Arguably, closing U.S. courts to foreign nationals suing American-based companies goes against the long-accepted idea that international law has a place in the American legal system. LaHood believes that in this case, a limited view of the role of international law in the U.S. would simply be a means of protecting corporations from civil exposure. "Indigenous Ogoni people, most of whom probably live in villages in rural Nigeria, are challenging one of the most powerful entities in the world," says LaHood. "Corporations don't like it. They don't want to be held accountable for how they behave in developing countries."
But how exactly did Shell "behave," and does that particular behavior make the company liable? In 1990, the Ogoni people, an ethnic group with about 500,000 members living in an oil-producing region of the eastern Niger Delta, spearheaded a major protest movement. Their activism targeted both the oil companies and the Nigerian military government, which owned 55 percent of Shell's Nigerian subsidiary. "They felt as if they needed to have control over their land, their resources and their political autonomy" says Deirdre LaPin, a development scholar who worked with both USAID and Shell in Nigeria during the 1990s. "It was something of an Arab Spring. There are strong parallels."
Although the Ogoni were a relatively small population in a region of over 30 million people, eloquent and charismatic Ogoni leaders, like writer and television personality Ken Saro-Wiwa, help popularize the movement. In 1993, about 300,000 people attended an Ogoni Day rally in the Nigerian town of Bori; later that year, amid increasing unrest, Shell suspended all of its operations in Ogoni areas.
The Abacha dictatorship was keen on preventing the situation in Ogoniland from spiraling out of control, regardless of the cost. "Gradually there was a larger and larger presence of the military in the region and there was a joint task force which was assigned to the Ogoni area," says LaPin. In 1995, Abacha ordered the execution of the nine most prominent members of the Movement for the Survival of the Ogoni People, including Ken Saro-Wiwa.
The Kiobel suit holds that the oil company played a key role in the chain of events leading up to the execution of the Ogoni activists. "The allegations are that Shell, through its subsidiary, was in very close cooperation with the Abacha regime," says Hoffman. "The end point of that was the execution of the Ogoni Nine." LaHood alleges that Shell had actually paid the Nigerian military to go into parts of Ogoniland, and had called in the army to suppress protests against the oil industry. Shell was possibly even involved in bribing witnesses in the trial of the Ogoni Nine.
But there are still several ambiguities in the Kiobel case, and it's unclear if the suit will be successful even if the Supreme Court decides that corporations can be sued under the ATS. To be held liable, Shell's activity must qualify as "aiding and abetting" human rights abuses, according to the liability standard set in Presbyterian Church of Sudan v. Talisman Energy Inc., another landmark ATS decision. And the alleged actions of Shell and the Abacha government must meet the Sosa standard as a violation of customary international law. Currently, ATS cases are difficult to prosecute because even terms like "aiding and abetting" and "violation of customary international law" are subject to radically different interpretations.
As University of California law professor Chimène Keitner explains, the legislative branch could help clarify how and when the ATS should be used. "At some point, Congress should probably take up the question of tort liability for corporations aiding egregious misconduct overseas," she says. But in such a polarized political environment, she doesn't expect this to happen. "That's the challenge of the Supreme Court more broadly in this political climate. On the one hand, they have to give guidance to parties in lawsuits, without on the other hand doing what Congress is supposed to do, which is figure out these difficult social tradeoffs." With ATS cases, the courts are forced to negotiate such tradeoffs with only one sentence worth of legislative guidance.
The Supreme Court's consideration of the Kiobel case will be one small part of this process. Keitner says that she expects a party-line vote when the case comes before the Supreme Court this February, although she says that some conservative justices, like those who sided with the plaintiffs in the controversial Citizens United case, might be swayed by the idea that corporations are "are private actors within the domestic legal system." Says Keitner, "I'm not the first observer to note that there is some incongruity in saying that corporations have First Amendment rights but can't be sued for violations of international law."