Death of a Statute: The Kiobel Ruling

by John Knox | April 19, 2013

On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims.  

In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell’s decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. 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 human rights abuses.  

In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, ...

Kiobel Returns!

by John Knox | September 28, 2012
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 ...

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