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Posted by on Feb 28, 2012 in International, Law | 8 comments

What Happens When U.S. Law Collides With Int’l Law? That’s for The Supremes To Sort Out


Two human rights cases being argued before the Supreme Court today are tests of how U.S. law intersects with international law and unintentionally a test of the court’s 2010 Citizens United ruling declaring that corporations are individuals with the same fundamental rights as living-and-breathing individuals.

In one of the cases, 12 Nigerian citizens who have been granted political asylum in the U.S. are suing Royal Dutch Shell Oil, which is accused of aiding and abetting the Nigerian government in committing atrocities in the 1990.

The suit against the petroleum giant is based on the Alien Tort Statute, a law enacted in 1789 by the first U.S. Congress and aimed mainly at pirates. The statute says that U.S. trial courts can hear civil damage suits brought by a foreign national for wrongs “committed in violation of the law of nations or a treaty of the United States.”

The statue remained largely unused until 1980 when victims of human rights abuses began using it against foreign individuals and corporations, and in 2004 the Supreme Court, by a 6-to-3 vote, upheld the application of the law to human rights abuses, but only for a limited category of crimes — torture, genocide, and crimes against humanity.

Backing Shell are more than two dozen multinational corporations and several countries, including Germany, the Netherlands, and the United Kingdom. They say that if the court rules that corporations can be sued under the Alien Tort Statute, it will exacerbate what they characterize as the existing flood of litigation. To which I says that if corporations are individuals, then they certainly can be sued as individuals for misconduct and crimes given the status awarded them as a result of the Citizens United ruling.

Shell Oil counters that corporations cannot be sued in the U.S. under the Alien Tort Statute because international law doesn’t recognize corporate liability for human rights crimes.

In the mid-1990s, religious, student and civic leaders in the Ogoni region of Nigeria began demonstrating peacefully against Shell, protesting that their farmland was being ruined by oil spills and that Shell contributed nothing to the local economy and did not pay for clean up or environmental protection. The protest leadership was rounded up, tortured, and in some instances killed.

National Public Radio reports that those who survived and fled included Charles Wiwa, who says that after he led a rally in his home village, he was picked up and beaten by 18 soldiers before a crowd of thousands in an open air market.

“They started beating me — horsewhipping me, clubbing me, [kicking me with their] boots for a really long time,” Wiwa says. He says the beating lasted more than two hours.

There were more beatings, he says, and eventually he was charged with unlawful assembly. Released on bail, he says there were two attempts to abduct him.

For the past 16 years, Wiwa has lived in the United States. Now in Chicago, where he works as an export consultant, he is among the Ogoni refugees in the U.S. who have doggedly pursued Shell, contending that the oil company worked hand-in-glove with the Nigerian military to brutally suppress any opposition to the way the company operates.

Among the others bringing charges is a Seventh Day Adventist bishop and a local leader’s widow, who was raped and beaten after her husband was arrested and summarily executed.

The second human rights case before the court today is a suit brought against the Palestinian Authority and the PLO for the torture and murder of a naturalized American citizen while he was in the custody of the Palestinian police. The case also involves the question of whether lawsuits can be brought against individuals only, or groups and entities. The outcome therefore could also have implications for corporations, though the case here is brought against the Palestinian Authority for a 1993 death.

Decisions in both cases are expected by summer.