The Royal Dutch Shell has asked that the U.S. Supreme Court throw out a law that allows the corporation to be sued on U.S. soil by Nigerians seeking damages for human right abuses committed by the Nigerian government in the 1990s, even as Supreme Court justices expressed doubts about the validity of the law.
According to Reuters, the U.S. Supreme Court is considering limiting the power of the 1789 U.S. law, used more frequently in the past two decades, by foreigners seeking to hold multinational corporations liable for abuses committed outside Western borders.
In 2002, 12 Nigerians filed a lawsuit against oil-producing giant Shell was complicit in the “widespread and systematic human rights violations” committed by the military regime of late General Sani Abacha, which include torture, executions, illegal detentions and indiscriminate killings in the Ogoni region of the Niger Delta.
Recently released court documents had revealed close ties between the oil corporation and the military regime. They alleged that Shell bankrolled Nigeria’s military and police officials that had forcefully supressed peaceful protests carried out by locals outraged by the oil company’s destructive activities in the oil-rich Ogoniland region.
Earlier reports by the Guardian said that confidential memos, faxes and witness statements had shown that Shell had often times helped plan raids on villages suspected of opposing them.
Business Week reported, however, that Shell had argued before the high court in Washington today that the 1789 law can’t be used to sue corporations.
Kathleen Sullivan, a lawyer for Shell in the Kiobel v. Royal Dutch Petroleum Co. case, said Shell was not seeking a “rule of corporate impunity”.
“Corporate officers are liable for human-rights violations and for those they direct among their employees. There can also be suits under state law or the domestic laws of nations. But there may not be ATS federal common-law causes of action against corporations.”
The Nigerian plaintiffs argued that the law applies and Shell should be held accountable, adding that there is nothing in the law that limits its reach to just individuals.
In a Business Week report, Paul Hoffman, who represents the Nigerian plaintiffs, was cited as criticising the corporation’s position and arguing that “even if these corporations had jointly operated torture centres with the military dictatorship in Nigeria to detain, torture, and kill all opponents of Shell’s operations in Ogoni, the victims would have no claim.”
A number of conservative Supreme Court justices on Tuesday argued that the law should not apply to corporations, arguing that the case against Shell has no place in a U.S. court room.
“What business does a case like that have in the United States?” Justice Samuel Alito asked Paul Hoffman, the California attorney who argued for the plaintiffs.
“There’s no connection to the United States whatsoever,” Alito said. “This kind of lawsuit only creates international tension.”
Reuters also reported that Justice Anthony Kennedy questioned whether international law recognized corporate responsibility for the alleged offenses in the lawsuit, while Justice Antonin Scalia suggested the United States Congress make amendments to the law to include corporations.
The Obama administration, Reuters reported, was in support of Hoffman, representing the Nigerian plaintiffs. Deputy Solicitor General Edwin Kneedler argued that a U.S. appeals court in New York was wrong in ruling that an international corporation could not be held accountable in the U.S.
Kennedy opposed Kneedler’s arguments; he said: “Suppose an American corporation commits human trafficking with U.S. citizens in the United States. Under your view, the U.S. corporation could be sued in any country in the world.”
Shell’s counsel Sullivan who had argued that corporations be held to different standards from individual officials was opposed by some Supreme Court justices who disagreed with her argument that only individuals could be held accountable for human rights abuses.
“Where do you find that in international law?” Justice Elena Kagan asked.
Shell has the support of the British, Dutch and German governments, Reuters reported, as well as that of other multinational corporations.
The United States has seen more than 120 lawsuits against 59 corporations for alleged wrongful acts in 60 countries in the past two decades, lawyers have confirmed.
The cases are largely unsuccessful, and a handful of cases are settled out of court. Many still have gone on for years, with no ruling in sight.
Reuters reports that the Supreme Court is expected to rule in the case by the end of June.