Africa Notes

Course Notes – IL: ATS and Corporate Persons

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As I mentioned in class on Monday, the Supreme Court is hearing arguments this week on two cases Kiobel v. Royal Dutch Petroleum and Mohamad v. Palestinian Authority. These cases concern the Alien Tort Statute, an almost-forgotten law that allows foreigners who violate serious international legal rules and norms to be held accountable in the US.

Kiobel involves Shell’s complicity in the torture of Nigerian nationals. Mohamad involves complaints against the Palestinian Authority and the PLO for torture of Mohamad’s father, a naturalized American who was in the West Bank at the time.

Here are some of the big themes in the case:

1. Are corporations people?

As Peter Weiss (NY Times h/t my student, Micky Capper) notes, the Supreme Court is faced with an interesting dilemma. On the one hand, in Citizens United it granted corporations certain rights as corporate persons. On the other hand, the Second District Court has said–in essence–that corporations are not individual persons when it comes to the Alien Tort Statute. How will they reconcile these two positions? Will they?

2. The human rights angle.

Over at Erga Omnes, the human rights dimension of the case is front and center. Kiobel involves claims against Royal Dutch Shell for its role in the torture of activists in the Niger Delta (or at least helping the Nigerian government in this).

3. Comparative Foreign Law and the Risk of Political Tensions

Following the excerpts in John Bellinger’s post at Lawfare, it is clear that the issue of extraterritorial application of the ATS is of great interest to the justices. Kennedy seems concerned that the ATS is giving the US jurisdiction that no other country attempts to exercise. Alito is concerned about how this might exacerbate international tensions.

I think the petitioner’s attorney, Hoffman, makes a great – if perhaps not original – point when he states:

“I think one of the most important principles in this case is that international law, from the time of the Founders to today, uses domestic tribunals, domestic courts and domestic legislation, as the primary engines to enforce international law.”

Indeed, if international law is going to matter, it does rely on mechanisms such as the ATS.

The Obama Administration is in favor of corporate liability in these cases, reports Reuters.

For more on these cases, see:

Africa Notes

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  • Senegal is at a “critical historical juncture” today, writes Alpha Diedhiou. President Wade’s “unfortunate” (that was the U.S. Ambassador’s word for it, according to NPR this morning) decision to stand for reelection has challenged the peace of this otherwise stable and solid democracy. The poll is on Sunday.
  • “The BRICS want a BRIC Bank”. The proposal is said to originate with India. Also significant is that South Africa is part of this. It can been be seen in light of the BRICS’ desire to counter the weight of the West in the IMF and World Bank.
  • On Somalia:

Fighting Somali Piracy In London

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David Leonard, writing for African Arguments, has an interesting take on the need to combat the international roots of the Somali piracy problem:

The real solution to Somali piracy lies with a partnership between NATO navies and European commercial interests. NATO needs to prevent international exploitation of Somali fishing waters while also patrolling defined maritime corridors. Higher insurance rates would induce international vessels to stay within these corridors. Ships should also employ self-protections, such as safe lock-in rooms for the crew, so that NATO patrol vessels can reach them before pirates force them to surrender. Finally, the focus should be on capturing those who plan and fund piracy, more than on the young-men who board the ships. Finding the organisers could start with tracking how piracy is financed and how ransoms are distributed. These solutions suggest that it is indeed in the financial hub of London, not just along the coasts of Puntland, that Somali piracy must be tackled.

Noted: Climate Change Edition

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Some good news:

But also some bad news, and some just not-so-great-news, on the climate front:

WES-FID: Commenting on SHOFCO

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Tomorrow (Saturday, Feb 18) Wesleyan students are hosting a Forum on International Development. And I am very excited about this event! There are a number of reasons I think this will be a great event.

  1. It celebrates some of the fantastic things our students and alumni have done. This conference really just touches the tip of the iceberg in representing the projects our students have initiated and participate in.
  2. It is an opportunity to critically reflect on these projects and experiences.
    • Students will learn from alumni that have been doing this for much longer and with great success.
    • Students will learn from outside academics and experts.

I will never forget how, in my very first year teaching at Wesleyan, I was lucky enough to have several of the students participating tomorrow present in my introductory course. Both Kennedy Odede, founder of Shining Hope for Communities (SHOFCO), and Ali Chaudry, founder of Possibilities Pakistan, were in my classes. As was one of the organizers, Kathlyn Pattillo. And the next year Rachel Levenson, another of the primary conference organizers, also took that course. And I am probably missing the names of others involved in this event. It makes me think I should teach it more often!

I have been asked to moderate a panel discussing the work of Shofco. Besides Kennedy, both Nathan Mackenzie (representing Shofco) and Connor Brannen (Wesleyan ’10; current analyst at MIT’s Abdul Latif Jameel Poverty Action Lab) are former students of mine. Rema Hanna, a Professor of Public Policy at Harvard’s Kennedy School of Government will round out the panel. Our panel has been tasked with helping Shofco reflect on its development as an organization, its mechanism for evaluating its work, and the involvement of the Wesleyan community in the organization. While SHOFCO has had amazing success at attracting attention and funding in a relatively short time, I suspect the biggest questions will be about how they can build a sustainable program that stays true to its development objectives. This project represents a relatively rare collaboration between an activist in the developing world (Kennedy) and activists in the developed world (the Wesleyan community and especially Jessica Posner, yet another former student). That may be a key ingredient to their current success. But what will be important to sustaining this and how, at the end of the day, will we be able to measure their success?