Jim Wiwa's son, rights activist Ken Saro-Wiwa, was executed in Nigeria.… (Pius Utomi Ekepei / AFP/Getty…)
If foreign victims of human rights abuses can use U.S. courts to seek justice from their tormentors, it shouldn't matter whether they were mistreated by an individual or a corporation. But the Supreme Court was urged this week by an international oil company to insulate it from a law against torture and other violations of the "law of nations."
In 1789, Congress enacted the Alien Tort Statute, which gave federal district courts jurisdiction over "any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States." Apparently Congress had in mind a small number of torts — or civil wrongs — including piracy and attacks on ambassadors. The law gathered dust for almost 200 years until it was rediscovered by lawyers for victims of human rights abuses.
In 2004, the Supreme Court ruled that the statute authorized lawsuits by foreign nationals for violations of international norms that were as "specific, universal and obligatory" as the ones Congress sought to shore up in 1789. The court didn't provide a definitive list, but other courts have allowed lawsuits claiming torture, arbitrary detention and genocide. The case before the court this week involved accusations that a subsidiary of Royal Dutch Petroleum aided and abetted the Nigerian government in torturing, executing and detaining opponents of oil exploration. The company allegedly provided transportation to Nigerian forces, allowed its property to be utilized as a staging ground for attacks and provided soldiers with food and money.
But two years ago, a federal appeals court held that the lawsuit couldn't go forward because, it said, the law was meant to apply to individuals, not corporations. At oral arguments on Tuesday, several justices seemed sympathetic to that view. But, as Justice Elena Kagan pointed out, the fact that various international conventions don't specifically mention corporations doesn't mean that they exclude them from liability. And lawyers for the Nigerian plaintiffs pointed out that the text of the statute does not limit its application to individual defendants.
Raising a different question, Justice Samuel A. Alito Jr.wondered: "What business does a case like that have in the courts of the United States? There's no connection to the United States whatsoever." Lawyers for the Nigerians disagree, noting that the Anglo-Dutch company does have a presence in the United States. But even if one thinks that human rights suits involving abuses overseas should be handled in an international forum or in a country that has a closer relationship with the plaintiffs or defendants, this much is clear: As long as U.S. courts are open to such suits, there should be no distinction between individual and corporate defendants.