in the case of Kiobel, the Obama administration sided
with Shell concerning the extraterritorial issue
by Marco Simons 2012-06-13
when the Supreme Court
ordered a rehearing in the case, and asked whether human rights lawsuits could
be brought when the abuses happened outside the US .. Today, the government submitted its brief
(below) - and it's on the wrong side.
In this case, which
involves victims of crimes against humanity in Nigeria who allege that Shell
was complicit in the violent suppression of a nonviolent movement, the Obama
administration argues that courts should not allow the human rights
claims to proceed. The administration doesn't urge a blanket rule against
all cases arising in foreign countries, but it does argue that in a case like Kiobel,
where the defendant is a foreign company doing business in the US, and where
the abuses were committed by government forces within their own territory,
the courts should deny the victims justice.
This position
undoubtedly provoked severe controversy within the administration. How do we
know? Some of the government's lawyers appear to have refused to sign the
brief. Last time, the government's brief was signed by lawyers in
the Department of Justice as well as the State Department and the
Commerce Department. This time,
only the Justice Department is on the brief. Notably, Harold Koh, the
top lawyer in the State Department and a longtime human rights advocate, did
not put his name to the brief.
Why is Obama's
position wrong? Several reasons.
First, the government
acknowledges that ordinary lawsuits, involving things like dangerous retail
products or fraud, could be brought in US courts by foreigners against any
company doing business in the US. It urges the Supreme Court to adopt a
different rule for the most egregious human rights abuses, arguing that those
victims, unlike victims of everyday wrongs, should be denied access to US
courts.
Second, the
administration also admits that the rules might be different if a US company
like Chevron, rather than a foreign company like Shell, were sued. This puts US
corporations at a special disadvantage, allowing foreign companies the
privilege and benefits of doing business in the US without facing any scrutiny
for their human rights violations, while US companies are subject to greater
accountability.
