Tag Archives: human rights

Divergent Views about the United States’ Place in World as Supreme Court Limits Reach of Alien Tort Statute

Kiobel v. Shell
Esther Kiobel stands in front of supporters. Picture via Amnesty International.

The Supreme Court on Wednesday curtailed victims’ ability to seek recourse in the United States for human rights abuses committed abroad, in a 9-0 ruling that sought to protect American corporations from being tried overseas for the same. Though all justices concluded that there was no place in American courts for an Alien Tort Statute (ATS) suit brought by a slain Nigerian activist’s widow against multinational company Shell, they seemed to agree on little else. In particular, Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence revealed sharply divergent views about the United States’ role in the global human rights landscape.

At the heart of Kiobel v. Royal Dutch Petroleum lies the claim that Shell helped Nigeria’s Sani Abacha dictatorship perpetrate a number of horrific human rights atrocities in the 1990’s. Esther Kiobel, whose husband Dr. Barinem Kiobel had served as a prominent voice for the Ogoni people in the Niger Delta, alleges that Shell recruited the dictatorship to help quell opposition after the Ogoni mobilized against the corporation’s activities in that region. Shell purportedly gave food, money, transportation and the use of property to the Nigerian military as it raped and killed its way through Ogoni villages. Dr. Barinem Kiobel was one of the local activists the military arrested and executed.

After fleeing the country and obtaining asylum in the United States, Esther Kiobel and eleven other Nigerian nationals filed an Alien Tort Statute claim in federal court against Royal Dutch Petroleum (Shell’s parent company) for aiding and abetting torture, extrajudicial killings and other crimes against humanity. The ATS was originally written in 1789 to provide a cause of action for three things: acts of piracy, violations of “safe conduct” and assaults on foreign ambassadors in the U.S. It lay largely dormant for the next two centuries, until enterprising human rights lawyers dusted the statute off and began using it to bring civil suits against retired foreign government officials suspected of violating international law (typically the torturing and killing of their countrymen). While this modern use of the ATS has been controversial–particularly in pro-business crowds that fear a landslide of ATS claims against corporations working with unsavory regimes abroad–courts have generally accepted its application to extraterritorial human rights abuses. This reading stems from two rationales: (1) the plaintiffs, who are usually asylees and other immigrants who have escaped brutal regimes elsewhere, are unlikely to receive justice in the country where the crimes were perpetrated, and (2) as a defender of human rights, the United States should send a message that such violations are unacceptable regardless of where they occurred.

The Supreme Court, however, definitively rejected this permissive interpretation yesterday, pulling back the ATS to cover only a very small subset of human rights violations committed abroad. Chief Justice John Roberts, writing the majority opinion for himself and Justices Kennedy, Scalia, Alito and Thomas, expressed concern that a far-reaching ATS would trigger conflict between the laws of the United States and other nations. Because this statute implicates foreign policy–a field that the judiciary has traditionally been very reluctant to step into–Roberts began with a “presumption against extraterritoriality,” which is a fancy way of saying that we assume Congress wanted the statute to apply only to conduct in the United States, unless it says otherwise.

The Chief Justice then looked through the text, history and the purposes of the ATS for any indication that Congress wanted the statute to apply to acts abroad (spoiler alert: he found none). While there is in fact evidence that the Congress of 1789 had intended for the ATS to cover some overseas crimes–one of the main objectives for its passage, after all, was to combat acts of piracy, which by definition take place on the seas, outside of the United States–Roberts stated that pirates “may well be a category unto themselves” because of the way they operate outside of any jurisdiction. Drawing a firm line between the stateless nature of the high seas, which lie “beyond the territorial jurisdiction of the United States or any other country,” and a sovereign territory with an established legal system such as Nigeria, the Chief Justice worried that “unwarranted judicial interference” in the legal processes of the latter would produce serious foreign policy ramifications. Thus, corporations accused of aiding human rights abuses abroad should not be “fair game” in the same way that pirates are.

Echoing Solicitor General Don Verrilli’s warnings at the oral argument about reciprocity, the Chief Justice’s opinion also reflected concerns that a favorable ruling for Kiobel could lead to Americans (both individuals and corporations) being tried in foreign courts for human rights abuses committed in the United States “or anywhere else in the world.” Furthermore, the Chief Justice soundly rejected the idea that the presumption against extraterritoriality can be overcome because the United States must act as a human rights watchdog for the world. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” He concluded that courts must assume the ATS does not apply to overseas conduct, save for a very small and nebulously-defined exception: cases where the connection to the United States has “sufficient force to displace the presumption against extraterritorial application.”

Justice Stephen Breyer, on the other hand, still believes that the United States has a role to play as an international human rights leader. Though he ultimately agreed that the United States courts are not the appropriate fora for this specific case, Breyer favors a more expansive reading of the ATS’ reach. His concurrence, which was joined by Justices Ginsburg, Kagan and Sotomayor, rejected Roberts’ presumption in favor of a “sufficient ties to the United States” test that would apply to both claims of domestic and overseas human rights abuses. American courts should be able to hear a ATS claim if one or more of three things can be shown: (1) the alleged abuse occurred on American soil, (2) the defendant is an American national, and/or (3) the defendant’s conduct implicates a “distinct American interest,” which in Breyer’s estimation would include the United States’ interest in not becoming a “safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Justice Breyer found that Kiobel’s case failed to satisfy any of these three requirements, as the alleged violations occurred in Nigeria, the parties were all foreign nationals, and Shell was not directly responsible for the torture or the killing.

Breyer’s concurrence presents a markedly more optimistic picture of the United States as a “custodian” of human rights (albeit one that may not be warranted given the unending stream of news about the United States’ use of torture post-9/11 and its continued drone strikes in the Middle East). It leaves considerably more wiggle room for ATS jurisdiction over extraterritorial claims, especially where the alleged perpetrators of violations committed abroad–the “pirates of today,” according to Breyer–have relocated to the U.S. Whereas Roberts’ diminishing of the ATS insulates Americans from human rights litigation in foreign courts but leaves the U.S. open as a haven for rights violators, Breyer’s approach reverses the incentives: it deters war criminals from escaping to the United States and sends the message that the U.S. is against acts of torture and genocide, but may leave Americans vulnerable to reciprocity overseas (as well as accusations of gross hypocrisy).

In all, the Kiobel decision comes as a huge relief for corporations, with one miniscule silver lining for human rights activists. While it will be much harder to bring foreign abuse cases in the United States courts, the Supreme Court did leave the door slightly open for future litigation on whether corporations can be liable for human rights abuses.1 This was the original, narrower question on which the lower courts had decided Esther Kiobel’s case, before a group of attorneys representing corporations other than Shell asked the Supreme Court to consider instead the far broader claim of the ATS’ applicability to all extraterritorial conduct, whether perpetrated by individuals or corporations. Chief Justice Roberts’ limitation of the ATS gave them what they wanted this time. But there may well come a day when the right case with the right facts–one with “sufficient force to displace the presumption against extraterritorial application”–will fit through that tiny sliver of space and land before the Supreme Court. A battered ATS lives to see another day, but just barely.

  1. Congress could also, as Roberts indicated in the majority opinion, retool the ATS or author a new statute that explicitly imposes liability on companies that have abetted atrocities abroad and have corporate presence in the United States. This seems very unlikely to happen, though. []

Drones: a history in tweets

Josh Begley, realizing how little Americans know or understand about their own country’s drone warfare, began tweeting the entire history of American drone strikes yesterday. He’s still going:

For the past several years, Begley, who previously worked at an organizationthat uses technology to advance social-justice movements, has felt a nagging need to open Americans’ eyes to the reality of this method of warfare. Begley himself says he “started caring about the issue because I knew so little about [drones].” Then Jane Mayer’s 2009 New Yorker piece, “The Predator War,” which brought readers into the air-conditioned Langley, Va., offices from which drone attacks are ordered, got him thinking.

Drones “bring up all sorts of interesting questions about the intersection of technology and international law and human rights,” he told The Daily Beast. “A bureaucratic chain of command deciding to execute [people] outside any law is a very interesting concept intellectually.” And so, last summer, he set to work designing an app that would map U.S. strikes, to bring a far-away war into the palms of everyday Americans.

Drone+, as the application is called, culls public information compiled by the Bureau of Investigative Journalism about U.S. attacks, translates the data into a user-friendly map, and pushes notifications to users every time a new strike hits.

A representative sampling:

[tweet http://twitter.com/dronestream/status/278727716801486848]

[tweet http://twitter.com/dronestream/status/278727931818278913]

[tweet http://twitter.com/dronestream/status/278890277261946880]

Benedict Obama? The increasingly confusing story of Chen Guangcheng

For the non-living-under-a-rock population, here’s what happened in the Chen Guangcheng saga. The question now is whether the United States deliberately hung Chen out to try or if they instead just badly mismanaged the entire negotiating process with Chinese officials. Either way, things are not looking good now:

Chen Guangcheng, the blind dissident lawyer at the heart of a diplomatic crisis between China and the United States, telephoned in to a Congressional hearing on Thursday to plead for help in leaving his country.

Via a cellphone held up to a microphone at the hearing, Mr. Chen, speaking in Chinese, said: “I want to come to the U.S. to rest. I have not had a rest in 10 years. I’m concerned most right now with the safety of my mother and brothers. I really want to know what’s going on with them.”

Mr. Chen, according to the English translation of his comments, also asked to meet with Secretary of State Hillary Rodham Clinton, who was in Beijing. “I hope I can get more help from her,” he said. “Also, I want to thank her face-to-face.”

The call, apparently made from Mr. Chen’s Beijing hospital room from which American officials have been barred, was another dramatic turn in a case that had for a short time looked like a deft achievement to secure Mr. Chen’s safety by American diplomats. That achievement has unraveled, leaving the Obama administration open to attacks from rights activists and Republicans that it had failed to adequately protect Mr. Chen after he left the sanctuary of the United States Embassy here on Wednesday.

There are many weird aspects to this case. First of all, American officials have been barred from the hospital, and yet Chen remains free to converse with as many media and political figures as he likes. Perhaps the Communist Party higher-ups are just biding their time until the media circus blows over, but this is still a slightly odd circumstance. Secondly, was the U.S. actually shocked by Chen’s quick reversal (first he wanted to stay in China, and now he wants to leave for the States with his family), or did American officials simply not care what happened after he left the embassy? Also, what was the point of arranging such an elaborate pickup of the dissident far from the embassy’s entrance, even going so far as to protect him from a Chinese security contingent, if they were just going to release him back to the authorities soon afterwards anyway? (Or was the entire “car chase” sequence part of an American image repair campaign after the Chen affair went terribly wrong?)

It seems impossible that President Obama and Hillary Clinton could have so badly miscalculated the resolve of the Chinese Communist Party to regain physical control of Chen, and yet it looks like that’s exactly what they did. I tend to agree with Robert Wright over at the Atlantic, who writes:

The Obama folks may be cynical, but they’re smart enough to have known that if Chen walked into a bait-and-switch, that would be a big problem not just for him but for them. It doesn’t make sense, even in Machiavellian terms, that they’d have wanted to seriously mislead him.

James Fallows, meanwhile, suggests remaining cautious:

Quite a lot about this situation is confusing and contradictory, to put it mildly. But I would caution readers against drawing an inference, from headlines like the ones above on US-based analyses rather than on-scene reports, that (a) it is clear that U.S. officials so clearly mis-handled, or coldly handled, this case, or (b) there was something much more clearly successful or satisfying that they could have done. It’s possible that both those things will prove to be true, and the Obama Administration and its representatives in Beijing will deserve criticism. But that is far from clear now — and I worry that a pileup of headlines of this sort can give an initial shape to the story that is hard to change, and that the complicated facts don’t support.

And lastly, the New York Review of Books (in an article to which Fallows links) proffers the idea that, in the end, it’s not up to the United States to change China’s pattern of human rights violations. In any case, here’s hoping the media spotlight stays bright for awhile until some sort of agreement can be hashed out.

#49: The Last Utopia

In just a few short weeks, the world will celebrate the sixty-second anniversary of the Universal Declaration of Human Rights. Adopted by the United Nations on December 10th, 1948, the document ushered in an unprecedented era of international rights norms that has since culminated in the prominence of human rights organizations such as Amnesty International and Human Rights Watch.

What Samuel Moyn argues in his book, The Last Utopia: Human Rights in History, is that the thematic line running from the UDHR’s adoption in 1948 through today is misrepresented in the nascent field of human rights studies. Although cemented now as the defining moment that gave human rights its beginning, the Universal Declaration’s appearance was, Moyn insists, “less the annunciation of a new age than a funereal wreath laid on the grave of wartime hopes.”

This is a decidedly irreverent perspective on a movement whose brief and explosive history has (especially in recent years) been lionized as proof of civilization’s continuing evolution. But Moyn is certain that these celebrants of human rights’ march to glory have it all wrong. In fact, he argues, the UDHR was, if anything, more detrimental than it was helpful in facilitating the cause of human rights as it is known today. The UDHR’s adoption “had come at the price of legal enforceability:” by its inability to transcend ancient notions of state sovereignty, the declaration in effect bequeathed to nation-states the power of adjudication over their own adherence to human rights standards. Moyn’s contention revolves around the fact that world leaders in the 1940s were understandably reluctant to cede any jurisdiction to the whims of a supranational institution, notwithstanding (or perhaps directly due to) its supposed impartiality.

I found the author’s thesis compelling at first, as he explicitly delineated the prevailing global consensus of political leaders in the post-World War II era: a strong desire for peace was complemented by a profound wariness of others’ intentions. In such an environment, the idea of subordinating a national legal framework to an international structure — especially one in which the state itself could be held blameworthy — was not an attractive proposition to any elites. And thus was born the Universal Declaration of Human Rights, a document whose noble goals disguised an impotent enforcement mechanism.

But Samuel Moyn’s continued pounding on the heads of his readers quickly grows old. I cannot count the number of times (or the plethora of ways) he tries to convince his readers that today’s edition of human rights bears little resemblance to, or is only a distant relative of, that of the 1940s. “As of 1945,” Moyn writes in one instance, “human rights were already on the way out for the few international lawyers who had made them central in wartime.” Elsewhere: “Instead of turning to history to monumentalize human rights by rooting them deep in the past, it is much better to acknowledge how recent and contingent they really are.” And, “what mattered most of all about the human rights moment of the 1940s, in truth, is not that it happened, but that — like the even deeper past — it had to be reinvented, not merely retrieved, after the fact.”

Virtually nothing is as consistently unsurprising as professorial loquacity. But even among academics, Moyn tests the limits of repetition. His mantra seems to have been: if something is worth writing, it’s worth writing one hundred times. In this regard, then, he has succeeded. Unfortunately, much like human rights themselves for a time, Moyn proves far more adept at defining their history negatively than positively. It is obvious that he considers the UDHR only nominally relevant in jump-starting the human rights movement; what is less transparent is his perspective on its true origins.

Human rights constitute the eponymous last utopia of his book’s title, but Samuel Moyn does little with this concept other than to restate it over and over (just as he does with his repudiations of the movement’s alleged foundation myth). “When the history of human rights acknowledges how recently they came to the world,” Moyn writes, “it focuses not simply on the crisis of the nation-state, but on the collapse of alternative internationalisms — global visions that were powerful for so long in spite of not featuring individual rights.” It was, in a sense, the worldwide disillusionment with grandiose visions of the past that gradually led to the introduction of human rights as a viable alternative. It offered a (facially) moral ideal where before had existed only political ones.

In short, “human rights were born as the last utopia — but one day another may appear.” Other than brief mentions (and like so much else in The Last Utopia), Samuel Moyn leaves this final speculation largely unaddressed. As to the idea that modern human rights came about due to the Universal Declaration of Rights, however: well, that horse has already been beaten quite to death.