Esther Kiobel et al. v. Royal Dutch Petroleum Company et al.

Court	Court of Appeals for the Second Circuit, Unites States of America, United States
Case number	06-4800-cv, 06-4876-cv
Decision title	Decision
Decision date	17 September 2010
Parties	Esther Kiobel, individually and on behalf of Dr Barinem Kiobel Bishop Augustine Numene John-Miller Charles Baridorn Wiwa Israel Pyakene Nwidor Kendricks Dorle Nwikpo Anthony B. Kote-Witah Victor B. Wifa Dumle J. Kunenu Benson Magnus Ikari Legbara Tony Idigima Pius Nwinee Kpobari Tusima, individually and on behalf of Clement Tusima Royal Dutch Petroleum Company Shell Transport and Trading Company PLC Shell Petroleum Development Company of Nigeria, Ltd.
Other names	Kiobel I
Categories	Crimes against humanity
Keywords	deprivation of liberty, Murder, torture
Links	Decision
Other countries involved	Nigeria

Summary

The Shell Petroleum Development Company of Nigeria Limited was involved in extracting and development of oil in the Ogoni region of Nigeria. Concerned over the devastating environmental impact that Shell’s activities were having on the region, a group of individuals known collectively as the Ogoni Nine, protested against Shell’s activities. The Ogoni Nine were detained by the Nigerian military junta on spurious charges, held without charge, tortured and hanged following a sham trial before a Special Tribunal in November 1995.

The present dispute is a class action filed by 12 Nigerian individuals, now US residents, seeking compensation from Shell for having aided and abetted the Nigerian government to summarily execute the activists in an effort to suppress protests against Shell’s oil operations. Specifically, they allege that Shell bribed and tampered with witnesses and paid Nigerian security forces that attacked Ogoni villages. In 2006, the District Court for the Southern District of New York dismissed the charges against the defendants for extrajudicial killing and violations of the right to life, security and association. On appeal by both parties, the Court of Appeals for the Second Circuit held that the Alien Tort Statute does not provide jurisdiction over claims for violations of international law committed by corporations and not individual persons. Accordingly, the suit against the defendants could not continue and all charges are to be dismissed.

Procedural history

On 20 September 2002, Esther Kiobel, individually and on behalf of her late husband, Dr Barinem Kiobel and eleven other individuals filed a class action against the Royal Dutch Petroleum Company and the Shell Transport & Trading Company. The former is a Dutch and the latter British holding corporations of the Nigerian Shell Petroleum Development Company of Nigeria Limited (SPDC). The class action sought damages and other relief for alleged crimes against humanity, including torture and extrajudicial executions perpetrated against the Ogoni people of Nigeria with the defendant’s assistance and complicity between 1992 and 1995.

On 18 March 2003, Royal Dutch Petroleum filed a motion to dismiss on the ground that, inter alia, the plaintiffs claims are barred by the doctrine of act of state.

On 14 May 2004, the plaintiffs filed an amended complaint adding SPDC as a defendant.

In response, the defendants filed a second motion to dismiss.

By an order of 29 September 2006, the District Court for the Southern District of New York partially granted the defendants motion and upheld only the charges for crimes against humanity, torture and arbitrary arrest and detention.

Both parties appealed.

Related developments

On 15 October 2010, the plaintiffs filed a petition for rehearing, which was denied by a decision of the Court of Appeals of 4 February 2011.

On 6 June 2011, plaintiffs filed a petition of certiorari with the Supreme Court of the United States. On 17 October 2011, the Supreme Court announced that it would hear the plaintiff’s petition. Oral arguments were heard on 28 February 2012 (transcript available here). On 5 March 2012, the Supreme Court ordered that the case be reargued and directed both parties to file supplemental briefs addressing whether, and under what circumstances, the Alien Tort Statute allows for a cause of action for violations of international law occurring outside the territory of the United States.

On 1 October 2012, the case was reargued before the Supreme Court (transcript available here), and on 17 April 2013 the Court issued its decision, finding that the Alien Tort Claims Act has no extraterritorial application and thus does not apply on events that happened outside the United States.

Legally relevant facts

Royal Dutch Petroleum Company is a subsidiary of the Shell Petroleum Development Company of Nigeria Limited (SPDC). SPDC is a Nigerian corporation with its headquarters in Lagos, Nigeria. It is engaged in exploring for, producing and selling energy products derived from Nigerian oil and natural gas. During the 1990s, the SPDC engaged in oil exploration and development activities in the Ogoni region of southern Nigeria.

The plaintiffs are a group of individuals who actively protested the SPDC’s oil exploration and development activities in the Ogoni region. They allege that their lawful protests were violently suppressed by agents of the Nigerian government, either in conspiracy with the SPDC and its subsidiaries, or at the SPDC’s own request.

The plaintiffs allege that the SPDC and its subsidiary, the Royal Dutch Petroleum Company, is responsible for violations of interntational, federal and state law in connection with the acts of violence and human rights abuses perpetarted against the plaintiffs. For example, plaintiffs allege that their property was destroyed, they were forced to leave Nigeria in fear of their lives , their family members were subject to extrajudicial killings, physical and psychological punishment, arbitrary arrest and detention (pp. 13-14).

Core legal questions

Does the Alien Tort Statute provide jurisdiction over claims brought against corporations for violations of international law?

Specific legal rules and provisions

US Alien Tort Claims Act.

Court's holding and analysis

The suit of the plaintiffs-appellants for damages under the Alien Tort Statute may only succeed if the Alien Tort Statute provides jurisdiction over tort actions brought against corporations under customary international law (p. 5). In determining whether a particular course of conduct is prohibited by a norm of customary international law, it does not suffice that the norm is found in most or even all civilised nations (p. 6).

The principle is that individual liability for violations of international law is limited to natural persons, and not juridical persons such as companies (p. 7). The Alien Tort Statute accordingly provides jurisdiction over claims in tort against individuals who are alleged to have committed acts recognised as crimes under customary international law (p. 8).

There has, however, been a steadfast rejection of liability of corporations under customary international law. The Court reaches this conclusion based on an examination of the practice of international tribunals, international treaties and works of publicists - all recognised sources of international law (pp. 9, 24-43).

Therefore, in so far as the plaintiffs claims are brought against the three defendant corporations in question, the plaintiffs fail to allege violations of international law and therefore their claims fall outside the limited jurisdiction provided by the Alien Tort Statute (p. 9).

The Court accordingly affirmed the decision of the District Court in so far as it dismissed some of the charges against the defendants and reversed in so far as the District Court declined to dismiss the remaining charges (p. 50).

Further analysis

J. Zebley, 'Supreme Court Rules against Extraterritorial Application of Alien Tort Statute', Jurist, 17 April 2013.
T. Reuters, 'Kiobel v. Royal Dutch Petroleum: Whither the Alien Tort Statute?', 3 December 2012;
A.J. Bellis, 'Kiobel, Subject Matter Jurisdiction and the Alien Tort Statute', Notre Dame Legal Studies Paper, Paper No. 12-52, 2012;
W.S. Dodge, 'Corporate Liability under Customary International Law', Georgetown Journal of International Law, 2012, Vol. 43, pp. 1045-1052;
P L. Regan, 'Human Rights Compliance and Accountability for US Multinational Enterprises: A Principled Step Forward after Sosa and Kiobel', Widener Law School Legal Studies, Research Paper No. 12-11, 2012;
J.J. Paust, 'Kiobel, Corporate Liability and the Extraterritorial Reach of the ATS', Virginia Journal of International Law Digest, 2012, Vol. 53;
O. Murray et al, 'Exaggerated Rumours of the Death of an Alien Tort: Corporations, Human Rights and the Peculiar Case of Kiobel', Melbourne Journal of International Law, 2011, Vol. 12, pp. 57-94;
E. Engle, 'Kiobel v. Royal Dutch Petroleum Co.: Corporate Liability Under the Alien Torts Statute', 2010.

Instruments cited

US Alien Tort Claims Act, Paragraph 1350 of Title 28 of the Code of Laws of the United States of America (United States Code), Office of the Law Revision Counsel of the U.S. House of Representatives, 1983.

Related cases

US Supreme Court, Kiobel et al. v. Royal Dutch Petroleum Company, et al., Case No. 10-1491, Decision on certirari, 17 April 2013.

Additional materials

L. Choukroune, 'Corporate Liability for Human Rights Abuses', The Hindu Business Line, 1 November 2012;
Center for Justice & Accountability, 'Kiobel v. Shell';
Center for Constitutional Rights, 'Kiobel v. Royal Dutch Petroleum Co.'.