A Few Imperfections in RadioLab’s “More Perfect” Story on the Alien Tort Statute

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The most recent episode of RadioLab’s “More Perfect,” entitled “Enemy of Mankind,” highlights the Alien Tort Statute (ATS). More Perfect, which focuses on the U.S. Supreme Court, is a great show. But this episode presented some important misconceptions and left out some critical pieces. I responded with a bunch of tweets pointing out some of the issues; Twitter isn’t my favorite medium, though, so I’ll provide a little more explanation here – tweet-by-tweet!

I love @RadioLab; listened to every one! Great that MorePerfect highlights Alien Tort Statute. But lots of omissions & misconceptions

I do, in fact, love RadioLab. I have listened to every back-episode I can find. Some of my favorites that also implicate legal issues relating to EarthRights International’s work include “Neither Confirm Not Deny” and “Mau Mau.” I wish this episode of More Perfect were just a little . . . more perfect.

ATS never made US “world’s policemen” – ONLY applies to people & corps already subject to US court jurisdiction

The episode omits some important distinctions about U.S. court jurisdiction – the word means two very different things. There is the court’s power to hear a certain type of case; that is what the ATS is about. The ATS gave U.S. federal courts the power to hear cases about violations of international law. But there is also the court’s power to hear a case against a particular defendant. That is a different kind of jurisdiction (known as “personal jurisdiction”), and the ATS did nothing to change those rules. So it never allowed cases against anyone in the world; it only ever allowed cases against people and corporations that were already subject to U.S. court jurisdiction. The rules around when a court can hear a case against someone are a bit complex, but the ATS never changed them.

US law has allowed suits for abuses abroad for centuries – actually, since UK law, before US existed

It is a longstanding principle of our legal system that, if a person is found in the U.S., a U.S. court can hear a case against them for anything they’ve done anywhere in the world. This goes back to the 1774 U.K. case of Mostyn v. Fabrigas, in which the court already said that the principle was well-established: “there is not a colour of a doubt” that a lawsuit against a defendant for causing personal injury can be filed “in any county in England,” if the defendant is “found” there – regardless of the fact that “the matter arises beyond the seas.” The U.S. Supreme Court recognized this principle in McKenna v. Fisk, in 1843. This has nothing to do with the ATS. Any ordinary state court in New York, for example, could hear a lawsuit against a New Yorker by someone alleging that the New Yorker tortured them in another country.

ATS does not impose “US” law because only accepted, universally-agreed int’l norms can be applied

The ATS allows claims to be heard in U.S. courts, but the fundamental rights at issue in those cases are rights under international law – universally-adopted principles – not U.S. law. In the Filartiga case itself, which started the modern usage of the ATS for human rights cases, the court said that ATS cases could only be brought for violations of “well-established, universally recognized norms of international law.” The ATS does not in any sense project U.S. law around the world. (The U.S. does that in all kinds of other ways, of course.)

Shell didn’t deny everything – it ADMITTED to paying & calling in brutal Nigerian military & police https://www.theguardian.com/world/2011/oct/03/shell-oil-paid-nigerian-military

We litigated the Wiwa v. Shell case, along with the Center for Constitutional Rights, for many years. After describing allegations that Shell hired the Nigerian military, and mobile police known as the “kill and go,” More Perfect suggests, “Shell denies all this.” The Guardian piece in the link has a lot of the details, but that’s not quite true. Shell publicly admitted to paying the Nigerian military on at least two occasions, and never denied that it called them in to respond to a couple of incidents – incidents where two of our clients were shot. One lost an arm; the other was killed.

in fact Shell settled suit by Ken Saro-Wiwa’s family for $15.5m https://www.earthrights.org/legal/victory-wiwa-v-shell-human-rights-case-settlement-announced

It is an odd quirk that although both the Kiobel and Wiwa cases arose out of similar abuses against the Ogoni people in Nigeria, the Wiwa case settled for $15.5 million while the Kiobel case was ultimately dismissed by the U.S. Supreme Court. More Perfect blurs the lines between these cases, which is problematic for a couple of reasons. The piece never actually tells the story of Esther Kiobel, the abuses she went through, and the killing of her husband, Barinem Kiobel, who was hanged alongside Ken Saro-Wiwa. And it also ignores the fact that the Wiwa case did result in some measure of justice for the victims.

Most ATS victories are against US companies (not foreign) or US residents; US is responsible for conduct of both

Very few ATS cases have been against foreign companies; not “naïve” to think that US can hold US corps accountable

Shell was one of very few foreign companies sued under the ATS. Most cases – and nearly all successful cases – have been against U.S. companies. Of course, there’s no problem with U.S. courts hearing cases for abuses by U.S. companies. These companies have included Chevron and two of its predecessors (Unocal and Texaco), ChiquitaExxonMobilCoca-Cola, and the Drummond coal company.

The Center for Justice and Accountability has also brought a bunch of ATS cases against U.S. citizens and residents – generally, people who moved to the U.S. after committing abuses in other countries. Again, this is entirely appropriate – the U.S. should not be providing safe haven for human rights abusers. The U.S. government also goes after these people, often targeting them for deportation or even forced denaturalization (stripping their citizenship).

At one point, More Perfect suggests that the idea that the ATS could allow U.S. courts to enforce human rights norms now “seems to represent . . . naïveté.” But it’s not naïve at all to think that U.S. courts can enforce the law against U.S. corporations and residents. Indeed, that’s what the U.S. is required to do under international law: ensure that people and entities under its control do not use the U.S. as a safe haven from accountability for violating international law.

The Jesner v. Arab Bank case, in which the Supreme Court is now considering whether corporations can be sued under the ATS, is also a rare case against a non-U.S. company. That case, however, is in U.S. courts because Arab Bank allegedly used the U.S. financial system to make payments to terrorists.

Foreign govts generally only criticized ATS when applied against FOREIGN companies, not US corps – look into it!

More Perfect uncritically repeats the notion that foreign governments have repeatedly expressed annoyance with ATS cases. In fact, foreign governments have almost never weighed in on ATS cases. In the Kiobel case, the governments of England and the Netherlands did submit briefs arguing that Shell – a British/Dutch company – should not be subject to suit in U.S. courts. But foreign governments have not generally objected to U.S. courts holding U.S. companies accountable for abuses around the world. There’s no serious international law scholar who thinks that is a violation of international law.

Indeed, in Kiobel, Chevron submitted a brief that argued that the ATS should not allow lawsuits “against corporations for alleged human rights abuses outside the United States.” But even that brief acknowledged that “international law’s nationality principle” allows the U.S. to regulate “U.S. corporate activity abroad.” No one disputes this – in fact the U.S. government already does this in other areas, such as by prohibiting U.S. corporations from engaging in bribery outside the United States, under the Foreign Corrupt Practices Act.

In fact, intl community (EU, UN, India, others) expressed concern over SCOTUS decision in Kiobel

More Perfect ignores the fact that the international community urged the Supreme Court to stand up for human rights in Kiobel, and expressed concern following the decision. The U.N. High Commissioner for Human Rights, Navi Pillay, submitted a brief in support of the plaintiffs. The European Union also submitted a brief arguing that ATS cases were appropriately heard against U.S. corporations, or even against foreign companies if the case involved “the most grave violations of the law of nations, such as genocide or torture.” In fact, the European Union concluded that the U.S. courts, in applying the ATS, were acting “consistent with international law.”

Shortly after the decision, the U.N. Working Group on Business and Human Rights visited the United States – I was in the room when Working Group members expressed concern over the decision and U.S. commitment to providing remedies for human rights abuses. In the next Universal Periodic Review of the United States, the Government of India likewise expressed concern about the Kiobel decision and the U.S. commitment to corporate accountability.

Not true that ATS victories are “symbolic” and that “most” plaintiffs “never got any money”

In one count of plaintiff “victories” (incl. settlements); money paid in at least 27 of 44 cases https://viewfromll2.com/2009/11/11/alien-tort-statute-cases-resulting-in-plaintiff-victories/

More Perfect suggests that ATS victories have only been “symbolic,” and that of the victims who won, “most of them never got any money.” That’s simply not true. In fact, the majority of victories – including judgments and settlements – have resulted in at least some money being paid to the victims or their families. The link above was a count of victories made in 2009 and apparently updated in 2013, and of the 44 cases that can be described as plaintiff victories, at least 27 of them involved at least some money paid. As noted above, this includes the Wiwa v. Shell case itself, where Shell paid $15.5 million.

Even if no money paid, ATS cases not merely “symbolic” – establish legal principles & provide truth-telling function

ATS cases have been critically important even when they don’t result in money being paid. Filártiga helped to establish that torture was illegal everywhere, and other cases have served an important purpose in clarifying the norms of international human rights law. Equally important, these cases have provided an opportunity for victims to tell their stories, and to obtain the judgment of a court affirming that their rights were violated. That is incredibly valuable to many people – just listen to Dolly Filartiga!

Ridiculous to say HR movement leaves out US role in abuses; same lawyers also work on US accountability

This is one of the least honest critiques in the piece – Samuel Moyn’s suggestion that, “as they’ve presented their cases, the human rights movement leaves out how much the United States has often been involved in the evil they’re portraying in court.” This came from a commentator, not the More Perfect staff, but journalists should press a little bit on claims like this!

This is belied by the very lawyers and organizations featured in the piece. The Center for Constitutional Rights, for example, focuses primarily on U.S. government accountability for abuses both domestic and international. The Filártiga case was brought in part because the Paraguayan government of Alfredo Stroessner had been a U.S. client regime for many years, and CCR wanted to expose U.S. hypocrisy. Paul Hoffman, who argued the Kiobel case, is a longtime human rights lawyer but also a domestic civil rights lawyer who led the legal work of the ACLU of Southern California for a decade.

What even does it mean to say that “before we run around judging other countries, we should take a hard look at ourselves”? That U.S. human rights lawyers should simply stop their work because the U.S. government itself also engages in abuses? This is exactly backwards. It’s precisely because the U.S. has contributed to human rights abuses worldwide – including through U.S. corporations – that we must use the mechanisms of the U.S. legal system to seek accountability. The notion that U.S. human rights lawyers are somehow apologists for U.S. contributions to human rights abuses is completely absurd.

Also absurd to say HR lawyers ignore strategies other than ATS; EVERY strategy was used for Ogoni in Nigeria

ATS gets attention over other strategies precisely because it IS effective at highlighting abuses

This is also a maddening suggestion – that somehow the lawyers using the ATS aren’t pursuing the right strategies. In the case of abuses against Ken Saro-Wiwa and the Ogoni people in Nigeria, the Ogoni and their advocates used just about every strategy imaginable – human rights reports by Human Rights Watch, Amnesty International, Article 19, and others; cases against the Nigerian government in the African Commission on Human and Peoples Rights; international advocacy and condemnation; expulsion of Nigeria from the Commonwealth of Nations; demonstrations at Shell stations – in order to try to protect rights and remedy abuses.

Maybe people don’t remember all those strategies because it’s the ATS case that drew the most attention. That sort of undermines the point that ATS litigation is not an effective strategy – if it’s the one people remember, it’s also the one that corporations remember.

In terms of “bang for buck,” corp lawyers acknowledge lawsuits have had huge impact on pushing behavior https://www.steptoe.com/assets/htmldocuments/Kiobel%20and%20the%20Guiding%20Principles%20Article.pdf

It’s always hard to measure the overall effectiveness of a series of lawsuits on behavior, but the best evidence we have comes from corporate lawyers themselves, as well as from the business press. For example, when we settled the Doe v. Unocal, BusinessWeek called it “A Milestone for Human Rights.” In the link above, the authors – who are both lawyers hired by corporations to advise on human rights risks, among other things – acknowledge that ATS litigation has had a major impact. They note that “pressures” on corporations to “ensure respect for human rights” have “come from a variety of avenues,” but that ATS litigation is “among the most visible” of these pressures. And it is these pressures have led corporations to sign “global, industry-specific or multistakeholder voluntary codes of conduct, such as the United Nations (UN) Global Compact, the Electronic Industry Code of Conduct, the Voluntary Principles on Security and Human Rights, and others.”

Access to justice and remedy for grave abuses is necessary component of restoring dignity and preventing future HR abuses

If you have a better way to promote HR & corp accountability let @EarthRightsIntl know! (been litigating cases for ~20 yrs)

At ERI, we firmly believe that remedies for grave human rights abuses are necessary. Other approaches are also necessary – I’ve never heard any human rights lawyer suggest that the ATS and similar approaches are some sort of silver bullet against human rights abuses. Systemic change, better monitoring, socialization of human rights, community empowerment – all of these strategies are worth pursuing. Done right, however, ATS cases can support all of these goals.

Advocates for justice have long recognized that remedies for past abuses are necessary, both to attend to the victims and to deter further abuse. This is what a justice system is all about. When it comes to individual perpetrators, few question that both individual accountability and justice for victims are important; it should be no different in the corporate context.

And last – I’m not being facetious when I say to let us know if you have a better approach! We’re always looking for new ideas, and we don’t have the magic formula to prevent or remedy abuses. We do the best we can with the tools that we have.

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