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

Court	Supreme Court, United States
Case number	10–1491
Decision title	Certirorari to the United States Court of Appeals for the Second Court
Decision date	17 April 2013
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.
Categories	Crimes against humanity, Human rights violations, Torture
Keywords	murder, torture, corporate liability, deprivation of liberty, extraterritorial jurisdiction
Links	Decision on Certiorari
Other countries involved	Nigeria

Summary

The Shell Petroleum Development Company of Nigeria Limited was involved in extracting and refining 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 upheld the charges for crimes against humanity of torture and arbitrary arrest and detention, and 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 were dismissed.

Ultimately, the Supreme Court confirmed the Appeals Court's decision, but based it on the ground that Alien Tort Statute has no extraterritorial application and thus does not apply to events that happened outside the United States.

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 a British holding corporation 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. On 17 September 2010, 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.

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 (ATS) allows for a cause of action for violations of international law occurring outside the territory of the United States. The case was reargued before the Supreme Court on 1 October 2012 (transcript available here).

Related developments

Since the Filártiga v. Peña-Irala-case of 30 June 1980 (before the US Court of Appeals for the Second Circuit), the Alien Tort Statute has been interpreted as to allow foreign citizens to seek remedies in US courts for acts - usually violations of international (human rights) law, such as torture - committed outside the United States. However, the current decision will most likely bring an end to this wide interpretation of the ATS' applicability.

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 (p. 3).

Core legal questions

When and under what circumstances does the Alien Tort Statute allow for a cause of action for violations of international law occurring outside the territory of the United States?

Specific legal rules and provisions

US Alien Tort Statute (Alien Tort Claims Act).

Court's holding and analysis

The respondents - Shell et al. - contended petitioners' view that the ATS is applicable to the situation. In their standpoint, that the ATS does not not allow for causes of action for violations of international law that occurred outside US territory, respondents relied on the presumption against extraterritorial application. This presumption, which is derived from Morrison v. National Australia Bank Ltd., holds that "[w]hen a statute gives no clear indication of an extraterritorial application, it has none". The ratio of this presumption, the Court held, is that it "serves to protect against unintended clashes between our laws and those of other nations which could result in international discord".

The Court continued with examining whether either the text, history or purpose of the ATS could indicate that it does have extraterritorial application. Regarding the text, the Court did not find any reference point for such conclusion. The same applies for the history of the ATS; it was primarily meant for "violation of safe conducts, infringement of the rights of ambassadors, and piracy" - three situations where international law is violated, but where a strong connection with the US exists (e.g. a US ambassador's rights are involved, or piracy takes place in US waters (or in the high seas)). And as for the purpose of the ATS, the Court emphasised that "there is no indication that the ATS was passed tomake the United States a uniquely hospitable forum for the enforcement of international norms".

In conclusion, the Court found that the Alien Tort Statute has no extraterritorial application and thus does not apply to events that happened outside the United States.

Further analysis

An Amicus Curiae Brief was filed by the Victims of the Hungarian Holocaust, supporting the position of petitioners (Doe et al.):

Supplemental Brief of Amici Curiae Victims of the Hungarian Holocaust in Support of Petitioners.

Two interesting reads on the potential effects of the current Supreme Court ruling on corporate liability for human rights abuses are the following articles from B. Hoffman et al. and Slawotsky:

B. Hoffman et al. (EarthRights International), 'Out of Bounds - Accountability for Corporate Human Rights Abuse After Kiobel', September 2013.
J. Slawotsky, 'Corporate Liability for Violating International Law under the Alien Tort Statute: The Corporation through the Lens of Globalization and Privatization', International Review of Law, 2013, Vol. 6.

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

The current decision is of importance for many cases before US courts involving the ATS. An important case here is the John Doe et al. v. Exxon Mobil Corporation et al.-litigation; in the latest decision of the Columbia Court of Appeal, the case was referred to the Washington D.C. Court of Appeals to assess it in the light of the current decision on the ATS of the Supreme Court. The case is still pending. See for the entire line of Doe v. Exxon Mobil-litigation:

US District Court for the District of Columbia, Memorandum of 14 October 2005;
US District Court for the District of Columbia, Memorandum of 2 March 2006;
US Court of Appeals for the District of Columbia, Memorandum of 12 January 2007;
US District Court for the District of Columbia, Memorandum & Opinion, 27 August 2008;
US District Court for the District of Columbia, Memorandum Opinion, 30 September 2009; and
US Court of Appeals for the District of Columbia, Decision, 8 July 2011.

The Supreme Court's decision has also had an impact on the Rio Tinto Ltd. (mining) litigation: in this case, a similar claim was ultimately rejected by a 28 June 2013 decision of the Court of Appeals, on the same grounds of inapplicability of the ATS. See also the following decisions:

US District Court for the Central District of California, Order, 9 July 2002.
US Court Of Appeals For The Ninth Circuit, Appeals Decision, 7 August 2006.
US Court Of Appeals For The Ninth Circuit, Appeals Decision, 16 December 2008.
US District Court Central District of California, Order re (prudential exhaustion), 31 July 2009.
US Court Of Appeals For The Ninth Circuit, Appeals Decision, 25 October 2011.

Additional materials

J. Zebley, 'Supreme Court Rules against Extraterritorial Application of Alien Tort Statute', Jurist, 17 April 2013.
E. Kontorovich, 'Kiobel Surprise: Unexpected by Scholars but Consistent with International Trends', Notre Dame Law Review, 2013, Vol. 89, Forthcoming Northwestern Public Law Research Paper No. 13-38.
J. Maton, 'The Kiobel Judgement: Pirates and Modern Day Torturers – What a Conundrum!', iLawyer, 26 May 2013.

Social media links

A case overview can be found on the blog on the US Supreme Court, SCOTUSblog. Much discussion on the decision can be found on the Opinio Juris blog. See for example: