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Monday, March 5, 2012

Strategic CSR - Shell

The articles in the two urls below detail the ongoing litigation against Shell that was argued last week before the U.S. Supreme Court. The case was brought by members of the Ogoni people, claiming Shell’s complicity with the Nigerian government for human rights abuses committed in Nigeria during the 1990s.

Legal standing in the case before The Court rests on the application of the Alien Tort Claims Act (1789) to the issue of whether a corporation can be sued for human rights abuses committed overseas (Chapter 1: What is CSR? p11):

The answer turns on the meaning of the Alien Tort Statute, a 1789 law that allows federal courts to hear ‘any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.’ The law was largely dormant until the 1980s, when federal courts started to apply it in international human rights cases.

The Justices, during oral arguments, did not seem very convinced:

‘This case was filed by 12 Nigerian plaintiffs who alleged that respondents aided and abetted the human rights violations committed against them by the Abacha dictatorship in Nigeria,’ Justice Alito said, quoting. Then he asked: ‘What business does a case like that have in the courts of the United States? There’s no connection to the United States whatsoever.’

What I find striking about the case, however, is that The Supreme Court decided in 2004 that, under this legislation, individuals in certain situations can be held liable for their role in human rights abuses committed overseas (see Nina Totenberg’s report on this case at:

A 2004 Supreme Court decision, Sosa v. Álvarez-Machain, left the door open to some claims under the law, as long as they involved violations of international norms with ‘definite content and acceptance among civilized nations.’

Irrespective of your position on Shell’s relationship with the Nigerian government, the last time I checked-in with The Supreme Court, the Justices considered corporations to be legal individuals. So, why is the application of a law to corporations that has been decided applies to individuals even an issue before The Court?

Could it be that corporations are individuals when it comes to the rights that status conveys (e.g., free speech), but not when it comes to the responsibilities?

Take care

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Court Debates Rights Case Aimed at Corporations
By Adam Liptak
The New York Times
Late Edition – Final

Bringing ‘Alien Torts’ to America
By David B. Rivkin Jr. and Lee A. Casey
The Wall Street Journal
Late Edition – Final