Searching PI's general forum yield no reference to the dimissal by the 2nd Circuit Court of Appeals of the civil suit brought by several alleged victims of the Shell Oil Company's assistance to the Nigerian military establishment. The plaintiffs alleged in a complaint under the Alien Tort Act of 1789 that Shell Oil, a defendant, by assisting the Nigerian military with funds, etc., shared responsibility for the crimes committed against them, torture, etc. The 2nd Circuit dismissed the case, two of the three deciding judges expressing the view that the federal courts do not have authority under the law of nations (on which the ATA was based) to bring suit against a corporation as a defendant. All this was nicely explained on Democracy Now, today. I have not seen the matter reported to the public elsewhere, though I should think that it was covered in NYT and WP. The decision was rendered a couple of weeks ago; so it is not breaking news.

I bring it to PI, because I see a wrinkle that may have been overlooked by the three judges. I should mention that even the third judge, Judge Laval, who did not concur with the others' opinion that immunized corporations, voted for dismissal on evidentiary grounds. To Judge Laval's credit, he pointed to the dire consequences of relieving corporations from responsibility under ATA.

The other two judges opined that the law of nations applies only to the behavior of nations in the 1789 Act. Note is taken that under the premise of the Nuremburg trials, post WWII, international tribunals may bring criminal prosecutions against humans. To assert that and simultaneously to assert that a civil prosecution could not be brought against a human would be nonsense, the judges admit. But corporations are not humans.

I claim that though the question of against whom the law of nations may be applied, to nations, to humans, is a matter of international law, the question of who or what may be treated as a human is a national one. One example is the question of slavery. That is a national determination. Until the abolition of slavery in the U.S., Afro-Americans were not treated as human beings under our Constitution. Another example is, perhaps, India, today. "Untouchables" live in slavery, because they are denied the rights of other Indians, culturally if not in law. Women are treated as slaves, chattel, in many Muslim countries today. International law is not applied in such cases over the national laws and practices of such countries.

Now as to the U.S.: The 14th amendment to our Constitution has, according to the SCOTUS, made corporations into legal persons. Thus, according to our national law, we regard them as humans under the law. If they are entitled to the legal benefits of being human in the U.S. (1st amendment rights, cf Citizens United v. FEC), then they are also subject to the potential liabilities of that status (civil prosecution under the ATA).

The 2nd Circuit's majority, two out of three, contrived a status of immunity for Shell Oil, because it is a corporation, and corporations are not nations nor humans. But wait! Who is a human is a matter of national law, by the examples I have cited above and others. Under our national law, which the 2nd Circuit is obliged to uphold in our courts, the Shell Oil corporation has the liability of a human and is subject to the ATA. My view is that the dismissal was an egregious error by the Court, because not only did it open the way for corporations to commit great wrongs with impunity, but because it violated our own Constitution's 14th amendment.

PI forum readers may note that I am not trained in the law and present my arguments as a lay person. Pardon my hybrus!

Searching PI's general forum yield no reference to the dimissal by the 2nd Circuit Court of Appeals of the civil suit brought by several alleged victims of the Shell Oil Company's assistance to the Nigerian military establishment. The plaintiffs alleged in a complaint under the Alien Tort Act of 1789 that Shell Oil, a defendant, by assisting the Nigerian military with funds, etc., shared responsibility for the crimes committed against them, torture, etc. The 2nd Circuit dismissed the case, two of the three deciding judges expressing the view that the federal courts do not have authority under the law of nations (on which the ATA was based) to bring suit against a corporation as a defendant. All this was nicely explained on Democracy Now, today. I have not seen the matter reported to the public elsewhere, though I should think that it was covered in NYT and WP. The decision was rendered a couple of weeks ago; so it is not breaking news.

I bring it to PI, because I see a wrinkle that may have been overlooked by the three judges. I should mention that even the third judge, Judge Laval, who did not concur with the others' opinion that immunized corporations, voted for dismissal on evidentiary grounds. To Judge Laval's credit, he pointed to the dire consequences of relieving corporations from responsibility under ATA.

The other two judges opined that the law of nations applies only to the behavior of nations in the 1789 Act. Note is taken that under the premise of the Nuremburg trials, post WWII, international tribunals may bring criminal prosecutions against humans. To assert that and simultaneously to assert that a civil prosecution could not be brought against a human would be nonsense, the judges admit. But corporations are not humans.

I claim that though the question of against whom the law of nations may be applied, to nations, to humans, is a matter of international law, the question of who or what may be treated as a human is a national one. One example is the question of slavery. That is a national determination. Until the abolition of slavery in the U.S., Afro-Americans were not treated as human beings under our Constitution. Another example is, perhaps, India, today. "Untouchables" live in slavery, because they are denied the rights of other Indians, culturally if not in law. Women are treated as slaves, chattel, in many Muslim countries today. International law is not applied in such cases over the national laws and practices of such countries.

Now as to the U.S.: The 14th amendment to our Constitution has, according to the SCOTUS, made corporations into legal persons. Thus, according to our national law, we regard them as humans under the law. If they are entitled to the legal benefits of being human in the U.S. (1st amendment rights, cf Citizens United v. FEC), then they are also subject to the potential liabilities of that status (civil prosecution under the ATA).

The 2nd Circuit's majority, two out of three, contrived a status of immunity for Shell Oil, because it is a corporation, and corporations are not nations nor humans. But wait! Who is a human is a matter of national law, by the examples I have cited above and others. Under our national law, which the 2nd Circuit is obliged to uphold in our courts, the Shell Oil corporation has the liability of a human and is subject to the ATA. My view is that the dismissal was an egregious error by the Court, because not only did it open the way for corporations to commit great wrongs with impunity, but because it violated our own Constitution's 14th amendment.

PI forum readers may note that I am not trained in the law and present my arguments as a lay person. Pardon my hybrus!

The US judicial system ought not to be able to switch designations, at will, in order to find cases in favor of the wealthy and the corporate - but they do, on a daily basis. The courts are created to cater to the interests of the owner class, and they do so.

So, I agree with your argument, but I also think that it makes no difference; the system is, by design, biased in favor of the very group that it does, indeed, favor. The legal system is working exactly as it was designed to do - so tear it all down and start over with a People's court system. Then you'd be talking about something!

Courts find the Corporations as being "human" when it comes to campaign donations and yet not being human when it comes to being charged with a crime.

Your arguments all sound convincing. Wish you were sitting in a place where it mattered.

Thanks for the encouragements.

I may at some point send my argument to Judge Laval of the 2nd Circuit in NYC. He dissented from the opinion of the other two judges, that corporations could not be held to account under ATA. He voted to dismiss but on grounds that the plaintiffs did not make an adequate showing that Shell intended for the Nigerian military to use Shell's gifts to torture and injure.

On that score, I am reminded of the dictum that Sam Ervin, the late senator from SC intoned when he chaired, years ago, the Joint Select Committee on the Watergate break-in: "A person may be presumed to have intended the natural consequences of his actions." With that in mind, I would ask Judge Laval if Shell did not expect the Nigerian forces to exert themselves in their benefactor's behalf against the protesters whose land Shell was polluting? Would that no be the natural consequence of giving money and arms to thugs?

From a broader perspective, namely the perspective of our (America's) own thuglike behavior, torturing, rendering, detaining without judicial due process in Guantanamo and other numerous other places, the use of ATA could be directed against the corporations that the U.S. hires to do its dirty work in Iraq and Afghanistan and elsewhere. In fact, the U.S. under Bush II and now Obama has thwarted civil suits by such plaintiffs on the grounds of "state secrecy". Glenn Greenwald (Salon.com) has been exposing the Justice Department's use of secrecy pleadings in federal court to protect itself from civil claims and the adverse exposure. Justice certainly does not want its hireling corporations hauled into court to answer under that Alien Tort Act of George Washington's first term in office.