Remember Kiobel v. Royal Dutch Petroleum, argued before the Supreme Court last term? It’s back – the Court will hear argument again Monday – and bigger than before.
A brief recap: For decades, Shell has extracted oil from the Niger Delta, causing extensive environmental degradation. The government of Nigeria, with the alleged support of Shell, cracked down on protests by the local residents, the Ogoni tribe, by executing their leader, Ken Saro-Wiwa, and eight others in 1995. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law. They relied on the Alien Tort Statute (ATS), a law enacted by the First Congress in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law.
In 2010, the Second Circuit put the brakes on their effort by holding that corporations can neverbe liable under the ATS because corporations can never violate international law. Other circuit courts disagreed, as did many commentators. So when the Supreme Court issued cert. in 2011, the plaintiffs had reason to be cautiously optimistic that they would prevail.
But after oral argument in early 2012, the Court surprised everyone by dramatically changing the issue, from corporate liability to extraterritoriality. Specifically, it set the case for another round of briefing and argument on whether the ATS applies to any suits against any defendant for violations occurring within foreign territory. As I wrote in March, that raised the stakes for human rights advocates. Plaintiffs could try to work around a “can’t sue corporations” rule by suing individual corporate officials. But there may not be many foreign human rights claims of any kind – against corporations, individuals, or governments – that will survive if the rule is “can’t sue for anything that happens in another country.”
Given the history of the case, it would be rash to make predictions, but it probably isn’t a good sign for the plaintiffs that the Solicitor General has urged the Court to decide against them. The U.S. government says that corporations can be liable under the ATS, and it suggests that the Court should not adopt a flat rule against all extraterritorial application. But it also argues that in circumstances like these, where the plaintiffs, the defendants, and the location of the alleged tort are all foreign, the Court “should not fashion a federal common-law cause of action” because “the United States cannot be thought responsible in the eyes of the international community for affording a remedy for the company’s actions, while the nations directly concerned could.”
Of course, whether the other nations involved actually would provide such a remedy is another story, one that the Solicitor General seems disinclined to tell. The simple reason why plaintiffs like Esther Kiobel often seek remedies in U.S. courts for atrocious human rights violations is that they believe the remedies here are more effective than those offered in other forums, if they are available at all. It seems increasingly likely, though, that she and many others like her will soon have to take their chances elsewhere.