If the story of human rights were a book, 2012 might be seen as the end of one of its most promising chapters. But first we need to go back to the very first page to understand how this tale has unfolded so far.
In 1789, the US Congress passed a law called the “Alien Tort Statute”, which was comprised of only one sentence: “The district courts shall have original jurisdiction of 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.” On first glance, this appears to have nothing at all to do with human rights. But in 1980, some clever lawyers thought otherwise. They noted that the “law of nations” was synonymous with “international law”; and they noted that international law contains some human rights treaties such as the International Covenant on Civil and Political Rights and the Convention Against Torture. Finally, they also realised that if these human rights treaties could be seen as part of the “law of nations”, the Alien Tort Statute could be used to hold individuals and corporations accountable for human rights violations outside the USA.
The first test case was Filártiga v. Peña-Irala in 1980. Peña-Irala had been an Inspector General of Police in Paraguay, and in 1976 he had tortured and killed a young man named Joelito Filártiga. The case never made it TO court in Paraguay, and the Filártiga family’s lawyer was suspiciously disbarred and imprisoned after taking the brief. The Center for Constitutional Rights – an American NGO – took up the case before a US court. It decided to test the waters and invoked the Alien Tort Statute, arguing that the law allowed the Filártiga family to sue Peña-Irala for violation of the international law prohibition on torture. On appeal, the Filártiga family won, and a precedent was set: a victim of a human rights abuse, although not an American citizen, could take the perpetrator of the human rights abuse, although not an American citizen either, to a US court and hold him accountable for his actions.
Soon victims began to sue corporations as well as individuals. In the case Wiwa v Royal Dutch Petroleum & Shell, for example, victims of Shell’s actions in the Niger Delta received compensation of $15.5 million after threatening to take the oil giant to court. In the case Doe v Unocal, the defendant company agreed in 2004 to provide compensation for their complicity in using forced labour when they undertook a gas pipeline project in Burma.
Critics of the Alien Tort Statute argue that it reduces incentive for business to invest abroad – but that’s precisely the point. Only someone empty of compassion and driven by greed would think it justifiable or acceptable to invest in a project that actively undermines human rights. Besides, the only thing the statute disincentivises is unethical investment. If you’re a business and you’re going to invest in a way that respects the local environment and doesn’t exploit the workers, then you have nothing to fear.
Still, this criticism carries weight with businesses and governments, many of whom have thrown their weight behind Royal Dutch Petroleum in the current US Supreme Court case of Kiobel v Royal Dutch Petroleum. This case might become the ultimate test of the reach of the Alien Tort Statute. The question before the court is a simple one: who can be sued under the statute? Worryingly, the Supreme Court seems to be seriously considering the argument that corporations may no longer be held accountable. Such a judgment could create a paradoxical position in US law where corporations can sue others for breach of their human rights (see the recent Citizens United case, where the Supreme Court found that the right to free speech applied to a corporation), but can’t be sued themselves. There are even indications that the court is questioning the very heart of this law. Namely, whether it can be used to sue someone for atrocities not committed on US soil. Such a finding would rob the Statute of its very purpose, but it is sadly very foreseeable.
Why does a US case matter to an English readership? Because the Alien Tort Statute never was just a US law. Rather, it was a conduit through which anyone of any nation could seek justice against any abuser of any right. To take that away now seems nothing less than a tragedy.
By Andy Marlow
