Shell Brief in Kiobel Misstates the Law and Demeans Victims of Human Rights Abuse
by Jonathan Kaufman
Shell has fired its latest round in the Kiobel case in an attempt to create immunity for itself and all other companies that abet grave violations of universally recognized human rights. In a brief filed with the Supreme Court on Wednesday, the oil giant makes arguments that range from misleading to false to offensive, all with the aim of proving that in no circumstances may U.S. courts consider claims under the Alien Tort Statute (ATS) involving human rights abuses that took place abroad. If Shell’s proposed rule had been law for the last twenty years, Holocaust survivors, victims of international terrorism, and persecuted religious groups would have found U.S. courts closed to their claims and would not have been able to obtain compensation and justice.
Even a brief skim reveals classic tactics employed by the company’s high-paid lawyers to draw attention from the absurdity of the position they are defending. Most offensively, the company includes some assertions that demean human rights victims and the strategies they select in their struggle for justice. For example, Shell points to a letter from South Africa protesting ATS litigation but ignores a subsequent letter from the South African Minister of Justice commending the ATS as a helpful part of the country’s recovery from apartheid.
Later, Shell implies that an ATS lawsuit pushed Talisman – a Canadian company accused of assisting the Sudanese army to attack communities surrounding its operations – to withdraw from Sudan, only to be replaced by a Chinese company that was even more compliant with the government’s genocidal wishes. Here, Shell suggests that it’s no problem for Western companies to actively assist in crimes against humanity and also ignores the much larger campaign including victims and investors alike that convinced Talisman it was better off doing business in locations other than what is now the volatile border between North and South Sudan.
At one point, Shell glibly dismisses the concerns of victims of international terrorism, who point out that the company’s arguments would deprive them of their ability to pursue the U.S.-based financiers of terrorist groups. Shell argues that they have adequate recourse under two other compensation laws – the Torture Victim Protection Act and the Anti-Terrorism Act. Yet these two laws are clearly unavailable to foreign victims of terrorism who seek to hold U.S. banks accountable, as the Supreme Court has just ruled that the former doesn’t apply to corporations, and the latter does not give a right of action to foreigners.
These rhetorical flourishes are, for the most part, legally beside the point, but Shell uses them to set the stage for its main legal thrust – that applying the ATS to foreign conduct conflicts with U.S. law, international law, and sound foreign policy. It’s important to realize that underlying both the legal argument and the policy attacks is a profoundly disrespectful premise: Victims of human rights abuse just don’t get it, Shell implies. You cannot understand the consequences of your struggle – your concerns do not merit the attention of courts or Congress, and they never have.
Fortunately for the plaintiffs, the law does not support Shell’s extraordinary approach to human rights. For example, Shell relies heavily on the judicial doctrine that Congress does not intend for U.S. laws to apply abroad unless it says so explicitly – the so-called “presumption against extraterritoriality.” Yet Shell ignores the statutory language, invents new legal distinctions, misquotes Supreme Court precedent, overlooks the relationship between the ATS and U.S. international obligations, and distorts basic choice-of-law principles. Worse, Shell glosses over the wider consequences of its own argument, which would be to undermine the “transitory tort doctrine” – a basic pillar of the U.S. civil liability system holding that a person’s wrongdoings follow him wherever he goes. Stated simply, Shell’s position flies in the face of the age-old general rule that once a foreign person enters the U.S. or does business here, that person can be sued for acts committed anywhere in the world.
These are just a few examples of how Shell misconstrues the law in its attempt to belittle the plaintiffs’ struggle and stigmatize the ATS. Stayed tuned for more analysis on the Kiobel briefs from ERI and our colleagues.