Corporate Legal Personhood in the Kiobel Case

In Kiobel v. Royal Dutch Petroleum, the U.S. Supreme Court waded into the murky waters of corporate legal personhood, at least potentially, in hearing oral arguments in late February 2012. The issue in the case is whether corporations can be held liable to the extent that they are complicit in a foreign government’s human rights abuses. Legal personhood would say that they could be. This would represent an obligation that goes with legal personhood. The question is whether the justices who conferred in the Citizens United decision the right of corporations, based on their legal personhood, to make unlimited political donations would also be willing to view obligations as “part and parcel” with such personhood. If not, then legal persons, unlike human persons, would have the benefits of personhood without any of the obligations—an oxymoron to corporations to be sure. In other words, such an asymmetry would render the legal personhood doctrine itself as akin to a one-sided coin—which cannot exist, let alone stand.

The full essay is at "Corporate Legal Personhood."

Refusing for its Own Sake: Israel on the Palestinian Unity Government

President Mahmoud Abbas of the Palestinian Authority reached a deal for a unity government with Hamas on February 6, 2012—which was also the sixtieth anniversary of the Accession Day of Queen Elizabeth II of Britain. Prime Minister Benjamin Netanyahu had warned that a unity government with Hamas would rule out any chance of making peace with Israel. Meanwhile, the E.U. and U.S., as well as the state of Israel, had conditioned recognition and aid to Hamas on that party renouncing violence, recognizing Israel, and agreeing to previous agreements reached between the P.L.O. and Israel. In short, for all that achieving a unity government requires in terms of hard decisions and effort, the accomplishment was not exactly valued by Israel and the West. Aside from the baleful consequences in refusing to recognize something of value out of stubbornness and inflexibility, Israel and the West may have been hurting themselves by ruling out a chance for peace at the outset.

“Hamas is an enemy of peace,” Netanyahu said. “It’s an Iranian-backed terror organization committed to Israel’s destruction.”[1] Doubtless that description reflects Hamas historically, but in sticking to the description, it was the Prime Minister rather than Hamas that was cutting off any chance of peace. He was ignoring or dismissing the possibility that Hamas could change as a result of negotiations and a deal. Part of what happens as two parties negotiate and reach a deal is that the parties’ respective perspectives and interests can also change. To condition the negotiations themselves on the other party already having changed is illogical, besides being utterly unfair to that party irrespective of whatever its past may or may not have been. It is essentially to presume that that which takes place during negotiations must somehow occur beforehand—and for only one of the parties. In continuing to build settlements, Israel has not exactly been kosher going into the negotiations; Abbas’s unity government could insist that Israel itself change as a condition for negotiations to begin.

Ironically, Abbas’s unity government may be requisite to any agreement, for otherwise Hamas would be outside any such deal. Presumably everyone concerned must be part of a peace deal for peace to ensue. Therefore, Israel as well as the U.S. and E.U. would be wiser not to look the gift horse in the mouth—meaning complain about that which is really a gift to them. Abbas has undoubtedly had to swallow hard to accept a unity government with his rival. He is due credit for this, and his action should be recognized for what it is: a necessary step on the way to a definitive agreement between the Palestinians and the Israelis. At the time of Abbas’s announcement, it would have been wise for Israel and the West to seize the opportunity of the unity government rather than view it as ending any chance of an agreement.

The lack of change projected onto Hamas was really in its adversaries. “Give peace a chance” means being willing to relax one’s stubbornness such that one can change. The change needed is ultimately in oneself—not the other guy. With this on one’s plate, to worry oneself with the other’s change involves a rather presumptuous overreaching that one can ill-afford. This is not to say that the other guy has been an angel. Hamas has been far from it, but the same could be said of Israel. It takes two to tangle, and angels have no need for peace talks. Sometimes appearances can be deceiving here on earth. The smallest excuse may easily be made use of by the party most interested in sustaining a feud. If there is anything that must change before negotiations can begin, it is this: a refusal to come to the table, presumably conditioned on some change in the other guy other than his refusal to come to the table. The refusal usually says much more about the refuser than the refusee.

1. Ethan Bronner, “Abbas Will Lead thePalestinians in a Unity Pact,” The New York Times, February 7, 2012. 

Is Syria’s Sovereignty Absolute?

“Fundamentally, the argument over Syria reflects a deeper divide between those who would use the Security Council to confront nations over how their governments treat civilians, versus those who consider that it has no role whatsoever in settling domestic disputes.” On the one side, Sheik Hamad, the prime minister of Qatar, reported to the Security Council, “The government killing machine continues effectively unabated.”[1] The implication is that people running a government do not have legitimate authority to kill over 5,000 fellow citizens.

The Arab League taking on Syria at the Security Council.           (Mario Tami/Getty)

On the other side, the Russian envoy, Vitaly Churkin, adopted a “where will it all end” argument. The Council, he said, will start saying “what king or prime minister needs to step down. The Security Council cannot prescribe recipes for the outcome of a domestic political process.”  The Russian foreign minister added that the “Russian policy is not about asking someone to step down; regime change is not our profession.”[2] He might have well have said, It is none of our business whether Assad kills his people. He did say that “the decision should be made by Syrians, by the Syrians themselves.”[3] What he did not say is that, “Russia’s long ties to Syria generate billions of dollars in weapon sales, plus the relationship gives Moscow the entrée it needs to be at the table for Middle East peace talks. In addition, the Russian Navy deploys some ships from the Syrian port of Tartous, widening Russia’s sphere of influence into the Mediterranean.”[4] Of course, the West has a strategic interest in toppling Assad to weaken his ally, Iran, as well as Hezbollah, which backs Assad.

Strategic interests, regardless of which side they happen to be on, should not be determinative, even as the existence of the veto in the Security Council allows them to be. The fundamental issues go beyond what fascinates an analyst, and thus should not be cut short by momentary concerns. The basic question has to do with whether “the sovereignty, independence, unity and territorial integrity” of a country, including Syria, is absolute. Can human rights legitimately counter the claim of absolutism? In other words, does a ruler have the right, internationally-speaking, to use a government’s monopoly (or at the very least, advantage) of force to kill non-violent citizens? If not, should the U.N. have the right to intercede?  These were the questions before the world in 2011, and they were no closer to being resolved as 2012 got underway at the U.N.’s Security Council.

Perhaps compromise can be found, such as having the International Criminal Court, rather than the Security Council, decide whether a ruler has violated human rights. An international code of human rights violations sufficient for a ruler to be vacated by the court would need to be formulated. Contributing forces to the enforcement effort would be required of any country that has signed onto the Court’s jurisdiction, so the U.N. need not be the instrument. However, as this compromise will have kept the Security Council from being in the regime change profession in terms of making the decision, perhaps Russia and China would agree to the U.N. serving in some capacity following the Court’s verdict.

Absent such a compromise, the question may be whether the U.N. or a new organization should limit national sovereignty where human rights of citizens are being sufficiently violated. The self-interest of rulers sitting on the Security Council may dictate that a precedent applying an international check on the power of current office-holders is undesirable. As with strategic interests, such a conflict of interest should not be allowed to interfere with, or obstruct, a decision on the fundamental question: Is national sovereignty absolute, and, if not, should the U.N. play a role in limiting it?

I suspect that “we’ll just have to agree to disagree” would be as far as discussions between the E.U. and Russia would get on the question. If so, then—and Europeans should recognize this from their own differences on the Union-level—members of the U.N. who are no longer willing to recognize national sovereignty as an absolute could form a separate “track” from the U.N. that would include a new United Nations. Members of it would of course be subject to that organization as a check. Additionally, that organization could decide to support efforts to defend human rights with military force in a country that is not a member.

I do not believe that the philosophical difference between the “absolutists” and the “human rights” camps in the Security Council is such that anything short of a split can answer the question. Lest this appear too pessimistic, a wider time-perspective could allow for a different perspective in both Moscow and Beijing. In the meantime, a coalition of the willing should not lose any time in setting up a new U.N. that includes “human rights-justified regime change” in its mission, because the existence of the veto means that the existing U.N. will remain stuck—which essentially means led by the few holdouts rather than the majority of the members. Rather than being stymied by a few members of the Security Council, each of whom retain a veto-right, the forces willing to act against peers who are systematically violating human rights should step up to the plate—assuming there really is an interest in putting human rights before absolute national sovereignty.

1. Neil MacFarquhar, “At U.N., Pressure Ison Russia For Refusal to Condemn Syria,” The New York Times, February 1, 2012. 
2. Ibid.
3. Ibid.
4. Ibid.