Law is itself an expression of the Common Good, indeed, it is one of the guarantors of the possibility of the Common Good. That Common Good is threatened today by a culture of corporate unaccountability and, as Katie Shay of the International Corporate Accountability Roundtable explains, the Supreme Court in recent years has tended to side with big business against the interests of the poor and vulnerable.
In the United States, we have experienced a trend over the past several years of corporations gaining increasing power without being held to the same responsible standards that individuals are. We are all familiar with the Supreme Court’s infamous decision in Citizens United, where the Court ruled that corporations are people, money is speech, and set precedent that corporations can essentially now buy elections through unlimited spending, all at the expense of ordinary people. Before the Roberts Court, the United States Chamber of Commerce, the largest business lobby in the country, has prevailed in thirteen of the sixteen cases it was involved in.
Catholic tradition teaches that a healthy community can only be achieved if human rights are protected and responsibilities fulfilled. Recently, however, the Supreme Court’s apparent preferential option for the rich and powerful has extended to shield the wealthiest, most powerful corporations from liability from human rights abuse including genocide, torture, war crimes, and extrajudicial killings.
Last April, the Supreme Court heard a little known case called Kiobel v. Royal Dutch Petroleum. In that case, Esther Kiobel accused Shell of complicity in torture and extrajudicial execution – her husband, Barinem Kiobel, was one of nine environmentalists who were executed after leading a non-violent protest of Shell’s oil operation that effectively shut down the pipeline.
Esther, now an asylee in the United States, sued under the Alien Tort Statute (ATS), a 1789 law that grants United States federal courts jurisdiction over claims brought by foreign citizens for torts committed in violation of the law of nations.
The ATS has been one of the most important tools for human rights victims in seeking some remedy for the abuse they’ve suffered. For many foreign citizens, including Esther Kiobel, it is unlikely that justice is attainable in their home countries. In some, victims face corrupt judiciaries sympathetic to or easily bought by the defendant corporation. In others, the government itself has been involved in the abuse.
In Kiobel, however, the Supreme Court ruled that the Alien Tort Statute does not always apply to human rights violations that take place outside of the United States, unless the alleged violations sufficiently “touch and concern” the United States. Because Esther was suing a foreign corporation (Royal Dutch Shell, headquartered in the Netherlands and in the United Kingdom) for abuse that occurred in Nigeria, the Supreme Court dismissed the case, denying justice to Esther and other plaintiffs. The holding in Kiobel has since been extended to indemnify U.S. companies such as CACI, accused of torture at Abu Ghraib, and Drummond Mining, accused of war crimes and extrajudicial killing of union leaders in Colombia. Both cases will be appealed.
Last week, the Supreme Court panel considered whether a U.S. federal court could find jurisdiction over DaimlerChrysler, a German Company, because it operates a wholly owned subsidiary, Mercedes Benz USA, in the United States. In that case, the plaintiffs have accused the automaker of identifying individuals at Mercedes’ Argentina plant who were attempting to organize a union, to the Argentine military. These individuals were allegedly kidnapped, tortured, and disappeared during Argentina’s Dirty War. Each of the justices expressed discomfort with allowing the case to move forward. Their ruling will have sweeping effects for ordinary people trying to hold corporations accountable – beyond just human rights victims.
Although the law surrounding these issues is still being worked out, one thing is clear. The Justices who interpret our law, six of whom are Catholic, have overwhelmingly ruled in favor of big business at the expense of the poor and vulnerable. Pope Leo XIII in Rerum Novarum emphasized that rights must be respected wherever they exist, and the public authority has a duty to prevent and to punish injury. When it comes to defending the rights of individuals, the poor have a claim to special protection by the State, as the richer class are better able shield themselves and are in less need of the State’s help. Our leaders must keep this in mind going forward, as victims seek remedy in our courts.
Katie Shay is the Legal and Policy Associate at the International Corporate Accountability Roundtable (ICAR), leading ICAR's work on judicial remedy. This includes heading the “Access to Judicial Remedy Project,”and ICAR’s efforts to address corporate accountability cases, including the recent decision in Kiobel v. Royal Dutch Petroleum.
Caitlin Peruccio contributed to the development of this article.