Kiobel v. Royal Dutch Petroleum Co.

** UPDATE: The Court has ordered the parties to submit new briefs on the new question of whether the Alien Tort Statute should apply to acts committed outside of the United States. The Court will hear arguments on the parties’ new briefs during the term that begins in October 2012. **

What’s at stake? 
Holding corporations responsible for human rights violations committed overseas.

Issue:
Whether corporations may be held liable for torts that violate the law of nations, such as torture, murder, and genocide, under the Alien Tort Statute.

Argument Date:
February 28, 2012

What the case is about:
Twelve Nigerian nationals sued Royal Dutch Petroleum and two other oil companies for aiding and abetting human rights abuses committed in the Ogoni Region of Nigeria in the early 1990s. Defendants have long been involved in oil exploration and production activities in the Ogoni region. To protest the environmental degradation caused by those activities, Nigerian residents organized the “Movement for Survival of Ogoni People.” Plaintiffs allege that defendants responded by enlisting the Nigerian government to suppress the Ogoni activists. In 1993 and 1994, the Nigerian military was involved in a variety of human rights abuses – shooting, killing, beating, raping, and arresting residents, as well as destroying and looting property – allegedly with the assistance of defendants.

To obtain compensation, and to deter future corporate wrongdoing, plaintiffs brought their claims under the Alien Tort Statute (“ATS”), alleging that defendants had aided and abetted the Nigerian government in violating the law of nations, including extrajudicial killing, crimes against humanity, torture or cruel, inhuman, and degrading treatment, arbitrary arrest and detention, forced exile, property destruction, and violation of the rights to life, liberty, security, and association.

The District Court dismissed certain of plaintiffs’ claims, finding that they were not established clearly enough under customary international law, while permitting the remainder to proceed.  Both parties appealed the court’s ruling. Rather than decide the issues that had been certified for appeal, in a 2-1 decision, a panel of the Second Circuit Court of Appeals dismissed all of plaintiffs’ claims by finding that corporations are not liable under the ATS. The ATS, which was enacted by the first Congress in 1789, establishes jurisdiction for torts “committed in violation of the law of nations or a treaty of the United States.” Considering that limited grant of jurisdiction, the majority concluded that, under customary international law, while States and individual men and women have been held liable for human rights violations, juridical “persons” such as corporations have not. The majority acknowledged that corporations are generally deemed “persons,” with corresponding rights and liabilities, under U.S. domestic law. However, it insisted that liability under domestic law – including under the laws of “most or even all ‘civilized nations’” – does not create a norm of customary international law.

As Judge Leval, who concurred only in the judgment, stated in a separate opinion, the majority “deal[t ] a substantial blow to international law and its undertaking to protect fundamental human rights” by creating a rule “[w]ithout any support in either the precedents or the scholarship of international law.” In Judge Leval’s view, the majority mistakenly derived from the lack of jurisdiction for international criminal tribunals to impose criminal punishments on corporations, a lack of precedent for the civil compensatory liability of corporations.

Furthermore, in order to reach this issue, which had never been raised in the litigation, the court deemed it a jurisdictional question, which the court may address on its own at any point, rather a question of the merits of the case, which is waived if not raised by the defendants. The Second Circuit’s holding created a split among the Circuits, as the Eleventh Circuit has held that corporations can be held liable under ATS just like any private party. The issue of corporate liability under the ATS is also pending in the D.C., Seventh, and Ninth Circuits.

The Supreme Court will also hear argument in the related case of Mohamad  v. Rajoun. In that case, the family of a U.S. citizen, who allegedly died of injuries sustained during torture by officers of the Palestinian Authority and the Palestine Liberation Organization, sued under the 1991 Torture Victim Protection Act (“TVPA”). The D.C. Circuit affirmed the district court’s dismissal of plaintiffs’ claims on the grounds that the TVPA – which establishes the civil liability of “individuals” – applies only to natural persons, not to organizations.

If the Supreme Court affirms the lower courts’ decisions in favor of the defendants in each of these cases, it will allow corporations and other organizations to act with impunity to perpetrate crimes against humanity. 

» Read AFJ's special report, KIOBEL v. ROYAL DUTCH PETROLEUM: Will the Supreme Court Shield Corporations from Liability for Human Rights Abuses?