Parallel Between Occupy Wall Street and Kiobel
After observing people
having lunch on the statue in Farragut Square, it was clear to me that spring
had arrived on K Street. Among enjoying the park included individuals working
at K Street firms that serve and represent the interests of multinational
corporations (MNCs). However, a five minute walk up the street revealed that
the same spring failed to reach McPherson Square. Here, Occupy K Street is
still persisting, the participants no longer remaining complacent about cheap
goods brought by MNCs.
What parallels, if any,
can be drawn from Americans protesting Wall Street to Nigerians picketing
outside the Supreme Court on the day of the Kiobel
hearing? Surprisingly enough, there seems to be one. Both situations depict a
new dimension of a longstanding issue, one at the domestic level and the other
at the international level.
Modern history has
never forgone the domestic issue of poverty and unemployment. Occupy Wall
Street is not targeting is capitalism itself, which naturally accompanies those
issues, but a system of economic relations that fail to serve the public. What
was once the land of opportunity has been experiencing a rapid polarization in
wealth, and in actuality has less intergenerational economic mobility than
other advanced nations. The widening inequalities of everyday life are a
fundamental cause that led protesters to set up tents on Wall Street.
Human history has never
been spared abhorrent behavior, such as torture, rape, and extrajudicial
killing. What Nigerian plaintiffs in Kiobel are pointing out
is not just human rights violations, but practices of extreme corporate abuses
abroad. What was once composed of only state actors has recently been witnessing
non-state actors emerging as a new agent in international law. Because MNCs
have a unique and influential position of power in international communities,
the Nigerians are justified in demanding that corporations take responsibility
for their socially and environmentally damaging actions.
Why did Occupy Wall
Street take to the streets instead of utilizing remedies available within
institutions? The Supreme Court is guided by originalism that is hopelessly
inadequate for the economic problems of the twenty first century. Both sides of
Congress are at loggerheads over what constitutes economic justice. As
evidenced by multiple threats of a government shutdown by Republican extremes,
President Obama lacks the leverage needed to transcend America’s partisan
differences. That said, it is hard to imagine any well-established mechanism
within institutions that can readily operate effectively for the long haul.
Why did the plaintiffs
in the case of Kiobel turn to universal jurisdiction, a still
developing jurisdictional base, instead of going to courts exercising much less
controversial jurisdictional bases with nexus to the state of the forum? The
jurisdiction with traditional nexus is usually under sovereignty of host
counties where court systems and other means of policing violations are
ineffective – the very situation MNCs are exploiting. Because a legal response
that is specifically designed to address the misconduct of MNCs and that,
consequently, corresponds to their rising power across borders, is not yet
established under international law, abhorrent behavior for which MNCs are
allegedly responsible would most likely go unscrutinized without a domestic
legislation like the Alien Tort Statute (“ATS”) that carries universal
jurisdiction and, subsequently, a bit of controversy as well.
The controversy
originated from the early twentieth century notion of sovereignty that built an
impenetrable wall around nations borders. Those who adhered to this notion
argued that universal jurisdiction impermissibly demanded the surrender of a
portion of their sovereignty. However, it was not until the new millennium
began that the international community confirmed a crack in the façade of
sovereignty as the ICTY – on its jurisprudence the U.S. courts ruling on ATS case
heavily rely -- in its opening case held that Common Article 3 of the Geneva
Conventions of 1949 constituted customary international law. Behind the current
trend is the concept of human security that proposes that the proper referent
for security should be the individual rather than the state. The profoundness
of the concept dwarfs the difference between Filartiga and Kiobel –
a brief sojourn of the defendant in the state of forum.
Why Wall Street? Occupy
Wall Street could have started in places other than Wall Street, as it spread
out across the country. However, no other place was more appropriate to begin
the movement. Because of its role in creating the financial crisis, its
inclination to shamelessly feed into the rent-seeking activities of the 1% and,
decisively, its potential to correct the system that has lost its way and bring
it back to truer American values and ideals. Wall Street was the perfect place
to start the movement.
Why the U.S.? The U.S.
is the primary beneficiary of MNCs. Americans account for less than 5% of the
world population, but consume 25% of the world oil production, in large part
because oil is priced lower than the true cost. At the same time, the U.S. is
still an indispensable power as a leading international actor in implementing
international human rights norms.
What the plaintiffs in Kiobel are
seeking in US courts is challenging neither sovereignty of their own country
nor legitimate profiteering activities of MNCs. They are saying only, “We can’t
find any venue that can possibly recognize us and the ill-gotten gains of
MNCs.”
The founding fathers
were so genius as to make it possible for the Constitution to survive along
with evolving standards of decency in a civilized society. As class
of universal offenses expands, the ATS ought to be interpreted to reflect the
spirit of the Constitution. My workplace, which is located literally in the
middle of the two squares, is trying to bridge the two through the ATS in order
to help realize the moral standards of Americans.
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