In Kiobel et al v. $hell, what should apply is the United States of America's historical legal and moral tradition or precedent. This case, though high profile, and primes toward changing the manner in which corporations behave, it doesn't present the option of whether to favor the plaintiffs or protect $hell or American and global commerce.
Rather, it's a one path case: helping the prevention of torture, crimes against humanity and genocide, especially corporate genocide against Ogoni, Niger delta, Africa and throughout the world. Therefore, my message, appeal to the highly respected United States Supreme Court, as it prepares to hear "extraterritoriality" arguments on October 1, is that the court act independently to uphold the separation of power doctrine.
It's important that the court honors the historical jurisprudence that is the Alien Tort Statute (ATS), of the First Congress enacted in 1789. In the mind of the First Congress, "The Law of Nations as Common Law" was significant and not extraterritoriality.
It believed individuals such as the leaders or commanders of rebel or militia groups and representatives of state and national governments including corporations such as $hell Oil established and run by individuals would violate the provisions of the law of Nations covered and protected under the ATS. And where such violations exist, there should be justice if the violated and violators find themselves in America, irrespective of the scene of crime.
As the Supreme Court is aware, the English courts of the eighteenth century applied the Law of Nations as Common Law (which gave birth to America's common and otherwise law). Thus wrote Blackstone in 1769: "the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in full extent by common law, and is held to be a part of the law of the land" (International Law, Mark Weston Janis, Fifth Edition, 2008, pp.105).
It’s a truism that the United States of America believes international law or the law of nations is part of the law of the land. In short, this assertion was made bold, even before the draft and ratification of American Constitution. The Chief Justice of Philadelphia wrote in Respublica v. De Longchamps (1784) that "an assault on the French consul general in Philadelphia was "an infraction of the law of nations. This law, in its full extent, is part of the law of this State, and is to be collected from the practice of different Nations, and authority of writers."
Then in Paquete Habana, Mr. Justice Gray wrote unequivocally that, "International law is part of our law, and must be ascertained and administered by courts of justice of appropriate jurisdiction, as often as questions of right defending upon it are duly presented for their determination."
In Filartiga v. Pena-Irala, Judge Kaufman of the Second Circuit court based his decision on the sources of customary international law and confirmed the prohibition of the crime of torture (which $hell is defending here among others) by the law of nations. His action was predicated on the Alien Tort Statute (ATS), which provides civil legal platform and remedies, for example, to victims of rights protected by the law of nations and alleged to have been violated.
The United States Supreme Court further gave live to the provisions and protection of the law of nations when it upheld the Alien Tort Statute in Sosa v. Alvarez-Machain (2004); an incident that took place off the shore of America. Therefore, this same court should further protect its own wisdom and integrity in Kiobel v. $hell.
Meanwhile, we know $hell is a powerful, environmentally racist, terroristic and killer company. It's lots of money, connections and influence and so can or may have influenced the Obama government, which changed its position from the original, where it presented a brief supporting plaintiffs for corporate liability on February 28, 2012. This government knew it’s no other case but Kiobel v. $hell.
It's also obvious many American corporations, which feared the arm of the law might fall on them for committing similar crimes, and those which might commit same in other that they make profit have $hell's back. Some may be backing $hell on principle-to simply protect the flow of commerce to America without considering the manner in which such flow is achieved.
While these American corporations and their brothers in Europe are working hard lobbying that this case shouldn't hold in America. Many groups such as Human Rights International, Harvard Law Clinic, legal historians and practitioners and former US diplomats, etc. have thrown their weights behind plaintiffs.
The reason for this plaintiffs’ support is simply the fact that ATS is America's historically legal culture and tradition. Also, the Supreme Court should know or already know that the fear of adverse commerce implications for American government is unfounded, as no such consequence has been seen in more than 200 years of the ATS.
About 14 years ago after the first case Wiwa et al v. $hell (which the company settled out of court knowing its crimes) was filed and the Nigerian government wrote to America about its sovereignty, extraterritorial issues. Nothing of adverse commerce implications has occurred, despite the fact that Nigeria said, it can't guarantee the security, safety of American interests should the case proceed.
Evidently, America has been a great friend to the Nigerian government. It’s purchasing oil from Nigeria and assisting the government with aid for democratic and economic improvements, preventive measures, etc. for HIV/AIDS, others diseases.
Conclusively, although a serious legal puzzle will be answered when the Supreme Court's decision is reached. Kiobel v. $hell in question doesn't give an option as to whether to rule in favor of plaintiffs or not. It's a straight path philosophy, which aims to prevent genocide, especially corporate genocide in Ogoni, Niger delta, Africa and throughout the world.
As such extraterritoriality shouldn't be the issue on which a genocidal passport shall be given to $hell and its likes. The crimes $hell committed is prohibited by international or the law of nations, which is also the law of America or law of the land as earlier enunciated.
The company isn't denying committing these crimes, rather fighting for the case to be removed from America, where the laws will apply accordingly, to Nigeria where it's unimaginable influence that will render the case null and void. It isn't the duty of the Supreme Court to permit such assault on our collective reasoning, rights or dignity and humanity.
If we'd consider the issue of extraterritoriality, the reason for this re-argument, by the "Effect Doctrine" America wields extraterritorial power; and does so when lives of defenseless civilians are threatened by their own government. $hell or corporations, which threaten the lives of innocent and defenseless civilians, must not be an exception to the rule.
It’s instructive to note that the current government of Nigeria headed by President Dr. Goodluck Jonathan hasn't and may not oppose the extraterritorial goodwill of America in this case, because it isn't an issue. Nigerian government know $hell has too much power than itself; power it’s used to scuttle other cases.
Consequently, this honorable court should as a matter of justice reestablish the highly regarded and respected historical or contemporary legal precedent. It should allow the trial of $hell Oil to proceed in America to sending a clear message to the company, its likes and would-be violators of international human rights protected under ATS and the law of nations, which is also the law of America.
The Supreme Court has not only a strong, highly regarded and historical legal precedent to uphold and protect. It also has a moral lesson to teach, protect and not the issue of extraterritoriality, which the First Congress envisaged, yet approved the ATS to be the last bastion or beckon of freedom and judicial hope for the oppressed.