Advocacy and accountability groups are urging the U.S. Congress to enact new mechanisms that would allow it to hold multinational corporations accountable for rights infringements abroad.

At a congressional briefing on Thursday, legal experts and advocates from Amnesty International, the International Corporate Accountability Roundtable (ICAR) and Earthrights International proposed measures Congress could take to ameliorate corporate abuses abroad.“We understand that corporate lobbying is necessary, but at the same time there should be more transparency in that process in order to ensure justice.” -- Seema Joshi

“International law itself requires a country to provide a remedy to individuals who are harmed by citizens,” ICAR’s Gwynne Skinner, an associate professor of law at Willamette University College of Law, told IPS.

“So we’re failing if we’re not providing any remedies to victims who are hurt by our citizens and of course corporations are citizens now, right?” (Skinner was referring to a 2010 Supreme Court decision that allowed corporations to make unlimited political donations on the grounds that they are eligible for the same constitutional rights as individuals.)

Earthrights International and other legal advocacy groups have partnered to create a report card indexing the track record of each U.S. lawmaker on corporate accountability. Marco Simons, Earthrights International’s legal director, noted Congress’s lacklustre record on the issue.

“Unfortunately, so far the results have not been very pretty,” Simons said. “The average score in the Senate was 26.6 percent and 44.2 percent in the House. Twelve representatives and 45 senators received a score of zero.”

Representatives from Amnesty International called for increased transparency in corporate lobbying efforts.

“We are looking at a proposal to deftly deal with the corporate-government relationship,” said Seema Joshi, Amnesty International’s head of business and human rights. “We understand that corporate lobbying is necessary, but at the same time there should be more transparency in that process in order to ensure justice.”

Post-Kiobel

In particular, advocates are calling for reforms to the Alien Tort Statute (ATS), a unique law that allows foreign nationals to sue human rights abusers in U.S. courts. Last year, the Supreme Court significantly limited the scope of the statute against multinational corporations in a case known as Kiobel v. Royal Dutch Petroleum.

“Shell [a subsidiary of Royal Dutch Petroleum] and other multinational corporations are free to do business in the United States, and free to commit human rights abuses in other countries around the world, and not have any fear that the victims of those abuses would be able to gain access to a U.S. federal court to obtain justice for those abuses,” Simons said.

“This essentially contravenes the fundamental purpose of the Alien Tort Statute – to not provide protection in the United States for those who violate international law.”

In light of the Kiobel ruling, Earthrights and ICAR are calling on Congress to implement legislation that would explicitly allow victims to sue multinational corporations that operate in the United States for human rights abuses abroad, regardless of where in the world they’re based.

On Thursday, the panellists noted the difficulty in pursuing ATS cases against corporations irrespective of the Kiobel ruling, which often prompts plaintiffs to sue in state courts.

In Doe v. Unocal, another ATS case involving corporate complicity in the abuses of a military regime, Earthrights represented a client from Myanmar in the California court system after the case was thrown out of federal courts.

“Unocal and its partners contracted with the Burmese military regime to provide security and other services for their pipeline project,” Simons told IPS. “In the course of providing these services and, unfortunately very predictably, the Burmese soldiers conducted a series of human rights abuses, including widespread forced labour, torture, and killings.”

Another case, Al Shimari v. CACI, dealt with a private military contractor’s alleged use of torture in the interrogation of an Iraqi prisoner. While the federal courts dismissed that case, an appeal is pending and a court in Virginia will hear oral arguments on Mar. 18.

Limited liability

In addition to ATS reform, ICAR’s Skinner proposed altering limited liability rules so parent corporations could be held liable for human rights abuses of smaller companies that they own.

“A parent company can have a wholly owned subsidiary – as shareholders, they own shares of that corporation – and then, of course, have no liability whatsoever except for the investment that they’ve made in that corporation,” Skinner said.

“Today what we see is this becoming a tool for large, transnational businesses to outsource the risk yet get all of the profit. So many very complex corporate organisations exist so that corporations have minimal risk but get these benefits.”

While some have argued that victims of human rights abuses should simply litigate in their own country, the Kiobel and Unocal cases indicate that many of the countries in question directly perpetrate the documented abuses themselves and have a weaker, more corrupt judicial system.

Skinner points to the relative strength of the U.S. judicial system as a reason why corporations are better off litigating in the United States rather than in developing countries.

She cites the lawsuit brought by Ecuadorians against Chevron, the U.S. oil company, for polluting the Lago Agrio region. This week, the judge ruled in favour of Chevron because of allegedly fraudulent evidence used by the prosecution.

“This kind of proves the point that corporations should actually want to be in front of United States courts,” Skinner told IPS.

“If you’re in front of a court in a country that’s not a developed country, you don’t know what you’re going to get. At least in the United States you’re going to get … a pretty fair trial. So isn’t it in a business’s interest to be in front of a U.S. court?”

The U.S. Supreme Court has dismissed a lawsuit against the Royal Dutch Shell Petroleum Company brought by alleged human rights victims.

The ruling, which was handed down Wednesday, is seen as a serious setback for the Ogoni community in the Niger Delta, who alleged gross human rights abuses during the mid-1990s by the military government in power at the time."What we have here are allegations of horrific acts of violence, including torture, facilitated by large multinational corporations in Nigeria, that essentially will go unanswered for." -- HRF's Raha Wala

In addition, the decision essentially cuts off the U.S. courts system from those attempting to redress wrongs allegedly committed by multinational companies, particularly in developing countries.

In the widely watched Kiobel vs. Royal Dutch Petroleum case, the victims had accused the oil company of being complicit in the crimes against them, including torture, extrajudicial killings, rape and crimes against humanity.

Yet the justices, led by Chief Justice John Roberts, found that Shell’s connection to the United States was too tenuous, despite the fact that it does business in the country, and hence could not be sued under U.S. law. Critics say this is precisely what the U.S. law in question, known as the Alien Tort Statute (ATS), was created to do.

“The ruling today is a real tragedy,” Raha Wala, senior council at Human Rights First, a Washington-based advocacy group, told IPS immediately after the decision.

“It means that the doors to justice will be shut for a large category of foreign individuals who really have nowhere else to turn to receive redress for international human rights issues including torture and extrajudicial killings. I think the Supreme Court really missed the mark today with its ruling.”

In the case, the plaintiffs alleged that the Ogoni had protested against widespread environmental destruction and land degradation resulting from oil exploration in the Ogoniland region of the Niger Delta. In response, they said, throughout 1993 and 1994 the Nigerian military systematically targeted Ogoni villages in terror campaigns of looting, rape murder and property destruction.

These attacks were said to have culminated in the executions of a group of people known as the Ogoni Nine, environmentalists who included the renowned playwright Ken Saro-Wiwa. The nine were hanged following a military tribunal widely condemned as illegitimate.

The Ogoni had hoped to find justice in U.S. courts by filing a civil action against Royal Dutch Shell under the Alien Tort Statute. For decades, the statute has served as a tool for holding individuals, corporations and governments accountable for international human rights violations.

Yet Tuesday’s ruling, coming after a decade-long fight, could now irreparably weaken the statute. (A full history of the case can be found here.)

“Essentially what the court said is that the ATS – which is designed to allow lawsuits for violations of both the laws of nations and international law – no longer applies extra-territorially,” Wala said.

“So what we have here are allegations of horrific acts of violence, including torture, facilitated by large multinational corporations in Nigeria, that essentially will go unanswered for because the Supreme Court construed this law very narrowly.”

Indeed, Wala says Wednesday’s decision goes against decades of use of the ATS.

“The Supreme Court has interpreted this law in a way that has been inconsistent with the last 30 years of legal precedent,” she said. “During that time, the ATS has been used repeatedly to bring human rights cases into federal courts. Today’s decision is really a disservice to victims of human rights violations.”

State courts open

The decision will almost certainly have a profound effect on the global effort to give redress to victims of corporate-linked human rights abuses. Some are also worried that it will now make it more difficult to deny safe havens to alleged torturers and war criminals.

While the case is viewed as a departure from a trend toward greater accountability for serious human rights violations, Marco Simons, the legal director for Earth Rights International, a Washington advocacy group, says that the door to the ATS has not yet been closed.

“From now on, if a foreign multinational corporation has participated in crimes against humanity in another country, you can’t sue them in the U.S. simply because they have a presence in the U.S.,” he told IPS.

“It’s not enough that the defendant is a corporation doing business in the U.S. – now there needs to be some greater connection to the United States than that.”

At the same time, he notes, Wednesday’s decision only applies to federal courts. Further, and importantly, the justices did not decide that corporations are immune from the ATS, as Shell’s lawyers had suggested.

“So, foreign corporations doing business in the U.S. can still be sued under the ATS for the crimes they have committed around the world, but only at the state court level,” he explained.

“Beyond this, we don’t really know what additional connection might be required. It could mean that only a case against a U.S. corporation can be tried, or maybe the case would have to require some company involvement within the United States, such as corporate decision-making being made here.”

He says this issue will be argued in court for some time to come.