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Hanna: Unintended Consequences

11/11/11 7:55AM By Cheryl Hanna
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(Host) Recently, the United States Supreme Court agreed to hear a case asking whether corporations can be held liable for human rights abuses. Commentator and Vermont Law School professor explains the case and asks whether the concept of corporations as "persons" may have some unintended consequences.

(Hanna) Ken Saro-Wiwa was one of many activists in Nigeria in the 1990's who protested the impact of oil production throughout the Niger Delta. The Nigerian government, in an attempt to silence protestors like Mr. Saro-Wiwa, engaged in a number of human rights abuses, including torture. Mr. Saro-Wiwa was jailed, tried, and eventually hanged because of his opposition.
 
Mr. Saro-Wiwa's family, along with the families of other executed Nigerians, claim that Shell Oil sought the aid of the Nigerian government and paid soldiers to silence the protestors. Shell Oil denies that it had any involvement in what it characterizes as a dispute between a military regime and its own people.

The families are suing under the Alien Tort Statute, which was passed in 1789, and allows foreigners to bring lawsuits in U.S. federal courts for serious violations of international human rights laws. The law doesn't specify who can be sued, leaving that decision for the courts to make.

The Second Circuit ruled that corporations could not be sued under the statute, reasoning that only individuals have traditionally been held liable for violations of international law. Because such violations are so serious, the blame for them can only rest with persons, and not corporations. In a brief footnote, the Second Circuit made clear that the fact that corporations are persons under American law was irrelevant when considering their liability for human rights abuses.

I know that a lot of Vermonters are interested in this question of corporations as persons since the Supreme Court's decision in Citizens United in which the Court held that companies were persons under the First Amendment and thus had the same free speech rights as individuals. Senator Bernie Sanders held a well-attended forum on the case last spring, and Ben Cohen and Jerry Greenfield, co-founders of Ben and Jerry's Ice Cream, have been very active in supporting a constitutional amendment to reverse the decision.
 
The Nigerian case shows why the Citizens United decision could have consequences beyond free speech. Many people argue that if corporations have rights under the First Amendment, then they should also have responsibilities under international law, including for human rights violations.
 
But I doubt that the Supreme Court will see it that way. The Court has limited Citizen's United before, refusing to protect information that AT&T claimed was personal, finding that while companies may be persons, they don't have personal privacy rights or feelings that can be hurt. In the AT&T decision, the corporation lost. We'll see what happens in the Nigeria case, but all of these cases suggest that the Court is likely to pick and choose when Citizen's United should be applied outside of political advocacy.
 
So are corporations persons? The answer to that is turning out to be: it depends! As cases extending the concept of corporate personhood reach the Court, we are likely to see an inconsistent application, with corporations wielding a mighty sword in American politics but largely shielded from the harms they are involved in abroad. We'll have a decision in the case by June.
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