By Andrew C. McCarthy
Tuesday, December 2, 2008
In elite quarters, optimism abounds that Barack Obama’s election heralds America’s great Lurch to the Left. Doubtful. When transnational progressives start losing in San Francisco, it becomes clear that there’s only so much Change that Americans are apt to tolerate.
And the transnational progressives have lost decisively. On Monday, after a five-week civil trial, a federal jury in the City by the Bay rejected the latest attempt by human-rights activists to use multinational corporations as a pawn in their campaign against sovereignty. That is the upshot of a verdict which cleared Chevron Corp. of wrongdoing in the Nigerian government’s brutal quelling of a lawless protest.
The case, called Bowoto v. Chevron, centered on bloody events a decade ago just off Ilaje, a coastal village in an African nation worlds away from San Francisco. About a hundred villagers — some armed with metal pipes — trespassed onto one of the energy conglomerate’s off-shore oil facilities. They occupied the platform and an attached barge in what their supporters benignly describe as a peaceful protest against the environmental impact of oil production, particularly on local fishing.
After three days, Chevron officials pleaded for help from the Nigerian government. This is what law-abiding people and businesses do — in the United States and throughout most of the world. Indeed, as the Wall Street Journal reports, “in Nigeria and many other countries, multinational corporations aren’t allowed to maintain their own security forces.” They cannot take the law into their own hands. To protect themselves — to perform the work that benefits both Americans and the global economy — they must rely on the local authorities.
The Nigerian government responded by dispatching its security forces — evidently, with some transportation assistance from Chevron’s company-leased helicopters. A deadly confrontation ensued. Two of the occupiers were killed. Several others who were arrested claim they were tortured by Nigerian interrogators.
From an American perspective, the end of the occupation should have been the end of the case. Nigeria, Africa’s most populous nation, is a rough place: disease, poverty, and ethno-sectarian strife endure, and the fledgling civilian government is, by American standards, authoritarian, inept, and corrupt. But the country has its own court system for trying both criminal offenses and — however unlikely of success — civil claims against government abuse.
Nigeria’s management of its own internal affairs may be a proper concern of our diplomacy, but it is no part of our courts’ business. Or at least it oughtn’t be. That, though, is where the Alien Tort Claims Act comes in.
The Constitution empowers Congress to define and punish offenses against “the Law of Nations.” Today, this misunderstood phrase is used interchangeably with “international law,” but it means nothing so expansive or elusive.
Rather, as Professor Jeremy Rabkin of George Mason University Law School has explained, law of nations is a term of art, culled from Blackstone’s Commentaries. At the time of the Constitution’s adoption, it was understood to relate specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation), as well as to the need to provide safe harbor for foreign diplomats.
Thus, although Chief Justice John Marshall recognized it in 1815 as an explicit component of U.S. law (to the extent Congress chose to incorporate it), the law of nations was not regarded as a vehicle for judicial intrusion into the arena of foreign affairs. The first Congress strictly limited it: criminalizing only the very acts Blackstone had identified as universally condemnable: robbery and murder on the high seas, and assaults against foreign ambassadors.
To support these narrow sanctions, Congress added what is now known as the Alien Tort Claims Act, enabling federal courts to entertain civil suits brought by aliens pursuant to alleged violations of the law of nations. Given the narrow license this implied, the statute lay all but dormant for nearly two centuries after its 1789 enactment.
But then came the transnational progressives. These post-sovereignty activists saw in the courts the potential for imposing supra-national government under the auspices of “human rights law” — a bottomless vessel into which the Left pours its familiar nostrums, hostile to the pursuit by sovereign peoples of their security and economic interests.
In 1980, the Second Circuit U.S. appeals court in New York, in a case with no connection to the United States, resorted to the alien tort statute to grant money damages to the estates of Paraguayan torture victims who had been murdered in Paraguay by a Paraguayan official. The judges reasoned that the law of nations had somehow evolved to embrace prohibitions on torture — even though neither the U.S. nor Paraguay had ratified any torture treaties at the time.
Putting aside the always unwelcome practice of judicial legislating, if the court had revived a moribund concept solely to voice international condemnation of torture — an offense universally reviled by civilized people — that would not necessarily be a bad result. But as is the judicial wont, these judges would not leave well enough alone. In the future, a concurring opinion admonished, the alien tort statute could be applied to reach extra-national conduct, no matter how remote from American national interests, if, in the view of federal judges, such conduct transgressed definable, universal, and obligatory norms.
Naturally, courts have leaped on this subjective test of their own making to do subjective justice. In 1995, for example, the same court used the statute to forge a new civil action for victims of genocide — even though, by then, the political branches had implemented an international anti-genocide treaty with legislation that expressly disavowed the creation of a private judicial remedy.
Meantime, the Ninth Circuit U.S. appeals court in California discovered a clear and universally recognized norm prohibiting arbitrary arrest and detention. The U.S. Supreme Court reversed this decision in a 2004 case, Sosa v. Alvarez-Machain, but in so doing, the justices nevertheless endorsed the amorphous “definable, universal, and obligatory” test that had caused the erroneous ruling in the first place.
For those concerned about freedom and national self-determination, this was a step in a highly dangerous direction. After all, when American judges presume to intrude on the affairs of foreign sovereigns, they encourage foreign and international tribunals to try to impose their own visions of universal, obligatory norms on the United States. Thus, as Justice Antonin Scalia cautioned in Alvarez-Machain:
The notion that a law of nations, redefined to mean the consensus of states on any subject, can be used by a private citizen to control a sovereign’s treatment of its own citizens within its own territory is a 20th-century invention of internationalist law professors and human-rights advocates…. The framers would, I am confident, be appalled by the proposition that, for example, the American people’s democratic adoption of the death penalty … could be judicially nullified because of the disapproving views of foreigners. [Emphasis in the original.]Nonetheless, the Chevron litigation demonstrates that the campaign goes on. Transnational progressives abhor U.S. capitalism as the exploitation of poor countries. They abhor oil production as the root cause of environmentally ruinous “climate change.” And they abhor aggressive governmental security measures as a stifling of dissent — regardless of how lawlessly that dissent is posited. For the Left’s vanguard, the San Francisco case was potentially a trifecta.
But they’ve lost this round. For that, we owe thanks to the good sense of jurors who realized that Americans overseas must be able to seek the protection of local authorities, and that American courts are not the right forum for influencing Nigerian behavior.
Still, the battle goes on. Royal Dutch Shell has been hauled into federal court in New York by human rights activists seeking to hold it responsible for the 1995 execution of Ken Saro-Wiwa by Nigeria’s then-military regime. Saro-Wiwa was convicted of murder, but his supporters claim he was framed for his protests against oil company pollution and profiteering — and they want Shell to pay. Trial is slated to begin early next year.
With Democrats in control of the White House, the Congress, and, increasingly, the courts, there is little chance of a legislative or jurisprudential clamp-down on the mischievous alien torts law. Fortunately, there are still juries, and ordinary Americans are not ready to sign on to global Utopia just yet.
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