The current Supreme Court term has no cases resembling last year’s Kiobel v. Royal Dutch Petroleum (Shell), which addressed liability for human rights abuses head-on. But two cases heard recently could have major impacts on human rights and transnational accountability. The first case could decide whether any foreign multinational corporations can be sued in the U.S. for conduct abroad, and the second case could severely limit the U.S. government’s ability to enforce human rights and environmental treaties. Below are a few comments on each of these cases.
The Bauman case was argued in October. The case involves human rights abuses against workers and union organizers at a Mercedes plant in Argentina during the Dirty War, which Mercedes allegedly abetted. The victims sued Mercedes’s parent company, Daimler, in California. Although the case was brought under the Alien Tort Statute (ATS), the issue considered by the Supreme Court was not about the ATS at all – it was simply about whether Daimler could be sued at all in the United States.
This is known as “personal jurisdiction” – whether a U.S. court has power to hear a lawsuit against the particular defendant. And in Bauman, the Supreme Court is considering whether the U.S. Constitution places limits on personal jurisdiction over foreign multinationals that do business in the United States through subsidiaries.
I won’t say much more about Bauman; ERI submitted an amicus brief in the case and I blogged about the legal aspects of the case at Concurring Opinions and again, after the argument, on the American Constitution Society’s blog. But Bauman could reach much further than Kiobel – it could determine the limits on suing foreign multinationals for conduct outside the U.S., in any case, in any federal or state court.
Bond, which the Supreme Court heard this week, arises from an incident that seems to have little to do with international human rights – Carol Bond was prosecuted for trying to poison her husband’s lover. But the case is significant because the U.S. government prosecuted her for violating the federal chemical weapons statute, which was passed in order to implement the Chemical Weapons Convention. And this is where it gets interesting.
Usually, the federal government’s power to prosecute ordinary crimes is limited – under our federal scheme, that’s usually a state government issue. Federal crimes typically deal with things that cross state boundaries, like banking, or kidnapping. The Constitution limits the national government’s power in this area.
But nearly 100 years ago, in a case called Missouri v. Holland, the Supreme Court recognized that the federal government also has the power to enter into treaties. And some treaties might cover subjects that would usually be state, not federal, responsibilities. Because it’s important for the U.S. to be able to make treaties, the court recognized that in some cases a treaty might give the national government authority that it would not have otherwise.
That’s what’s at issue in Bond – whether the federal government can enter into an international treaty, and then pass laws to enforce that treaty, including creating federal crimes for conduct that would ordinarily only fall under the authority of state law.
Why does this matter for human rights and the environment? It matters because human rights and environmental treaties, like the Chemical Weapons Convention, might cover subjects that Congress would not otherwise have authority over. For example, Missouri v. Holland itself involved an international treaty to protect migratory birds. The Supreme Court had earlier struck down federal laws regulating the hunting of migratory birds, because the Constitution did not give Congress the power to pass these laws. After the treaty was ratified, however, the Supreme Court decided that Congress now had that power. Bond could challenge this century-old understanding.
Bond is about the ability of the U.S. government to live up to its international obligations. If the President and the Senate are restricted by federalism in ratifying treaties, the U.S. will not be able to assure its treaty partners that it will actually comply. This was one of the main reasons that the Constitution was passed to begin with – to ensure that the United States were united in matters of international relations, including commitment to enforcing treaties.
At a time when the global trends are clearly in favor of greater participation in the international community, greater accountability for abuses around the world, and increased enforcement of human rights and environmental obligations domestically, both of these cases present a danger that the U.S. will take significant steps backward.