Untie Our Hands: An Alien Tort Claims Act Campaign
A web site has appeared at untieourhands.com lobbying on behalf of Shell Oil Company in the Kiobel V. Royal Dutch Petrolium (Shell) case. The site uses the slogan “Untie Our Hands” as a rallying cry to free corporations from responsibility for the harm they cause overseas while they engage in resource extraction. It asks visitors to contact media and politicians to spread the message. The tone of the site and the press release email sent out suggest The Yes Men may be behind it. The use of the chained wrist bracelet image and the use of phrases like “What Happens in Nigeria, Stays in Nigeria!” fit the activist’s style of spoof web sites, like the Conflict Free iPhone campaign I blogged about previously although this may simply be a Yes Men style site. Here is a slideshow of images from the site:
This corporate liability case is coming before the Supreme Court and will have impact on whether corporations can be held accountable for what they do internationally in U.S. Courts. The case hinges on the Alien Tort Statute (also called the Alien Tort Claims Act (ATCA)), which reads:
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.
The ATCA is one of the only means available to foreign nationals who seek justice for human rights abuses by American corporations, or corporations who do business in the United States. It has been used previously in the Kano trovafloxacin trial litigation, in which Nigerian families sued Pfizer for the deaths of their children after Pfizer used the children as test subjects in a pharmaceutical trial. If you’ve seen The Constant Gardener, and didn’t realize that it was based on a true story, have a look at Abdullahi v. Pfizer, Inc.
Amicus briefs have been filed in support of Shell, and the list speaks for itself:
The Cato Institute, The U.S. Chamber of Commerce, Engility Corp, Former State Department Legal Advisors, KBR, Inc., National Foreign Trade Council, OTP Bank, Professors Anthony J. Belia Jr. and Bradford R. Clark, Professors of International Law, Foreign Relations, and Federal Jurisdiction, Rio Tinto; Caterpillar, Conoco Phillips, GE, Honeywell, International Business Machines, and Monsanto; Chevron Corp, Dole Food Co., DowChemical, Glaxosmithkline, P & G, US China Law Society, Washington Legal Foundation and Allied Educational Foundation
The Untie Our Hands press release includes the following statement from their ‘spokesperson’:
Untie Our Hands spokesperson Carson Boyd says this outdated law needs to be removed to promote healthy economic recovery.
“Because we work in volatile countries like Nigeria, Burma and Papua New Guinea, human rights advocates get us confused with the corrupt dictatorships we’re forced to cooperate with,” says Mr. Boyd. In Shell’s case, tortures and extrajudicial killings were sanctioned by military dictator Sani Abacha; Shell is merely alleged to have provided paramilitary funding.
“As industry leaders, we suffer through endless accusations and litigation — all in the name of bringing consumers affordable and innovative products,” says Mr. Boyd. “We need the freedom to do what we do best: create jobs and deliver quality goods and services.”
Untie Our Hands asks that American enterprise be free from this archaic legal provision, allowing them the liberty to do business abroad without fear of reprisal in the American justice system.
“We put fuel in your gas tank, food on your table and shoes on your feet,” Carson said. “We’re driving the American economy, and for this we deserve the public’s trust — especially when it comes to spreading the prosperity of free markets abroad.”
More details on the campaign can be found on the Sum of Us web site, where the human rights abuses behind the case are explained in more detail: “In the name of profit and quashing dissent, Shell sanctioned extrajudicial killing, torture, crimes against humanity, and the murder of outspoken author and playwright Ken Saro-Wiwa in Nigeria.” Additional details are available from the International Human Rights Clinic at Harvard.
Issue: (1) Whether the issue of corporate civil tort liability under the Alien Tort Statute, 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations; and (3) whether and under what circumstances the Alien Tort Statute, 28 U.S.C. § 1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.