system include an attempt to hold U.S.-based oil companies ExxonMobil and Chevron accountable for alleged human rights abuses in Indonesia, as well as cases against several U.S. companies for their alleged role in assisting the South African government during the apartheid era.
A US appeals court in New York had ruled in the Kiobel case that corporations or political organizations were immune to such liability.
The Kiobel case was part of a broader set of legal complaints by Nigeria’s Ogoni people, who argued that Royal Dutch Shell was complicit in murder, torture and other abuses committed by the former military government.
The victims included Nigerian writer and activist Ken Saro-Wiwa and others executed in 1995 in what plaintiffs said was a campaign of repression backed by the oil giant.
Saro-Wiwa had led a non-violent campaign to protest environmental destruction and abuses against the Ogoni people in the Niger Delta before he was hanged along with other activists after his trial by a tribunal.
In 2009, Shell agreed to pay out $15.5 million to relatives of the victims, in what it hoped would be the end of a long legal battle and avoidance of a potentially embarrassing court case.
Shell maintained its innocence throughout, saying the settlement was a “humanitarian gesture” to help the Ogoni, but human rights lawyers in New York two years ago hailed the agreement as a precedent for holding Shell and other oil giants responsible for activities in countries with repressive governments.
Apart from the Shell case, the US Supreme Court will also rule on affirmative action at the University of Texas.
The policy, aimed at correcting historic imbalances in education by favoring US minorities in public university admissions and other circumstances, has come under increasing scrutiny in the wake of a growing minority population.
A white student is accusing the university of using quotas for racial and ethnic minority groups in university admissions in a way she claims violates her US constitutional rights.
It will be the first time the court takes up the controversial issue since its 2003 ruling saying racial or ethnic quotas did not violate the US Constitution.
But since then, the makeup of the court has changed to make it “the most conservative in a lifetime,” giving greater likely voice to affirmative action opponents, said Georgetown Law professor Louis Seidman.
Alan Morrison of The George Washington University Law School stressed that “there’s a lot at stake and plenty of reasons to be concerned.” He called the affirmative action decision “crucial,” saying it would be felt at all US universities, both public and private.
Among the fairly rare national security issues to come before the court will be a case on wiretapping and human rights due to be examined on October 29. And on October 31, the justices are set to address whether the use of drug-sniffing dogs violates constitutional rights.
Still, in terms of social reach, it is the court’s looming moves on same-sex marriage that have both captured a lot of Americans’ attention and fueled strong reactions.