Sovereignty, Vindicated
A San Francisco jury stands athwart the abuse of the Alien Tort Claims Act.


Andrew C. McCarthy

In elite quarters, optimism abounds that Barack Obama’s election heralds America’s great Lurch to the Left. Doubtful. When transnational progressives start losing in San Francisco, it becomes clear that there’s only so much Change that Americans are apt to tolerate.

And the transnational progressives have lost decisively. On Monday, after a five-week civil trial, a federal jury in the City by the Bay rejected the latest attempt by human-rights activists to use multinational corporations as a pawn in their campaign against sovereignty. That is the upshot of a verdict which cleared Chevron Corp. of wrongdoing in the Nigerian government’s brutal quelling of a lawless protest.

The case, called Bowoto v. Chevron, centered on bloody events a decade ago just off Ilaje, a coastal village in an African nation worlds away from San Francisco. About a hundred villagers – some armed with metal pipes – trespassed onto one of the energy conglomerate’s off-shore oil facilities. They occupied the platform and an attached barge in what their supporters benignly describe as a peaceful protest against the environmental impact of oil production, particularly on local fishing.

After three days, Chevron officials pleaded for help from the Nigerian government. This is what law-abiding people and businesses do – in the United States and throughout most of the world. Indeed, as the Wall Street Journal reports, “in Nigeria and many other countries, multinational corporations aren’t allowed to maintain their own security forces.” They cannot take the law into their own hands. To protect themselves — to perform the work that benefits both Americans and the global economy – they must rely on the local authorities.

The Nigerian government responded by dispatching its security forces – evidently, with some transportation assistance from Chevron’s company-leased helicopters. A deadly confrontation ensued. Two of the occupiers were killed. Several others who were arrested claim they were tortured by Nigerian interrogators.

From an American perspective, the end of the occupation should have been the end of the case. Nigeria, Africa’s most populous nation, is a rough place: disease, poverty, and ethno-sectarian strife endure, and the fledgling civilian government is, by American standards, authoritarian, inept, and corrupt. But the country has its own court system for trying both criminal offenses and – however unlikely of success — civil claims against government abuse.

Nigeria’s management of its own internal affairs may be a proper concern of our diplomacy, but it is no part of our courts’ business. Or at least it oughtn’t be. That, though, is where the Alien Tort Claims Act comes in.

The Constitution empowers Congress to define and punish offenses against “the Law of Nations.” Today, this misunderstood phrase is used interchangeably with “international law,” but it means nothing so expansive or elusive.

Rather, as Professor Jeremy Rabkin of George Mason University Law School has explained, law of nations is a term of art, culled from Blackstone’s Commentaries. At the time of the Constitution’s adoption, it was understood to relate specifically to piracy and mercantile shipping (both of which lay outside the jurisdiction of any nation), as well as to the need to provide safe harbor for foreign diplomats.

Thus, although Chief Justice John Marshall recognized it in 1815 as an explicit component of U.S. law (to the extent Congress chose to incorporate it), the law of nations was not regarded as a vehicle for judicial intrusion into the arena of foreign affairs. The first Congress strictly limited it: criminalizing only the very acts Blackstone had identified as universally condemnable: robbery and murder on the high seas, and assaults against foreign ambassadors.

To support these narrow sanctions, Congress added what is now known as the Alien Tort Claims Act, enabling federal courts to entertain civil suits brought by aliens pursuant to alleged violations of the law of nations. Given the narrow license this implied, the statute lay all but dormant for nearly two centuries after its 1789 enactment.

But then came the transnational progressives. These post-sovereignty activists saw in the courts the potential for imposing supra-national government under the auspices of “human rights law” — a bottomless vessel into which the Left pours its familiar nostrums, hostile to the pursuit by sovereign peoples of their security and economic interests.