Last month, Judge José A. Cabranes of the Manhattan-based federal Second Circuit Court of Appeals issued a judicial opinion that sent international lawyers, human rights advocates and African environmental activists reeling. Cabranes ruled that transnational corporations who participate in gross human rights abuses cannot be held responsible for torture, genocide, war crimes and the like because, as corporations, their activities fall outside the jurisdiction of international law. The Pan-African Newswire described the court’s opinion as a corporate licence to kill. Judge Pierre Leval, also of the Second Circuit, issued a dissenting opinion describing the Cabranes ruling as an unprecedented ‘blow to the efforts of international law to protect human rights’.

The plaintiffs in Kiobel v. Royal Dutch Petroleum (Shell) were the relatives of Ken Saro-Wiwa, Dr Barinem Kiobel and other Ogoni leaders imprisoned, tortured and executed in mid-1990s Nigeria. Their crime was protesting the environmental devastation associated with Shell’s long tenure in the region. The Niger Delta violence, culminating in the execution of Saro-Wiwa, a non-violent playwright, businessman and organiser, exposed the brutal overlap between big oil’s financial imperatives and a military dictatorship’s state repression. The tragedy of the Niger Delta forced the world to acknowledge the human costs of doing business as usual in the midst of a military dictatorship. ‘This is it,’ Saro-Wiwa wrote just months before his death, ‘they [the Abacha dictatorship] are going to arrest us all and execute us. All for Shell.’

This lawsuit against the Dutch, British and Nigerian holdings of Shell Petroleum was thrust before the Manhattan federal appeals court under the Alien Torts Statute (ATS), an extraordinary 1789 law which allows non-citizens to file lawsuits in US courts for serious breaches of international law. As a puzzling relic of the first Congress, the ATS lay mostly dormant until the 1980s when creative lawyers began using the statute to bring cases of international human rights abuse to trial in the US. Since then, American federal court judges have been urged – unequipped and often unwilling – into debates about international human rights law as ATS lawsuits on South African apartheid, Bosnian genocide, chemical warfare in Vietnam and other atrocities appeared before their courts.

Last month, the Second Circuit’s foray into the murky waters of international law via the Shell suit led to the shocking assertion that there is ‘no historical evidence of an existing or even nascent norm of customary international law imposing liability on corporations for violations of human rights’. Another Second Circuit judge, Pierre Leval, violently disagreed with Cabranes’s ‘illogical’ and ‘strange’ misreading of international law. In a separately issued opinion, Leval described international law as explicit in condemning human rights abuse and silent on the issue of corporate civil responsibility. Silences in the law, Leval argued, must not be interpreted to undermine the spirit, intention and norms of the law – particularly when the stakes are so high. This new precedent, Leval warned, would ‘offer to unscrupulous businesses advantages of incorporation never before dreamed of … businesses will now be free to trade in or exploit slaves, employ mercenary armies to do dirty work for despot’s political opponents, perform genocides or operate torture prisons … ---all without civil liability to victims’. Leval condemned the Cabranes ruling as a boon to corporations ‘who earn profits by commercial exploitation or abuse of fundamental human rights’, by allowing them to ‘successfully shield [their] profits…. simply by taking the precaution of conducting the heinous operation in the corporate form’. If the Shell ruling stands, ironically, the legacy of Ken Saro-Wiwa and other activists who gave their lives fighting for corporate responsibility would now be attached to a legal decision shielding transnational companies that trample human rights.

Central to this legal controversy is a question that should not be lost in the crossfire: What does international law and custom prescribe for transnational corporations implicated in gross human rights abuse? Months before this ruling, legal experts at a Northwestern University roundtable triumphantly claimed that the ‘future has already arrived’ for international corporate social responsibility. Corporate respect for human rights was a foregone conclusion cemented over the past two decades when ‘primary elements of corporate social responsibility--- human rights, environment, labor, and anti-corruption priorities – prevailed in the halls of government, in the rule-making of international institutions, in courtrooms, and in a growing number of boardrooms.’[i] Fast forward a few months and the Shell decision exposes a starkly different reality: gains made in human rights efforts to rein in transnational business must be defended and expanded, or risk being lost. In reality, more than 15 years after Ken Saro-Wiwa’s death, the international community has yet to ensure that transnational corporations do not contribute to genocide, war crimes, mass incarceration and torture as they do their business around the world.

Part of this situation is historical: international law has traditionally responded to crimes against humanity and atrocity with individual criminal prosecutions. At Nuremberg, the international community affirmed a new standard by recognising that ‘crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.’ For the first time, individuals, rather than states, were prosecuted for breaches of international law. This standard of criminal responsibility has held sway for the past 60 years.

Since Nuremberg, the international community’s response to glaring human rights abuse has been to create international tribunals, such as the International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Tribunal of Rwanda (ICTR) and the Special Court of Sierra Leone, which have all been built upon the Nuremberg insight that flesh-and-blood men are to blame for atrocities. Even as these later tribunals have begun to chafe against such a narrow focus, they have adhered to the standard of pursuing only the individuals deemed ‘most responsible’ for atrocity. Increasingly, the Nuremberg emphasis on personal criminality seems less like revelation and more like restriction. Each year, more violence-scarred countries turn to truth and reconciliation commissions and other extrajudicial instruments to pursue broader notions of justice.

The creation of the International Criminal Court (ICC) has not altered international law’s focus on individual criminal prosecutions. At the 2002 Rome Conference, there were discussions about whether corporations should be included within the ICC’s purview. However, ideological and theoretical differences within the signatory countries torpedoed this proposal. There were some stakeholders who, theoretically, did not recognise the principle of corporate criminality in their own domestic law and others who were wary of imbuing the court with too much power. Given the ICC’s limited resources, the vision of a narrowly focused court prevailed at the expense of the more ambitious versions. Ultimately, the ICC would not seek to respond to the gaps in international law’s enforcement of human rights and instead would focus on bringing individual perpetrators to trial.

Although norms of international corporate responsibility have been articulated clearly, there are woefully few clear avenues to move from rhetoric to response. For the better part of two decades, the United Nations’ cognizance of the raw power of transnational companies has led to a number of exciting initiatives. As early as 1984, the UN sought to establish a Code of Conduct for Transnational Companies to issue both mandatory requirements and voluntary guidelines for business. However, partially because of the Cold War context, this comprehensive code was never adopted.

In 2000, former Secretary-General Kofi Annan created the Global Compact, an initiative encouraging company commitments to corporate responsibility standards. However, the Compact was voluntary, strictly incentive-based and ultimately unable to change how transnational companies do business. Subsequently, the UN Sub-Commission for Human Rights created the ‘Norms on the responsibility of transnational corporations and other business enterprises with regard to human rights’. Marked by bold rhetoric describing extensive human rights obligations for transnational corporations, in practice, these norms function as ‘soft law’ recommendations. At best, they constitute a core document about which to ultimately build more secure regulation mechanisms. Since their adoption in 2003, these norms have not led to regulations and thus have not been integrated into the practice of international law. Despite a decades-long effort in this arena, because the UN initiatives lack stringent enforcement mechanisms, they have not become part of the international legal system.

Into this gap enters the recent Second Circuit opinion dismissing the long history of UN efforts as aspirations, ideals and guidelines rather than as obligatory parts of the law. If Nuremberg’s call for individual moral responsibility was the main achievement of 20th century international human rights, the 21st century’s task will be to confront the institutions that create the conditions for genocide, atrocity and mass human suffering. The recent court judgment exposes the costs of the international community’s hesitance to stringently regulate transnational companies. It must also renew our determination to create mechanisms that dissuade corporations from valuing profit above human rights, and forums to assess liability and undermine impunity if and when they do. If this lawsuit is a clarion call about the need to enforce established human rights norms as law, it may become an important part of Ken Saro-Wiwa’s legacy and part of his continuing gift to the world.

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NOTES

[i] David Scheffer and Caroline Kaeb, ‘The Five Levels of CSR Compliance: The Resiliency of Corporate Liability under the Alien Tort Statute and the Case for a Counterattack Strategy in Compliance Theory,’ Public Policy Roundtable, The Alien Tort Statute and U.S. Enforcement of Foreign Judgments, 4/29/2010- 4/30/2010