Addressing Petitioners' oral argument before the US Supreme Court in Kiobel v. Royal Dutch Petroleum (Shell) [PDF], Justice Samuel Alito said:
What business does a case [alleging that a Dutch oil company aided and abetted human rights violations committed against Nigerian citizens by the Abacha dictatorship in Nigeria] have in the courts of the United States? ... There's no connection to the United States whatsoever.The answer to this question could profoundly change the identity of the nation and its pledge of "justice for all." The underlying premise of Shell's position would foreclose US courts from adjudicating claims against inhumane acts occurring outside the US. This foreclosure would extend not only to claims by foreign citizens against foreign governments or officials for atrocities committed on foreign soil, but also to acts of US citizens or corporations who knowingly commit or participate in those acts. In short, the US would become a legal sanctuary for what the US Court of Appeals for the Second Circuit termed in Filartiga v. Pena-Irala as the "enem[ies] of [ ] mankind." Such a result cannot be reconciled with the principles under which this nation declared its independence.
In stating our right to be a nation, we "held" certain "truths to be self-evident." Among these truths was the principle that all people were "endowed" with "certain inalienable" rights to "Life, Liberty and the Pursuit of Happiness." At the time, this was a heretical statement defying the supremacy of sovereigns in both fact and law. The force of authority for these principles was the unwritten precept that no king or queen had incontestable dominion over his or her subjects and no government could take away or infringe rights basic to fundamental human dignity. These were not merely the inviolate rights of American colonists who sought only freedom from "taxation without representation." These were rights belonging to all people which existed and persisted throughout the "course of human events." The "self-evident truths" that forged our union were reduced to writing to which our nation swore our allegiance. Ours was the first among nations to so break the yoke of colonial rule. It was our mark of distinction, the symbol of our "uniqueness" [PDF].
As empires toppled, however, our creed became the core of virtually every emerging nation's proclamation of independence. Human rights instruments "transformed" constitutional thought and writings. New constitutions incorporated rights and protections and provided for domestic enforcement of rights obligations. The twentieth century also saw a growing consensus among civilized nations to craft and adopt the principles of fundamental human rights as an immutable core of international law. Hundreds of jurists and commentators in addition to the general custom, practice and usage of nations crystallized these rights as norms of behavior binding on all nations, regardless of the consent of the nation itself. As expressed in Filartiga:
[I]n the twentieth century the international community has come to recognize the common danger posed by the flagrant disregard of basic human rights ... [h]umanitarian and practical considerations have combined to lead the nations of the world to recognize that respect for fundamental human rights is in their individual and collective interest.Our belief in the inalienable nature of basic rights possessed by all people connects us with all other nations. In the world that the framers of our freedom foreshadowed, it was understood that the welfare of any one nation may be jeopardized by the atrocities of another. The nations of the world, our courts noted, made it their business to be concerned with gross domestic transgressions wherever they occurred.
Our nation has constantly recognized and acted on this connection. We seek to educate and influence others to honor these universal obligations. We participate in sanctions or military intervention to end their violation. Through legislation, we made it the business of our courts to provide a forum to enforce these "norms" of behavior.
We invoked our jurisdiction to make our courts available to impose accountability upon any person or entity having a presence in the country. Individuals or corporations that seek the protection, rights and privileges of our laws must also accept the countervailing exposures. By residing or doing business within our borders, an individual or corporation becomes accountable for gross violations of human rights which he perpetrated or knowingly participated in, wherever those violations occurred. The location of the offenses is irrelevant to the duty to adjudicate. A state or a nation, as stated in Filartiga, has "a legitimate interest in the orderly resolution of disputes among those within its borders[.]"
The human rights decisions of our courts have, to date, given effect to these principles. They have been a "small but important step in the fulfillment of the ageless dream to free all people from brutal violence." Shell, and others who support its position in Kiobel, seek to reverse that step and force us, instead, to take one giant leap against mankind.
If, as a nation, we choose to now prohibit our courts from holding "enemies" of humanity accountable for their acts of inhumanity, then it must be done honestly, openly and consistently. We would need to remain mute in the presence of extreme cruelty inflicted by others in other states; withdraw from and withhold military or other forms of intervention to prevent other nations' internal abuses; renounce the self-evident truth that every person has a right to basic human dignity that cannot be abrogated by any government or individual; and close the doors of our courts to the world's oppressed while opening the gates of our liberty to the greatest offenders on earth.
Abandoning accountability may enable the nation to blind itself to surrounding evil. But doing so would contravene the essence of our founding ideals and beliefs. Although justice in our nation may be blind, it must not be absent.
Michael D. Hausfeld is the Chairman of Hausfeld LLP. His career has included some of the largest and most successful class actions in the fields of human rights, discrimination and antitrust law. He holds a J.D. from the George Washington University Law School and a B.A. from Brooklyn College.
Kristen Ward Broz is an attorney at Hausfeld LLP where she focuses on antitrust, mass tort, international, and financial services law. She holds a J.D. from the George Washington University Law School and a B.A. from the University of Virginia.
Suggested citation: Michael Hausfeld and Kristen Ward Broz, The Business of American Courts in Kiobel, JURIST - Sidebar, October 2, 2012, http://jurist.org/sidebar/2012/10/hausfeld-broz-kiobel-jurisdiction.php.
This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him/her at firstname.lastname@example.org