Supreme Court Weakens Key Protections for Human Rights Defenders
In 1995, PEN campaigned for the release of the writer and playwright Ken Saro-Wiwa and eight of his fellow activists who had been jailed under the military dictatorship of Sani Abacha for peacefully protesting the despoliation of the Niger Delta wetlands by Royal Dutch Shell and other international oil conglomerates. Saro-Wiwa, a co-founder of Nigerian PEN, had been threatened and jailed several times for his activism, and other campaigners had been imprisoned, tortured, and even killed, yet he was fearless in his campaign to bring global attention to the environmental damage in his homeland. It was a campaign that would end tragically. As Freedom to Write and International Programs director Siems wrote in 2007:
On November 10, 1995, Ken Saro-Wiwa was hanged along with eight other members of the Movement for the Survival of the Ogoni People. The death sentences were handed down by a military tribunal appointed by General Sani Abacha after a trial that was universally condemned as violating international standards of justice and due process. News that Abacha had ratified the sentences reached [his son] Ken Wiwa on November 8 in Auckland, New Zealand, where he had flown to make a last-ditch personal appeal at the Commonwealth Heads of Government Meeting, and where he would discover what his father had long known: that official action, when it came, would be circumscribed by interests beyond justice, and in any case would come too late.
Saro-Wiwa’s judicial murder did not end PEN’s campaign for justice for the Ogoni people, and PEN USA, based in Los Angeles, launched a Nigeria Initiative in 1997 to protect and support “the work of writers in Nigeria and countering attempts to censor the press, suppress dissent, and limit access to and dissemination of ideas and information in Nigeria.” Over the next 15 years, PEN held several public events on Nigerian PEN, including a beautiful panel held on May 2009 that featured Ken Saro-Wiwa’s son, Ken Wiwa, Jr., and the author James North Patterson.
Over the past decade, PEN also closely watched the progress of the Wiwa v. Shell lawsuit filed by the Center for Constitutional Rights on behalf of the families of Saro-Wiwa and the eight others who were executed for their advocacy. The suit was filed in the United States under the Alien Tort Statute (ATS), a 1789 statute that had lain dormant for almost 200 years before human rights activists resurrected it to press for justice in a 1980 case involving torture in Paraguay. Over the next three decades, U.S. Federal courts heard over 150 cases under the law for violations of international law, mostly really heinous rights violations, such as extrajudicial killings, and the ATS quickly became an important tool in human rights advocacy to hold wrong-doers to account for committing shocking acts overseas. Though the Supreme Court narrowed the scope of interpretation of the ATS somewhat in the 2004 case Sosa v. Alvarez-Machain, the statute remained a potent tool to force perpetrators into court.
And it worked. Many of the lawsuits brought against corporations for complicity in human rights violations overseas resulted in financial settlements for the victims or for their family members. Indeed, this was the outcome of Wiwa v. Shell, a $15.5 million settlement after 13 years of protracted litigation. The ATS was, in short, an imperfect but important sword in the battle for human rights.
This week, the U.S. Supreme Court blunted the ATS into a butter knife. In a unanimous decision, the court denied Nigerian plaintiffs in Kiobel v. Shell from pursuing their claim under the statute. Kiobel v. Shell was a parallel lawsuit to Wiwa v. Shell (such was the extent of the alleged violations in Nigeria by Shell and its subsidiaries that its alleged actions led to multiple claims), but this time there would be no relief for those who suffered rights abuses in the Niger Delta.
In denying relief, the court cited a “presumption against exterritoriality,” legal-speak for a principle that the court should assume that a law does not have an international reach unless Congress specified so in the law itself. In fact, the Supreme Court has inconsistently applied the “presumption against exterritoriality” and elected not to use the presumption at least as often as it did use it; the principle was unused for almost the entire second half of the 20th century. And that makes sense when you think about it: we live in a much more globalized world now than the world of the founding fathers. Multinational corporations span the planet, and the ATS as it evolved prior to this decision was a crucial means to prevent those entities from playing a corporate shell game, in which they create a network of offshore subsidiaries to protect themselves from U.S. litigation. Indeed, it was the Alien Tort Statute that allowed relatives of Shi Tao to sue Yahoo’s Chinese division in U.S. courts for turning over his user information to the Chinese government, a suit that resulted in a substantial settlement for the family of the jailed journalist and poet.
In deciding Kiobel last week, all the justices agreed that any claim under the ATS should affect American interests, with the contrast being one of degree. The Nigerian plaintiffs in Kiobel live in the U.S. after seeking asylum here and Shell operates an office in the U.S., which can have no other purpose than to serve its business interests in the country. One would think that these contacts would represent a significant enough relationship on U.S. soil to affect an American interest. But somehow all nine justices concluded that these contacts were not sufficient.
Supreme Court Justices are, for better or for worse, often accomplished writers. The Alien Tort Statute was never a perfect vehicle for human rights activists to hold corporations accountable for horrific crimes committed overseas, but did create a valuable means of shaming their conduct on the world stage. Arguing cases on the merits and filing pleadings leave a vital human rights record for victims and society. The Kiobel ruling represents, at the very least, a turning inward on the part of American courts and a disregard for its own legal precedent.